SZCWF v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 698

FEDERAL COURT OF AUSTRALIA

SZCWF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 698

SZCWF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND ANOR
NSD 339 OF 2006

RARES J
23 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 339  OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCWF
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

RARES J

DATE OF ORDER:

23 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders of the Federal Magistrate's Court made on 31 January 2006 be set aside and in lieu thereof the following orders be made:

(a) an order in the nature of an order absolute in the first instance for a writ of certiorari to quash the decision of the second respondent made on 20 January 2004 and handed down on 11 February 2004 to affirm the decision of the first respondent not to grant the applicant a protection visa;  and

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

3.There be no order as to costs.

4.Makes those orders by consent.

THE COURT NOTES:

1.The terms of the consent orders signed by the applicant and the solicitor for the first respondent dated 22 May 2006, a facsimile copy of which I have initialled today, dated 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 339  OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCWF
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	RARES J
DATE:	23 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. In this matter the parties have signed consent orders which are dated 22 May 2006 for the disposition of the appeal.  On the basis of that consent I will vary slightly the form of those orders to reflect what I regard as the proper form and I will make those orders. 

2. The basis on which I do so is that after his Honour reserved judgment in the matter on 21 November 2005, but before judgment was delivered on 31 January 2006, the High Court gave judgment in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411. Ms Nesbitt, who appears for the Minister, informs me that his Honour's attention was not drawn to discussion in that decision of the importance and re-emphasis of the need to provide a fair opportunity to a person to deal with adverse information that is credible, relevant, and significant.

3. In that case the Tribunal did not draw attention to a matter which it stated, in its reasons for decision, it had received but would put aside from its consideration. Nonetheless the Court held that that constituted a departure from the principles of procedural fairness which their Honours said focussed upon procedures rather than outcomes (222 ALR 416 [16]). Here, his Honour, in a careful judgment, gave consideration to what Brennan J had said in relation to information that had come to the attention of the decision-maker which was credible, relevant and significant (see: SZCWF v Minister for Immigration (2006) FMCA 30 at 12 and following).

4. I am of opinion that there is a reasonable basis for concluding that his Honour may have erred in the way his Honour approached his consideration of this matter sufficient to warrant my accepting the consent orders as being appropriate to be made. I note that there is a typographical error in [11] of his Honour's reading in that the date on which s 422B of the Migration Act 1958 (Cth) came into effect was 4 July 2002, not as noted in his Honour's judgment on 4 July 2000.

5. Accordingly, since the application for review was made on 20 December 2001 the exhaustiveness of the procedure in Div 4 Pt 7 of the Act which s 422B mandated was not then in force and the common law principles of procedural fairness continued to apply notwithstanding the effect of s 424A(3)(a). Accordingly, I think there is an arguable basis that an error may have been made out sufficient to warrant the court accepting, in the exercise of its appellate jurisdiction, consent orders to allow the appeal and return the matter to the Tribunal.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:             14 June 2006

Appellant:	No appearance
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	23 May 2006
Date of Judgment:	23 May 2006