SZVDH v Minister for Immigration and Border Protection

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY REFUGEE REVIEW TRIBUNAL)

JUDGES: MANSFIELD, ROBERTSON AND GRIFFITHS JJ DATE: 31 july 2015 PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT 1 This appeal was listed to be heard today, together with SZTIM v Minister for Immigration and Border Protection NSD 318 of 2015. 2 On 21 July 2015, the parties provided to the Court proposed consent orders in the following terms: The Court orders, by consent, that: 1. The appeal from the judgment and orders of the Federal Circuit Court, given on 10 April 2015, be allowed on the basis set out in the note set out below. 2. The orders made by the primary judge on 10 April 2015, including as to costs, be set aside. 3. The matter be remitted to the Federal Circuit Court of Australia, differently constituted, for determination of the claims for relief in the Application filed in that Court on 23 September 2014. 4. The first respondent pay the appellant's costs of these proceedings as agreed, or assessed. 5. The name of the second respondent be amended to the Administrative Appeals Tribunal. By consent, the Court notes that: 6. The Federal Circuit Court Judge erred in refusing to consider, or did not properly consider, the issue of whether there should be a grant to the appellant of an adjournment of the final hearing on 10 April 2015, in circumstances where: the date of the final hearing had not yet been set down and was due to be set down at a call-over; the final hearing had then been set down without any consultation with the parties, on a date in advance of the date of the call-over and at short notice; the appellant's legal representatives were not available on the date of the final hearing and the appellant's legal representatives had communicated that fact to the chambers of the Federal Circuit Court Judge on the same date that they received notice of the final hearing date; and in circumstances where it cannot be said that the denial of any adjournment did not affect the outcome of the proceedings. 3 Subject to modifying the wording at the beginning of sub-paragraph 2(6), the Court is satisfied that the proposed consent orders should be made having regard to the matters as outlined in the balance of that sub-paragraph and the principles which were approved and applied in the decision of the Full Court in Shrestha v Minister for Immigration and Border Protection [2015] FCAFC 87. 4 Orders will be made accordingly. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mansfield, Robertson and Griffiths.