Masikula v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1495

FEDERAL COURT OF AUSTRALIA

Masikula v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1495

MIGRATION – application for Bridging visa refused – application to Migration Review Tribunal for review of refusal – applicant in immigration detention – in course of hearing before Tribunal applicant is handed letter containing particulars of information which Tribunal considered was the reason of part of the reason for affirming decision under review – no opportunity for applicant to read the letter – instead, Tribunal member paraphrased the part of letter which member saw to be relevant to applicant – parties agreed that Tribunal's decision should set aside and matter remitted – draft reasons for judgment already prepared – reasons published setting out agreed ground on which appeal is allowed and matter remitted.

Migration Act 1958 (Cth) s 359A

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 applied PECELI MASIKULA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 374 of 2005 LINDGREN J 21 OCTOBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 374 OF 2005

BETWEEN: PECELI MASIKULA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL

SECOND RESPONDENT JUDGE: LINDGREN J

DATE OF ORDER: 21 OCTOBER 2005

WHERE MADE: SYDNEY

BY CONSENT, THE COURT ORDERS THAT: 1. "Australian Government" be removed as second respondent to the appeal and in lieu thereof, the Migration Review Tribunal ('MRT') be joined as second respondent to the appeal. 2. The appeal be allowed. 3. The orders of the Federal Magistrates Court made on 22 February 2005 be set aside and in lieu there of there be: (a) an order in the nature of certiorari quashing the decision of the MRT dated 12 October 2004; and (b) an order in the nature of mandamus that the MRT reconsider the matter according to law. 1. The first respondent pay the appellant's costs as agreed at $2500. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.