SZAFW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 173

FEDERAL COURT OF AUSTRALIA

SZAFW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 173 MIGRATION – application for protection visa – whether appellant put claim to the Tribunal – whether Tribunal failed to consider appellant's claim – whether failure to consider appellant's claim amounts to jurisdictional error Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) Convention Relating to the Status of Refugees 1951

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 75 ALD 630 applied Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 cited Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 cited Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 cited SZAFW v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 446 discussed SZAFW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1715 OF 2003 WILCOX, STONE & JACOBSON JJ 6 JULY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1715 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZAFW

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: WILCOX, STONE & JACOBSON JJ

DATE OF ORDER: 6 JULY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be allowed; 2. The orders of the Federal Magistrate be set aside; 3. The decision of the Refugee Review Tribunal be set aside and the matter remitted to the Tribunal for rehearing and redetermination; and 4. The respondent pay the appellant's costs of this appeal and of the application to the Federal Magistrates Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.