SZIOZ v Minister for Immigration and Citizenship [2007] FCA 1870

FEDERAL COURT OF AUSTRALIA

SZIOZ v Minister for Immigration and Citizenship [2007] FCA 1870

MIGRATION – appeal from Federal Magistrates Court – where delegate of first respondent refused application for protection visa – where second respondent affirmed decision of delegate – where Federal Magistrates Court dismissed application for constitutional writs – where appellant national of People's Republic of China – where delegate accepted appellant a Falun Gong practitioner in China – where delegate decided appellant not of interest to Chinese authorities – where second respondent decided appellant not a Falun Gong practitioner in China – where invitation to appear did not advise appellant that whether appellant a Falun Gong practitioner in China a fact in issue – where letter from second respondent sent to appellant after hearing – where letter provided particulars of information and invited appellant to comment – where appellant identifies alleged categories of information not properly raised by letter – whether question whether appellant a Falun Gong practitioner in China an issue arising in relation to the decision under review – whether second respondent obliged under s 425(1) Migration Act 1958 (Cth) to give notice to appellant of that issue – whether letter sent after hearing can satisfy obligation – whether failure to comply with s 425(1) Migration Act 1958 (Cth) – whether letter sent after hearing can satisfy s 424A Migration Act 1958 (Cth) – whether failure to comply with s 424A Migration Act 1958 (Cth). Held: Whether appellant a Falun Gong practitioner in China an issue arising in relation to the decision under review – second respondent obliged under s 425(1) to give notice of issue where not apparent from delegate's decision – letter sent after hearing not capable of satisfying notice obligation – second respondent breached s 425(1) Migration Act 1958 (Cth) – letter sent after hearing capable of satisfying s 424A – alleged categories of information not raised by letter not information within s 424A – no failure to comply with s 424A Migration Act 1958 (Cth) – appeal allowed. Federal Court of Australia Act 1976 (Cth) s 25(1AA), s 27 Migration Act 1958 (Cth) ss 91R(3), 91X, 422B, 424A, 425 Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181 referred to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 referred to Sobey v Nicol and Davies, in the matter of Guiseppe Antonio Mercorella [2007] FCAFC 136 referred to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 considered SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 considered SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 referred to SZIOZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 203 OF 2007