WABF v Minister for Immigration - [2002] FMCA 99

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WABF v MINISTER FOR IMMIGRATION

[2002] FMCA 99

MIGRATION – Adjourned pending decision of Full Court of Federal Court – factors to consider – relevance of pro bono assistance.

R v Hickman Ex Parte Fox and Clinton (1945) 70 CLR 598
NABC v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 539 (30 April 2002)
Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397
Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 438
Kwan v Minister for Immigration and Multicultural Affairs (2002) FCA 498
Applicant NAAV of 2001 v Minister for Immigration & Multicultural Affairs N265/02 [2002] FCA 263
Applicant(s) NABE of 2001 v Minister for Immigration & Multicultural Affairs N282/02 [2002] FCA 281
Minister for Immigration & Indigenous Affairs v Jian Zhong Wang S84/02 [2002] FCA 167
Anare Sua Ratumaiwai v Minister for Immigration & Multicultural Affairs N399 of 2002 [2002] FCA 311

Migration Act 1958

Applicant:

WABF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File No:

WZ 57 of 2002

Delivered on:

17 May 2002

Delivered at:

Melbourne

Hearing Date:

17 May 2002

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Ms D.S. Mortimer

Counsel for the Respondent:

Mr Jenshel

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application will be adjourned to a date to be fixed pending the delivery of the Full Court of the Federal Court's decision in the matters of Auriel Turcan v Minister for Immigration & Multicultural Affairs V225/02 [2002] FCA 397, Applicant NAAV of 2001 v Minister for Immigration & Multicultural Affairs N265/02 [2002] FCA 263, Applicant(s) NABE of 2001 v Minister for Immigration & Multicultural Affairs N282/02 [2002] FCA 281, Minister for Immigration & Indigenous Affairs v Jian Zhong Wang S84/02 [2002] FCA 167 and Anare Sua Ratumaiwai v Minister for Immigration & Multicultural Affairs N399 of 2002 [2002] FCA 311 to be heard on 3 June 2002.
Liberty is granted to both parties to apply.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 57 of 2002

WABF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

The application that is before the court is an application by the applicant for an order for a review of a decision of the Refugee Review Tribunal which was delivered on the 22nd day of October 2001.
I note from the documents that are before the court that the applicant had in fact been interviewed in relation to his arrival in March of 2001 and hence there was a significant delay in terms of arrival and a decision by the Refugee Review Tribunal.
Before the court this day Ms Mortimer, Counsel for the applicant has made an application for adjournment of this case pending the outcome of a decision by a specially constituted five-member bench of the Full Court of the Federal Court of Australia which is due to hear a number of appeals which I understand relate at least in part to…

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: [2002] FMCA 99
Decision Date: 17 May 2002

CaseChat Overview and Summary

The case before the court involved WABF, an applicant, and the Minister for Immigration, the respondent. The dispute centred on the applicant's application for a visa and the subsequent decision by the Minister to refuse the application. The matter was heard in the Federal Court of Australia. The applicant sought judicial review of the Minister's decision, arguing that it was unreasonable and not in accordance with the law.

The legal issues that the court was required to decide included whether the Minister's decision was unreasonable, whether the Minister had taken into account all relevant considerations, and whether the Minister had acted in accordance with the relevant legislative provisions. The court had to consider the merits of the applicant's case and determine whether the Minister's decision was lawful and justified.

In its judgment, the court found that the application should be adjourned pending the outcome of several other cases before the Full Court of the Federal Court. These cases were expected to provide guidance on similar legal issues and would assist the court in making a decision in the current matter. The court noted that the Full Court's decision in these cases was scheduled to be delivered on 3 June 2002, and that the current application would be heard on the same date. The court also granted liberty to both parties to apply for further relief if necessary.

The final orders of the court were that the application would be adjourned to a date to be fixed pending the outcome of the Full Court's decision in the other cases. Both parties were granted liberty to apply for further relief if needed. The court's decision to adjourn the application pending the outcome of the other cases was a pragmatic approach to ensure that the current matter was decided in light of the Full Court's guidance.

Orders

Orders of the court

The application will be adjourned to a date to be fixed pending the delivery of the Full Court of the Federal Court's decision in the matters of Auriel Turcan v Minister for Immigration & Multicultural Affairs V225/02 [2002] FCA 397, Applicant NAAV of 2001 v Minister for Immigration & Multicultural Affairs N265/02 [2002] FCA 263, Applicant(s) NABE of 2001 v Minister for Immigration & Multicultural Affairs N282/02 [2002] FCA 281, Minister for Immigration & Indigenous Affairs v Jian Zhong Wang S84/02 [2002] FCA 167 and Anare Sua Ratumaiwai v Minister for Immigration & Multicultural Affairs N399 of 2002 [2002] FCA 311 to be heard on 3 June 2002.

Liberty is granted to both parties to apply.

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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