NAZH v Minister for Immigration & Multicultural Affairs [2007] FCA 5

FEDERAL COURT OF AUSTRALIA

NAZH v Minister for Immigration & Multicultural Affairs [2007] FCA 5

CITIZENSHIP AND MIGRATION – migration– review of decisions – judicial review – grounds of review – jurisdictional errors – whether Refugee Review Tribunal constructively failed to exercise jurisdiction – whether Refugee Review Tribunal failed to consider integer of claim Held: The Refugee Review Tribunal constructively failed to exercise its jurisdiction SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 448 followed NAZH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD 1313 OF 2005 MADGWICK J 11 JANUARY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY NSD 1313 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAZH

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT JUDGE: MADGWICK J DATE OF ORDER: 11 JANUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. The orders made by the Federal Magistrates Court on 15 July 2005 be set aside. 3. In lieu thereof it be ordered that the following writs issue: (a) a writ of certiorari to quash the decision of the second respondent of 2 December 2004; (b) a writ of prohibition directed to the first respondent prohibiting the first respondent from acting upon or giving effect to or proceeding further upon the decision of the second respondent; and (c) a writ of mandamus to compel the second respondent to reconsider the application according to law. 4. The first respondent is to pay the appellant's costs of the appeal and of the proceedings before the Federal Magistrate. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA