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MIGRATION - protection visa - Federal Magistrates Court dismissed application to set aside decision of Refugee Review Tribunal - appeal - orders sought by consent - need for Tribunal to be told nature of agreed defects in its reasons

APPEAL - allowed by consent - proper form of order - exercise of constitutional writs jurisdiction

SDAF v Minister for Immigration & Multicultural & Indigenous Affairs [2003]

SDAF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 127 (14 May 2003)
Last Updated: 11 June 2003


FEDERAL COURT OF AUSTRALIA
SDAF v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 127

MIGRATION - protection visa - Federal Magistrates Court dismissed application to set aside decision of Refugee Review Tribunal - appeal - orders sought by consent - need for Tribunal to be told nature of agreed defects in its reasons

APPEAL - allowed by consent - proper form of order - exercise of constitutional writs jurisdiction

SDAF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 219 of 2002

GRAY, COOPER AND SELWAY JJ

14 MAY 2003

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA



SOUTH AUSTRALIA DISTRICT REGISTRY
S 219 of 2002





ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT

BETWEEN:
SDAF

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
GRAY, COOPER AND SELWAY JJ


DATE OF ORDER:
14 MAY 2003


WHERE MADE:
ADELAIDE




THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The judgment and orders of Federal Magistrate Raphael, given on 30 August 2002, be set aside.

3. There be substituted for the orders made on 30 August 2002 orders that:

(a) A writ of certiorari issue, directed to the Refugee Review Tribunal, removing

the decision made on 26 February 2002, into this Court, for the purpose of

quashing it.

(b) The decision be quashed.

(c) A writ of mandamus issue, directed to the Refugee Review Tribunal, requiring

it, constituted by a member other than the member who made the decision, to

hear and determine the matter the subject of the decision, according to law.



(d) There be no order as to the costs of the application.

4. There be no order as to the costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA



SOUTH AUSTRALIA DISTRICT REGISTRY
S 219 of 2002





ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT

BETWEEN:
SDAF

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
GRAY, COOPER AND SELWAY JJ


DATE:
14 MAY 2003


PLACE:
ADELAIDE





REASONS FOR JUDGMENT

THE COURT:

1 This appeal is from a judgment and orders of Federal Magistrate Raphael, given on 30 August 2002. The appeal was listed for hearing today. Yesterday, the parties filed written consent orders signed by their representatives, pursuant to O 35 r 10 of the Federal Court Rules. The orders by consent were that: the appeal be allowed and the judgment of the Federal Magistrate be set aside; the decision of the Refugee Review Tribunal, made on 26 February 2002, be set aside; and the matter be remitted to the Refugee Review Tribunal, differently constituted, for reconsideration. The parties sought that there be no order as to costs.

2 Because the consent orders did not make it clear to the Tribunal, in the event that the matter returned to it, what were the defects in the Tribunal's reasons, the Court was not able to approve the consent orders simply by ordering that they be made under O 35 r 10. Communication from the Court to the parties' representatives resulted in a letter faxed to the Court late yesterday, which contained the agreed grounds on which the parties consented to the matter being remitted to the Refugee Review Tribunal. Those grounds were as follows:

"1. The Tribunal gave the Appellant's representatives the impression that they would have the opportunity to provide written submissions after the Tribunal interviewed the Appellant husband's mother (Appeal Book page 282).
2. Implicit in the discussion between the Tribunal and the Appellant's representative was that the Tribunal would contact the Appellant's representative before the final submissions were submitted.

As a result of 1 and 2 above, in this particular matter, the Appellant was given the inaccurate impression they would have the opportunity to provide final written submissions - Muin v Refugee Review Tribunal (2002) 190 ALR 601."

3 Accordingly, the parties seem to be agreed that, by that means, the Tribunal denied the appellant procedural fairness, by denying them the opportunity to present written submissions after the Tribunal hearing. On that basis, the Court is prepared to make orders along the lines of those sought by consent.

4 We wish to make it absolutely clear, however, that the grounds that have been agreed are not necessarily, in the view of the Court, the only grounds on which the decision of the Refugee Review Tribunal might have been ordered to be set aside. We would not wish the Tribunal to be given the impression that the Court has taken the view that the agreed grounds are the only grounds for setting aside the decision of the Tribunal.

5 So far as the form of the orders is concerned, we are of the view that they do not adequately reflect the fact that the Court is exercising its appellate jurisdiction, on appeal from the Federal Magistrates Court, or that it is exercising the jurisdiction given to the Federal Magistrates Court and this Court by s 39B of the Judiciary Act 1903 (Cth). Accordingly we have recast the orders in a form that we believe best reflects the consent of the parties, whilst recognising those facts.

6 The orders that we make, by consent, are:

1. The appeal be allowed.

2. The judgment and orders of Federal Magistrate Raphael, given on 30 August 2002, be set aside.

3. There be substituted for the orders made on 30 August 2002 orders that:

(a) A writ of certiorari issue, directed to the Refugee Review Tribunal, removing

the decision made on 26 February 2002, into this Court, for the purpose of

quashing it.

(b) The decision be quashed.

(c) A writ of mandamus issue, directed to the Refugee Review Tribunal, requiring

it, constituted by a member other than the member who made the decision, to

hear and determine the matter the subject of the decision, according to law.


(d) There be no order as to the costs of the application.

4. There be no order as to the costs of the appeal.

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




Associate:

Dated: 11 June 2003

Counsel for the Appellant:
G Brown






Solicitor for the Appellant:
Refugee Advocacy Service of South Australia






Counsel for the Respondent:
M Roder






Solicitor for the Respondent:
Sparke Helmore






Date of Hearing:
14 May 2003






Date of Judgment:
14 May 2003


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