Taubale v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 392

FEDERAL COURT OF AUSTRALIA

Taubale v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 392

MIGRATION REVIEW TRIBUNAL – consent orders setting aside decision

SEMISI SERU TAUBALE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N61 of 2003

ALLSOP J
29 APRIL 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N61 of 2003

BETWEEN:	SEMISI SERU TAUBALE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	29 APRIL 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.That the decision of the Migration Review Tribunal dated 6 January 2003 be set aside.

2.The matter be remitted to the Migration Review Tribunal to be determined according to law.

3.The respondent pay the applicant's 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	N61 of 2003

BETWEEN:	SEMISI SERU TAUBALE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	29 APRIL 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”). The decision was made by the Tribunal on 6 January 2003. Mr Taubale's application was filed in this Court on 29 January 2003. The application was made under s 39B of the Judiciary Act 1903 (Cth). No specific grounds were set out in the application.

2. The visa concerned a long stay visitor visa under the regulations.  The Tribunal affirmed the decision under review finding that the visa applicant was not entitled to the grant of a long stay visitor class TN visa. 

3. The parties have propounded consent orders to the Court, they are signed by the applicant and the solicitor for the respondent.  The orders which the parties asked the Court to make by consent are that:

   1. the decision of the Tribunal dated 6 January be set aside.
   2. the matter be remitted to the Migration Review Tribunal to be determined according to law.
   3. the respondent Minister pay the applicant's costs.

4. The court obtains jurisdiction by provisions of the Migration Act 1958 (Cth) and also s 39B of the Judiciary Act.  The power of the Court to make orders setting aside decisions of the Tribunal depends upon the existence of relevant error.  There is a view expressed by a number of judges in this Court that consent orders should not be made without detailed reference to the material.  I do not propose to enter a debate about that.  It is sufficient, in my view, for the Court to be satisfied of the existence, and the nature, of the perceived error and to make an order conformable with that likely error existing.

5. Without the slightest disrespect to the Minister and the solicitors who act for him in this case, I think I can take it, from my experience as a Judge of this Court that if the Minister is of the view as set out in the letter of Blake Dawson Waldron of 24 April 2003 that there “may be” an error of a jurisdictional kind exhibited by the Tribunal's decision and if he is consenting to an order for costs against himself and to an order setting aside the decision, that he and his advisers are of the view that there is an error, or likely to be found by this Court to be such an error after submission by counsel or solicitors.

6. It was put to the Court via a letter to my associate from Blake Dawson Waldron of 24 April 2003 that Blake Dawson Waldron were instructed that the Minister wishes to withdraw from this matter on the basis that the Migration Review Tribunal “may have failed to apply a provision of the migration regulations governing the decision under review, namely subclause 686.221(3) and that the Minister considers that this failure may amount to a jurisdictional error which renders the privative clause in s 474 of the Migration Act inapplicable to the Tribunal's decision in this case”.

7. I take it from that letter that on review of the material the Minister has recognised that the Tribunal failed to take into account and apply a relevant provision being that subclause mentioned in the letter, this being an apparent error of law and an important one, it would appear that s 474 of the Migration Act does not apply.  In these circumstances I am content to make the consent order agreed to by the applicant and the respondent.  Thus the orders of the court are:

   1.That the decision of the Migration Review Tribunal dated 6 January 2003 be set aside.

   2.The matter be remitted to the Migration Review Tribunal to be determined according to law.

   3.The respondent pay the applicant's costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             2 May 2003

The applicant appeared in person.
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	29 April 2003
Date of Judgment:	29 April 2003