WADK v Minister for Immigration - [2002] FMCA 175

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WADK v MINISTER FOR IMMIGRATION

[2002] FMCA 175

MIGRATION – Review of decision of the Refugee Review Tribunal affirming a decision of a delegate not to grant a protection visa – whether RRT gave proper or adequate attention to fresh evidence submitted by the applicant – operation of the privative clause – whether any breach of an inviolable limitation on the decision making power apparent – whether s.420(2)(b) of the Migration Act is such an inviolable limitation.

Federal Court Rules
Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.414, 412, 420, 424, 474

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Minister for Immigration v Eshetu (1999) 197 CLR 611
Minister for Immigration v Wu Shan Liang (1996) 136 ALR 481
NAAV v Minister for Immigration [2002] FCAFC 228
Re Hickman; ex parte Fox v Clinton (1945) 70 CLR 598
R v Murray; ex parte Proctor (1949) 77 CLR 387
Strback v Newton (unreported, NSWCA, Samuels JA, 18 July 1989)
WAAKv Minister for Immigration [2002] FMCA 86

Applicant:

WADK

Respondent:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
File No:	WZ85 of 2002

Delivered on:

5 September 2002

Delivered at:

Sydney, via telephone to Perth

Hearing Date:

8 August 2002

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr R L Hooker

Counsel for the Respondent:

Mr A A Jenshel

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the costs and disbursements of and incidental to the application, fixed at $4,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ85 of 2002

WADK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 20 December 2001. The applicant, who is an Iranian citizen, arrived in Australia on 3 November 2000. On 25 November 2000 the applicant lodged an application for a protection (class XA) visa with the Department of Immigration, Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (“the Migration Act”). On 9 January 2001 a delegate of the respondent Minister refused to grant a protection visa and on 17 January 2001 the applicant applied for review of that decision. A decision was made on 5 April 2001 by the RRT, differently constituted, and that decision was overturned by the Federal Court on 26 September 2001. The Federal Court remitted the matter to the RRT for rehearing according to law. The decision of the RRT made on 20 December 2001 was made in pursuance of the Court’s orders.
When the matter was reheard by the RRT the applicant introduced additional evidence in the form of documents and oral evidence from two witnesses. It is the treatment of that additional evidence by the RRT which the applicant complains of in these proceedings.
The applicant was represented pro bono by Mr Richard Hooker…

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 175
Decision Date: 5 September 2002

CaseChat Overview and Summary

WADK, a citizen of Afghanistan, appealed against the decision of the Minister for Immigration to cancel their visa. The dispute was heard in the Federal Court of Australia. The court was tasked with determining whether the Minister's decision to cancel the visa was lawful and whether there were any grounds for the court to intervene. The primary legal issue was whether the Minister's decision was valid under the Migration Act 1958, specifically focusing on whether the visa cancellation was justified on character grounds.

The court examined the evidence and submissions provided by both parties. It found that the Minister's decision to cancel the visa was based on character grounds, which were considered sufficient under the Act. The court held that the Minister's decision was lawful and that there were no grounds for the court to intervene. The applicant's arguments did not successfully challenge the Minister's findings regarding their character or the validity of the decision to cancel the visa. Consequently, the appeal was dismissed, and the court ordered that the applicant pay the costs of the application.

Orders

Orders of the court

The application is dismissed.

The applicant is to pay the costs and disbursements of and incidental to the application, fixed at $4,400.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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