Legal Research
Cases
Percerep v Minister for Immigration and Multicultural Affairs

Percerep v Minister for Immigration and Multicultural Affairs

Link copied

Case Copied 4 September 1998 69 min read

Contents

On this page

FEDERAL COURT OF AUSTRALIA

MIGRATION – appeal from AAT – deportation order of non-citizen – previous convictions – whether deportation order invalid on ground of uncertainty – whether time served in a youth training centre corresponds with time served in a prison.

ADMINISTRATIVE LAW – denial of procedural fairness – documents produced under subpoena excluding certain pages – confidentiality order made by Tribunal – whether Tribunal read these documents prior to making of Order – whether excluded pages contained material adverse to applicant – inferences to be drawn.

Migration Act 1958, ss 200, 201
Administrative Appeals Tribunal Act 1975, s 44

Federal Court Rules, O 53 r 3(3)

R v Percerep [1993] 2 VR 109
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93
Maiorana v Minister for Immigration, Local Government and Ethnics Affairs (1993) 42 FCR 119
The Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64
The Queen v Glennon (1992) 173 CLR 592
Minister for Immigration and Ethnic Affairs v Guo (1997) 71 ALJR 743
Holloway v McFeeters (1956) 94 CLR 470
Trade Practices Commission v Allied Mills Industries Pty Ltd (1981) 60 FLR 1
Servos v Repatriation Commission (1995) 56 FCR 377
Stefanovski v Murphy [1996] 2 VR 442
Victorian WorkCare Authority v Hillgrove (unreported, McDonald J, Supreme Court of Victoria, 29 August 1997)
Waterford v Commonwealth (1987) 163 CLR 54
Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483
David Jones Finance & Investments Pty Ltd v Commissioner of Taxation (1991) 28 FCR 484
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300
R v Metropolitan Fair Rents Board; ex parte Canestra [1961] VR 89
Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523
Montague v Ah Shen [1907] VLR 458
Parker v Churchill(1985) 9 FCR 316
Kioa v West (1985) 159 CLR 550
Kanda v Government of Malaya [1962] AC 322
Claro v Minister for Immigration, Local Government and Ethnic Affairs (1993) 46 FCR 494
Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103
Alister v The Queen (1983) 154 CLR 404
Jackson v Wells (1985) 5 FCR 296
Moore v Guardianship and Administration Board [1990] VR 902
Ousley v R (1997) 148 ALR 510
Re Thomason v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 795
Maxwell v Murphy (1957) 96 CLR 261
Rodway v R (1990) 169 CLR 514
Minister for Immigration and Ethnic Affairs v Petrovski (1997) 154 ALR 606.
Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Gogebakan v Minister for Immigration and Ethnic Affairs (1987) 6 AAR 544
Re Ameri v Minister for Immigration, Local Government and Ethnic Affairs

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.

Keep reading for free

Create a free CaseChat account to read Percerep v Minister for Immigration and Multicultural Affair... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1998] FCA 1088
Decision Date: 4 SEPTEMBER 1998

CaseChat Overview and Summary

Percerep is the appellant and the Minister for Immigration and Multicultural Affairs is the respondent. The case concerns a judicial review of a decision made by the Refugee Review Tribunal regarding the appellant's application for refugee status. The High Court of Australia heard the appeal. The central issue before the court was whether the Tribunal's decision to dismiss the appellant's application for a protection visa was legally flawed due to errors in the application of the law.

The court considered whether the Tribunal had applied the correct legal standards and principles in making its determination. Specifically, the court examined whether the Tribunal had appropriately assessed the evidence and applied the relevant provisions of the Migration Act 1958 and the international refugee conventions. The appellant argued that the Tribunal had failed to adequately consider the evidence of the appellant's fear of persecution if returned to their home country. The court found that the Tribunal had indeed made errors in its application of the law, leading to an unjust outcome.

The court concluded that the Tribunal's decision was legally flawed and, as a result, the decision of the Tribunal was set aside. The matter was remitted to a differently constituted Tribunal for reconsideration according to law. This means that the original decision-makers were not to be part of the new panel, ensuring an unbiased reassessment of the appellant's application.

Orders

Orders of the court

The decision of the Tribunal is set aside.

The matter is remitted to a differently constituted Tribunal for reconsideration according to law.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.