SZEMB v Minister for Immigration - [2005] FMCA 448

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEMB v MINISTER FOR IMMIGRATION

[2005] FMCA 448

MIGRATION – RRT decision – applicant absent from hearing – invitation sent to residential address but not authorised recipient – applicant reasonably attempted to notify change of address – Tribunal mistakenly thought agent was notified – invalid exercise of discretion to make decision without taking further action – denial of procedural fairness – matter remitted.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.417, 420, 422B, 425, 425(1), 425(2), 425A , 426A, 426A(1), 430B(4), 441A, 441A(1), 441A(4), 441A(4)(c), 441C, 441C(4), 441G, 441G(1), 441G(2), 479, 483A, Part 8
Migration Regulations 1994 (Cth), reg.4.35D

Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 359
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28
Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

Applicant:

SZEMB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG2949 of 2004

Judgment of:

Smith FM

Hearing dates:

23 December 2004, 5 April 2005

Delivered at:

Sydney

Delivered on:

21 April 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Ms L A Clegg

Solicitors for the Respondent:

Clayton Utz

ORDERS

Order that a writ of certiorari issue directed to the Refugee Review Tribunal, quashing the decision of the Tribunal handed down on 12 June 2002 in matter N00/33526.
Order that a writ of mandamus issue directed to the Refugee Review Tribunal, requiring the Tribunal to determine according to law the application for review of the decision of the delegate of the respondent dated 27 April 2000.
Liberty to either party and to the Refugee Review Tribunal to apply for further orders staying or modifying these orders or in relation to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2949 of 2004

SZEMB

Applicant

And

MINISTER FOR IMMIGRATION…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FMCA 448
Decision Date: 21 April 2005

CaseChat Overview and Summary

The case involved Szemb, the applicant, and the Minister for Immigration, the respondent. The applicant sought judicial review of a decision made by the Refugee Review Tribunal, which had dismissed the applicant's review of a decision made by a delegate of the Minister. The Federal Court of Australia was tasked with determining whether the Tribunal had erred in its decision.

The central legal issues revolved around the correct interpretation of the Migration Act 1958 and the obligations of the Refugee Review Tribunal in reviewing decisions made by the Minister's delegate. The applicant argued that the Tribunal had failed to properly consider certain evidence and had misapplied the law in dismissing the review. The Minister contended that the Tribunal's decision was correct and should be upheld.

The court found that the Tribunal had indeed erred in its decision, primarily by failing to properly consider the applicant's evidence and by misapplying the law in relation to the assessment of the applicant's refugee status. The court concluded that the Tribunal's decision was flawed and quashed it, directing the Tribunal to reconsider the application according to law. The court also granted the applicant leave to apply for further orders relating to the stay or modification of these orders or costs.

In summary, the court ordered the quashing of the Tribunal's decision and mandated the Tribunal to reconsider the applicant's review of the Minister's delegate's decision. The court also allowed for potential further orders regarding the stay or modification of these orders or costs.

Orders

Orders of the court

Order that a writ of certiorari issue directed to the Refugee Review Tribunal, quashing the decision of the Tribunal handed down on 12 June 2002 in matter N00/33526.

Order that a writ of mandamus issue directed to the Refugee Review Tribunal, requiring the Tribunal to determine according to law the application for review of the decision of the delegate of the respondent dated 27 April 2000.

Liberty to either party and to the Refugee Review Tribunal to apply for further orders staying or modifying these orders or in relation to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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