Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62

HIGH COURT OF AUSTRALIA

McHUGH, GUMMOW, KIRBY, CALLINAN AND HEYDON JJ

APPLICANT NAFF OF 2002 APPELLANT

AND

MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS

AFFAIRS & ANOR RESPONDENTS

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62

8 December 2004

S112/2004

ORDER

1. Appeal allowed.

2. Orders of the Full Court of the Federal Court of Australia made on 31 March 2003 set aside, and in their place order that:

(a) the appeal to the Full Federal Court be allowed; and

(b) the order of Tamberlin J in the Federal Court of Australia made on 22 July 2002 be set aside.

3. Order absolute for a writ of certiorari directed to the second respondent, quashing the decision of the second respondent in matter N00/32904 dated 19 March 2002.

4. Order absolute for a writ of mandamus directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 15 March 2000.

5. The first respondent pay the appellant's costs of the proceedings in the Federal Court of Australia before Tamberlin J, in the Full Federal Court and in this Court.

On appeal from the Federal Court of Australia

Representation:

M N Allars for the appellant (instructed by the appellant)

N J Williams SC with J D Smith for the first respondent (instructed by Sparke Helmore)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

Immigration – Refugees – Refugee Review Tribunal – Decision – Judicial review – Procedural fairness – Non-compliance with statutory duties – Tribunal concerned by inconsistencies in applicant's evidence at oral hearing – Tribunal said it would give the applicant a chance to respond in writing to its concerns – Whether Tribunal's failure to do so involved a failure to complete the review process – Whether failure involved a breach of the duty to conduct a review under s 414(1) of the Migration Act 1958 (Cth) – Whether failure involved a breach of the duty to hear from the applicant under s 425(1) – Whether reviewable error where absence of evidence from the applicant about effect of failure.