SAAP v Minister for Immigration and Multicultural and Indigenous Affairs

The appeal concerned the Refugee Review Tribunal's (Tribunal) decision to affirm the refusal of protection visas to the appellants, Iranian citizens and followers of the Sabian-Mandean faith. The primary dispute arose from the Tribunal's procedure in taking evidence from the first appellant's eldest daughter in the first appellant's absence, and subsequently relying on that evidence without fully informing the first appellant or inviting her to comment in writing, as potentially required by section 424A of the *Migration Act 1958* (Cth). The appellants argued that this constituted a breach of section 424A and general principles of procedural fairness, leading to jurisdictional error.

The High Court was required to determine whether the provisions of Division 4 of Part 7 of the *Migration Act* had a sequential or ambulatory operation, and specifically whether the Tribunal breached section 424A by failing to provide the first appellant with written particulars of information obtained from her daughter and inviting her to comment. Further, the Court had to consider whether such a breach amounted to jurisdictional error that would invalidate the Tribunal's decision, and whether relief should be withheld on discretionary grounds. The Court also considered whether the Tribunal was a necessary party to proceedings brought under section 39B of the *Judiciary Act 1903* (Cth).

The Court reasoned that the provisions of Division 4 of Part 7 of the *Migration Act* did not prescribe a fixed or invariable sequence of procedural steps for the Tribunal. While the division was presented in a logical order, the Act did not compel the Tribunal to follow that order strictly, particularly as the Tribunal exercises executive, not judicial, power and there is no joinder of issue between contesting parties. The Court found that the Tribunal's failure to provide the first appellant with written particulars of her daughter's evidence and invite her to comment, as contemplated by section 424A, did not necessarily mean the Tribunal was bound to invite the appellant to appear before it. However, the Court ultimately allowed the appeal, finding that the Tribunal's actions did breach the requirements of procedural fairness and section 424A, leading to jurisdictional error.

The High Court allowed the appeal with costs, setting aside the orders of the Full Court of the Federal Court. In their place, the Court ordered that the appeal to the Federal Court be allowed with costs, and that the orders of Mansfield J be set aside. The Federal Court was then ordered to grant an order in the nature of certiorari to quash the Tribunal's decision of 18 October 2001, and an order in the nature of mandamus requiring the Tribunal to review the decision according to law. The respondent was ordered to pay the applicants' costs.