SZEPZ v MIMA

Case [2006] FCAFC 107

FEDERAL COURT OF AUSTRALIA

SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107

MIGRATION – review of a decision to refuse protection visa – consent orders that matter be remitted from Federal Magistrates Court to the Tribunal for reconsideration – Tribunal to be differently constituted – whether Federal Magistrate had the power to make such an order – whether first Tribunal’s compliance with s 424A of the Migration Act 1958 (Cth) covered second Tribunal – whether second Tribunal failed to comply with s 424A

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 5, 411, 412, 414, 415, 421, 422, 422A, 424A, 441A, 457, 458, 460

Minister for Immigration & Multicultural Affairs v Wang (2003) 215 CLR 518 referred to
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 referred to

SZEPZ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR

NSD2229 OF 2005

EMMETT, SIOPIS & RARES JJ
30 JUNE 2006
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD2229 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEPZ
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW RESPONDENT
SECOND RESPONDENT

JUDGES:

EMMETT, SIOPIS & RARES JJ

DATE OF ORDER:

30 JUNE 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD2229 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEPZ
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW RESPONDENT
SECOND RESPONDENT

JUDGES:

EMMETT, SIOPIS & RARES JJ

DATE:

30 JUNE 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This appeal concerns the effect of certain provisions of Part 7 of the Migration Act 1958 (Cth) (‘the Act’). Part 7 deals with review by the second respondent, the Refugee Review Tribunal (‘the Tribunal’), of protection visa decisions. Section 424A of the Act, which is in Part 7, provides that, in certain circumstances, the Tribunal must give, to an applicant for review, particulars of certain information and invite the applicant to comment on the information. The appeal is concerned with the circumstance where a decision of the Tribunal is set aside by a court order and the matter is remitted to the Tribunal for reconsideration according to law. The question is whether the Tribunal must, before making a second decision, give such information to an applicant again if the information had already been given to the applicant prior to the first decision.

    PROCEDURAL HISTORY

  2. The appellant is a citizen of Bangladesh. He arrived in Australia on 9 October 2000 and on 17 November 2000 applied for a protection (class XA) visa under the Act. On 8 March 2001, a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’),…

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Details
AGLC
SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107
Case
[2006] FCAFC 107
Decision Date

CaseChat Overview and Summary

The appellant, Szepz, appealed a decision of the Refugee Review Tribunal (RRT) which refused to grant a protection visa. The appellant challenged the Tribunal's process and the manner in which the review was conducted after the Tribunal was reconstituted. The Federal Circuit and Family Court of Australia was tasked with determining whether the Tribunal properly followed the legislative requirements when it reconstituted and conducted the review of the delegate's decision.

The key legal issues in the case involved the interpretation and application of sections 421, 422, 422A, and 424A of the relevant legislation. Specifically, the court had to determine whether the Tribunal's reconstitution and the subsequent review process complied with statutory requirements, and whether the Tribunal was obligated to provide information to the applicant upon reconstitution. The appellant argued that the Tribunal, upon reconstitution, should have provided new information to the applicant, ensuring the applicant understood its relevance to the review.

