WAHN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 225 (13 October 2003)

Last Updated: 26 November 2003

FEDERAL COURT OF AUSTRALIA

WAHN v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 225

MIGRATION - protection visa - judicial review - judicial review application dismissed - subsequent High Court decision relating to operation of privative clause - appeal against dismissal of judicial review application - consent order allowing appeal - order within power and appropriate - appeal allowed

Migration Act 1958 (Cth)

Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 195 ALR 24 cited

WAHN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W360 OF 2002

FRENCH, LEE AND TAMBERLIN JJ

13 OCTOBER 2003

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W360 OF 2002

On appeal from the Federal Magistrates Court of Australia

BETWEEN:	WAHN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	FRENCH, LEE AND TAMBERLIN JJ
DATE OF ORDER:	13 OCTOBER 2003
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The judgment and orders of Federal Magistrate Raphael dated 23 December 2003 in Federal Magistrates Court proceedings WZ192 of 2002 be set aside.

3. There be a new trial generally before a Federal Magistrate.

4. There be no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W360 OF 2002

On Appeal from the Federal Magistrates Court of Australia

BETWEEN:	WAHN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	FRENCH, LEE AND TAMBERLIN JJ
DATE:	13 OCTOBER 2003
PLACE:	PERTH

REASONS FOR JUDGMENT ON CONSENT ORDERS

THE COURT:

1 On 31 December 2002, the appellant filed a notice of appeal against the decision of his Honour Raphael FM given on 23 December 2002. In that decision Raphael FM dismissed an application by the appellant for judicial review of a decision of the Refugee Review Tribunal (`the Tribunal') made on 24 June 2002. In that decision the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing to grant the appellant a protection visa. The appellant was not represented before Raphael FM.

2 In the course of his decision Raphael FM said:

`Absent bad faith on the part of the Tribunal which was not alleged, the decision is unchallengeable.'

On 7 August 2003, pro bono counsel, Mr Hannan, filed a minute of a proposed substituted notice of appeal raising a number of grounds asserting jurisdictional error on the part of the Tribunal.

3 The decision of the learned federal magistrate was made prior to the decision of the High Court in Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 195 ALR 24 construing s 474 of the Migration Act 1958 (Cth) in such a way as to permit applications for judicial review where jurisdictional error is asserted.

4 Subsequently a consent order has been signed in which the following orders are proposed:

`1. The appeal be allowed.

2. The judgment and orders of Federal Magistrate Raphael dated 23 December 2003 in Federal Magistrates' Court proceedings WZ192 of 2002 be set aside.

3. There be a new trial generally before a Federal Magistrate.

4. There be no order as to costs.'

5 The solicitors acting for the respondent have indicated that in the respondent's view, as the learned magistrate's decision was delivered prior to the High Court decision in Plaintiff S157, a number of issues identified as relevant in that case were not addressed by the learned magistrate. The respondent believes the best and most efficient course of action is to have the matter remitted to the Federal Magistrates Court to reconsider it according to the law as it now stands.

6 Having regard to these considerations, the Court is of the opinion that the proposed consent orders allowing the appeal are appropriate and orders will be made accordingly.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 13 October 2003

Solicitor for the Appellant:	Mr P Hannan (pro bono)
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Judgment on Consent Orders:	13 October 2003