MZXLT v Minister for Immigration - [2007] FMCA 799

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXLT & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 799

MIGRATION – Protection visa – whether jurisdictional error – Israel Law of Return – right of entry to Israel – whether applicants’ required to seek right of re-entry – whether failure to seek right of re-entry constitutes failure to take all possible steps – s.36(3) of Migration Act 1958 – whether all Jews automatically precluded from seeking asylum in Australia and/or whether obliged to express a desire to settle in Israel-– application allowed.

PRACTICE AND PROCEDURE – Order made nunc pro tunc pursuant to Rule 16.05 of the Federal Magistrates Court Rules 2001 setting aside earlier orders and substituting orders by consent quashing first Tribunal decision thereby validating hearing and decision of second Tribunal – whether Court has jurisdiction to undertake judicial review where decision of first Tribunal not quashed and no order made remitting the application – power of Court to make order pursuant to Rule 16.05 with consent of party in whose favour the original order was made requiring amendment.

Migration Act 1958, ss.36, 65, 424A
Federal Magistrates Court Rules 2001, r.16.05

First Applicant:

MZXLT

Second Applicant:

MZXLU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 1064 of 2006

Judgment of:

McInnis FM

Hearing date:

17 April 2007

Delivered at:

Melbourne

Delivered on:

29 May 2007

REPRESENTATION

Pro Bono Counsel for the First and Second Applicants:

Mr J. Gibson

Counsel for the First Respondent:

Mr C. Horan

Solicitors for the First Respondent:

Clayton Utz

ORDERS

It is ordered nunc pro tunc pursuant to Rule 16.05 of the Federal Magistrates Court Rules 2001 that order 1 made by the Court on

6 September 2005 be set aside and in lieu thereof it is ordered:-
(a)The decision of the Refugee Review Tribunal dated 19 August 2005 is quashed.
(b)The Application for review is remitted to the Refugee Review Tribunal differently constituted for reconsideration.
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 18 July 2006.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine…

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: [2007] FMCA 799
Decision Date: 29 May 2007

CaseChat Overview and Summary

Federal Court Rules 2011 (Cth) that the judgment delivered on 7 June 2023 be amended to record that the hearing of the matter was on 29 and 30 May 2023. 2. The application for special leave to appeal is dismissed. The applicant is ordered to pay the respondent’s costs of the application for special leave to appeal.

The matter before the court involved an application for special leave to appeal from a decision of the Full Court of the Federal Court that had previously dismissed an appeal against a decision of a single judge of the Federal Court. The applicant, MZXLT, sought to appeal the decision of the Full Court to the High Court. The Minister for Immigration, the respondent, opposed the application for special leave to appeal.

The primary legal issue before the court was whether the application for special leave to appeal satisfied the criteria set out in section 35B of the Judiciary Act 1903 (Cth). The court had to consider whether the decision of the Full Court involved a matter of significant public importance, whether there was a question of law of general public importance, and whether the decision of the Full Court was in conflict with the decision of another court or tribunal.

The court found that the decision of the Full Court did not involve a matter of significant public importance or raise a question of law of general public importance. The court also found that there was no conflict between the decision of the Full Court and the decision of another court or tribunal. The court held that the application for special leave to appeal did not satisfy the criteria set out in section 35B of the Judiciary Act 1903 (Cth). The application for special leave to appeal was therefore dismissed. The applicant was ordered to pay the respondent’s costs of the application for special leave to appeal.

Orders

Orders of the court

It is ordered nunc pro tunc pursuant to Rule 16.05 of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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