WAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 193

FEDERAL COURT OF AUSTRALIA

WAAC v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 193

MIGRATION – protection visa – appeal from Federal Magistrates Court dismissing application for a review of decision of Refugee Review Tribunal – Magistrate applied the Hickman principles – in view of decision in Plaintiff S157/2002 v Commonwealth of Australia, should an appellate court constituted by single judge determine whether Tribunal committed jurisdictional error – whether matter should be remitted to Federal Magistrates Court for re-hearing.

Migration Act 1958 (Cth), s 474(1), (2) Judiciary Act 1903 (Cth), s 39B Federal Court of Australia Act 1976 (Cth), s 25(1A)

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 referred to Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 referred to Applicant NAOB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 33 referred to and distinguished NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 19 followed SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74 followed WAAC V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W239 of 2002 CARR J 14 MARCH 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W239 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: WAAC

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: CARR J

DATE OF ORDER: 14 MARCH 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision and orders of the Federal Magistrate, made on 11 July 2002, be set aside. 3. The application be remitted to the Federal Magistrates Court either for re-hearing or further hearing. Whether the application is to be the subject of a re-hearing or further hearing is to be at the discretion of that Court. 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.