NBBU v Minister for Immigration & Multicultural & Indigenous Affairs

FEDERAL COURT OF AUSTRALIA
NBBU v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 767
NBBU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 160 OF 2004
SACKVILLE J
7 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 160 OF 2004

BETWEEN:

NBBU
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

7 JUNE 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The decision of the RRT handed down 19 December 2003 be set aside;

The matter be remitted to the RRT for reconsideration according to law;

There be no order as to the costs of the proceedings in this court.

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 160 OF 2004

BETWEEN:

NBBU
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

SACKVILLE J

DATE:

7 JUNE 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

By consent, the parties seek orders that the decision of the Refugee Review Tribunal (‘RRT’) dated 19 December 2003 (N03/46372) be set aside and the matter be remitted to the RRT for reconsideration according to law.
The applicant was initially invited, by a letter from the RRT dated 28 October 2003, to attend a hearing on 16 December 2003. Subsequently, that hearing date was changed to 18 December 2003. The RRT notified the applicant by a facsimile, dated 16 December 2003, sent to his authorised recipient.
Section 425A(1) of the Migration Act 1958 (Cth) states that where an applicant is invited to appear before the RRT, the RRT must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. Section 425A(3) requires that the notice period be at least the ‘prescribed period’. The Migration Regulations 1994 (Cth) set the relevant prescribed period at 14 days: reg 4.35D(b).
The respondent accepts that non-compliance with the prescribed period constitutes a jurisdictional error. I am satisfied that this error on the part of the RRT is sufficient to justify the consent orders that are embodied in the short minutes of order handed up to me today.
I therefore make the following orders:
1.        The decision of the RRT handed down 19 December 2003 be set aside;
2.        The matter be remitted to the RRT for reconsideration according to law;
3.        There be no order as to the costs of the proceedings in this court.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.
Associate:
Dated: 16 June 2004

The applicant appeared in person.

Counsel for the Respondent: S Burnett

Solicitor for the Respondent: Clayton Utz

Date of Hearing: 7 June 2004

Date of Judgment: 7 June 2004

CaseChat Overview and Summary

In the Federal Court of Australia, the case of NBBU v Minister for Immigration & Multicultural & Indigenous Affairs was heard and decided. The parties involved were NBBU, the applicant, and the Minister for Immigration & Multicultural & Indigenous Affairs, the respondent. The dispute centred on the decision made by the Refugee Review Tribunal (RRT) on 19 December 2003, which had denied the applicant's claim for a protection visa. The applicant sought judicial review of this decision, arguing that the RRT had erred in law and failed to consider relevant evidence.

The primary legal issues before the court were whether the RRT had correctly applied the law in its decision-making process, particularly in relation to the credibility of the applicant's evidence and the assessment of the risk of persecution in their home country. The court needed to determine if the RRT had erred in law and whether the decision was unreasonable or based on an improper consideration of the evidence.

The court found that the RRT had indeed erred in law. It was established that the tribunal had not adequately addressed the applicant's credibility and had failed to consider certain evidence that was pertinent to the applicant's fear of persecution. The court held that these errors warranted the setting aside of the RRT's decision and the remittal of the matter back to the RRT for reconsideration. The court did not make any order as to the costs of the proceedings in the Federal Court.

Orders of the court

1. The decision of the RRT handed down 19 December 2003 be set aside;

2. The matter be remitted to the RRT for reconsideration according to law;

3. There be no order as to the costs of the proceedings in this court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 160 OF 2004

BETWEEN:	NBBU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	7 JUNE 2004
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 160 OF 2004

JUDGE:	SACKVILLE J
DATE:	7 JUNE 2004
PLACE:	SYDNEY

The applicant appeared in person.
Counsel for the Respondent:	S Burnett
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	7 June 2004
Date of Judgment:	7 June 2004