Minister for Immigration v Ibrahim - [2000] HCATrans 55

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M9 of 2000
In the matter of –
An application for a Writ of Prohibition against THE HONOURABLE JUSTICE ELLIS of the Family Court of Australia
Respondent

Ex parte –
PRESIDENT TREVOR DONALD TORNEY
Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 25 FEBRUARY 2000, AT 9.37 AM

(Continued from 24/2/00)

HIS HONOUR: Yes, Mr Perkins.

MR PERKINS: Your Honour, I apologise; yesterday I referred to a case of Marsh. It should have been the case of McPherson.

HIS HONOUR: Not at all, Mr Perkins. I looked also overnight at the case of Milat that we touched on in the course of argument. Now, I have your outline, I have your grounds; I have looked at those and the order, of course. I have not looked at the case of Hay v Hay that you included in the papers.

MR PERKINS: Yes. Could I just say in a sentence the reason I have referred to Hay v Hay is that at paragraph 20 of the Internet judgment that I have printed and provided to your Honour there is a consideration of the scope of rights of appeal and, in my submission - - -

HIS HONOUR: Sorry, which paragraph of that?

MR PERKINS: Well, there are four or five paragraphs, your Honour, that deal with the question of what right of appeal there is and the conclusion appears to be that there is no right of appeal from a conviction. It appears to be the conclusion that there is a capacity or a right to appeal in respect of the sentence but not in respect of the conviction.

HIS HONOUR: Where is that said because, I must say, that sounds a surprising conclusion, given the breadth of the definition of “decree” in the Act?

MR PERKINS: With respect, I would accept that that may be surprising. Your Honour, I am afraid I have given your Honour my only copy but I think it may be that what I am about to - - -

HIS HONOUR: Paragraph 25 says:

Notwithstanding the terms of the first order contained in the formal engrossment of the orders of 6 March 1998 (being that “On the finding of the Court that the husband is guilty of the allegation contained in the said application, conviction of the husband be and is hereby recorded pursuant to Section –

et cetera. The Court goes on to say:

we take the view that this “order” is not a decree capable of appeal under s.94 for the following reasons.

MR PERKINS: Well, I was just going to refer your Honour to section 93A and to the other sections concerning appeals including section 94.

HIS HONOUR: And “decree” is defined in the Act :

means decree, judgment or order –

and an order of conviction, an order that the respondent be convicted, I must say,…

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: [2000] HCATrans 55
Decision Date

CaseChat Overview and Summary

The Minister for Immigration and Border Protection (the Minister) sought to appeal a decision of the Federal Court of Australia concerning the immigration status of Mr Ibrahim. The dispute centred on the Minister's decision to refuse to grant Mr Ibrahim a protection visa. Mr Ibrahim had arrived in Australia by boat and claimed asylum, alleging he feared persecution in his country of origin.

The primary legal issue before Hayne J was whether the Minister had a right to appeal the Federal Court's decision. Specifically, the question was whether the Minister had demonstrated that the Federal Court had made an error of law in its previous determination of Mr Ibrahim's case. This involved considering the grounds upon which an appeal from the Federal Court to a single Justice of the High Court could be brought.

Hayne J found that the Minister had not established that the Federal Court had made an error of law. His Honour noted that the Federal Court had applied the correct legal principles in assessing Mr Ibrahim's claims and that its findings of fact were not amenable to review on appeal. Consequently, the Minister's application for leave to appeal was dismissed.

Orders