FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWAP v MINISTER FOR IMMIGRATION | [2015] FCCA 511 |
| Catchwords: MIGRATION – Review of the decision of the delegate – protection (class XA)(subclass866) visa – whether issue of notice of intention to consider cancellation invalid – whether the delegate failed to consider an integer of the claim – consideration of Migration Regulations as existed prior to amendment – application dismissed. |
| Legislation: Acts Interpretation Act 1901 s.33 |
| McDade v Minister for Immigration and Multicultural Affairs [2000] FCA 528 Tickner v Chapman (1995) 57 FCR 451; (1995) 133 ALR 226 |
| Applicant: | SZWAP |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 199 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 4 March 2015 |
| Date of Last Submission: | 4 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 4 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | D’Ambra Murphy Lawyers |
| Counsel for the Respondent: | Mr M. J. Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application be dismissed.
Applicant pay the First Respondent’s costs fixed in the sum of $5000.
No publication of the Applicant’s name or the name of the Applicant’s husband.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 199 of 2015
| SZWAP |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
As Corrected
This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 for a Constitutional writ in respect of two different subject matters. First, a decision of the Minister made on 22 December 2014 and secondly, in relation to the issue of a notice under s.109 on 17 March 2014 which again was a notice signed by the Minister.
When the matter first came before the Court, the Court raised concern as to whether the grounds identified in the application disclosed an arguable ground and in light of that concern the matter was listed for brief argument on 27 February 2015 as the applicant was in detention and in light of the assistance provided by Mr Karp, the Court was satisfied that there was an arguable case and the matter was listed for urgent final hearing today.
The grounds of the further amended application are as follows:
1. The Respondent acted in breach of ss 108 and 109 of the Migration Act, and the requirements of procedural fairness, in that he failed to lawfully consider the applicant’s claim that she acted under duress in making false statements to the Minister in support of her Protection Visa application in 2009.
2. The issue of the “Notice of Intention to Consider Cancellation Under Section 109 of the Migration Act” on 17 March 2014 to the applicant under s. 107 of the Migration Act, was invalid, with the result of the cancellation of her Protection Visa pursuant to s. 109 was invalid.
Particulars
(a) The issue of the Notice of 17 March 2014 was contrary to…
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- Case
- [2015] FCCA 511
- Decision Date
CaseChat Overview and Summary
The court was required to determine two primary legal issues. Firstly, whether the notice of intention to consider cancellation issued under section 107 of the relevant Act was valid. Secondly, the court had to consider whether the delegate failed to consider an integral part of the applicant's claim, which was linked to the validity of the cancellation notice.
Judge Street's reasoning focused on the interpretation of section 107 of the Act and its interaction with other provisions, particularly section 112. The court considered whether the power to issue a section 107 notice could be exercised from time to time, as supported by section 33(1) of the Acts Interpretation Act 1901. However, the court found indications within the Act, specifically in subdivision C of Division 3, that suggested a contrary intention, implying a structured process for cancellation that should be completed before a new notice could be issued on the same facts. Despite acknowledging the reasoning in *McDade*, which suggested a system that negated the exercise of power from time to time without due completion, the court ultimately concluded that section 112 did not prevent the issue of a notice in respect of non-compliance in a fresh determination by the Minister. Therefore, the court found the notice to be valid and dismissed the applicant's grounds of challenge.
The application was dismissed, and the applicant was ordered to pay the First Respondent's costs fixed at $5000. The court also ordered that the applicant's name and the name of the applicant's husband not be published.
Orders
Orders of the court
1. The Application be dismissed.
2. Applicant pay the First Respondent’s costs fixed in the sum of $5000.
3. No publication of the Applicant’s name or the name of the Applicant’s husband.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
That is clear from what was said by Nicholson J in para.[46]:46. S33(1) of the Acts Interpretation Act 1901 supports a construction of s107 as the source of power to be exercised from time to time as the occasion requires unless the Act indicates a contrary intention. In my view there are indications in subdivision C of Div 3 of the Act of such a contrary intention. They are:(a) In s107(1):(i) the requirement in s107(1)(c) stating that the Minister will consider cancelling the visa in the circumstances there referred to.(ii) the requirement in s107(1)(d) that s112 is among these, the effect of which is set out in the notice.(b) The requirement in para108(b) that the Minister "...decide whether there was non-compliance by the visa holder in the way described in the notice". The notice itself specifies the relevant alleged non-compliances: s107(1)(a).(c) The provisions of s110 and s111 and the use of the phrase in each "to avoid doubt", indicating a certain exactitude in the regime being established by s107-s109.(d) The implication of s112(1) that a second notice under s107 is prevented where the second notice is not related to "another instance of possible non-compliance;" that is, a second notice cannot relate to matters already the subject of a notice still under consideration (emphasis added). The reasoning in McDade made clear that it was not purporting to determine that no fresh s.107 notice could be issued in respect of the same subject matter, in respect of a different decision making process. Paragraph 47, in McDade provides:47. The cumulative effect of these provisions is to establish a system of such character that it negates any intention that the power in s107 is able to be exercised from time to time without due completion of the system thus established. Accordingly, I consider the exercise of power in the issue of the Second Notice under s107 on the same facts and circumstances would be an invalid exercise of power if the Minister has not resolved the prior notice pursuant to s108(b) cf Scarfe v Federal Commissioner of Taxation (1920) 28 CLR 271 at 275; Vella v Grey (1985) 61 ALR 210 at 213 (emphasis added). I note that the decision in McDade went on appeal and that the decision was reversed, albeit on other grounds, and this topic was not addressed. Mr Karp sought to add attraction to his argument that one could never reagitate the subject matter of a s.107 notice in a fresh deliberation by reason of the provisions of s.133A. Section 1331A does not have that effect. In my opinion, s.112 must be read in the context of s.33 of the Acts Interpretation Act 1901 and 33(1) of the Acts Interpretation Act, which supports that the power may be exercised in relation to s.107 from time to time. The work done by s.112 in respect of another instance of possible non-compliance, is confined to the consideration and decision making in respect of an existing 107 notice. Accordingly, the decision of McDade does not assist the applicant in this case. I am satisfied that the notice under s.107 in this case was valid and I am satisfied that s.112 does not prevent the issue of the notice in respect of non-compliance in a fresh determination by the Minister and in these circumstances, there is no substance in ground 2 or ground 3, in relation to the challenge to the Minister’s decision.