SZBWA v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 762

FEDERAL COURT OF AUSTRALIA

SZBWA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 762

SZBWA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND ANOR
NSD 2501 OF 2005

RARES J
19 APRIL 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2501 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBWA
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

RARES J

DATE OF ORDER:

19 APRIL 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

(1)The appeal be allowed.

(2)Orders 2 and 3 made by the Federal Magistrates Court of Australia on 24 November 2005 be set aside and, in lieu thereof, the following orders be made:

(a)order in the nature of an order absolute in the first instance for a writ of certiorari quashing the decision of the second respondent made on 12 September 2003 and handed down on 8 October 2003 to affirm the decision of the first respondent not to grant to the applicant a protection order; 

(b)order in the nature of a writ of mandamus directing the second respondent to hear and determine the application for review according to law;  and

(c)each party is to bear that party’s own costs.

(3)Each party is to bear that party's own costs.

(4)The Refugee Review Tribunal be added as the second respondent to these proceedings.

(5)I note the form of consent order initialled by me, dated today and placed with the papers.

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 2501 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBWA
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	RARES J
DATE:	19 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. In this matter, the parties have asked me to make consent orders.  I propose to make orders in a slightly different form, but to reflect the consent that has been made.  I think it is appropriate to indicate, very briefly, why I am prepared to make the consent orders without coming to any final views on the matter. 

2. At the callover of this matter, I indicated that in the Refugee Review Tribunal’s (‘the Tribunal’) statement of its findings and reasons on p 9 of its typed decision, the tribunal had noted that a passport, a copy of which had been submitted with the application by the appellant, had been relied on by the Tribunal as showing that he had left Australia, returned to China, and then come back to Australia within a very short space of time.

3. The Tribunal used that to enable it to come to a conclusion that it was unable to accept that a person who had feared persecution would willingly return to the source of his persecution so soon after having left it. The appellant had not provided to the tribunal a copy of the passport with his application for review, and no written notice had been given to him, pursuant to s 424A of the Migration Act 1958 (Cth).

4. It seemed to me, at the callover, that there may have been a problem, having regard to the decision of the Full Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 that the Tribunal’s decision was arrived at without compliance with s 424A. In those circumstances, without deciding that the decision was arrived at in that manner, it seems to me appropriate that, the parties having agreed that the matter should be remitted to the Tribunal, I should make orders to the effect of the consent orders that have been signed by the appellant and the solicitor for the respondent.

   Accordingly, pursuant to that consent, I order that:

   (1)The appeal be allowed.

   (2)Orders 2 and 3 made by the Federal Magistrates Court of Australia on 24 November 2005 be set aside and, in lieu thereof, the following orders be made:

   (a)order in the nature of an order absolute in the first instance for a writ of certiorari quashing the decision of the second respondent made on 12 September 2003 and handed down on 8 October 2003 to affirm the decision of the first respondent not to grant to the applicant a protection order;

   (b)order in the nature of a writ of mandamus directing the second respondent to hear and determine the application for review according to law;  and

   (c)each party is to bear that party’s own costs.

   (3)Each party is to bear that party's own costs.

   (4)The Refugee Review Tribunal be added as the second respondent to these proceedings.

   (5)I note the form of consent order initialled by me, dated today and 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 Rares.

Associate:

Dated:             26 June 2006

Applicant:	In person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	19 April 2006
Date of Judgment:	19 April 2006