SZJHL v Minister for Immigration and Citizenship [2007] FCA 1713

FEDERAL COURT OF AUSTRALIA

SZJHL v Minister for Immigration and Citizenship [2007] FCA 1713

MIGRATION – appeal from Federal Magistrate refusing application for review – inconsistencies between oral hearing at RRT and response to s 424A letter – whether procedural fairness required the RRT to invite comment on those inconsistencies – whether all issues, including credibility already in issue

Migration Act 1958 (Cth) ss 424, 424A, 425

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 515 cited SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 cited SZJHL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL No NSD 1450 of 2007

FINN J

9 NOVEMBER 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1450 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJHL

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: FINN J DATE OF ORDER: 9 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Leave be given to raise the ground of appeal not raised below. 2. The appeal be dismissed. 3. The appellant pay the first respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1450 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJHL

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: FINN J

DATE: 9 NOVEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The sole ground in the notice of appeal in this matter raises a question not advanced in the court below. The preliminary issue to which this gives rise is whether leave ought be given for the ground to be raised. For the purposes of the prompt disposition of this matter, I have decided to hear together the arguments both for leave and on the substantive ground itself. 2 The ground of appeal is cast as involving a denial of procedural fairness, this being particularised as follows: "(a) The Tribunal conducted a hearing on 2 June 2006. (b) The Tribunal sent the applicant and [sic] 'Invitation to Comment' on Information on 9 June 2006. (c) The Tribunal's decision was made on 19 July 2006 and handed down on 8 August 2006. (d) The Tribunal's decision was based, in part, on the inconsistencies between the appellant's evidence at the hearing and his response to the 'Invitation to Comment on Information'. In those circumstances, the Tribunal was required, by the rules of procedural fairness, to give the Appellant an opportunity to comment on those inconsistencies." I would add that the obligation to give this opportunity is sourced in the appellant's submissions to s 425(1) of the Migration Act 1958 (Cth). That subsection requires the Tribunal to invite the applicant to appear before the Tribunal to give evidence and to present argument "relating to the issues arising in relation to the decision under review": and see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 81 ALJR 515 at [34]-[35].