MZXRE v Minister for Immigration and Citizenship [2009] FCAFC 82

FEDERAL COURT OF AUSTRALIA

MZXRE v Minister for Immigration and Citizenship [2009] FCAFC 82

MIGRATION – appeal – application for protection visa – Refugee Review Tribunal found no jurisdiction to conduct review – Tribunal nonetheless conducted full hearing – Tribunal decision set aside and matter remitted to Tribunal to 'rehear and determine according to law' by consent – Tribunal constituted by same member – invitation under s 424 to provide additional evidence served in accordance with s 441C(4), but, in fact, not received by appellant – Tribunal proceeded to make decision and affirm delegate's decision not to grant protection visa without second hearing – whether Tribunal was obliged to invite appellant to second hearing under s 425 of Migration Act 1958 (Cth) – whether no further invitation required due under s 425(2)(c) and (3) – whether second hearing required as result of majority decision in SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 MIGRATION – appeal – appellant provided additional information after Tribunal decision signed but before decision handed down – whether Tribunal made a jurisdictional error in not reopening review – file note transcribed by Tribunal member stated that Tribunal had regard to information and determined not to recall decision Held: appeal dismissed

Migration Act 1958 (Cth) ss 411, 412, 414, 414A, 420, 422A, 422B, 424, 424C, 425, 426A, 441A, 441C Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 cited Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359 cited Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485 discussed Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541 cited Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 applied Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 cited MZXRE v Minister for Immigration [2009] FMCA 99 affirmed NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 applied Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 followed SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 cited SXGLM v Minister for Immigration and Citizenship [2007] FCA 1840 cited SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 cited SZBSZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 779 cited SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 cited SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 applied SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291 cited SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 discussed SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 discussed VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 cited VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 discussed MZXRE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL