SZDWW v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 731

FEDERAL COURT OF AUSTRALIA

SZDWW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 731

SZDWW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1897 OF 2005

RARES J
20 APRIL 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1897 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDWW APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	RARES J
DATE OF ORDER:	20 APRIL 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is allowed.

2.The orders made by the Federal Magistrates Court on 21 September 2005 be set aside, in lieu thereof the following orders be made:

(i)order in the nature of an order absolute in the first instance for a writ of certiorari to quash the decision of the Refugee Review Tribunal made on 30 April 2004 and handed down on 25 May 2004;

(ii)orders in the nature of a writ of mandamus directing the Refugee Review Tribunal to hear and determine the application for review according to law;  and

(iii)each party bear his or her own costs.

3.There be no order as to the costs of the appeal.

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 1897 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDWW APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	RARES J
DATE:	20 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. In this matter the parties have handed up consent orders, which I will initial for the purposes of identification and date today and place with the papers, and I will make orders in slightly different formal terms but to the same effect as those the subject of the consent to reflect what I think are the proper forms of order.

2. The reason why, in my view, it is proper to make orders to the effect of the consent orders, is that having regard to the decision of the Full Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2, which was given after the decisions of the Tribunal and the Federal Magistrate's Court in this matter, the Tribunal appears not to have followed the requirements of s 424A of the Migration Act 1958 (Cth) in at least the respects identified by the solicitor for the Minister in discussion with me this morning.

3. I make no formal finding of the matters which I am about to recite but merely indicate that they raise sufficiently plausible reasons as to why I should approve the consent orders and I have had regard to them as indicative of the basis on which the jurisdiction to do so ought be exercised. They are that on p 22 of the reasons for decision given by the Tribunal in this matter made on 30 April 2004 and handed down on 25 May 2004, the Tribunal referred to information concerning searches it had done on the internet which related directly to the subject matter of the appellant's claim dealing with the chair of Habra municipality and a statement on page 24 of the decision that relied on the applicant's recitation of his education which had not been included in the material provided by him for the purposes of the review within the meaning of s 424A 3(b) of the Act.

4. For those reasons it seems to me that it is appropriate to make the following orders in reliance upon the form of consent orders handed up and signed by the solicitor for the first respondent and the appellant.  The orders I make are:

   1.        The appeal is allowed.

   2.The orders made by the Federal Magistrates Court on 21 September 2005 be set aside, in lieu thereof the following orders be made:

   (i)order in the nature of an order absolute in the first instance for a writ of certiorari to quash the decision of the Refugee Review Tribunal made on 30 April 2004 and handed down on 25 May 2004;

   (ii)orders in the nature of a writ of mandamus directing the Refugee Review Tribunal to hear and determine the application for review according to law;  and

   (iii)each party bear his or her own costs.

   3.There be no order as to the costs of the appeal.

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:            9 June 2006

Appellant:	In person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	20 April 2006
Date of Judgment:	20 April 2006