SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138

FEDERAL COURT OF AUSTRALIA

SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138

MIGRATION – visa – protection visa – second review of decision by delegate of Minister to refuse visa – earlier decision of Tribunal set aside by court – Tribunal constituted by different member on second review – whether Tribunal required to invite applicant to second hearing

Held: (by majority) – invitation to second hearing required in every case – (by whole Court) in any event, invitation to second hearing required in particular circumstances

Acts Interpretation Act 1901 (Cth) s 33(2A) Administrative Appeals Tribunal Act 1975 (Cth) s 44 Migration Act 1958 (Cth) ss 65, 422, 422A, 422B, 424, 424A, 424C, 425, 428, Pt 7

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 referred to Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 referred to John v Commissioner of Taxation (Cth) (1989) 166 CLR 417 referred to Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 (2001) 113 FCR 541 discussed Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 referred to Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 (2006) 231 CLR 1 cited Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 cited Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 referred to Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 referred to Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 referred to Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 (2003) 215 CLR 518 discussed NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 referred to NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54 (2006) 231 CLR 52 cited NBKM v Minister for Immigration and Citizenship [2007] FCA 1413 overruled SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 referred to SBRF v Minister for Immigration and Citizenship (2008) 101 ALD 559 referred to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (2006) 228 CLR 152 discussed SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; 235 ALR 609 referred to SZEEU v Minister for Immigration and Multicultural Affairs (2006) 150 FCR 214 referred to SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291 referred to SZHLM v Minister for Immigration and Citizenship (2007) 98 ALD 567; [2008] FCA 712 referred to SZILQ v Minister for Immigration and Citizenship (2007) 163 FCR 304 referred to Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599 (2000) 105 FCR 548 discussed Wang v Minister for Immigration & Multicultural Affairs [2001] FCA 448 (2001) 108 FCR 167 discussed