SZNDP v Minister for Immigration

[2009] FMCA 547

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNDP v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 547

MIGRATION – RRT decision – jurisdictional error conceded by Minister – no appearance by applicant – matter remitted.

Migration Act 1958 (Cth)

SZGKX v Minister for Immigration & Citizenship [2007] FCA 461

Applicant: SZNDP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 68 of 2009

Judgment of: Smith FM

Hearing date: 2 June 2009

Delivered at: Sydney

Delivered on: 2 June 2009

REPRESENTATION

Counsel for the Applicant: No Appearance

Counsel for the Respondents: Ms K Dunn

Solicitors for the Respondents: Clayton Utz

ORDERS

1. A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 10 December 2008 in matter N0806253.

2. A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated

   
   2 September 2008

   .

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 68 of 2009

SZNDP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for relief under s.476 of the Migration Act 1958 (Cth) in relation to a decision of the Tribunal handed down on

   
   30 October 2008

   , affirming the refusal of a protection visa to the applicant.  The application was set down for final hearing today.

2. I note that there is no appearance by or on behalf of the applicant. Nor, it seems, has the applicant responded to correspondence from the Minister proposing consent orders for the remitter of the matter to the Tribunal. He has not filed any further documents since attending the first court date.  Notwithstanding my doubt whether the applicant has lost interest in his application, the Minister asks the Court to remit the matter for reconsideration by the Tribunal.  The Court does have power to proceed to give relief in the absence of the applicant under r.13.03C(1)(e), although most respondents would not invite the exercise of that power.

3. The Minister’s proposed consent orders note his concession of jurisdictional error in the following terms:

   The first respondent concedes that the second respondent failed to consider all the claims put forward by the applicant and disregarded corroborative documents in support of those claims. The basis for the first respondent’s concession is the decision of the Full Court of the Federal Court of Australia in SZGXK v Minister for Immigration and Citizenship [2007] 94 ALD 604.

4. This does not provide adequate particulars of the concession that the Tribunal failed to consider all claims and corroborative documents.  The citation which appears to be intended is in fact the judgment of a single justice, Conti J in SZGKX v Minister for Immigration & Citizenship [2007] FCA 461, which needs to be understood in the light of his Honour’s statement at [31]: “The present claim to refugee status bears a somewhat contextual uniqueness.”

5. I do not consider that it is necessary for me to form an opinion that a concession of jurisdictional error is correctly made, although I do need to satisfy myself that the Court has jurisdiction to make an order which is not opposed.  The recent practice of requiring the Minister to expose the reasons for his concessions is more for the benefit of the Tribunal, which is entitled to know which of the defects in its previous decision which were alleged by the applicant have been conceded by the active respondent to the application.

6. On my reading of the Court Book, it is certainly clear that the Tribunal’s reasoning is terse and does not expressly address all elements in the applicant’s refugee claims, but its finding that the applicant was not a Christian might appear sufficiently to explain a rejection of all his claims. However, it is true that the Tribunal did not discuss the corroborative document which the applicant tendered to the Tribunal, purporting to be a statement from the applicant’s village leader, and it might be arguable that this was significant evidence which was totally disregarded.

7. In view of the Minister’s application to the Court to remit the matter, notwithstanding the absence of the applicant to support the making of that order, I am willing to exercise the court’s jurisdiction as requested.  

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  12 June 2009