FEDERAL COURT OF AUSTRALIA SZTFA v Minister for Immigration and Border Protection [2016] FCA 153 Appeal from: SZTFA v Minister for Immigration & Anor [2015] FCCA 2350 File number: NSD 1130 of 2015 Judge: LOGAN J Date of judgment: 26 February 2016 Catchwords: PRACTICE AND PROCEDURE – application to dispose of appeal by allowing appeal and remitting matter to Administrative Appeals Tribunal for determination – where parties have agreed consent orders to this effect – where disposal of appeal is dealt with without oral hearing – r 36.41(g) Federal Court Rules 2011 (Cth) – judicial discretion to make order in accordance with terms of written consent of parties – r 39.11 Federal Court Rules 2011 (Cth) – where parties have not proffered explanation for agreement that appeal ought to be allowed – further submissions provided identifying error of law and basis of concession that appeal ought to be allowed – order made in terms of consent pursuant to r 39.11 Federal Court Rules 2011 (Cth). MIGRATION – application for Protection (Class XA) visa – whether Federal Circuit Court erred in applying the test of a well-founded fear of persecution – whether Federal Circuit Court erred in its consideration of the reasonableness of relocation. Legislation: Federal Court Rules 2011 (Cth) rr 36.41(1)(g), 39.11 Date of hearing: 26 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Solicitor for the Appellant: Fragomen Worldwide Solicitor for the First Respondent: Australian Government Solicitor ORDERS NSD 1130 of 2015 BETWEEN: SZTFA Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: LOGAN J DATE OF ORDER: 26 FEBRUARY 2016 THE COURT ORDERS THAT: 1. The appeal be allowed. 2. Orders 2 and 3 made by the Federal Circuit Court on 31 August 2015 be set aside. 3. The decision of the second respondent, dated 23 July 2013, which affirmed the decision not to grant the appellant a Protection (Class XA) visa be quashed. 4. The appellant's application for review of the decision of the first respondent not to grant the appellant a Protection (Class XA) visa be remitted to the second respondent for determination according to law. 5. The first respondent pay the appellant's costs of the appeal and of the proceeding below. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT LOGAN J: 1 This appeal from the Federal Circuit Court was listed for hearing today. 2 On 22 February 2016, the solicitors for the Minister for Immigration and Border Protection, who is the first respondent and the only active respondent party to the appeal, with the approval of the solicitor for the appellant, lodged with the Court a consent to the making of the following orders, signed by each of those solicitors: 1. The appeal be allowed. 2. Orders 2 and 3 made by the Federal Circuit Court on 31 August 2015 be set aside. 3. The decision of the second respondent, dated 23 July 2013, which affirmed the decision not to grant the appellant a Protection (Class XA) visa be quashed. 4. The appellant's application for review of the decision of the first respondent not to grant the appellant a Protection (Class XA) visa be remitted to the second respondent for determination according to law. 5. The first respondent pay the appellant's costs of the appeal and of the proceeding below. 3 The signed consent also recited that it had been given for the purposes of r 39.11 of the Federal Court Rules 2011 (Cth) (the Rules). That rule provides: 39.11 Consent orders (1) A Judge may make an order in accordance with the terms of a written consent of the parties by initialling or otherwise annotating the consent and placing it on the Court file. (2) The order must state that it is made by consent. (3) The order has the same force and validity as an order made after a hearing by the Judge. 4 Also relevant is r 36.41(1)(g), which provides: 36.41 Certain applications may be dealt with without an oral hearing (1) A party may apply to the Court for an order that the following applications be dealt with without an oral hearing: … (g) with the consent of the parties — an application to dispose of an appeal to the Court. 5 Read together, these two rules confer on the Court a discretion, a condition precedent to the exercise of which is a consensual application to dispose of an appeal on agreed particular terms and without an oral hearing. 6 That the consent is only a condition precedent means that it does not govern, much less dictate, the exercise of the discretion conferred by r 39.11 of the Rules. That feature is of particular importance in the present case, because the parties chose to lodge the consent without proffering any explanation as to the basis upon which they were agreed that the appeal ought to be allowed and the matter remitted to the Administrative Appeals Tribunal (the Tribunal), which is the second respondent to the appeal. 7 The draft orders, while sufficient to achieve the intended purpose, do not give any indication as to the conceded jurisdictional error which the parties agree ought to have been found by the Federal Circuit Court. Even though, had the appellant succeeded following the hearing and determination of a contested appeal, the Court's formal orders would have been no different to those presently proposed, the nature of the jurisdictional error committed by the Tribunal would have been identified in the Court's reasons for judgement. This identification would then have afforded the Tribunal the requisite guidance as to how to discharge afresh on remitter its task of deciding the review application according to law without committing an error of the past. 8 For these reasons, I initially declined to make orders in terms of the consent and instead directed that the parties furnish a submission which identified the error and basis of the concession that the appeal ought to be allowed. This has since been done. 9 With the approval of the appellant, the Minister has lodged a submission in which the following concession is made: The Notice of Appeal (AB 321-324) claims her Honour erred, and should have found that the Tribunal was obliged to consider the issue of sectarian violence in Karachi when assessing the reasonableness of relocation to Karachi and had failed to do so. Having considered the cases of MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191 (Dodds-Streeton J) and SZSSY v Minister for Immigration and Border Protection [2014] FCA 1144 (Jagot J) referred to in the Appellant's submissions, and also MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 (Davies J) at [21], the First Respondent considers that the Tribunal erred at AB 228-229 [14-16] by not considering the issue of sectarian violence in Karachi when considering the reasonableness of relocation to Karachi. It should be noted that none of these cases were cited to her Honour. Accordingly the First Respondent agrees that the ground of appeal should succeed. 10 Having considered the submission, the Tribunal's reasons and the basis for the asylum claim (which are not necessary to detail), together with the cases to which reference is made, I am satisfied that it is appropriate to make an order in terms of the consent. For the reasons already given, I do not consider that it would be appropriate just to initial or annotate the consent, which is a course open under r 39.11. That course would be appropriate in relation to many, if not most, consensually agreed interlocutory practice orders but it is not so in this class of case, at least given the way the proposed orders in the consent are cast. Publication of these reasons will also have the benefit of highlighting a point of practice. 11 As to practice, the thought occurs another way of achieving the same end may have been to record in the consensually proposed, replaced orders of the Federal Circuit Court, particulars of the ground upon which the Tribunal's decision was quashed. Accompanied by an explanation from the parties a signed consent to an order in that form might obviate a need to publish reasons for judgement, because the order itself would make explicit the nature of the error. 12 Be this as it may, in the circumstances of this case there is another and no less important reason for publishing reasons for judgement. That is so as to record my commendation in respect of the co-operation in the administration of justice by the parties and also, in the case of the Minister, in the making of this concession, model litigant behaviour. 13 There will be orders accordingly. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 26 February 2016