SZHDQ v Minister for Immigration

[2007] FMCA 137

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHDQ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 137

MIGRATION – Review of RRT decision − whether the Tribunal complied with s.425A in holding the hearing on the 14^th day after the date on which the applicant was deemed to receive the invitation to attend the hearing.

Migration Act 1958 (Cth), s.425A
Federal Magistrates Court Rules 2001 Rule 16.05

Applicant: SZHDQ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2638 of 2005

Judgment of: Raphael FM

Hearing date: 8 February 2007

Date of Last Submission: 8 February 2007

Delivered at: Sydney

Delivered on: 9 February

REPRESENTATION

Applicant in Person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. A writ of certiorari issue quashing the decision of the Second Respondent made on 10 August 2005 and handed down on 30 August 2005.

2. A writ of mandamus issue requiring the Second Respondent to redetermine the matter according to law.

3. Each party bear its own costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2638 of 2005

SZHDQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 8 February 2007 I heard an application for judicial review of a decision made by the Refugee Review Tribunal on 30 August 2006. After hearing the parties I gave ex tempore reasons for the decision ordering that the application be dismissed and the applicant pay the respondent’s costs.

2. No orders were entered.

3. On 9 February 2007 I received a letter from the respondents’ solicitors acting as a model litigant. The letter noted that I had observed that the Refugee Review Tribunal had held the hearing on the 14^th day after the date on which the applicant was deemed to have received the letter inviting him to attend a hearing. The letter continued:

   “Upon returning from Court, we have reviewed section 425A of the Migration Act 1958 (Cth) and Regulation 4.35D of the Migration Regulations 1994 (Cth) and note that the RRT was required to give “at least the prescribed period” which meant that it was unable to schedule the hearing on the 14^th day of the prescribed period. In view of this error, we request that his Honour make an order pursuant to rule 16.05(2)(f) of the Federal Magistrates Court Rules 2001 setting aside the orders made yesterday and in their place making the following orders:

   1.   A writ of certiorari issue quashing the decision of the Second Respondent made on 10 August 2005 and handed down on 30 August 2005.

   2.   A writ of mandamus issue requiring the Second Respondent to redetermine the matter according to law.

   3.    Each party bear its own costs.”

4. Part 16 Rule 16.05(1) is in the following form:

   “Setting aside

   (1) The Court may vary or set aside its judgment or order before it has been entered.

   (2)The Court may vary or set aside its judgment or order after it has been entered if:

   …

   (f)   the party in whose favour the order is made consents.

   ...”

5. I believe that the action proposed by the respondent is the correct procedure to be applied in this case and in place of the orders noted in my ex tempore judgment I shall make the orders requested by the respondents’ solicitors.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: