SZAQR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1687

FEDERAL COURT OF AUSTRALIA

SZAQR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1687 SZAQR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N1051 OF 2004 EMMETT J 30 AUGUST 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1051 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZAQR

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 30 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: (1) The appeal be dismissed. (2) The appellant pay the respondent's costs of the appeal in the sum of $3000. 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 N1051 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZAQR

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 30 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of Bangladesh. He arrived in Australia on 26 April 2001, and on 2 May 2001 he lodged an application for a protection visa under the Migration Act 1958 (Cth) ('the Act'). 2 On 10 May 2001 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') refused to grant a protection visa and on 30 May 2001 the appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of that decision. On 9 April 2003 the Tribunal affirmed the decision not to grant a protection visa. The Tribunal handed down its reasons for decision on 1 May 2003. 3 The appellant then applied to the Federal Magistrates Court for relief in respect of the Tribunal's decision pursuant to s 39B of the Judiciary Act 1903 (Cth). On 24 June 2004 the Federal Magistrates Court ordered that the application be dismissed and that the appellant pay the Minister's costs and disbursements fixed in the sum of $4,500. On 6 July 2004 the appellant filed a notice of appeal to this Court. On 30 July 2004 the matter came before me for directions and I listed the matter for hearing today. The Chief Justice has directed that the matter be heard by a single Judge. The grounds specified in the amended application to the Federal Magistrates Court were that the purported decision of the Tribunal was not a decision with any lawful effect because it was infected by jurisdictional error. 4 The jurisdictional error was particularised in the following way: (a) the Tribunal did not comply with the mandatory obligations contained in Section 424A of the Act; (b) the Tribunal had regard to information that was part of the reasons for its decision; (c) this information was taken into account in rejecting the appellant's credibility; (d) the Tribunal did not give the appellant notice of the particulars of the information in the manner required by s 424A(1)(a) and s 424A(2)(a) of the Act; (e) the Tribunal did not ensure as far as is reasonably practicable or at all that the appellant understood why all of that information was relevant to the review as required by s 424A(1)(b) of the Act; (f) none of that information is excluded by s 424A(3)(a).