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Zarro v Australian Securities Commission

Zarro v Australian Securities Commission

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Case Copied 1 May 1992 26 min read

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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.

Extradition (Foreign States) Act 1966

Federal Court of Australia Act 1976 s.27

Migration Act 1958 ss.6, 6A, 6AA, 34; sub-ss.6(2A)

Migration Amendment Act 1987

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

Abalos v. Australian Postal Commission (1990) 171 CLR 167

Attorney-General for the State of New South Wales v. Quin (1990) 170 CLR 1

Dawson v. Westpac (1991) 104 ALR 295

Duralla Pty. Ltd. v. Plant (1984) 2 FCR 342

Edwards v. Noble (1971) 125 CLR 296

Gerah Imports Pty. Ltd. v. Minister for Industry, Technology and Commerce (1987) 17 FCR 1

Jones v. Hyde (1989) 63 ALJR 349

Mundey v. Askin (1982) 2 NSWLR 369

Re Sterling; ex parte Esanda Ltd. (1980) 30 ALR 77

Warren v. Coombes (1979) 142 CLR 531

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…

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: [1992] FCA 233
Decision Date: 01 MAY 1992

CaseChat Overview and Summary

The case of Zarro v Australian Securities Commission involved the applicant, Mr Zarro, appealing against the refusal of his application for an entry permit. The Australian Securities Commission cross-appealed against the primary judge's decision to limit the refusal of the permit applications to a temporary basis. The dispute was heard in the Federal Court of Australia.

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

Full text does not contain this section.

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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