NACZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 457

FEDERAL COURT OF AUSTRALIA

NACZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 457

MIGRATION – upholding of appeal by consent – circumstances – whether there is an irreducible minimum qualitatively required of a "review" – possible content thereof – whether and when appropriate for Court exceptionally to look to factual materials notoriously and/or readily available but not referred to by Refugee Review Tribunal NACZ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N1607 of 2001

MADGWICK J 30 APRIL 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1607 OF 2001

BETWEEN: NACZ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 30 APRIL 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal ("the Tribunal") dated 17 October 2001 is invalid because the Tribunal failed to ask itself the correct question when considering persecution. 2. The matter be remitted to the Tribunal to be determined in accordance with law before a differently constituted Tribunal. 3. The respondent pay the applicant's costs of the proceedings, as agreed or taxed. 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 N1607 OF 2001

BETWEEN: NACZ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE: 30 APRIL 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This matter has followed a somewhat unusual course. The case, as I indicated at the earlier oral hearing, now I regret to say some months ago, caused me considerable concern, but I was not able, in the course of debate with counsel for the Minister, to crystallise my concerns in what seem to me to be legally acceptable terms. By the time I had done that Plaintiff S157/2002 v Commonwealth of Australia (2003) 193 ALR 24had been decided in the High Court and the test for judicial intervention with the decisions of the Refugee Review Tribunal ("the Tribunal") had altered somewhat. 2 Unusually, in consideration of the matter, I found it necessary and proper to look to some readily available sources, other than those created by the Australian Government, to remind myself of what had been very well recorded events in the applicant's country of origin over the last fifteen or twenty years. In the circumstances, I took the unusual course of causing to be sent to the parties a draft of my judgment with a view to ensuring that, whatever other errors it might contain, there could be no inadvertent failure to accord procedural fairness to both parties.