FEDERAL COURT OF AUSTRALIA

Murguia v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 975

CLARA PACHECO Murguia & ORS v Minister for Immigration and Multicultural and Indigenous Affairs

n817 of 2004

ALLSOP J

27 JULY 2004

SYDNEY

THE COURT ORDERS THAT:

1.      The decision made by the Migration Review Tribunal dated 23 April 2004, be set aside.

2.      The matter be remitted to the Tribunal to be dealt with according to law.

3.      The respondent pay the costs of the applicants to be agreed or taxed.

the court notes the agreement of the parties that in their view, and their advisers view, it is appropriate to have the Tribunal differently constituted for any reconsideration.

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

REASONS FOR JUDGMENT

1                     In this matter, the parties have reached agreement that the decision of the Migration Review Tribunal should be set aside.  It is in my view appropriate to understand the nature of the error, which is agreed.  It is unnecessary for me to recount the history of the matter.  An amended application under the Judiciary Act 1903 (Cth) and Migration Act 1958 (Cth) filed on 20 July 2004 in which two grounds are identified: the failure to consider the best interests of the child; and the denial of natural justice.

2                     The issues in relation to both centre upon the failure to take into account material.  However, an important distinction is to be made.  The applicants assert that there was a failure to consider the best interests of the child because the Tribunal failed to apply the relevant policy and Migration Series Instruction - 36A, and failed to have regard to the present circumstances of the first applicant, contrary to s 109(1)(c) of the Migration Act 1958 (“the Act”), and clause 2.41(e) of the Migration Regulations 1994.

3                     The applicants also assert in subparagraph (1)(c) that there was a failure to have regard to the information provided by the first applicant to the adviser in response to a Tribunal letter of 24 November 2003, which was a failure in contravention of section 359(1) of the Act.

4                     The respondent Minister does not accept that there has been a failure to consider the best interests of the child in respect of paragraphs 1(a) and (b) of the amended application, nor that the first applicant was denied procedural fairness.  These issues may raise now perhaps less clear issues as to the application of Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 and the underlying interests of the best interests of the child as a possible “mandatory consideration”in the sense of Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, in respect of which I would refer to [115] in Minister for Immigration & Multicultural Affairs v W157/00A [2002] FCAFC 281.  However, the Minister does accept that there was a jurisdictional error in failing to have regard to information as referred to in paragraph 1(c) of the amended application.

5                     Given the responsible nature of the concession, and the views of experienced solicitors for the Minister, and the matters put to me by Mr Jordan, I am prepared to work on the basis that there is, and has been, a failure of jurisdiction in the Tribunal, in the respect identified, at least, in paragraph 1(c) of the amended application.  That is enough to found the orders I propose to make.  I see no reason to delve more deeply into the matter given the views of responsible solicitors and counsel in the matters that have been identified.

6                     I note that the parties have agreed between themselves that it would be appropriate on remittal to the Tribunal to have the Tribunal differently constituted for a re-hearing.  I do no more than note the views of solicitors, counsel and parties for the record.

7                     The orders of the Court are:

(1)   The decision made by the Migration Review Tribunal dated 23 April 2004, be set aside.

(2)      The matter be remitted to the Tribunal to be dealt with according to law

(3)      The respondent pay the costs of the applicants to be agreed or taxed.

Associate:

Dated:              29 July 2004