Bartyzal v Minister for Immigration & Multicultural Affairs [2000] FCA 1210

FEDERAL COURT OF AUSTRALIA

Bartyzal v Minister for Immigration & Multicultural Affairs [2000] FCA 1210 PAVEL BARTYZAL AND VLADISLAVA BARTYZALOVA BARTYZAL AND PAVLA BARTYZALOVA AND VLADKA BARTYZALOVA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 183 OF 2000

LEHANE J 31 AUGUST 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 183 OF 2000

BETWEEN: PAVEL BARTYZAL

FIRST APPLICANT

VLADISLAVA BARTYZALOVA BARTYZAL

SECOND APPLICANT

PAVLA BARTYZALOVA

THIRD APPLICANT

VLADKA BARTYZALOVA

FOURTH APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEHANE J

DATE OF ORDER: 31 AUGUST 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicants pay the respondent's costs of the application.

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 N 183 OF 2000

BETWEEN: PAVEL BARTYZAL

FIRST APPLICANT

VLADISLAVA BARTYZALOVA BARTYZAL

SECOND APPLICANT

PAVLA BARTYZALOVA

THIRD APPLICANT

VLADKA BARTYZALOVA

FOURTH APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEHANE J

DATE: 31 AUGUST 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicants, Mr Bartyzal, his wife and their two children, seek an order setting aside, under Pt 8 of the Migration Act 1958 (Cth), a decision of the Refugee Review Tribunal. The Tribunal found that the applicants did not satisfy the criterion prescribed by s 36(2) of the Migration Act for a protection visa, namely that the applicant for such a visa be "a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol". Consequently, the Tribunal affirmed the decision of a delegate of the Minister not to grant protection visas to the applicants. 2 The applicants claim that the Tribunal's decision should be set aside on two grounds: that procedures required by the Migration Act to be observed in connection with the making of the decision were not observed (s 476(1)(a)) and that the decision involved an error of law (s 476(1)(e)). The applicants have had no legal representation in or, apparently, assistance with, their application to the Court. Mr Bartyzal appeared before me representing the family; he made submissions through an interpreter. His twelve year old daughter, Pavla Bartyzalova, also addressed me by leave. It should be noted (it will be relevant to aspects of the grounds on which the applicants seek review of the Tribunal's decision) that the applicants have earlier been represented – and, material before me indicates, conscientiously and vigorously represented – by a solicitor employed by the Legal Aid Commission of New South Wales. That representation extended to proceedings before the Tribunal commenced in July 1998, culminating in a decision (unfavourable to the applicants) dated 7 October 1998; proceedings before the Court in which, in January 1999, that decision was by consent set aside and the matter remitted to the Tribunal for reconsideration; and further proceedings before the Tribunal, differently constituted, leading to the decision of which the applicants now seek judicial review.