SZIAH v Minister for Immigration and Multicultural Affairs

[2006] FCA 550

FEDERAL COURT OF AUSTRALIA

SZIAH v Minister for Immigration & Multicultural Affairs

[2006] FCA 550

SZIAH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD 399 of 2006

STONE J
9 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD399 OF 2006
BETWEEN:	SZIAH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	9 MAY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        That leave to appeal be granted to the appellant;

2.The appellant be allowed leave to amend the notice of appeal to raise as a ground of appeal that:

‘His Honour erred in failing to find that the Tribunal committed jurisdictional error by not complying with subsection 424A(1) of the Migration Act 1958 (Cth)’;

3.        That the appeal be allowed;

4.That the orders made by Federal Magistrate Driver on 9 February 2006 in Federal Magistrates Court proceedings SYG12/2006 be set aside and in lieu thereof it be ordered that:

(a)a writ of certiorari be issued to quash the decision of the second respondent, RRT reference N05/51443 made on 14 November 2005 and handed down on 6 December 2005;

(b)a writ of mandamus be issued directing the second respondent to reconsider and determine the matter according to law;

5.        That there be no order as to costs.

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	NSD399 OF 2006

BETWEEN:	SZIAH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	9 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from the decision of Federal Magistrate Driver of 9 February 2006. Because the decision of the Federal Magistrate was made pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) leave is required for an appeal. Relevantly the appellant in seeking that leave needs to show, amongst other things, that the appeal has reasonable prospects of success. I am satisfied for reasons that I will state shortly that the appeal has reasonable grounds of success and therefore that leave to appeal should be granted.

2. The issue on which the appeal would be based depends on the appellant being given leave to amend the notice of appeal to raise the following ground of appeal:

   “His Honour erred in failing to find that the Tribunal committed jurisdictional error by not complying with subsection 424A(1) of the Migration Act 1958 (Cth).”

3. That section requires that the Tribunal give to the applicant particulars of the information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review.  In this case the solicitor for the Minister has directed my attention to the following comment of the Tribunal:

   “The Tribunal noted that despite the applicant's claimed fear that he would be arrested, he remained employed in the same factory until January 1999.  This is both inconsistent with his claimed fear and does not support his claim that the authorities intended to have him arrested.  Consequently the Tribunal does not accept the applicant's claim that after the demonstration he went into hiding or that he had a genuine fear of arrest.  If he had a genuine fear for his safety, the applicant would not have remained in hiding, as claimed, in China for an additional month after the issuing of the Australian visa on 20 January 1999.’

4. It is clear from these comments of the Tribunal that the inconsistency identified by the Tribunal is part of the reason for the Tribunal's decision. As such s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’) applies. The first respondent's solicitor has advised, and I accept, that this claim does not appear in the materials before the Tribunal other than in the applicant’s initial protection visa application and therefore the exception in s 424A(3) of the Act does not apply to this information.

5. On that basis I am satisfied that the Tribunal made a jurisdictional error and that the appeal should be allowed.  I note that the respondent's solicitor had previously forwarded consent orders accepting that this error had occurred.  However, it was necessary for the Court to be satisfied as to the nature of the jurisdictional error alleged and the particulars of that breach.  I am so satisfied and therefore am prepared to make orders generally in accordance with the consent orders that were previously forwarded. 

6. Those orders are:

   (1)       That leave to appeal be granted to the appellant;

   (2)The appellant be allowed leave to amend the notice of appeal to raise as a ground of appeal that:

   ‘His Honour erred in failing to find that the Tribunal committed jurisdictional error by not complying with subsection 424A(1) of the Migration Act 1958 (Cth)’;

   (3)That the appeal be allowed;

   (4)That the orders made by Federal Magistrate Driver on 9 February 20056 in Federal Magistrates Court proceedings SYG12/2006 be set aside and in lieu thereof it be ordered that:

   (a)a writ of certiorari be issued to quash the decision of the second respondent, RRT reference N05/51443 made on 14 November 2005 and handed down on 6 December 2005;

   (b)a writ of mandamus be issued directing the second respondent to reconsider and determine the matter according to law;

   (5)       That there be no order as to costs.

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

Associate:

Dated:            18 May 2006

The applicant appeared in person.
Solicitor for the first respondent:	Phillips Fox
Date of Hearing:	9 May 2006
Date of Judgment:	9 May 2006