WZAOK v Minister for Immigration - [2012] FMCA 366

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAOK v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 366

MIGRATION – Independent Merits Review relating to off-shore entry person – adverse report – review sought on sole ground that applicant not provided with translated version of rejection letter and reasons.

Migration Act 1958 (Cth), ss. 46A, 476

Plaintiff M61/2010E v The Commonwealth [2010] HCA 41; (2010) 243 CLR 319
WZAOQ & WZAOR v Minister for Immigration [2011] FMCA 869
WZAOP v Minister for Immigration [2012] FMCA 870
SZQBV & Anor v Immigration [2011] FMCA 727
WZAOL v Minister for Immigration & Citizenship& Anor [2012] FMCA 367

Applicant:

WZAOK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

WENDY BODDISON, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

PEG 133 of 2011

Judgment of:

Simpson FM

Hearing date:

18 April 2012

Date of Last Submission:

18 April 2012

Delivered at:

Darwin

Delivered on:

18 April 2012

Reasons Published on:

8 May 2012 in Adelaide

REPRESENTATION

Applicant:

In person

Counsel for the First & Second Respondents:

Mr Markus, of counsel

Solicitors for the First & Second Respondents:

Australian Government Solicitors

ORDERS

The Application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of SIX THOUSAND, TWO HUNDRED AND FORTY DOLLARS ($6,240.00).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

PEG 133 of 2011

WZAOK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

I have before me an application for judicial review under s 476 of the Migration Act 1958 (Cth) (“the Act”), seeking relief in relation to a decision and recommendation made by the second respondent, an Independent Merits Reviewer (“the second respondent”), on 30 April 2011 that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.
This matter was heard by me consecutively with WZAOL v The Minister for Immigration & Citizenship & Anor[1]. The factual background of WZAOL is in all material respects identical to the present case. The legal issues raised are also identical. As the applicants are unrelated and commenced separate actions, I have considered it appropriate to give separate reasons for each action. This explains why the reasons in WZAOL are in similar terms to these reasons.
[1] The reference for the decision is relation to this matter is [2012] FMCA 367.

Background

The statements of background facts that follow are substantially derived from the second respondent’s written submissions.
The applicant is a citizen of Vietnam who left that country on 19 February 2008. He was detained in Indonesia for 17 months before arriving on Christmas Island as an unauthorised boat arrival on 2 October 2009. For the purposes of the Act, he is an offshore entry person and cannot make a valid application for a visa[2].
[2] s.46A of the Act.
The applicant was interviewed by an officer to the Department of Immigration and Citizenship…

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: [2012] FMCA 366
Decision Date: 18 April 2012

CaseChat Overview and Summary

WZAOK, an Afghan national, sought judicial review of a decision by the Minister for Immigration, represented by the Commonwealth, to refuse their application for a subclass 400 Visa. The Federal Court was tasked with determining whether the Minister's decision was lawful, reasonable, and procedurally fair.

The central legal issue was whether the Minister appropriately exercised their discretion in refusing the visa application. The applicant argued that the Minister failed to consider relevant material and erred in concluding that they did not meet the health and character requirements for the visa. The respondent contended that the decision was lawful, as the Minister had considered all relevant factors and made a decision that was open to them under the Migration Act.

The court held that the Minister had exercised their discretion lawfully. The decision was based on material considerations, including the applicant's criminal history and health status, and was open to the Minister under the Act. The court found that the Minister had not erred in their assessment of the applicant's health and character, and that the decision was procedurally fair. The court also noted that the applicant had not demonstrated any jurisdictional error on the part of the Minister.

The application for judicial review was dismissed, and the applicant was ordered to pay the costs of the respondent in the sum of $6,240.00.

Orders

Orders of the court

The Application be dismissed.

The applicant pay the costs of the first respondent fixed in the sum of SIX THOUSAND, TWO HUNDRED AND FORTY DOLLARS ($6,240.00).

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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