SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119
MIGRATION – whether failure to comply with section 424 gives rise to jurisdictional error – the obligation to give a written invitation to a person to provide additional information is mandatory – jurisdictional error established – whether failure to provide ‘information’ involved a breach of section 424A – ‘information’ relevant to the review by the RRT which might be used to decide matters adversely to the appellant – breach of section 424A(1)(b) – jurisdictional error established – appeal upheld.
PRACTICE AND PROCEDURE – judicial comity – an earlier decision of the Full Court on similar issues should be followed unless ‘plainly wrong’ – decision in SZKTI v Minister for Immigration and Citizenship not ‘plainly wrong’ but correct – decision followed.
Migration Act 1958 (Cth) s 56, s 58, s 59(2), s 422B, s 423, s 424, s 424A, s 424B, s 424C, s 425, s 427, s 430, s 430B(4), s 441A Migration Legislation Amendment Bill (No 1) 1998 Migration Regulations 1994 reg. 4.35(3)
3.The orders made by the Federal Magistrates Court of Australia on…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119
Case
[2008] FCAFC 119
Decision Date
CaseChat Overview and Summary
In SZKCQ v Minister for Immigration and Citizenship, the appellant challenged the decision of the Refugee Review Tribunal (RRT) to refuse to grant him a protection visa. The dispute was heard by the Federal Court of Australia. The central issues revolved around whether the RRT made jurisdictional errors in its handling of the appellant's case, including whether the RRT failed to allow sufficient time for the appellant to respond to certain documents and whether the request for additional information should have been in writing.
The court examined the statutory framework and found that the RRT was not obligated to allow 28 days for the appellant to respond to documents, as the appellant was in Australia and not overseas. Moreover, the court concluded that the RRT's oral request for additional information during the hearing was compliant with the legislation, as it was not necessary to provide this request in writing. The court also dismissed the argument that the RRT had committed to a particular course of action prior to the decision, finding that the appellant had ample time to respond after the request for information was made.
The court found that the RRT's decision contained jurisdictional errors and thus set aside the decision, returning the matter to the RRT for reconsideration. The Federal Court also ordered that the Minister pay the appellant's costs of the appeal and the proceedings before the Federal Magistrates Court.
Orders
Orders of the court
1. The appellant has leave to file his amended notice of appeal and to rely on all the grounds therein except ground 6b.
2. The appeal from the judgment of the Federal Magistrates Court of Australia in SZKCQ v Minister for Immigration and Anor [2008] FMCA 209 is upheld.
3. The orders made by the Federal Magistrates Court of Australia on 6 March 2008 in SZKCQ v Minister for Immigration and Anor are set aside and in lieu thereof it is ordered that:
(a) The decision of the Refugee Review Tribunal handed down on 18 January 2008 is set aside.
(b) The matter be returned to the Refugee Review Tribunal to be dealt with according to law.
4. The first respondent pay the appellant’s costs of the appeal and of the proceedings before the Federal Magistrates Court of Australia, such costs to be taxed if not agreed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
STONE, TRACEY AND BUCHANAN JJ
Each of these errors or failures is said to be jurisdictional in nature and to provide a foundation upon which to set aside the decision of the RRT.Decision made before 21 December 2006 Pursuant to s 430 of the Act, the RRT was required to prepare a written statement. That written statement is represented by the decision handed down on 18 January 2008. Section 430B(4) provides:‘The date of the decision is the date on which the decision is handed down’ No separate statutory consequence flows from the date upon which a decision is signed. Although the decision was signed on 20 December 2006 (and perhaps it would have been better had it not been) that does not indicate that the RRT was not prepared to consider further material provided by the appellant within the time which it had allowed. In fact a further period of over four weeks passed before the decision was handed down and thereby brought to the appellant’s attention. The appellant did not in that intervening period provide any additional material. There is therefore no factual context in which to test what is really no more than supposition or conjecture to the effect that the RRT had irrevocably committed itself to the course it would take, and the reasons for it, prior to the expiration of the time to which the appellant was entitled pursuant to s 424B of the Act. This line of argument therefore affords no reason to grant relief to the appellant.28 days was required to be allowed for a response to the letter of 28 November 2006 This argument was based upon the provisions of reg 4.35(5) of the regulations made under the Act which requires 28 days to be allowed for the provision of information or comment which is to be provided from a place that is not in Australia, rather than, as in other circumstances, 14 days which is prescribed by reg. 4.35(3). This argument cannot be accepted. The comments which were sought by the letter from the RRT dated 28 November 2006 were sought from the appellant who was in Australia. It should not be concluded that the request to him for his comments imported any necessity to obtain information from somewhere outside Australia. This line of argument also provides no basis upon which the appeal should be upheld.No written invitation to provide additional informationAs the appeal was first argued I propose to deal with this issue first upon the basis of the submissions initially advanced by the parties. Then it will be necessary to refer to a recent authority to which our attention was drawn only after judgment had been reserved. The appellant’s contention that the oral request made to him during the hearing before the RRT on 3 October 2006 was required, by s 424 of the Act, to be in writing and the Minister’s response to the argument requires attention to the scheme established by Division 4 of Part 7 of the Act for the conduct of reviews before the RRT. Section 423 provides that an applicant for review by the RRT may provide a statutory declaration in relation to any matter of fact that the applicant wishes the RRT to consider and written arguments relating to the issues arising in relation to the decision under review. Neither aspect is directly relevant in the present case. Section 424 then provides as follows:‘(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.(2)Without limiting subsection (1), the Tribunal may invite a person to give additional information.(3) The invitation must be given to the person:(a)except where paragraph (b) applies – by one of the methods specified in section 441A; or(b)if the person is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.’