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Rishmawi v Minister for Immigration & Multicultural Affairs

Rishmawi v Minister for Immigration & Multicultural Affairs

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FEDERAL COURT OF AUSTRALIA
Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611
IMMIGRATION – requirements of s 478 Migration Act 1958
PROCEDURE – non-compliance with rules (O 54B) – whether waiver under O 1 r 8 – whether jurisdiction to waive – whether test of substantial compliance
Migration Act 1958 (Cth), s 476, s 478
Federal Court Rules, O1 r 7, O 1 r 8, O 54B r 2
Federal Court Forms, Form 56
Metroinvest Anstalt v Commercial Union Assurance Co Ltd [1985] 1 WLR 513, 518, referred to
Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695, referred to
Sharif v Minister for Immigration and Multicultural Affairs [1999] FCA 278, applied
Liu v Minister for Immigration and Multicultural Affairs (1997) 72 FCR 345, 348, referred to
HANNA RISHMAWI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Q 17 of 1999
KIEFEL J
5 MAY 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 17 OF 1999

BETWEEN:

HANNA RISHMAWI
Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent

JUDGE:

KIEFEL J

DATE OF ORDER:

5 MAY 1999

WHERE MADE:

BRISBANE

THE COURT DECLARES THAT:
1.The letter received by the Registry on 23 October 1998 is a valid application for the purpose of an appeal under s 478 Migration Act 1958.

2.The application filed 3 February 1999 be taken as an amendment to that filed on 23 October 1998.
THE COURT FURTHER DIRECTS THAT:
3.Ms Rishmawi further amend the application to
(i)make clear which part or parts of s 476(1) of the Migration Act 1958 are relied upon; and
(ii)identify the error, if any, in the reasons of the Refugee Review Tribunal.

4.The Applicant be allowed six weeks to complete the further amendment and notify both the Court and Mr Belcher.
5.Thereafter, the Respondent is to prepare a bundle of documents comprising relevant papers of the Refugee Review Tribunal file and the Departmental file and forward copies of it to the Court and to Ms Rishmawi.
6.The Respondent is to notify the judge’s associate when the matter is ready to be listed for hearing, or whether further directions are necessary.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 17 OF 1999

BETWEEN:

HANNA RISHMAWI
Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent

JUDGE:

KIEFEL J

DATE:

5 MAY 1999

PLACE:

BRISBANE

REASONS FOR JUDGMENT

On 5 May 1999 I made orders to the effect that a letter written by Ms Rishmawi in intended commencement of an application for judicial review be taken as her application under the rules and indicated to the parties that I would give further reasons beyond the outline provided that day.
Ms Rishmawi was notified by 12 October 1998 of the decision of the Refugee Review Tribunal, affirming its decision not to grant her a protection visa. On 21 October 1998, within…

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: [1999] FCA 611
Decision Date: 5 MAY 1999

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Rishmawi v Minister for Immigration & Multicultural Affairs involved Hanna Rishmawi, who sought judicial review of a decision made by the Refugee Review Tribunal regarding her application for a protection visa. The Minister for Immigration & Multicultural Affairs responded, challenging the validity of Rishmawi’s application on the grounds that it did not comply with the prescribed form and rules. The primary legal issue before the court was whether Rishmawi's application, which was not in compliance with the required procedural forms, could be considered valid and thus grant the court jurisdiction to hear the case.

The Federal Court held that the jurisdiction to grant relief under the Migration Act 1958 is not contingent on strict compliance with procedural rules unless explicitly stated. The court found that Order 1 rule 8 of the Federal Court Rules permits the court to waive non-compliance with the rules if it is in the interest of justice to do so. The court rejected the notion of applying a test of substantial compliance, emphasizing that Order 1 rule 8 is broad enough to allow for complete waiver of non-compliance when justice requires. The court noted that Rishmawi’s initial letter, although defective, clearly indicated her intention to appeal the Tribunal’s decision, and her later submission of the required forms, albeit with defects, further evidenced her intent. The Minister's lack of prejudice from the procedural lapses supported the court's decision to waive the non-compliance.

Ultimately, the court ruled that Rishmawi's letter dated 21 October 1998 should be regarded as the formal application for judicial review, and it granted her leave to amend the application to address the defects identified. The court ordered that Rishmawi be given six weeks to amend her application to specify the grounds relied upon and identify any errors in the Tribunal's reasons. Following this amendment, the Minister was directed to prepare a bundle of relevant documents and notify the court when the matter was ready for hearing.

Orders