WZARI v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):
WAD 161 of 2013
Judge(s):
SIOPIS J
Date of judgment:
9 August 2013
Catchwords:
MIGRATION – appellant’s visa cancelled on character grounds – appellant claimed protection visa – the appellant claimed to fear that he would suffer serious harm arising from the anxiety and stress of being separated from his family – whether this consideration relevant to his application for a protection visa.
SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 SZNNE v Minister for Immigration and Citizenship (2010) 114 ALD 138
Date of hearing:
31 July 2013
Place:
Perth
Division:
GENERAL DIVISION
Category:
Catchwords
Number of paragraphs:
45
Counsel for the Appellant:
The Appellant appeared in person.
Counsel for the Respondent:
Mr P Macliver
Solicitor for the Respondent:
Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 161 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:
WZARI Appellant
AND:
MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
9 AUGUST 2013
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 161 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:
WZARI Appellant
AND:
MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
JUDGE:
SIOPIS J
DATE:
9 AUGUST 2013
PLACE:
PERTH
REASONS FOR JUDGMENT
The appellant is a Fijian citizen. He arrived in Australia with his family in 1990 at the age of 13 years. The appellant’s most recent visa was a Partner (Class BS subclass 801) visa, granted on 26 May 2004. The appellant has three children and several family members in Australia.
On 24 March 2005, the appellant was convicted of aggravated sexual penetration without consent, unlawful detention, threats to kill and breach of a violence restraining order and sentenced to 7 years and 3 months imprisonment.
On 10 March 2010, the Minister for Immigration and Citizenship (the Minister) cancelled the appellant’s visa on character grounds under s 501 of the Migration Act 1958 (Cth).
The appellant, whilst still in prison, lodged an application for review of the Minister’s visa cancellation decision with the Administrative Appeals Tribunal (the AAT). However, on 12 April 2010, the appellant’s application was dismissed on the basis that the AAT lacked jurisdiction.
Upon his release…
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
AGLC
WZARI v MIMAC [2013] FCA 788
Case
[2013] FCA 788
Decision Date
CaseChat Overview and Summary
In the case of WZARI v MIMAC, the appellant, WZARI, sought to appeal a decision cancelling his visa on character grounds. The appellant, a non-citizen, had applied for a protection visa, claiming he feared serious harm due to anxiety and stress from being separated from his family. The Federal Court was tasked with determining whether the appellant's fear of separation-induced anxiety and stress was a relevant consideration for his protection visa application.
The legal issues before the court involved the interpretation and application of the Migration Act 1958 and the relevant visa criteria, particularly focusing on the grounds for cancelling a visa on character grounds and the criteria for granting a protection visa. The court had to assess whether the appellant's claims about the harm he would suffer due to separation from his family were relevant and sufficient to warrant a protection visa.
The court, in its reasoning, found that the appellant's claims did not meet the threshold for a protection visa. It held that the apprehension of anxiety and stress arising from separation from family, without more, did not constitute a basis for a protection visa under the Migration Act. The court further determined that the appellant's visa had been correctly cancelled on character grounds. Consequently, the appeal was dismissed, and the appellant was ordered to pay the first respondent's costs.
The final orders of the court were that the appeal be dismissed and that the appellant pay the first respondent's costs, in accordance with Rule 39.32 of the Federal Court Rules 2011. This decision underscores the stringent criteria required for protection visas and the court's role in ensuring that visa applications are assessed against the proper legal standards.
Orders
Orders of the court
1. The appeal is dismissed.
2. The appellant is to pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.