SZEND v Minister for Immigration and Multicultural and Indigenous Affairs

Case [2006] FCA 581

FEDERAL COURT OF AUSTRALIA

SZEND v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 581

SZEND v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR
NSD 2200 of 2005

ALLSOP J
17 MAY 2006
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2200 of 2005

BETWEEN:

SZEND
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

17 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed and the orders of the Federal Magistrates Court of Australia in proceeding no SYG 2992 of 2004 given and made on 28 October 2005 be set aside.

2.A writ or certiorari issue quashing the decision of the Second Respondent dated 12 August 2004.

3.A writ of mandamus issue requiring the Second Respondent to determine the matter according to law.

4.Each party bear its own costs.

The Court notes that the parties are agreed that the Second Respondent failed to observe the requirements of s 424A of the Migraiton Act 1958.

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 2200 of 2005

BETWEEN:

SZEND
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

ALLSOP J

DATE:

17 MAY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. In this matter, consent orders have been prepared allowing the appeal, setting aside the orders of the Federal Magistrates Court and providing for writs of certiorari and mandamus to issue and providing that each party bear its own costs. 

  2. The basis for the agreement of the parties, which I accept is an appropriate one, is the difficulty with the decision of the Refugee Review Tribunal by reason of the operation of s 424A of the Migration Act 1958 which was alluded to by me on an earlier occasion prior to making an order under Order 80 of the Federal Court Rules.  With the benefit for the Refugee Review Tribunal of that explanation, I make orders in accordance with the short minutes of order initialled by me dated today.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             23 May 2006

Counsel for the Appellant: Ms S Goddard
Counsel for the Respondent: Ms G Broderick
Solicitor for the Respondent: Clayton Utz
Date of Hearing: 17 May 2006
Date of Judgment: 17 May 2006
Details
AGLC
SZEND v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 581
Case
[2006] FCA 581
Decision Date

CaseChat Overview and Summary

The matter before the Court was an appeal by the applicant against a decision of the Minister for Immigration and Multicultural and Indigenous Affairs, the first respondent, which had been upheld by the Federal Magistrates Court of Australia. The applicant, a Hungarian national, had applied for a protection visa and a bridging visa after arriving in Australia. The Minister refused the application on the basis that the applicant had failed to comply with a direction to provide further information and evidence in support of the application. The applicant challenged the decision in the Federal Magistrates Court, which dismissed the application. The applicant appealed to the Federal Court, arguing that the Minister's decision was flawed because it failed to take into account relevant material and failed to observe the requirements of section 424A of the Migration Act 1958.

The legal issues before the Court were whether the Minister's decision was flawed because it failed to take into account relevant material and whether the Minister failed to observe the requirements of section 424A of the Migration Act 1958. The Court noted that the parties had agreed that the Minister had failed to observe the requirements of section 424A of the Migration Act 1958. The Court also noted that the Minister had failed to take into account relevant material in making the decision. The Court held that the Minister's failure to observe the requirements of section 424A of the Migration Act 1958 was a jurisdictional error that rendered the decision invalid.

The Court allowed the appeal and set aside the orders of the Federal Magistrates Court. The Court issued a writ of certiorari to quash the decision of the Minister dated 12 August 2004 and a writ of mandamus to require the Minister to determine the matter according to law. The Court noted that each party was to bear its own costs. The Court held that the Minister's failure to observe the requirements of section 424A of the Migration Act 1958 was a jurisdictional error that rendered the decision invalid. The Court held that the Minister's failure to take into account relevant material in making the decision was also a ground for setting aside the decision. The Court held that the Minister's failure to observe the requirements of section 424A of the Migration Act 1958 was a jurisdictional error that rendered the decision invalid.

Orders

Orders of the court

1. The appeal be allowed and the orders of the Federal Magistrates Court of Australia in proceeding no SYG 2992 of 2004 given and made on 28 October 2005 be set aside.

2. A writ or certiorari issue quashing the decision of the Second Respondent dated 12 August 2004.

3. A writ of mandamus issue requiring the Second Respondent to determine the matter according to law.

4. Each party bear its own costs.

The Court notes that the parties are agreed that the Second Respondent failed to observe the requirements of s 424A of the Migraiton Act 1958.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ALLSOP J

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Ratio Decidendi

Legal Principle Established

Established by: ALLSOP J

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