Capitly, Ariel v Minister for Immigration & Multicultural Affairs [1998] FCA 1197

FEDERAL COURT OF AUSTRALIA

IMMIGRATION – Refugee Review Tribunal – applicant's entitlement to a reasonable opportunity to give evidence – decision given in his absence owing to illness – reasons of Tribunal referring to his absence but not to the circumstances – error of law in failure to set out reasons and findings on that matter – error of law in failure to give the applicant an opportunity to appear to give evidence – requirement to act according to substantial justice.

Migration Act 1958, ss 420, 425, 430, 476(1)(a)

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, followed

The Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, followed

Budiyal v The Minister for Immigration & Multicultural Affairs (Tamberlin J, unreported, 20 March 1998), followed

Jones v Dunkel (1959) 101 CLR 298, applied

CAPITLY V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 821 of 1997

Burchett J

Sydney

24 September 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 821 of 1997

BETWEEN: ARIEL CAPITLY

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: BURCHETT J

DATE OF ORDER: 24 september 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision under review be set aside; 2. The matter be remitted to the Refugee Review Tribunal, differently constituted, for decision according to law; 3. The respondent Minister pay the applicant's costs. 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 NG 821 of 1997

BETWEEN: ARIEL CAPITLY

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent