SZQQA v Minister for Immigration

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQQA v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 231
MIGRATION – Whether the Refugee Review Tribunal failed to comply with s.424A of the Migration Act 1958 in relation to the content of its s.424A letter – whether the Tribunal erred in making a decision after the Applicant responded to the s.424A letter but before the expiration of the prescribed period for a response – whether the Tribunal engaged in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds.

Migration Act 1958 (Cth), ss.63, 65, 359A, 359B, 411, 415, 420, 424, 424A, 424B, 424C, 425, 430,441C

Migration Regulations 1994 (Cth), reg.4.35

ApplicantNAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 221 CLR 1; [2004] HCA 62

M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; [2006] FCA 1247

Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Citizenship v SZOCT and Another (2010) 189 FCR 577; [2010] FCAFC 159
Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1

Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61

MZXKH v Minister for Immigration and Citizenship [2007] FCA 663
MZYFH v Minister for Immigration and Citizenship and Another (2010) 188 FCR 151; [2010] FCA 559
Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352; [2000] FCA 908

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30
Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62

SZEOP v Minister for Immigration and Citizenship [2007] FCA 807
SZEXZ v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 449
Minister for Immigration and Citizenship v SZIZO and Others (2009) 238 CLR 627; [2009] HCA 37

SZLPO v Minister for Immigration and Citizenship (No 2) (2009) 177 FCR 29; [2009] FCAFC 60

SZLWQ v Minister for Immigration and Citizenship and Another (2008) 172 FCR 452; [2008] FCA 1406

SZMKR v Minister for Immigration & Citizenship [2010] FCA 340
SZMTJ v Minister for Immigration and Citizenship and Another (No 2) (2009) 109 ALD 242; [2009] FCA 486

SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58

Minister for Immigration and Citizenship v SZQOY and Another (2012) 206 FCR 25; [2012] FCAFC 131

Applicant: SZQQA
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent:
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Details
Case
[2013] FMCA 231
Decision Date

CaseChat Overview and Summary

SZQQA, an Indian citizen, applied for a protection visa in Australia, claiming that he was at risk of persecution in India because of the alleged murder of his brother in 1991. The application was ultimately refused. He sought review of that decision in the Federal Magistrates Court. The primary issue in the case was whether the Refugee Review Tribunal (the Tribunal) had failed to comply with the procedural requirements of the Migration Act 1958 (Cth) in relation to the content of its s.424A letter and whether the Tribunal erred in making a decision after the Applicant responded to the s.424A letter but before the expiration of the prescribed period for a response. The Applicant also contended that the Tribunal engaged in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds.

The Federal Magistrate found that the Tribunal had not failed to comply with the requirements of s.424A of the Act. The Tribunal had given the Applicant clear particulars of the information that the Tribunal considered would be the reason or part of the reason for affirming the decision that was under review and had ensured, as far as reasonably practicable, that the Applicant understood why the information was relevant to the review. The Tribunal had also given the Applicant a real opportunity to respond, in accordance with s.424B of the Act. The prescribed period for the Applicant to respond had been correctly stated in the second s.424A letter and the Applicant had provided a response within that period. The Tribunal was authorised under the Migration Act to proceed to make a decision on the review at the time that it did. However, the Tribunal had failed to comply with s.424A of the Act in relation to the content of its s.424A letter. It had not provided the Applicant with “clear particulars” of the information that the Tribunal considered would be the reason or part of the reason for affirming the decision that was under review. The Tribunal had failed to provide the Applicant with clear particulars of the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review and had failed to ensure, as far as reasonably practicable, that the Applicant understood why the information was relevant to the review.

The Federal Magistrate remitted the matter to the Tribunal for redetermination according to law.

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