Sanchez v Minister for Immigration & Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

Sanchez v Minister for Immigration & Multicultural Affairs [1999] FCA 265

MIGRATION – serious error of fact made by Immigration Review Tribunal – ground of review established pursuant to s 476(1)(a) Migration Act 1958 (Cth) – absence of specific findings of fact by Tribunal – whether Tribunal judged the applicant’s claim by reference to imputed, rather than individual, characteristics or values

Migration Act 1958 (Cth), ss 360, 368, 476(1)(a)

NOEMY DEL CARMEN IRAHETA SANCHEZ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
NG 1067 OF 1998

JUDGE:         SACKVILLE J
DATE:           18 MARCH 1999
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1067 OF 1998

BETWEEN:	NOEMY DEL CARMEN IRAHETA SANCHEZ Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	SACKVILLE J
DATE OF ORDER:	18 MARCH 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The decision of the Immigration Review Tribunal (“IRT”) be set aside.

2.   The matter be remitted to a differently constituted IRT to be determined according to law.

3.   The respondent pay the applicant’s costs of 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	NG 1067 OF 1998

BETWEEN:	NOEMY DEL CARMEN IRAHETA SANCHEZ Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	SACKVILLE J
DATE:	18 MARCH 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. When this matter was called on this morning, I was advised by the solicitor acting for the Minister that it was proposed that consent orders be made setting aside the decision of the Immigration Review Tribunal (“IRT”) and remitting the matter to a differently constituted IRT to be determined according to law.

2. I asked the solicitor appearing for the Minister what the ground of review was that would enable me to make such an order.  Her answer was that the IRT had made a serious error of fact.  That error was that the IRT had wrongly assumed that certain correspondence in the form of letters and cards relating to the claims of the applicant, dated only from March 1996.  The significance of this, as far as the IRT was concerned, appears to have been that the correspondence was taken to have dated from a time after the relevant events had taken place and that therefore the material was considered to be unhelpful to the applicant’s case.

3. When I asked the Minister’s representative on what basis the intervention of the Court was justified, her response, in essence, was that the IRT’s serious error of fact made it appropriate that  the matter be remitted to the IRT for further consideration.  I took the view that, since the Migration Act 1958 (Cth) (“Migration Act”) does not provide a ground of review for errors of fact, I should ask the Minister to consider whether there was an error of law or other ground of review that could justify the…