NBBU v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 767

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:

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.

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

1. 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.

2. 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. 

3. 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).

4. 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. 

5. 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