Applicant S 198 of 2003 v Refugee Review Tribunal

[2005] FCA 398

FEDERAL COURT OF AUSTRALIA

Applicant S 198 of 2003 v Refugee Review Tribunal [2005] FCA 398

APPLICANT S198 of 2003 v REFUGEE REVIEW TRIBUNAL & ORS
NSD 973/2003

ALLSOP J
8 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 973 of 2003

BETWEEN:

APPLICANT S 198 of 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

8 APRIL 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.A writ of certiorari issued to quash the decision of the first respondent made on 30 January 1997.

2.A writ of mandamus issue requiring the first respondent to consider and determine according to law the applicant's application for review of the decision to refuse the protection visa application.

3.The second and third respondents pay the applicant's costs as agreed or taxed.

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	NSD 973 of 2003

BETWEEN:

APPLICANT S 198 of 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:	ALLSOP J
DATE:	8 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter orders are to be made by consent.  Those orders are as follows.

   1.    A writ of certiorari issued to quash the decision of the first respondent made on 30 January 1997.

   2.    A writ of mandamus issue requiring the first respondent to consider and determine according to law the applicant's application for review of the decision to refuse the protection visa application.

   3.    The second and third respondents pay the applicant's costs as agreed or taxed.

2. The application was one in which the applicant asserted a failure to accord him procedural fairness.  Critical factual findings were made by the Tribunal as to the lack of legitimate status of certain documents that the applicant had put before it.  Critical findings were made rejecting the claims of the applicant based on findings significantly in part on those documents. 

3. The matter came before me some weeks ago and after some hearing it became evident that what was or might have been before the Tribunal was simply not clear on the then available evidence.  I adjourned the matter and gave leave for the applicant's legal advisers to issue subpoenas.  Subpoenas were issued and documents were obtained. 

4. In the meantime those acting for the respondents have reconsidered the factual material that they consider was before the Tribunal.  Ms Avenell on behalf of the applicant has also considered in detail the documents produced under subpoena.  The respondents’ representatives have come to the view that on the material now available there would appear to be grounds to conclude that the applicant was denied procedural fairness.  A more precise elucidation of that position can be seen by reference to today's transcript in what Mr Lloyd put to me on behalf of the second and third respondents. 

5. One of the reasons why I wished to deliver a short ex tempore judgment was to ensure that anyone wishing to understand why the Tribunal's decision was set aside can easily do so and also for a second reason.  The second reason is that the position of the applicant has been illuminated in this case by the careful attention to the facts of the controversy by the legal representatives of both parties.  It is sometimes very difficult in these cases to understand precisely the basis of applications.  The Court is substantially reliant upon the skill and application of counsel and solicitors who appear before it.  In this case the Court has been assisted with care and skill by solicitors and counsel appearing for both sides.  Ms Avenell on behalf of her client and Mr Lloyd and his instructing solicitor on behalf of the Crown.  The Court is grateful for their assistance and the respondent has displayed every aspect of the conduct described by Mahoney J in P & C Cantarella Pty Ltd v Egg Marketing Board [1973] 2 NSWLR 366 at 383- 4.

6. The orders do not deal with the custody and detention of the applicant.  That is a matter that no doubt will be taken up on his behalf in relation to any rights that he may or may not have for a bridging visa. 

7. For the above reasons I make orders in accordance with the short minutes of consent order initialled by me dated today and placed with the papers.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             12 April 2005

Counsel for the Applicant:	Ms M Avenell
Counsel for the Second and Third Respondents:	Mr S Lloyd
Solicitor for the Second and Third Respondents:	Australian Government Solicitor
Date of Hearing:	8 April 2005
Date of Judgment:	8 April 2005