WAHT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 593

FEDERAL COURT OF AUSTRALIA

WAHT v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 593

MIGRATION – protection visa – appeal from Federal Magistrates Court dismissing application for a review of decision of Refugee Review Tribunal – after conclusion of hearing before it, Tribunal obtained two country reports concerning major events in Afghanistan which had occurred since the hearing – Tribunal did not put the substance of that information to the appellant and afford him an opportunity to make submissions – whether procedural unfairness amounting to jurisdictional error – Magistrate applied the Hickman principles – subsequent decision of High Court in Plaintiff S157/2002 v Commonwealth of Australia – appeal allowed and matter remitted to Tribunal.

Migration Act 1958 (Cth), s 474

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 followed Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 referred to Muin v Refugee Review Tribunal (2002) 190 ALR 601 referred to NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 referred to Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2followed Commissioner of Taxation v La Rosa [2003] FCAFC 125 referred to WAHT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W361 of 2002 CARR J 12 JUNE 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W361 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: WAHT

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: CARR J

DATE OF ORDER: 12 JUNE 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Federal Magistrates Court dated 12 December 2002 be set aside. 3. A writ of certiorari issue directed to the Refugee Review Tribunal to quash its decision, made on 28 June 2002, to affirm the respondent's decision not to grant a protection visa. 4. The matter to which that decision relates be remitted to the Refugee Review Tribunal for determination according to law. 5. The respondent pay the appellant's costs of the proceedings in the Federal Magistrates Court and of the appeal.