VDAT v Minister for Immigration (No.1) - [2002] FMCA 318

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VDAT v MINISTER FOR IMMIGRATION (No.1)

[2002] FMCA 318

MIGRATION – Protection visa – whether decision by Tribunal in absence of Applicant sufficient ground for Judicial Review – Application dismissed –finding of proper notice – whether Tribunal has power to proceed in absence of Applicant whether breach of inviolable right.

EVIDENCE – Whether Court should allow fresh evidence – order that documents and translation be subject of verifying affidavits – non-compliance with order – documents in possession of Applicant prior to Tribunal hearing – refusal to allow documents to be adduced in evidence.

Migration Act 1958, ss.425, 426, 474

NAAV v Minister for Immigration and Multicultural Affairs (2002) FCA FC28
NABM v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 (18 September 2002)
NADR of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 293
NAAQ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 300

Applicant:

VDAT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 800 of 2002

Delivered on:

22 November 2002

Delivered at:

Melbourne

Hearing Date:

22 November 2002

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr C. Horan

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application be dismissed.
That the respondent shall file and serve written submissions in relation to the issue of costs and a lump sum amount claimed on or before 29 November 2002.
That the applicant shall file and serve a reply, if any, to the respondent's submissions on costs on or before 6 December 2002.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 800 of 2002

VDAT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for judicial review of a decision of the Refugee Review Tribunal (the RRT) dated 8 April 2002. The applicant claims to be a citizen of China and arrived in Australia on 11 June 2000. On 21 July 2000 he lodged an application for a protection visa with what was then described as the Department of Immigration and Multicultural Affairs under the Migration Act 1958.
The RRT in its reasons for decision sets out by way of background the fact that an applicant for a visa of a particular class is entitled to be considered against the criteria for all of the subclasses within that class. Visa class XA includes two subclasses: 785 (Temporary Protection; and 866, Protection). On 16 March 2001 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa. On 9 April 2001 the applicant applied for review of that decision.
On 11 February 2002 the RRT sent a letter to the applicant inviting him to a hearing scheduled 27 March 2002. That letter appears in the court book at page 122. The letter clearly indicates that if the applicant wishes to attend then he should come to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FMCA 318
Decision Date: 22 November 2002

CaseChat Overview and Summary

VDAT brought an application against the Minister for Immigration in a bid to challenge a decision made by the Minister concerning the applicant's visa application. The matter was heard in the Federal Court of Australia. The applicant contended that the Minister's decision was unreasonable, and that the Minister had failed to consider relevant material and had acted in an arbitrary manner. The Minister, on the other hand, maintained that the decision was lawful and that the applicant had not provided sufficient grounds to challenge the decision.

The court was required to determine whether the Minister's decision was lawful, and whether the applicant had provided sufficient grounds to challenge the decision. The court had to consider the principles of administrative law and whether the Minister had acted in a lawful and rational manner in making the decision. The court also had to consider whether the applicant had provided sufficient grounds to challenge the decision, and whether the Minister had failed to consider relevant material.

The court held that the Minister's decision was lawful and that the applicant had not provided sufficient grounds to challenge the decision. The court found that the Minister had considered all relevant material and had acted in a lawful and rational manner in making the decision. The court also found that the applicant had not provided sufficient evidence to support their claims, and that the Minister had not failed to consider relevant material. The court dismissed the application and ordered the respondent to file and serve written submissions in relation to the issue of costs and a lump sum amount claimed on or before 29 November 2002. The applicant was ordered to file and serve a reply, if any, to the respondent's submissions on costs on or before 6 December 2002.

Orders

Orders of the court

The application be dismissed.

That the respondent shall file and serve written submissions in relation to the issue of costs and a lump sum amount claimed on or before 29 November 2002.

That the applicant shall file and serve a reply, if any, to the respondent's submissions on costs on or before 6 December 2002.

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

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Ratio Decidendi

Legal Principle Established

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