SZDZT v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 570

FEDERAL COURT OF AUSTRALIA

SZDZT v Minister for Immigration & Multicultural & Indigenous Affairs  [2006] FCA 570

SZDZT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1692 OF 2005

RARES J
18 APRIL 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1692 OF 2005

BETWEEN:	SZDZT APPELLANT
AND:	MINISTER FOR IMMIGRATION& MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	RARES J
DATE OF ORDER:	18 APRIL 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is allowed. 

2.The orders made by the Federal Magistrates Court on 24 August 2005 are set aside and, in lieu thereof, the court orders that:

(a)the Refugee Review Tribunal (‘the Tribunal’) be joined as second respondent to the proceedings;

(b)there be an order in the nature of an order absolute for  a writ of certiorari in the first instance to quash the decision of the Tribunal dated 2 June 2004, and handed down on 29 June 2004;

(c)there be an order in the nature of a writ of mandamus requiring the Tribunal to review the decision of the delegate of the first respondent made on 29 March 2004 according to law;

(d)there be no order as to costs.

3.The Tribunal be joined as second respondent to the appeal.

4.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 1692 OF 2005

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

JUDGE:	RARES J
DATE:	18 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Magistrates Court (SZDZT v Minister for Immigration [2005] FMCA 1311). The Minister has proposed consent orders allowing the appeal and remitting the matter to the Refugee Review Tribunal to be heard according to law.

2. At the call-over of this matter, I raised a question as to whether there was a problem in the failure to comply with s 424A following the decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. I raised the issue as to whether the application for review did not refer to earlier material provided to the delegate, that the Tribunal had sent a letter to the appellant raising issues under section 424A, but not, relevantly, referring to his original application for a protection visa.

3. The Tribunal noted that the claims which the appellant presented at the hearing before it were different from those in his original protection visa application and in his application for review, and considered that the different claims indicated that his claims were fabricated. His Honour, [2005] FMCA 1311 [15], applied the reasoning of the majority in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [29]-[33] to hold that certain comments of the Tribunal were not an integral part of its reasoning in relation to credibility, particularly those that dealt with his relationship with his adviser and other applicants. His Honour did not appear to consider the particular issue which I raised.

4. The majority of the Full Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 reviewed the reasoning in the earlier Full Court decision in light of the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, and concluded that the approach of the majorities in VAF and other decisions requiring the relevant part of the reasoning of the Tribunal to have a particular importance, or to be of a character, were an incorrect interpretation of s 424A of the Migration Act1958 (Cth) ([2006] FCAFC 2 [215] per Allsop J). For these reasons, I consider that it is appropriate that I make consent orders allowing the appeal and remitting the matter to the Tribunal.

5. The Minister has asked for an order for costs of today on the basis of the affidavit of Angela Louise Radich sworn today.  She said that on 6 April this year she sent a letter to the appellant at his last given address in these proceedings indicating that the Minister was prepared to consent to the appeal being allowed, and that, thereafter, she attempted to contact him on the telephone numbers which he had provided in the Federal Magistrates Court proceedings, both his land line and mobile numbers, on 6 April, 11 April and 13 April, but had not been able to contact him.  She said that she had not been contacted by the appellant since the call-over on 15 March 2006.

6. The appellant explained that he had changed his address and telephone numbers, and that he had given details of that to his migration agent, Mr Ng.  The circumstances are such that I am not minded to exercise my discretion to require the appellant to pay the costs today.  I think that, although it would have been desirable for him to have made some direct contact with the Minister's solicitors, I note that he does not appear to speak English, and is being assisted today, and has been assisted in the past, by an interpreter.  I think that he has given a reasonable explanation, albeit not on oath, as to taking steps to notify a change of address, and leaving it to his migration adviser to make contact with the Minister and the Minister's representatives, as appropriate.  Doing the best I can, I think the fair order to make is that there should be no order as to the costs of the appeal, including today.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:            16 May 2006

Appellant:	In person
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	18 April 2006
Date of Judgment:	18 April 2006