Minister for Immigration & Multicultural Affairs v Capitly

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 59

Jones 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) approved

MINISTER FOR IMMIGRATION AND MULTICULTURAL
AFFAIRS v ARIEL CAPITLY

NG 1090 of 1998

WILCOX, HILL AND MADGWICK JJ
5 MARCH 1999

SYDNEY

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 Appellant
AND:	ARIEL CAPITLY Respondent
JUDGES:	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 Appellant
AND:	ARIEL CAPITLY Respondent
JUDGES:	WILCOX, HILL AND MADGWICK JJ
DATE:	5 MARCH 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX AND HILL JJ:

1. 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.

2. 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.

3. On 8 July 1997 the Tribunal forwarded a letter to Mr Capitly.  The Tribunal advised him that it was unable to make…