AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156

FEDERAL COURT OF AUSTRALIA

AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156 Citation: AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156

Appeal from: AZAAD & AZAAE v Minister for Immigration & Anor [2010] FMCA 62

Parties: AZAAD and AZAAE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

File number: SAD 38 of 2010

Judges: SIOPIS, BESANKO AND REEVES JJ

Date of judgment: 21 December 2010

Catchwords: MIGRATION — Appeal from decision of Federal Magistrate dismissing application for constitutional writs directed to Refugee Review Tribunal ('Tribunal') — where appellant wife an Albanian national who claimed to have been sold into prostitution in Italy — where appellant husband's claim for protection visa dependent on claim of appellant wife — where appellants had right to reside in Italy — where appellants claimed to fear reprisals from members of prostitution ring in Italy and in Albania —where delegate of Minister for Immigration and Citizenship refused to grant protection visas to appellants on basis that they did not have a well-founded fear of being persecuted for a Convention reason in Italy pursuant to s 36(4) of the Migration Act 1958 (Cth) ('the Act') because adequate state protection was available in Italy — where delegate nevertheless accepted key elements of appellant wife's history — where Tribunal upheld delegate's decision on basis of s 36(4) but also accepted veracity of appellant wife's history — where Federal Magistrate set aside decision of Tribunal on basis it had misconstrued s 36(4) of the Act — where second Tribunal invited appellants to appear pursuant to s 425 of the Act — where second Tribunal did not indicate to appellants that whole of appellant wife's history was an issue arising in relation to the decision under review — where during course of hearing Tribunal indicated to appellants that certain aspects of appellant wife's history were in doubt — where Tribunal restricted its questioning to aspects of appellant wife's history which were of concern — where Tribunal sent appellants letter after the hearing pursuant to s 424A identifying some issues of concern — where Tribunal did not accept appellant wife as witness of truth and rejected her claim to have been forced into prostitution in Italy — whether appellants denied procedural fairness because they were not advised of the issues on the review HELD: Mere invitation to hearing pursuant to s 425 of the Act was not sufficient to indicate to appellants that Tribunal had concerns about all aspects of appellant wife's claim. The requirement in s 425 that appellants have opportunity to give evidence and present arguments in relation to the issues arising in relation to the decision under review meant that appellants were entitled to be put on notice that key elements of the appellant wife's history were in issue. That could have been done at the outset of the hearing or the Tribunal could have asked questions during hearing which would have allowed the appellant wife to give further evidence in relation to key events. Appellants had been denied procedural fairness and constitutional writs should issue.