SZANG v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1608

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 2004

ALLSOP 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 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	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 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	6 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. 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.

2. 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.

3. 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.

4. 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. 

5. 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