SZGGD v Minister for Immigration and Multicultural Affairs [2006] FCA 1138

FEDERAL COURT OF AUSTRALIA

SZGGD v Minister for Immigration and Multicultural Affairs [2006] FCA 1138

Migration Act 1958 (Cth): s 424A Judiciary Act 1903 (Cth): s 39B

NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR followed SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR followed SZGGD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD914 OF 2006

JESSUP J

28 AUGUST 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD914 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGGD

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J

DATE OF ORDER: 28 AUGUST 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appellant have leave to rely upon a ground of appeal to the effect that the Federal Magistrate erred by not holding that the Refugee Review Tribunal had constructively failed to exercise its jurisdiction by failing to comply with s 424A of the Migration Act 1958 (Cth) in that it failed to give to the appellant, in writing, particulars of the fact that in his protection visa application the appellant had given an explanation for the death of his mother which differed from the explanation given by the appellant at the hearing before the Tribunal, being a fact which became part of the reason why the Tribunal affirmed the decision under review. 2. The appeal be allowed. 3. The orders made by the Federal Magistrates Court on 27 April 2006 be set aside, and in place thereof it be ordered that: a a writ of certiorari issue directed to the Refugee Review Tribunal removing its decision made on 24 March 2005 into this Court there to be quashed; b. a writ of mandamus issue directed to the Refugee Review Tribunal requiring it to review according to law the decision made by a delegate of the first respondent on 13 December 2004 to refuse to grant a protection visa to the appellant. 4. The first respondent pay the appellant's costs of the appeal.