Chu v Minister for Immigration

[2018] FCCA 1269

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHU v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1269

Catchwords:
PRACTICE AND PROCEDURE – Proposed consent orders issuing writs – it is correct practice to provide a note in support of the Court orders that reveals facts that would in law constitute a jurisdictional error.

Applicant: QUOC DAO CHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3830 of 2017

Judgment of: Judge Street

Hearing date: 17 May 2018

Date of Last Submission: 17 May 2018

Delivered at: Sydney

Delivered on: 17 May 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Andy Pham Lawyers

Counsel for the Respondents: Mr H Bevan

Solicitors for the Respondents: DLA Piper

BY CONSENT, THE COURT ORDERS THAT:

1. A writ in the nature of certiorari be issued to quash the decision of the second respondent, AAT reference 1619778 dated 10 November 2017.

2. A writ in the nature of mandamus be issued directing the second respondent to reconsider and determine the matter according to law.

3. The first respondent is to pay the applicant’s costs fixed in the amount of $4,200.00.

4. The hearing listed at 2:15pm on 17 May 2018 be vacated.

THE COURT NOTES THAT:

The first respondent concedes that the decision of the second respondent is affected by jurisdictional error in that it should be inferred that the second respondent failed to consider the Centrelink report dated 9 November 2016. The report disclosed that the applicant and sponsor had declared the marriage to the Department of Human Services in that:

(a)The report is dated 9 November 2016, being a date before the decision of the delegate of the first respondent;

(b)The report shows, under paragraph (m) headed “Marital Status” that the applicant is married to the sponsor with a “start date” of the relationship of “12/01/2013”.

(c)That date is the date of the marriage, as the second respondent found;

(d)It may be inferred that the applicant and the sponsor gave this information to the Department of Human Services (and in this way declared the marriage to the Department of Human Services) on a date after their marriage, as they had said to the Tribunal (at page 5 of the Transcript and at page 19 of the Transcript, see [36]).

The AAT therefore fell into jurisdictional error of the type found in Minister for Immigration and Citizenship v SZKRT (2013) 212 FCR 99 at [112] in that the report is cogent and material to the Tribunal’s assessment of the social aspects of the marriage (see s 5F of the Migration Act 1958 (Cth) and reg. 1.15A(3) of the Migration Regulations 1994) which it did not consider, notwithstanding its earlier general statement at [8] that it had taken into account all the evidence in the file.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3830 of 2017

QUOC DAO CHU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Court has before it proposed consent orders with a detailed notation that has been prepared by counsel for the issue of constitutional writs.  The Court is satisfied that it is appropriate to make the proposed orders by consent in light of the detailed note prepared by both counsel. 

2. Because of the history of the matter reflecting unsatisfactory proposed notations and annexures, the Court proposes to emphasise the practice that should be followed in relation to consent orders in respect of constitutional writs. Proposed consent orders granting constitutional writs are not a rubber stamping exercise. They are an exercise of the judicial power of the Commonwealth.

3. The Court must be satisfied that the proposed orders are appropriate. In that regard, it is correct practice to provide a concise note in support of the Court orders that reveals facts that would in law constitute a jurisdictional error. The Court must be satisfied that those facts are reasonably open on the material before the Court. This does not mean the Court itself would find that the conceded jurisdictional error is established. Rather, the Court must be satisfied that there are reasonably open facts that make the proposed consent orders appropriate. The note should be succinct and complete on its face, and should not annex other documents. Further, if there are apparent specific reasons inconsistent with the factual concession it must be clear why those specific reasons are inadequate.

4. The note in support of the proposed consent orders must have sufficient specificity to inform the Court, the Tribunal and the parties as to the nature of the particular conceded jurisdictional error or errors. This also ensures that the relevant Tribunal can on re-hearing determine the matter according to law and without a repetition of the same conceded error or errors. 

5. The Court notes the first respondent concedes that the decision of the second respondent is affected by jurisdictional error in that it should be inferred that the second respondent failed to consider the Centrelink report dated 9 November 2016.  The Court will have added the words in the handwritten note by the learned Mr Bevan of counsel which the Court initials and dates today. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  5 June 2018