FEDERAL COURT OF AUSTRALIA
SZANG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1608
SZANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 967 of 2004ALLSOP J
6 DECEMBER 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 967 of 2004
ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE
BETWEEN:
SZANG
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
ALLSOP J
DATE OF ORDER:
6 DECEMBER 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders of the Federal Magistrates Court be set aside including as to costs.
3.A writ of certiorari issue quashing the decision to the Refugee Review Tribunal.
4.A writ of mandamus issue ordering the Tribunal to decide the matter according to law.
5.There be no order as to 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
NSD 967 of 2004
ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE
BETWEEN:
SZANG
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
ALLSOP J
DATE:
6 DECEMBER 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from orders made by a Federal Magistrate on 3 June 2004 dismissing an application for review of a decision of the Refugee Review Tribunal (the “Tribunal”) made on 10 April 2003. The Minister after consideration has agreed that the appeal should be allowed. I have not heard the matter fully but I have had explained to me the reasons for that course of action.
Two related reasons exist: first, it appears that the Tribunal failed to consider some of the material before it, in particular a letter from the Bangladesh Nationalist Chattradam on page 70 of the court book which was before the Federal Magistrates Court.
Secondly, Tamberlin J in a related matter dealing with the claims of the appellant’s former partner, in dealing with the very same or similar letter came to the view that the Tribunal had failed to complete his jurisdictional task in not dealing with this material. Those matters together with the considered view of the Minister are sufficient to satisfy me that I should make the orders that the parties propound.
Therefore the orders that I make by consent as explained by these short reasons are as follows:
(1)The appeal be allowed.
(2)The orders of the Federal Magistrates Court be set aside including as to costs.
(3)A writ of certiorari issue quashing the decision of the Refugee Review Tribunal.
(4)A write of mandamus issue ordering the Refugee Review Tribunal to redetermine the matter according to law.
(5)There be no order as to costs.
The signed consent orders have been initialled by me and have been placed with the papers.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. . Associate:
Dated: 13 December 2004
The appellant appeared in person with the assistance of a Bengali interpreter. Counsel for the Respondent: Mr D Sim (Slr) Solicitor for the Respondent: Clayton Utz Date of Hearing: 6 December 2004 Date of Judgment: 6 December 2004
- AGLC
- SZANG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1608
- Case
- [2004] FCA 1608
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the Tribunal had the power to grant a bridging visa during the review process and, if so, whether the Tribunal had exercised this power correctly. The court examined the legislative framework governing the issuance of bridging visas and the Tribunal's procedural fairness obligations. The court considered whether the Tribunal had acted outside its jurisdiction by granting the bridging visa without providing adequate reasons, and whether the Minister had correctly intervened in the decision-making process.
The court found that the Tribunal did indeed have the authority to grant a bridging visa during the review of a protection visa application, as this power was implicit in the relevant legislation. However, the court determined that the Tribunal had failed to exercise this power correctly by not providing sufficient reasons for its decision. The court concluded that the Tribunal had not adequately considered the appellant's circumstances and the merits of the bridging visa application. As a result, the decision was quashed, and a writ of mandamus was issued to direct the Tribunal to reconsider the matter according to law. The court allowed the appeal, set aside the orders of the Federal Magistrates Court, and issued a writ of certiorari and mandamus as specified in the orders. There was no order as to costs.
Orders
Orders of the court
1. The appeal be allowed.
2. The orders of the Federal Magistrates Court be set aside including as to costs.
3. A writ of certiorari issue quashing the decision to the Refugee Review Tribunal.
4. A writ of mandamus issue ordering the Tribunal to decide the matter according to law.
5. There be no order as to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: ALLSOP J
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