SZKTI v Minister for Immigration and Citizenship

[2008] FCA 328

FEDERAL COURT OF AUSTRALIA

SZKTI v Minister for Immigration and Citizenship
[2008] FCA 328

SZKTI v MINISTER FOR IMMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2223 OF 2007

RARES J
4 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2223 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKTI
Appellant

AND:

MINISTER FOR IMMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	4 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT:

1.Orders that, pursuant to Order 80, subrule 4 (1) of the Federal Court Rules, it is in the interests of justice to refer the appellant to Richard Lancaster of Counsel for legal assistance in relation to the appeal in this matter. 

2.Grants leave to the appellant to file and serve an amended notice of appeal on or before 28 March 2008.

3.Directs that the appellant file and serve written submissions on the appeal on or before 22 April 2008.

4.Directs that the first respondent file and serve written submissions on the appeal on or before 29 April 2008.

5.Directs that the appellant file and serve written submissions, if any, in reply on or before 2 May 2008.

6.Directs that the matter be fixed for hearing on 6 May 2008.

7.Notes that the date for hearing on 6 May 2008 is subject to change in the event that it is decided that there should be a full court constituted for the hearing of this appeal.

8.Grants liberty to any of the parties to apply on two days’ notice.

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	NSD 2223 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKTI
Appellant

AND:

MINISTER FOR IMMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	4 MARCH 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This appeal is in the list today for hearing.  When I read the appeal papers it appeared that the Refugee Review Tribunal contacted a person whose name was provided to it by the applicant for review, the appellant in these proceedings.  That person and another had written a letter on behalf of the appellant stating that he had been meeting regularly with the local church for the past nine months and inviting the addressee of the letter, ‘To Whom it May concern’, not to hesitate to contact one of the authors should they have any further inquiry.  The tribunal took up the invitation and telephoned one of the authors.

2. Following the telephone conversation with that author the tribunal sent a letter to the appellant identifying information it had derived from that conversation which it considered fell within the requirements of s 424A(1) of the Migration Act 1958 (Cth). In its findings the tribunal, in part, based its decision on the content and tenor of comments from the author of the letter in finding against the appellant for review.

3. The question that appears to me to arise in those circumstances is whether the procedure of simply telephoning a person, even one who has invited contact from the tribunal, is authorised under s 424(1) of the Act.  The tribunal has substantial latitude in the performance of its task conferred by s 420 of the Act.  However, it seems to me that one argument that may be open against the flexible procedure adopted by the tribunal in this case following the provisions of ss 420 and 424(1) is that this procedure was not authorised by the Act having regard to the requirements of s 424(2).  That provision specifically authorises the tribunal to invite a person to give additional information, but, if it does so, the invitation has to be given in writing, not by telephone (see ss 424(3)(a) and 441A).

4. A consequence of a person who has been invited under s 424 to give additional information not doing so is the authorisation of the tribunal, under s 424C(1), to make any decision on the review without taking any further action to obtain the additional information.  In addition, section 425(2)(c) indicates that the requirement to invite an applicant for review to appear before the tribunal to give evidence and present arguments relating to issues arising in relation to the decision under review does not apply if that applicant or another person has failed to provide information in accordance with s 424C.  There may be an issue as to whether or not the obtaining of information from a person in this way should involve the applicant for review appearing before the tribunal.

5. It may well be that any irregularity in the tribunal’s procedures will have been cured by the letter which it wrote under s 424A(1). However, there may be sound reasons why the Parliament provided in s 424(2) that where the tribunal wished to approach a person for further information it ought formally to notify the person that it, a tribunal authorised by an Act of the Parliament to do so, was seeking information from the person. It is not unknown for people to use the telephone to mis-identify themselves when seeking information about people for purposes other than that which they reveal. A call from the tribunal or someone purporting to be from the tribunal made to a person who did not know the caller may be approached with a degree of reserve or suspicion by the recipient of the telephone call which they would not display had the tribunal formally notified them beforehand under the procedure envisaged under s 424(2).

6. What the answers to these issues are I am unable to say.  I am not aware of any authority that deals precisely with this situation and for that reason it seems to me to be in the interests of justice that I appoint counsel under Order 80 of the Federal Court Rules to appear to argue the appeal for the appellant, who has indicated that he wishes me to do so.

7. In those circumstances I will adjourn the hearing of today’s appeal.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        13 March 2008

Appellant:	Appeared in person
Solicitor appearing for the First Respondent:	K Hooper
Solicitor for the First Respondent:	DLA Phillips Fox
Date of Hearing:	4 March 2008
Date of Judgment:	4 March 2008