FEDERAL COURT OF AUSTRALIA
Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546
TERESA PASINI CABAL, CARLOS CABAL PASINI, SOFIA CABAL PASINI, ANAMARIA CABAL PASINI, TERESA CABAL PASINI and CARLOS CABAL PENICHE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V960 OF 2000
MARCO PASINI BERTRAN and MONSERRAT GONZALEZ KARRAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V959 OF 2000
WILCOX, WHITLAM AND MARSHALL JJ
MELBOURNE
10 MAY 2001
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V960 OF 2000
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
TERESA PASINI CABAL
FIRST APPELLANTCARLOS CABAL PASINI
SECOND APPELLANTSOFIA CABAL PASINI
THIRD APPELLANTANAMARIA CABAL PASINI
FOURTH APPELLANTTERESA CABAL PASINI
FIFTH APPELLANTCARLOS CABAL PENICHE
SIXTH APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGES:
WILCOX, WHITLAM AND MARSHALL JJ
DATE OF ORDER:
7 MAY 2001
WHERE MADE:
MELBOURNE
CORRIGENDUM
In the Reasons for Judgment of the Full Court on 7 May 2001:
In the second sentence of paragraph [25], delete the words “at [48] that the RRT”, and insert the words “at [46] that the RRT”.
In the second sentence of paragraph [25], delete the word “evidence” and insert the word “relevance”.
In the list of appearances following the Reasons for Judgment, where Counsel for the Respondent is noted, delete “Mr G Gunst” and insert “Mr C Gunst”.
I certify that this is a true copy of the corrigendum made to the Reasons for Judgment in this matter of the Full Court.
Associate:
Dated: 15 May 2001
FEDERAL COURT OF AUSTRALIA
Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546
IMMIGRATION – Refugees – Application for protection visas – Decision of Refugee Review Tribunal – Whether applicants were given an opportunity to appear – Whether there is an obligation to notify each applicant – Whether notice of hearing was invalid because it imposed certain time constraints – Whether the Refugee Review Tribunal failed to have regard to a request to give oral evidence – Whether there was proper consideration of the application – Whether the correct test was used in determining if the applicants were entitled to protection visas
Migration Act 1958 (Cth) ss 54, 414, 425, 426, 430
Xie v Minister for Immigration and Multicultural Affairs [1999] FCA 1480, (1999) 95 FCR 543 distinguished
Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 discussed
TERESA PASINI CABAL, CARLOS CABAL PASINI, SOFIA CABAL PASINI, ANAMARIA CABAL PASINI, TERESA CABAL PASINI and CARLOS CABAL PENICHE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V960 OF 2000
MARCO PASINI BERTRAN and MONSERRAT GONZALEZ KARRAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V959 OF 2000
WILCOX, WHITLAM AND MARSHALL JJ
MELBOURNE
10 MAY 2001
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V960 OF 2000
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
TERESA PASINI CABAL
FIRST APPELLANTCARLOS CABAL PASINI
SECOND APPELLANTSOFIA CABAL PASINI
THIRD APPELLANTANAMARIA CABAL PASINI
FOURTH APPELLANTTERESA CABAL…
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- Case
- [2001] FCA 546
- Decision Date
CaseChat Overview and Summary
The court examined the procedural fairness obligations under sections 425 and 426 of the Migration Act, which required the RRT to provide the applicants with an opportunity to give evidence and to notify them of this entitlement. The court scrutinised whether the RRT had adequately fulfilled these obligations. The tribunal had notified the applicants, through their legal representatives, of their right to give evidence and had provided them with an opportunity to appear before the tribunal. Despite the lack of a clear response from the legal representative regarding the children's wish to give evidence, the tribunal indicated that it would have accommodated such a wish if expressed. The court held that the applicants had not been deprived of their procedural rights as they were notified of their entitlement to give evidence and had the opportunity to do so.
In dismissing the appeal, the court concluded that the submissions by the appellants were without merit. The court found that the notice sent to the applicants' solicitors was sufficient to comply with the statutory requirements, and the applicants had indeed been given the opportunity to appear and give evidence. The court also rejected the argument that each applicant needed to be individually notified of their right to give evidence, emphasising that notification through the lead applicant's solicitors was adequate. The court found no basis to support the appellants' claims that their procedural rights had been breached.
The court ordered that the appeal be dismissed and that the appellants pay the respondent's costs of the application. This decision underscored the importance of following procedural requirements under the Migration Act and confirmed that the RRT had appropriately exercised its statutory obligations in this case.
Orders
Orders of the court
1.
The appeal be dismissed.
2.
The appellants pay the respondent’s costs of the application.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: WILCOX, WHITLAM AND MARSHALL JJ
His Honour then said at [50] that:“As is observed in the submissions for the Minister, no explicit answer was ever given to the Tribunal’s question whether the Cabal children wished to give evidence. The final statement of the Tribunal, however, indicates that had they wished to do so their wish would have been accommodated. This ground was considered in relation to an application for interlocutory relief by Weinberg J in Peniche v Minister for Immigration and Multicultural Affairs [1999] FCA 709 and his Honour was of the view that the argument raised no serious question to be tried and was “wholly untenable” – [41] and [43]. Whether or not it was arguable that separate notice of the hearing should have been given to the son, notice was given to his solicitors and through them he was afforded the opportunity to appear and give evidence. Nothing in what the Tribunal did compromised his rights.” Counsel for the appellants contended that Carlos Cabal Jnr was not afforded an opportunity to appear and give evidence to the RRT. That submission is devoid of merit and is specifically contrary to the intimation of the RRT expressed in its letter of 4 February 1999. At the hearing before the RRT on 22 February 1999, the RRT member conducting the hearing asked the legal representative of the applicants for protection visas whether the children would give evidence “as applicants”. No clear response to this question was given. It defies reality in these circumstances for it to be contended that the Cabal children were denied their procedural rights under ss425 and 426 of the Act as it then stood. Section 425 of the Act obliged the RRT to give the applicants an opportunity to appear before it and give evidence. Section 426 obliged the RRT to notify the applicants of their entitlement to give evidence. The applicants were so notified. They were also given an opportunity to appear. The appellants’ submissions on this point are devoid of merit. The appellants submitted that s426 of the Act required that each applicant personally be advised of his or her entitlement to attend a hearing at the RRT. We reject that submission. Notice of the appellants’ right to attend such a hearing was afforded to them by such notice being sent to the lead applicant, care of solicitors representing that person and other applicants, as part of the relevant family units. It is to be noted that this course reflected that adopted by Mrs Cabal in acting on behalf of her children, as well as herself, in lodging the application for RRT review. The letter sent to the solicitors’ office concluded with the following words set out in bold and in a box form as follows: It was submitted on behalf of the appellants that a notice in that form was invalid. Reliance was placed on Xie v Minister for Immigration and Multicultural Affairs [1999] FCA 1480 at [23], (1999) 95 FCR 543 where Cooper J said:“The RRT had no statutory power to impose conditions on the applicant and his family as to the exercise of their statutory right to give evidence on the hearing of their application for review by imposing time limits within which an election to be heard must be made. Nor was the RRT entitled to make the assumption that failure to respond meant that the applicants did not wish to attend on the hearing and give oral evidence as was their entitlement. Although it may have been administratively wearisome, the only course open to the RRT when it determined s 424 did not apply, was to set a date which it notified under s 426 and to proceed to a hearing on that date. It was the hearing which was the occasion on which the applicant and his family were entitled to give evidence or not as they then chose. No internal administrative arrangements of the RRT could take away that entitlement of the applicant and his family; certainly not without their informed consent communicated by them in a positive way to the RRT.”