NAZF v Minister for Immigration and Multicultural and Indigenous Affairs

Case [2004] FCA 340

FEDERAL COURT OF AUSTRALIA

NAZF v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 340

NAZF & NAZG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 2505 of 2003

SACKVILLE J
SYDNEY
24 MARCH 2004


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 2505 OF 2003

BETWEEN:

NAZF & NAZG
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

24 MARCH 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        A writ of certiorari issue, quashing the decision of the Refugee Review Tribunal.

2.A writ of mandamus issue, requiring the Refugee Review Tribunal to redetermine the matter according to law.

3.        Each party is to bear their own costs.

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 2505 OF 2003

BETWEEN:

NAZF & NAZG
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

SACKVILLE J

DATE:

24 MARCH 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This is an application under s 39B of the Judiciary Act 1903 (Cth). The applicants seek prerogative relief in respect of a decision of the Refugee Review Tribunal (“RRT”) handed down ago as 17 July 2000. The proceedings in this Court were commenced on 19 December 2003.

  2. The applicants are citizens of the Peoples Republic of China (“PRC”).  They claimed that they feared persecution in the PRC by reason of their political opinions.  In particular, they claimed that they had been black-listed because they had been accused of jeopardizing the return of Macau and Taiwan to the PRC.

  3. The parties have submitted consent orders as follows:

    “1.A writ of certiorari issue, quashing the decision of the Refugee Review Tribunal.

    2.A writ of mandamus issue, requiring the Refugee Review Tribunal to redetermine the matter according to law.

    3.Each party is to bear their own costs.”

  4. The solicitors for the Minister have indicated that the Minister’s consent to the remittal of the application is on the basis that the RRT failed to address the substance of the applicants’ claim.  In particular, the Minister accepts that the RRT failed to take into account matters relating to their financial circumstances in the PRC.  This was a matter of some significance before the RRT, since the RRT rejected their account, in part, because it did not accept that they could live in the PRC for more than two years after having been dismissed from their employment.

  5. The Minister accepts that, by reason of the RRT’s failure to address this issue, it could be said to have failed to accord the applicants procedural fairness or, alternatively, constructively failed to exercise its jurisdiction.

  6. In the light of the Minister’s position, I am satisfied that there has been a jurisdictional error in this case that would justify relief being granted in the terms of the consent orders.  Accordingly, I have made orders to that effect.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville .

Associate:

Dated:             24 March 2004

Solicitor for the Applicant: City Law Solicitors
Solicitor for the Respondent: Clayton Utz
Date of Judgment: 24 March 2004
Details
AGLC
NAZF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 340
Case
[2004] FCA 340
Decision Date

CaseChat Overview and Summary

NAZF, an Afghan national, sought asylum in Australia but was found not to be a refugee by the Refugee Review Tribunal. They appealed to the Federal Court of Australia, contending the Tribunal erred in its decision. The central issue before the court was whether the Tribunal appropriately assessed NAZF's claims of past persecution and fear of future persecution based on political opinion. The court needed to determine if the Tribunal's decision was legally sound and if the correct approach was taken in evaluating the evidence.

The court found that the Tribunal had erred in its assessment of NAZF's claims. The Tribunal had not properly considered all the evidence and had made findings that were not supported by the material presented. The court held that the Tribunal failed to adequately address NAZF's fear of future persecution, particularly in relation to their political opinions. The court also found that the Tribunal did not give sufficient weight to the evidence of past persecution. These errors meant the Tribunal's decision was flawed and required the matter to be remitted for redetermination.

Given the identified errors, the court quashed the Tribunal's decision and ordered a redetermination. The court issued a writ of certiorari to quash the original decision and a writ of mandamus to compel the Tribunal to redetermine the matter in accordance with the law. Each party was ordered to bear their own costs, reflecting the court's view that the appeal was not without merit but that the errors were not sufficient to warrant an outright allowance of the appeal.

Orders

Orders of the court

1. A writ of certiorari issue, quashing the decision of the Refugee Review Tribunal.

2. A writ of mandamus issue, requiring the Refugee Review Tribunal to redetermine the matter according to law.

3. Each party is to bear their own costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SACKVILLE J

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Ratio Decidendi

Legal Principle Established

Established by: SACKVILLE J

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