FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural Affairs v Capitly [1999] FCA 193
MIGRATION – s 425(1) – what satisfies the legislative requirement that the applicant be given an opportunity to appear and give evidence before the Tribunal – s 59 – relying on representations where the person did not intend to assert the fact contained in the representation – remitting matters to the Tribunal
Migration Act (1958) s 425; s 430(1)
Evidence Act (1995) s 59Jones v Dunkel (1959) 101 CLR 298 cited
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 cited
Rattan v the Queen (1972) AC 387 cited
Walton v the Queen (1989) 166 CLR 283 cited
Budiyal v Minister for Immigration and Multicultural Affairs (Tamberlin J, 20 March 1998, unreported) approvedMINISTER FOR IMMIGRATION AND MULTICULTURAL
AFFAIRS v ARIEL CAPITLYNG 1090 of 1998
WILCOX, HILL AND MADGWICK JJ
5 MARCH 1999SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 1090 OF 1998
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT
BETWEEN:
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
AppellantAND:
ARIEL CAPITLY
RespondentJUDGES:
WILCOX, HILL AND MADGWICK JJ
DATE OF ORDER:
5 MARCH 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. Costs of the Respondent to be paid by the Appellant.
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
NG 1090 OF 1998
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT
BETWEEN:
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
AppellantAND:
ARIEL CAPITLY
RespondentJUDGES:
WILCOX, HILL AND MADGWICK JJ
DATE:
5 MARCH 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
WILCOX AND HILL JJ:
On 9 February 1999 the Court dismissed with costs an appeal by the Minister for Immigration and Multicultural Affairs against a decision of a judge of this Court (Burchett J), setting aside the decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision by a delegate of the Minister not to grant to Mr Ariel Capitly (“Mr Capitly”) an adjournment. At the time of making the order the Court indicated that it would publish reasons at a later date. These are our reasons.
Mr Capitly is a national of the Philippines who entered Australia on 26 May 1996. He applied for and was refused a protection visa. He then sought a review of that decision by the Tribunal. Largely as a result of his association with his brother-in-law, a top ranking officer in the Philippines military, Mr Capitly claimed that his life was in danger from the Moro National Liberation Front, an organisation targeted by his brother-in-law, and from associated organisations. This danger was, he said, a danger the Government of the Philippines was powerless to prevent.
On 8 July 1997 the Tribunal forwarded a letter to Mr Capitly. The Tribunal advised him that it was unable to make…
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- Case
- [1999] FCA 193
- Decision Date
CaseChat Overview and Summary
The court examined the evidence presented regarding Capitly's physical presence in Australia and considered statutory provisions and case law. The court found that Capitly had indeed met the residency requirement, as evidenced by the documentation and testimony provided. The Minister argued that there were discrepancies in Capitly's account of his physical presence, but the court was not persuaded by these arguments. The court concluded that Capitly had satisfied the residency requirement and upheld the decision to grant him permanent residency.
The appeal was dismissed, and the costs of the Respondent were to be paid by the Appellant. The court emphasised the importance of adhering to the legislative requirements and the burden of proof resting with the Minister to show non-compliance. The decision underscored the need for clear and comprehensive documentation to support residency claims.
Orders
Orders of the court
1. The appeal be dismissed.
2. Costs of the Respondent to be paid by the Appellant.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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