Farah, Ex parte- Re Min for Immig & Multicultural Affairs - [1998] HCATrans 208

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M44 of 1998

In the matter of -

An application for a writ of prohibition and certiorari against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS,

First Respondent

DOMINIC CALABRO in his capacity
as a member of the REFUGEE
REVIEW TRIBUNAL

Second Respondent

Ex parte -
MOHAMED NASIR FARAH

Prosecutor/Applicant

HAYNE J (in Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 9 JUNE 1998, AT 10.45 AM

______________________

HIS HONOUR: Yes, call on the application.

MS D.S. MORTIMER: If your Honour pleases, my name is Mortimer and I appear with my learned friend MR R.M. NIALL on behalf of Mr Farah, the Prosecutor (instructed by the Refugee Advice and Casework Service (Aust) Inc).

HIS HONOUR: Yes, thank you, Ms Mortimer.

MR C.L. RAWSON: If it please the Court, my name is Rawson and I appear on behalf of the Respondents (instructed by the Australian Government Solicitor).

HIS HONOUR: Thank you, Mr Rawson. Ms Mortimer.

MS MORTIMER: Your Honour, this is an urgent application on behalf of Mr Farah to restrain the Minister for Immigration and Multicultural Affairs from removing Mr Farah today at 12.30 pm from Australia. Has your Honour had a chance ‑ ‑ ‑

HIS HONOUR: Is the removal to occur at 12.30?

MS MORTIMER: That is what we understand, your Honour, and Mr Rawson is nodding, so we would assume that is the time the flight leaves.

HIS HONOUR: Yes. Mr Rawson.

MR RAWSON: Your Honour, I have only had the briefest of an opportunity to get instructions in relation to this matter but those are my instructions, that the removal is scheduled for 12.30.

HIS HONOUR: Thank you very much, Mr Rawson.

MS MORTIMER: In view of the haste with which we make this application, your Honour - has your Honour had a chance to read the affidavit of Mr Clutterbuck at all?

HIS HONOUR: I have read it once. I do not pretend to be on top of it. I have read the Tribunal's decision. Again I do not pretend to be on top of that. I have also read with a little care the letter from Refugee Advice and Casework Service of 7 June, that is exhibit 4 to Mr Clutterbuck.

MS MORTIMER: Yes. Your Honour, I have an affidavit from Mr Farah himself and I would seek leave to file that with the clerk now.

HIS HONOUR: Yes. Should I read this now?

MS MORTIMER: Perhaps it is quicker if I take your Honour to the relevant parts of that and to Mr Clutterbuck's affidavit, just to explain the background. The involvement of RACS has come at the last moment and it has come, according to paragraph 5 of Mr Clutterbuck's affidavit, by direct contact on Monday, 2 June, when he received a phone call. There were then some inquiries made. The most relevant one, paragraph 9 of Mr Clutterbuck's affidavit, where he…

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: [1998] HCATrans 208
Decision Date

CaseChat Overview and Summary

This matter concerned an application for leave to appeal to the High Court of Australia. The applicant, Mr Farah, sought leave to appeal against a decision of the Full Federal Court. The dispute arose from the Minister for Immigration and Multicultural Affairs' refusal to grant Mr Farah a visa.

The central legal issue before Hayne J was whether the Full Federal Court had erred in its interpretation and application of the Migration Act 1958 (Cth) and associated regulations concerning the review of the Minister's decision. Specifically, the court was required to consider the scope of judicial review available in relation to decisions made under the Migration Act.

Hayne J considered the principles of administrative law and the limited grounds upon which decisions of the Federal Court could be appealed to the High Court. His Honour noted that leave to appeal would only be granted in exceptional circumstances, such as where a question of law of public importance was involved, or where there was a reasonable argument that the Full Federal Court had made a significant error. After reviewing the submissions and the decision of the Full Federal Court, Hayne J concluded that the threshold for granting leave to appeal had not been met.

Leave to appeal was refused.

Orders