Frigger v Kitay (No 3) - [2020] FCA 650

FEDERAL COURT OF AUSTRALIA
NAFK v Minister for Immigration & Multicultural & Indigenous
Affairs [2002] FCA 650
MIGRATION – application by Indonesian National for review of Migration Review Tribunal decision refusing Bridging E (Class WE) visa – self-represented Applicant disclosed no viable basis for review but made frank submissions in support of application for exceptional arrangements for return to country of origin – recommendation to Minister.
Migration Act 1958 (Cth) s 417, 474
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Sch 1 cl 8(2)
Migration Regulations 1994 (Cth) Sch 2 sub-cll 050.211 and 050.212
NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 approved
NABM v Minister for Immigration and Multicultural Affairs [2002] FCA 335 approved
Wang v Minister for Immigration and Multicultural Affairs [2002] FCA 477 approved
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 approved
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 referred to
NAFK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 291 OF 2002
CONTI J
22 MAY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 291 OF 2002

BETWEEN:

NAFK
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

22 MAY 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.        The application for review be dismissed.
2.        The Applicant pay the Respondent’s costs of the proceedings.
Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 291 OF 2002

BETWEEN:

NAFK
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

CONTI J

DATE:

22 MAY 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is an application for review of the decision of the Migration Review Tribunal (“the Tribunal”) handed down on 15 March 2002, which affirmed the refusal of the Minister’s delegate of 5 March 2002 to grant to the Applicant a Bridging E (Class WE) visa. The factual background to today’s application was summarised by the presiding member and for relevant purposes, may be summarised as follows:
(a) The Applicant is a national of Indonesia who was born on 23 August 1968.
(b)The Applicant arrived in Australia on 7 April 1996 on a subclass 676 visa that was due to expire on 2 July 1996.
(c)On 25 September 1996 the Applicant applied for a protection visa and while that visa was being considered, he was granted a Bridging visa, which was valid until 6 April 2000. The protection visa application was refused on 10 October 1997, being a decision which was affirmed by the Refugee Review Tribunal on 2 March 2000.
(d)On 27 March 2000, the Applicant made a request for Ministerial intervention under s 417 of the Migration Act 1958 (Cth) (“the Act”), and on 14 July 2000, he made an application for a Bridging E Visa on the basis of his pending request for…

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.

Continue reading Frigger v Kitay (No 3)

Details

AGLC: Frigger v Kitay (No 3) [2002] FCA 650
Case: [2020] FCA 650
Decision Date: 22 MAY 2002

CaseChat Overview and Summary

The parties in this case are Frigger, the applicant, and Kitay, the respondent. The dispute revolves around a review application made by the applicant in relation to an earlier decision made by a tribunal. The matter was heard in the Federal Court of Australia.

The legal issues before the court were whether the application for review met the necessary criteria to warrant a review of the earlier decision, and whether there were grounds for setting aside the earlier decision. The applicant argued that there were errors in the earlier decision that warranted a review, while the respondent contended that the application did not meet the necessary criteria for a review, and that the earlier decision should stand.

The court found that the application for review did not meet the necessary criteria for a review of the earlier decision. The court held that the applicant had not demonstrated that there were any errors in the earlier decision that warranted a review. Furthermore, the court found that there were no grounds for setting aside the earlier decision. The court concluded that the application for review should be dismissed, and ordered that the applicant pay the respondent’s costs of the proceedings.

Orders

Orders of the court

1. The application for review be dismissed.

2. The Applicant pay the Respondent’s costs of the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CONTI J

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Ratio Decidendi

Legal Principle Established

Established by: CONTI J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 291 OF 2002

BETWEEN:	NAFK APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	22 MAY 2002
WHERE MADE:	SYDNEY

JUDGE:	CONTI J
DATE:	22 MAY 2002
PLACE:	SYDNEY