SZTIS v Minister for Immigration and Border Protection

In the case of SZTIS v Minister for Immigration and Border Protection, the appellant, a citizen of Sri Lanka who had arrived in Australia as an irregular maritime arrival, applied for a Protection (Class XA) Visa. The Minister for Immigration and Border Protection refused the application, and the appellant sought a review by the Refugee Review Tribunal (RRT), which also dismissed the application. The appellant then appealed to the Federal Circuit Court of Australia (FCCA), which dismissed the appeal. The appellant now seeks special leave to appeal to the High Court on a new ground, arguing that the RRT failed to comply with section 425 of the Migration Act 1958 (Cth) by not inviting the appellant to appear before it to address issues arising in relation to the decision under review.

The central legal issue in this case is whether the RRT was required to invite the appellant to appear before it to address issues arising in relation to the decision under review, as mandated by section 425(1) of the Migration Act. The appellant argues that the RRT failed to do so when it provided new country information after the hearing, which raised the critical issue of whether a guarantor would be available to enable him to be bailed in the event that he was charged for illegally departing Sri Lanka. The appellant contends that this failure to invite him to appear before the RRT amounted to an error in law that exposed an excess of statutory power by public officials.

The court considered the question of leave to raise a new ground, which necessarily involves some consideration of the merits. The court noted that a clearly meritorious claim should not be refused in circumstances where it is in the interests of justice to permit new arguments on appeal that expose excesses of statutory power by public officials. The court identified the issues that the appellant claimed were critical, namely whether he would secure bail upon his return to Sri Lanka and the issue of whether recent experience in Sri Lanka of those who were returned there and charged with illegal departure affected the chance that he would be imprisoned should he be found guilty of departing illegally. The court found that the RRT had already considered the issue of whether the appellant would secure bail and rejected it. Therefore, the court concluded that the RRT had not failed to invite the appellant to appear before it to address issues arising in relation to the decision under review.

The court granted the appellant leave to rely on the new ground set out in the draft notice of appeal dated 6 April 2016 but dismissed the appeal with costs. The court noted that entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.