Re: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
And: FRANKLIN CLARENCE HAMSHER; NEIEL JOHN DRAGO; BEVERLY KATHERINE ELTON;
LAURENCE ETHEREDGE; ARTHUR JAMES HEMPEL; LILIAN PAGE KRAINOCK; MARGARET ANN
LIBASSI; SARAH ELIZABETH MARSHALL; ALLEN WESLEY WILLIAMS; CHERYL ELAINE
WILLIAMS; MARILYN COLENE WILLIAMS and LETITIA LIBASSI BY HER NEXT FRIEND
FRANKLIN CLARENCE HAMSHER
No. WA G16 of 1992
FED No. 233
Immigration
(1992) 35 FCR 359
(1992) 26 ALD 406 (extracts)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Beaumont(2) and Lee(2) JJ.
CATCHWORDS
Immigration - application for entry permit - whether refusal to grant a refusal of applications pro tem or in toto - whether Migration Legislation Amendment Act 1989 s.6(4) applied.
Federal Court of Australia Act 1976 s.27
Migration Act 1958 ss.6, 6A, 6AA, 34; sub-ss.6(2A)
Migration Legislation Amendment Act 1989 s.6; sub-ss.2(4) and (5), 6(4) Parliamentary Privileges Act 1987 sub-s.16(3)
Migration Regulations
Attorney-General for the State of New South Wales v. Quin (1990) 170 CLR 1
Gerah Imports Pty. Ltd. v. Minister for Industry, Technology and Commerce (1987) 17 FCR 1
Re Sterling; ex parte Esanda Ltd. (1980) 30 ALR 77
HEARING
PERTH
#DATE 1:5:1992
Counsel for the Appellant: Mr S. Owen-Conway;
Mr P.R. Macliver
Solicitors for the Appellant: Australian Government Solicitor
Counsel for the Respondents: Mr I.S. Jones
Solicitors for the Respondents: Mossensons
ORDER
1. The appeal and cross-appeal be dismissed.
2. The applicant pay the respondents' costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from a judgment of a single Judge of the Court in which his Honour declared that the respondents, each of whom is a member of a community known as The Christ Circle, were entitled to have applications for the grant of entry permits under the Migration Act 1958 (Cth) considered according to the provisions of the Act as it stood immediately before 19 December 1989, being applications to which s.6(4) of the Migration Legislation Amendment Act 1989 (Cth) ("the 1989 Act") applied.
The respondents entered Australia in January 1986 as the holders of temporary entry permits. In April 1986, the respondents each applied for resident status, that is for the grant of an entry permit unlimited in time. Such entry permits could have been granted subject to compliance by the respondents with the then requirements of s.6A of the Migration Act. I need not set out those well known provisions.
Consideration of the applications was postponed for some time as two of the respondents, Messrs Hempel and Etheredge, were extradited to Israel to face…
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- Case
- [1992] FCA 233
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the refusal of the entry permit applications should be in toto or pro tem. Additionally, the court had to determine whether section 6(4) of the Migration Legislation Amendment Act 1989 applied to the case. This section allows the court to remit the matter to the original decision-maker if the court finds that there has been a failure to observe a relevant or irrelevant consideration or an error of law.
The court held that the refusal of the entry permit applications should be pro tem, rather than in toto. The court found that the primary judge had correctly exercised his discretion in this regard. As for the application of section 6(4) of the Migration Legislation Amendment Act 1989, the court found that it did not apply to the case. The court held that the primary judge had not failed to observe a relevant consideration or committed an error of law.
Both the appeal and the cross-appeal were dismissed. The applicant was ordered to pay the respondents' costs of the appeal. The settlement and entry of orders were dealt with in accordance with Order 36 of the Federal Court Rules.
Orders
Orders of the court
1. The appeal and cross-appeal be dismissed.
2. The applicant pay the respondents' costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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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