SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46

FEDERAL COURT OF AUSTRALIA

SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46

MIGRATION – interpretation of s 424AA of the Migration Act 1958 (Cth) – whether failure on the part of the Refugee Review Tribunal to comply with s 424AA once it chooses to provide oral particulars of information at a review hearing constitutes jurisdictional error – the Tribunal has a discretion whether or not to invoke the provisions of s 424AA – a decision not to invoke s 424AA or non-compliance with the requirements of that section once invoked does not amount to jurisdictional error – obiter dicta to the contrary by Driver FM in SZLTC v Minister for Immigration and Citizenship [2008] FMCA 384 not followed and disapproved– whether country information is information within the meaning of s 424AA – country information not information withins 424AA – in the instant case the Tribunal complied with s 424AA in any event – the Tribunal was not obliged to consider the "what if I'm wrong test" (as to which see Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220) – for this reason, error in the application of that test would not matter – the Tribunal's conclusions in respect of relocation were an independent and additional basis for its decision – appeal dismissed Acts Interpretation Act 1901 (Cth), s 15AB(1), s 15AB(2)(e) Migration Act 1958 (Cth), s 36 and Pt 7, especially ss 411, 422B, 424, 424AA, 424A, 424C, 425, 425A Migration Legislation Amendment Act (No 1) 1998 (Cth), s 3 of Sch 3 of Pt 1 Migration Amendment (Review Provisions) Act 2007 (Cth)

SZMCD v Minister for Immigration and Citizenship (2008) 219 FLR 141, [2008] FMCA 1039, affirmed Craig v State of South Australia (1995) 184 CLR 163 applied Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 followed Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 followed Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 followed Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 applied SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 applied SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 followed SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, (2007) 81 ALJR 1190 applied SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 distinguished SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51 followed SZITH v Minister for Immigration and Citizenship (2008) 105 ALD 541, [2008] FCA 1866 cited SZKCQ v Minister for Immigration and Citizenship (2008) 170 FCR 236 cited SZLML v Minister for Immigration and Citizenship [2009] FCA 83 cited SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 cited SZLTC v Minister for Immigration and Citizenship [2008] FMCA 384, overruled SZLWI v Minister for Immigration and Citizenship (2008) 171 FCR 134 cited SZLXI v Minister for Immigration and Citizenship (2008) 103 ALD 589, [2008] FCA 1270 cited SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701 cited SZMMP v Minister for Immigration and Citizenship [2009] FCA 233 cited VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 followed WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 followed SZMCD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL