SZDDP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1786

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 In this matter on 3 June 2005 I made orders extending time for the appellant to seek leave to appeal and granting leave to appeal. The appeal was from a decision of the Federal Magistrates Court of 1 December 2004 dismissing the appellant's case summarily. The legal advisers of the Minister have no doubt since June examined the matter with some care. The view has been taken and instructions have been obtained that the matter should be remitted to the Refugee Review Tribunal (the "Tribunal"). The recognition of the jurisdictional error rests upon the application of cases in the High Court and the Federal Court concerning s 424A of the Migration Act 1958. Without, of course, in any way conceding any position legitimately to be taken in other cases the Minister accepts that there was, on current Federal Court authority, a jurisdictional error in the Tribunal's approach by the failure to give a letter under s 424A. In this respect, see particularly page 9 of the Tribunal's decision of 10 February 2004 handed down on 2 March 2004. 2 In these circumstances, the Minister has agreed to the matter being remitted to the Refugee Review Tribunal without the necessity for a further step being taken in the Federal Magistrates Court. Appeals to this Court are a rehearing and this procedure is perfectly proper and appropriate. 3 The parties have agreed short minutes of order dealing with the setting aside of the Tribunal's decision. The short minutes of order lack orders dealing with the orders of the Federal Magistrates Court and also contain an ambiguity. The ambiguity is one about costs. The orders were intended and are agreed to be that each party bear his and her own costs of the appeal. That leaves, however, the costs ordered by the Federal Magistrate. An order for $2000 for costs was made by the Federal Magistrate against the appellant. 4 The decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 in the High Court was not handed down until May 2005. Therefore the apparent point available to the appellant was not illuminated to either the Minister or to the appellant when the Federal Magistrate dealt with the matter. I think in all the circumstances, exercising my powers in the appellate jurisdiction informed by a recognition of the breadth of costs powers, it would be an injustice for the appellant to be required to pay $2000 for an inability to recognise a point not apparent until the High Court handed down its reasons six months later. 5 Therefore the orders that I make based upon the short minutes of order, which short minutes of order will remain with the file, are as follows: (1) The appeal be allowed; (2) The orders of the Federal Magistrates Court made 1 December 2004 be set aside; (3) In lieu therefore it be ordered as follows: (a) The Refugee Review Tribunal be joined as the second respondent; (b) A writ of certiorari issue quashing the decision of the Refugee Review Tribunal; (c) A writ of mandamus issue requiring the Refugee Review Tribunal to redetermine the matter according to law; (d) There be no order as to costs. (4) Each party pay his and her own costs of the appeal. 6 As is apparent from what I have earlier said virtually all the orders are by consent save for the order dealing with the costs in the Federal Magistrates Court and are based on what Mr Reynolds said to me as to the recognised jurisdictional error in the approach of the Tribunal. Therefore the orders are as I have identified and I make those orders. A copy of those orders will be sent to the parties by my associate.