Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 3) [2004] FCA 750

FEDERAL COURT OF AUSTRALIA

Nezovic v Minister for Immigration & Multicultural & Indigenous Affairs (No 3)

[2004] FCA 750

MIGRATION – judicial review – cancellation of visa – character test – substantial criminal record – failure to consider whether visa holder failed to satisfy Minister that he passed character test – jurisdictional error – no statement of reasons – issues document – evidence of course of reasoning – finding of failure to pass character test – no consideration in that finding of visa holder's evidence – reference to discretionary factors – reference to visa holder's evidence without analysis – limited evidence based upon letter that visa holder convicted of murder at age 15 in Yugoslavia – conflicting evidence from visa holder – conflicting official records – evidence that conviction expunged – relevance of evidence acquired after decision and after proceedings commenced relevance to jurisdictional error at time of decisions – relevance to discretion to grant relief – application allowed

Migration Act 1958 (Cth) s 501(2), s 501(6), s 501(7), s 501(10), s 501(12)

Judiciary Act 1903 (Cth) s 39B

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 applied

Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359 cited

RIFAT NEZOVIC AND ANOTHER v THE MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

W47 OF 2003

FRENCH J

11 JUNE 2004

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W47 OF 2003

BETWEEN: RIFAT NEZOVIC

FIRST APPLICANT

SEIDA NEZOVIC

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FRENCH J