Abbas v Minister for Immigration and Multicultural Affairs

[2000] FCA 297

FEDERAL COURT OF AUSTRALIA

Abbas v Minister For Immigration & Multicultural Affairs [2000] FCA 297

NADEEM ABBAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 837 of 1999

LINDGREN J
13 MARCH 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 837 OF 1999

BETWEEN:	NADEEM ABBAS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	13 MARCH 2000
WHERE MADE:	SYDNEY

BY CONSENT THE COURT ORDERS THAT:

1.The decision of the Refugee Review Tribunal given on 29 July 1999 be set aside.

2.The matter be remitted to the Tribunal (differently constituted) for determination according to law.

3.The respondent pay the costs of this 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 837 OF 1999

BETWEEN:	NADEEM ABBAS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	13 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

1. The parties agree that the decision of the Refugee Review Tribunal given on 29 July 1999 is to be set aside and that the matter to which the decision relates be referred to the Tribunal for determination according to law.  It is also agreed that the respondent Minister pay the applicant’s costs.  The words “according to law” would not convey to the Tribunal the ground or grounds on which its earlier decision is being set aside.  The parties agree that those grounds are grounds 2 and 3 in the application filed on 25 August 1999 which are as follows:

   “2.      The decision was not authorised by the Act.”

   Particulars:

   The Tribunal’s reference to Chopra v MIMA [1990] FCA 480 (especially at [55]) as supporting the conclusion quoted in the Particulars for ground 1 [a conclusion that the violence feared by the applicant is “sporadic, non-systematic and unpredictable in nature and lacks that selective and discriminatory element inherent in the notion of persecutions”] indicates that the Tribunal misunderstands its task.  The Tribunal’s task is to find facts and then apply the law, not to apply the law from a different case as if that were a substitute for fact finding.  The Tribunal’s approach is a breach of s 476(1)(c).

   3.        The decision involved an error of law.

   Particulars:

   The Applicant repeats the Particulars given above.  Failure to provide adequate reasons is an error of law, as is the failure of the Tribunal to properly understand its task.”

2. At the request of both parties, I make orders 1, 2 and 3 in accordance with form of “consent order” dated today, which has been signed by the legal representatives of the parties and is initialled by me and placed with the papers [the orders are repeated in the orders page annexed].

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             15 March 2000

Solicitor for the Applicant:	Mr D Prince of Christopher Levingston & Associates
Solicitor for the Respondent:	Ms A Connor of The Australian Government Solicitor’s Office
Date of Hearing:	13 March 2000
Date of Judgment:	13 March 2000