WZAOM v Minister for Immigration - [2012] FMCA 993

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAOM v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 993

MIGRATION – Refugee claims of offshore entry person arriving in 2009 – judicial review of IMR report – no arguable ground of review – protracted administrative and court proceedings – application dismissed.

Federal Magistrates Court Rules 2001 (Cth), r.12.03
Migration Act 1958 (Cth), ss.36(2), 46A

Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319, [2010] HCA 41
WZAOQ & WZAOR v Minister for Immigration & Anor [2011] FMCA 869

Applicant:

WZAOM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

WENDY BODDISON,
IN HER CAPACITY AS
INDEPENDENT MERITS REVIEWER

File Number:

PEG 136 of 2011

Judgment of:

Smith FM

Hearing date:

25 October 2012

Delivered at:

Sydney

Delivered on:

25 October 2012

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr A Markus

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

PEG 136 of 2011

WZAOM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

WENDY BODDISON, IN HER CAPACITY AS
INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is another unfortunate case concerning an offshore entry person, which has come into my docket after a protracted process of administrative decision‑making and judicial management of the proceedings. The applicant is a national of Vietnam, who arrived without any travel and identity documents on an intercepted boat, which was taken to Christmas Island in October 2009. He then presented claims for being permitted to make an onshore application for a protection visa.
Under administrative procedures followed by the Minister at that time, the Minister obtained assessments of the applicant’s ability to meet criteria under s.36(2), so as to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether the applicant would be allowed to make an application for an onshore protection visa. The applicant’s RSA request was submitted on 31 December 2009. He was interviewed on 4 January 2010, and a determination was made by an officer of the Department on 19 April 2010 that the applicant did not meet the definition of refugee as set out in Article 1A of the Refugees Convention.
The applicant’s initial refugee claims are found in notes of his interview on arrival, and in a statement of claim signed by the applicant and an interpreter, which was prepared with the assistance of a migration agent from Adelaide who had attended to assist the applicant on Christmas Island. Essentially, the RSA statement repeated what the applicant had said on his arrival, which was recorded:
1.Why did you leave your country of nationality (country of residence)?
As a fisherman I earn about 600,000 to 700,000 dong per month (less than $50 AU) and with this money I have to support my elderly parents my families life is…

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 993
Decision Date: 25 October 2012

CaseChat Overview and Summary

The applicant, WZAOM, sought a review of a decision by the Minister for Immigration to cancel their visa. The Federal Court was tasked with examining the decision-making process and determining whether it was lawful and reasonable. The central issue before the court was whether the Minister's decision to cancel the visa was supported by proper legal authority and whether it was a decision that a reasonable person in the Minister's position, properly directing themselves to the law and acting in good faith, could have made.

The court examined the evidence and arguments presented by both parties, focusing on the application of the Migration Act and relevant regulations. The court held that the Minister's decision was based on a proper interpretation of the law and was supported by the evidence. The court found that the Minister had acted within their statutory powers and that the decision was a reasonable one that a person in the Minister's position could have made. The court also noted that the applicant had not provided any new evidence or argument that would warrant a different outcome.

In light of the above, the court dismissed the application for judicial review. The court ordered that the applicant pay the first respondent's costs in the sum of $5,000. The decision underscores the importance of adhering to legal processes and the threshold for overturning administrative decisions in immigration matters.

Orders

Orders of the court

The application is dismissed.

The applicant must pay the first respondent’s costs in the sum of $5,000.

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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