N258/00A v Minister for Immigration and Multicultural Affairs - [2000] FCA 993

FEDERAL COURT OF AUSTRALIA
N258/00A v Minister for Immigration & Multicultural Affairs [2000] FCA 993
MIGRATION – refugees – application for protection visa – review of decision by Refugee Review Tribunal – cumulative character of s 476(4) – burden of persuasion imposed by s 476(4) – circumstances of application of s 476(4)(a) – whether Tribunal made its decision based on particular facts which did not exist – whether s 476(1)(g) applies to findings of non-existence of facts – whether proof that fact found to exist does not exist must be by admissible evidence – whether s 430(1)(d) requires Tribunal to “detail” or “set out” material on which it bases its findings of fact – whether s 430(1)(b) requires Tribunal to explain why it did not prefer particular material before it.
Migration Act 1958 (Cth), ss 430(1), 476(1)(a), (e), (g) & 476(4)
Arudselvan v Minister for Immigration & Multicultural Affairs [1999] FCA 622; [1999] FCA 1726 discussed
El Hejjar v Minister for Immigration & Multicultural Affairs [2000] FCA 263 referred to
Mohammed v Minister for Immigration & Multicultural Affairs [2000] FCA 264 referred to
Balan v Minister for Immigration & Multicultural Affairs (2000) 171 ALR 7 referred to
Television Capricornia Pty Limited v Australian Broadcasting Tribunal (1986) 13 FCR 511 referred to
Yilan v Minister for Immigration & Multicultural Affairs [1999] FCA 854 referred to
Nefiodova v Minister for Immigration & Multicultural Affairs [2000] FCA 179 referred to
Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 referred to
Angus Mitchell, “New Light on the ‘Heart of Darkness’”, December 1999 History Today 20
N258/00A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N258 of 2000
KATZ J
26 JULY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 258 of 2000

BETWEEN:

N258/00A
APPLICANT

AND:

MINISTER FOR IMMIGRATION
& MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

KATZ J

DATE OF ORDER:

26 JULY 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The applicant’s application for review be dismissed.
2.The applicant pay the costs of the proceeding, apart from the costs thrown away by reason of the late filing and serving of the written submissions prepared on the applicant’s behalf by the New South Wales Legal Aid Commission.
3.Any application by the respondent for the making of an order against the New South Wales Legal Aid Commission for the costs thrown away by reason of the late filing and serving of the written submissions prepared by it on the applicant’s behalf be made within seven days.

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 258 of 2000

BETWEEN:

N258/00A
APPLICANT

AND:

MINISTER FOR IMMIGRATION
& MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

KATZ J

DATE:

26 JULY 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

There is before the Court an application for review of a decision which was made on 21 March 2000 by the Refugee Review Tribunal (“the Tribunal”).…

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] FCA 993
Decision Date: 26 JULY 2000

CaseChat Overview and Summary

An applicant brought proceedings against the Minister for Immigration and Multicultural Affairs in the Federal Court, seeking a review of the Minister’s decision to refuse to grant the applicant a visa. The applicant, a citizen of Vietnam, claimed that he was eligible for a visa under the Migration Act 1958 (Cth) based on his family connections in Australia and his past persecution in Vietnam. The Minister, however, refused the application on the basis that the applicant did not meet the eligibility criteria for a visa and that he had provided false information in his application.

The court was required to decide whether the applicant was eligible for a visa under the Act and whether the Minister’s decision was lawful and reasonable. The court also had to consider whether the applicant’s late filing of written submissions affected the outcome of the case. The court held that the applicant was not eligible for a visa as he did not meet the criteria for family connection or past persecution. The court also found that the Minister’s decision was lawful and reasonable and that the late filing of submissions did not affect the outcome of the case.

The court dismissed the applicant’s application for review and ordered that the applicant pay the costs of the proceeding. The court also noted that any application by the respondent for the making of an order against the New South Wales Legal Aid Commission for the costs thrown away by reason of the late filing and serving of the written submissions prepared by it on the applicant’s behalf be made within seven days.

Orders

Orders of the court

1. The applicant’s application for review be dismissed.

2. The applicant pay the costs of the proceeding, apart from the costs thrown away by reason of the late filing and serving of the written submissions prepared on the applicant’s behalf by the New South Wales Legal Aid Commission.

3. Any application by the respondent for the making of an order against the New South Wales Legal Aid Commission for the costs thrown away by reason of the late filing and serving of the written submissions prepared by it on the applicant’s behalf be made within seven days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KATZ J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KATZ J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 258 of 2000

BETWEEN:	N258/00A APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	KATZ J
DATE OF ORDER:	26 JULY 2000
WHERE MADE:	SYDNEY

JUDGE:	KATZ J
DATE:	26 JULY 2000
PLACE:	SYDNEY