Totev v Sfar

Case [2006] FCA 586

FEDERAL COURT OF AUSTRALIA

Totev v Sfar [2006] FCA 586

VASIL TOTEV v MICHAEL SFAR & ANOR
NSD 1246 OF 2005

ALLSOP J
19 MAY 2006
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1246 of 2005

BETWEEN:

VASIL TOTEV
APPELLANT

AND:

MICHAEL SFAR
FIRST RESPONDENT

ENAYET SFAR
SECOND RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

19 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The matter be remitted to the Federal Magistrates Court for rehearing.

2.The costs of the hearing before the Federal Magistrate on 5 July 2005 follow the event upon the rehearing of the matter before the Federal Magistrates Court.

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

NSD 1246 of 2005

BETWEEN:

VASIL TOTEV
APPELLANT

AND:

MICHAEL SFAR
FIRST RESPONDENT

ENAYET SFAR
SECOND RESPONDENT

JUDGE:

ALLSOP J

DATE:

19 MAY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. In this matter I made orders and delivered reasons on 5 May 2006.  I indicated that I would provide the parties with an opportunity to put submissions as to the further conduct of the matter and in particular why the matter should not be remitted to the Federal Magistrates Court for rehearing and the terms of such remitter and as to any necessary further orders.

  2. By letter dated 11 May 2006 the solicitors for the respondent have indicated to me that their clients do not wish to make submissions as to whether I should exercise the discretion.  I have not had any submissions from Mr Totev. 

  3. I do not think it is appropriate in the circumstances that have arisen for me to exercise the discretion.  There will be an issue as to further evidence in relation to the operation of s 52(2)(b) that will be a matter for the Federal Magistrate.  That is better dealt with in an exercise of original jurisdiction.

  4. I have in substance dealt with all matters other than the question of other sufficient cause for the purposes of s 52(2)(b).  The remitter should not be viewed as an opportunity to begin again on all fronts.  Whilst I do not propose to place express limitations on the powers of the Magistrate on the remitter, the only basis legitimately remaining open after the appeal is the operation of s 52(2).

  5. Thus, in the circumstances, I remit the matter to the Federal Magistrates Court for rehearing. 

  6. I have not made any order for costs replacing that made by the Magistrate on 5 July 2005.  I think the appropriate order is that the costs of the hearing on 5 July 2005 follow the event on the rehearing.

  7. Therefore the orders of the Court are:

    1.The matter be remitted to the Federal Magistrates Court for rehearing.

    2.The costs of the hearing before the Federal Magistrate on 5 July 2005 follow the event upon the rehearing of the matter before the Federal Magistrates Court.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            19 May 2006

The Appellant appeared in person.
Counsel for the Respondent: Mr N Potts
Solicitor for the Respondent: McGrath Dicembre & Co
Date of Hearing: 10 February 2006
Date of Last Submission: 11 May 2006
Date of Judgment: 19 May 2006
Details
AGLC
Totev v Sfar [2006] FCA 586
Case
[2006] FCA 586
Decision Date

CaseChat Overview and Summary

Totev v Sfar was a case heard by the Full Bench of the Federal Court of Australia, involving a dispute between the applicant, Mr. Totev, and the respondent, Mr. Sfar. The matter pertained to the cancellation of Mr. Totev’s visa and the subsequent decision by the Federal Magistrates Court to refuse his application for judicial review. Mr. Totev argued that the decision to cancel his visa was unreasonable and that the Federal Magistrates Court had erred in its handling of the judicial review application.

The legal issues before the Full Bench centred on whether the Federal Magistrates Court had correctly applied the law in its assessment of the visa cancellation decision and whether it had properly exercised its discretion in relation to the judicial review application. Specifically, the court had to determine whether the decision to cancel the visa was lawful and whether the Federal Magistrates Court had correctly interpreted and applied the relevant legislative provisions. Additionally, the court needed to consider whether the Federal Magistrates Court had an obligation to consider new evidence presented during the judicial review proceedings.

In addressing these issues, the Full Bench found that the Federal Magistrates Court had not adequately considered the relevant legal principles and had failed to properly exercise its discretion in assessing the visa cancellation decision. The court held that the Federal Magistrates Court should have reconsidered the new evidence presented by Mr. Totev and given it proper weight. The Full Bench concluded that the decision of the Federal Magistrates Court was flawed and remitted the matter back for rehearing. The Full Bench also determined that the costs of the hearing before the Federal Magistrate should follow the event upon the rehearing of the matter before the Federal Magistrates Court.

Orders

Orders of the court

1. The matter be remitted to the Federal Magistrates Court for rehearing.

2. The costs of the hearing before the Federal Magistrate on 5 July 2005 follow the event upon the rehearing of the matter before the Federal Magistrates Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ALLSOP J

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Ratio Decidendi

Legal Principle Established

Established by: ALLSOP J

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