FEDERAL COURT OF AUSTRALIA

SBBB v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 902

SBBB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 517 of 2003

SELWAY J

ADELAIDE

18 AUGUST 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BY CONSENT THE COURT ORDERS THAT:

1                    The appeal be allowed.

2                    The decision of the Refugee Review Tribunal dated 14 December 2002 be set aside.

3                    The matter be remitted to the Refugee Review Tribunal for reconsideration.

4                    No order as to costs.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The appellant is an Afghani.  He arrived in Australia in April 2001, and lodged an application for a protection visa.  The basis of his application was his claim that he had a well-founded fear of persecution by the Taliban (who were then in government in Afghanistan) on the basis of his religion.  That application was rejected by the delegate of the Minister.  The appellant sought a review from the Refugee Review Tribunal.

2                     By the time that the Tribunal came to determine the matter the Taliban had been recently overthrown.  The Tribunal proceeded to deal with the matter on the facts as they then were and concluded that the appellant did not have a well-founded fear of persecution.  It affirmed the decision not to grant a protection visa.

3                     It is noted that the decision of the Tribunal was given some one month after the fall of the Taliban government in the province of Afghanistan from which the appellant comes.  It is also noted that the decision of the Tribunal records:

‘The applicant was evidently distressed at the hearing, and evidently unable to digest any detailed information about the destruction of the Taliban and the ramifications of that and recent other developments in Afghanistan.  When questioned about his state of mind towards the end of the hearing, he responded, “I’ve got a mental illness and I’m crying all the time.”’

4                     The appellant sought judicial review of the decision of the Tribunal.  The primary judge dismissed the application for review.  It is plain from his Honour’s reasons that the issue raised by the appellant (who was unrepresented) was that the Tribunal’s conclusions were wrong in fact.  As the primary judge found, there was no error in the reasoning or conclusions of the Tribunal.

5                     The appellant has appealed from that decision.  Both parties have consented to the appeal being allowed.  I have jurisdiction to make the relevant orders pursuant to s 25(2B)(b) of the Federal Court of Australia Act 1976 (Cth).

6                     The basis upon which the parties have consented to the appeal being allowed is that:

‘The Applicant was denied natural justice in that he was neither given adequate notice of the issue of the defeat of the Taliban nor adequate opportunity to respond.’

7                     This basis is not established by the facts that were before the primary judge.  However, the material set out in par [3] above is sufficient to suggest that a factual foundation for the argument might well be established.  Given this possibility and the fact that the respondent is represented and has consented to the appeal being allowed, it seems to me to be appropriate to make the orders that have been agreed.

Associate:

Dated:              18 August 2003