Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

MINISTER FOR IMMIGRATION AND CITIZENSHIP APPELLANT

AND

SZIAI AND ANOR RESPONDENTS

Minister for Immigration and Citizenship v SZIAI

[2009] HCA 39

23 September 2009

S37/2009

ORDER

1. Appeal allowed.

2. Set aside orders 1 to 5 of the orders made by the Federal Court of Australia on 8 September 2008, and in lieu thereof order that:

(a) order 2 of the orders made by the Federal Magistrates Court of Australia on 18 June 2008 be set aside; and

(b) the appeal be otherwise dismissed.

3. Appellant to pay the costs of the first respondent's appeal to this Court.

On appeal from the Federal Court of Australia

Representation

S J Gageler SC, Solicitor-General of the Commonwealth with G T Johnson and G R Kennett for the appellant and for the Attorney-General of the Commonwealth intervening (instructed by Australian Government Solicitor)

N J Williams SC with A M Mitchelmore for the first respondent (instructed by Dobbie and Devine Immigration Lawyers Pty Ltd)

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

Minister for Immigration and Citizenship v SZIAI

Immigration – Refugees – Review by Refugee Review Tribunal ("RRT") – Whether failure to make certain inquiries was unreasonable or constituted failure to conduct review within meaning of Migration Act 1958 (Cth), s 414 – Whether failure to inquire constituted jurisdictional error.

Immigration – Refugees – Review by RRT – Where RRT received allegation that documents provided by visa applicant were "fake & forged", invited applicant to comment in writing, but failed to invite him to further hearing – Whether such failure amounted to denial of procedural fairness, breach of Migration Act 1958, s 425, or failure to conduct review within meaning of Migration Act 1958, s 414 – Whether allegation of forgery raised new "issue" within meaning of Migration Act 1958, s 425.