Applicant S416 of 2003 v Refugee Review Tribunal

[2003] FCA 1630

FEDERAL COURT OF AUSTRALIA

Applicant S416 of 2003 v Refugee Review Tribunal [2003] FCA 1630

APPLICANT S416 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR

N351 of 2003

MADGWICK J
5 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N351 of 2003

BETWEEN:

APPLICANT S416 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

5 DECEMBER 2003

WHERE MADE:

SYDNEY

BY CONSENT, THE COURT ORDERS THAT:

1.Order absolute be granted for a writ of prohibition prohibiting the second respondent from taking action on the decision of the first respondent handed down on 22 October 2002.

2.A writ of certiorari issue to quash the decision of the first respondent handed down on 22 October 2002.

3.In respect of the application by the prosecutor/applicant dated 18 November 2002, Order absolute be granted for a writ of mandamus requiring the first respondent to consider and determine the application according to law.

4.The second respondent pay the costs of the applicant in relation to the proceedings.

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	N351 of 2003

BETWEEN:

APPLICANT S416 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	5 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. In this matter the Court is asked to make orders by consent making absolute orders nisi, the relevant effect of which, would be to quash the decision of the first respondent handed down on 22 October 2002.  I am satisfied that it is a proper matter in which to make the consent orders.

2. Counsel for the respondent Minister has explained that the reason that the second respondent consents to the orders is a relevantly narrow one and it is that certain ‘country information’ which the Tribunal Member relied upon as casting doubt on a claim by the applicant that his uncle held a certain position in relation to a religiously based political party, namely JIB, was not brought to the attention of the applicant, nor was he given a chance to comment on the information. 

3. There may well have been other reasons which the applicant would have wished to urge as to why the Tribunal Member’s decision should be quashed.  I am aware, for example, that certain material was sent to the authorities on a confidential basis, making serious allegations against the applicant.  I upheld a claim for public interest immunity, made by the Minister, against a requirement that the relevant documents making allegations should be produced to the applicant’s legal advisers.  The nature of that material, it seems to me, was such that it might well give rise to a claim that if a Member of the Tribunal were to look at it and not show it to the applicant or apprise him of sufficient of the substance as to enable him to deal with it for fear of compromising the identity of the informant, among other things that could give rise to a claim of apprehended bias on the part of the Tribunal Member.  It therefore seems to me that in order to forestall, so far as possible, any such dispute, it would be desirable upon the remitter of the matter to the Tribunal for re-consideration according to law that the President of the Tribunal should, with the benefit of legal advice, give the matter his consideration.

4. The other issue shortly debated was that of costs and, for reasons explained in the transcript, the order I will make, not by consent, is simply that the second respondent pay the costs of the applicant in relation to the proceedings.  Otherwise, I will make orders in accordance with paras 1, 2 and 3 of the short minutes of order. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            15 March 2004

Counsel for the Applicant:	Mr Patch
Solicitor for the Applicant:	Allens Arthur Robinson
Counsel for the Respondent:	Mr Wigney
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 December 2003
Date of Judgment:	5 December 2003