SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, HAYNE, CALLINAN AND CRENNAN JJ

SZAYW APPELLANT

AND

MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS

AFFAIRS & ANOR RESPONDENTS

SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] HCA 49

5 October 2006

S57/2006

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

I E Davidson with I G E Archibald for the appellant (instructed by Michael Jones Solicitor)

N J Williams SC with M A Wigney for the first respondent (instructed by Clayton Utz Lawyers)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs

Immigration – Refugees – Protection visa decision – Review by Refugee Review Tribunal – Hearing of an application for review by the Tribunal to be "in private" – Appellant making common cause with other visa applicants – Application for review conducted with other applicants present – Whether hearing of application conducted "in private".

Words and phrases – "in private".

Migration Act 1958 (Cth), s 429.

1. GLEESON CJ, GUMMOW, HAYNE, CALLINAN AND CRENNAN JJ. Part 7 of the Migration Act 1958 (Cth) ("the Act") provides for administrative review, by the Refugee Review Tribunal ("the Tribunal"), which is the second respondent, of protection visa decisions[1]. Division 3 of Pt 7 deals with the manner of exercise of the Tribunal's powers. Section 420 provides that the Tribunal is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. The Tribunal is not bound by technicalities, legal forms or rules of evidence. Division 4 of Pt 7 deals with the conduct of a review. It includes s 429, which provides that the hearing of an application for review by the Tribunal must be in private. 2. The appellant, who came to Australia from Lebanon in 1998, applied for a protection visa. His application was refused by a delegate of the first respondent. He applied for a review of that decision by the Tribunal. The Tribunal affirmed the delegate's decision. The appellant complains that there was non-compliance with s 429 of the Act because the hearing of his application for review was not in private. This complaint was upheld by Driver FM, who also held that the non-compliance with s 429 constituted jurisdictional error, and quashed the Tribunal's decision[2]. The appellant also complained that he was denied procedural fairness. This complaint was rejected by the learned magistrate, and does not form part of the present appeal. The magistrate's finding that there was a failure to comply with s 429 was reversed by the Full Court of the Federal Court (Moore and Weinberg JJ, Kiefel J dissenting)[3]. The appellant now appeals to this Court, seeking, in substance, to reinstate the decision of Driver FM. 3. The decision of the Full Court of the Federal Court should be upheld. In order to explain why that is so, it is convenient first to note some aspects of the statutory context in which s 429 appears, and then to explain the facts and circumstances which have given rise to the allegation of non-compliance with s 429, before turning to consider the meaning of the section.