The court found that the Tribunal was not required to provide new information to the applicant upon reconstitution, as the review process was continuous and the Tribunal retained the materials from the original review. The court emphasized that the review process was tied to the function of the Tribunal, not the individual member conducting the review. The court also concluded that the Tribunal's reconstitution was valid and did not invalidate the entire review process. The court further clarified that section 424A, which requires the Tribunal to provide certain information to an applicant, referred to the state of mind or mental process of the member constituting the Tribunal for the review.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal to the first respondent.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 411 provides that a decision to refuse to grant a protection visa is an RRT-Reviewable Decision. Under s 412(1), an application for review of an RRT-Reviewable Decision must be made in the approved form and must be given to the Tribunal within the period prescribed. Under s 414, if a valid application is made under s 412 for review of an RRT-Reviewable Decision, the Tribunal must review the decision. By s 415, the Tribunal may, for the purposes of the review, exercise all the powers and discretions that are conferred by the Act on the person who made the decision. In the present case, the Minister’s delegate made the relevant decision. The Tribunal may affirm the decision, or vary the decision, or set the decision aside and substitute a new decision. Under s 460(1) of the Act, the Principal Member is the executive officer of the Tribunal and is responsible for the overall operation and administration of the Tribunal. Under s 460(2)(b), the Principal Member is responsible for allocating the work of the Tribunal among the members, including himself or herself, in accordance with guidelines laid down by the Principal Member. By s 421(1), the Tribunal is to be constituted, for the purposes of a particular review, by a single member. The Principal Member is to give a written direction about who is to constitute the Tribunal for the purposes of a particular review. Sections 422 and 422A deal with reconstitution of the Tribunal in particular circumstances. Section 422 is enlivened if the member who constitutes the Tribunal for the purposes of a particular review either stops being a member or is not available for the purpose of the review at the place where the review is being conducted. In such a case, the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review. If a direction is given under s 422, the Tribunal, as constituted in accordance with the direction, is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted. Section 422A is enlivened if the Principal Member thinks the reconstitution of the Tribunal is in the interests of achieving the efficient conduct of a particular review in accordance with the objectives set out in s 420(1). The Principal Member may direct that the member constituting the Tribunal for the particular review be removed and that another member constitute the Tribunal for the purposes of that review. However, under s 422A(2), the Principal Member must not give such direction unless certain prerequisites have been satisfied. One of those prerequisites is that, either the Principal Member is satisfied that there is insufficient material before the Tribunal for the Tribunal to reach a decision on the review, or a period equal to, or longer than, the prescribed period has elapsed since the Tribunal was constituted. A further prerequisite is that the Tribunal’s decision on the review has not been recorded in writing or given orally and that the Principal Member has consulted the member constituting the Tribunal. If a direction is given under s 422A, the member constituting the Tribunal in accordance with that direction is to continue and finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the member who previously constituted the Tribunal.

Ratio Decidendi

Legal Principle Established

Under the present regime, however, there must be real doubt as to whether the Federal Magistrates Court could direct how the Tribunal be constituted, having regard to the express power conferred upon the Principal Member by s 420. Even an express statutory power to give directions might not override the provisions of s 420 (see Wang at 529-532). Whether or not the Federal Magistrates Court had power to make the second order in those terms, the Tribunal was in fact reconstituted. No question has been raised concerning the validity of the reconstitution of the Tribunal. Rather, the appellant says that there was a different review from that which was conducted prior to the First Decision.OPERATION OF SECTION 424A IN THE PRESENT CASE The appellant contends that, when s 424A refers to the Tribunal giving information, it must be construed as referring to the member by whom the Tribunal is constituted for the purpose of conducting the particular review. He says that, since, following the Consent Orders, a second review was commenced by the Tribunal, constituted by a different member, the information must be given by that member. He argued that it is not sufficient that the information had already been given to the appellant. Upon the making of the First Decision, the review of the delegate’s decision undertaken pursuant to s 414(1) was at an end. Assuming the effect of the Consent Orders was to quash or set aside the First Decision, it was incumbent upon the Tribunal to embark upon a review of the delegate’s decision according to law. It was a review by the Tribunal that was required, not a review by a particular member of the Tribunal. It was the decision of the Tribunal that was set aside, not the decision of a particular member of the Tribunal (see Wang at 529). In any event, when ss 421, 422 and 422A refer to ‘a particular review’, they identify the review initiated under s 414(1) and culminating in a decision in accordance with s 430, being the review that a particular person, namely the applicant for review, has initiated in respect of an RRT-Reviewable Decision. The expression does not depend upon the identity of the particular member constituting the Tribunal. Rather, it refers to the function of the Tribunal to review a decision. Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made. Ultimately, the question raised on the appeal turns on the proper construction of s 424A(1)(a). That section requires the Tribunal to give information to an applicant, to ensure that the applicant understands why the information is relevant to the review and to invite the applicant to comment on the information. However, that requirement is limited to information ‘that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review’. In so far as that provision refers to a state of mind or mental process, it must be taken to refer to the state of mind or mental process of the particular member constituting the Tribunal for the purposes of the review.