SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51

SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51

Section 424(2) was not engaged in SZLPO because the National Ameer had not previously given information to the Tribunal, so the information sought was not "additional information" within that provision. In SZLQH, the Tribunal’s oral invitation to provide further information about the genuineness of the death certificate engaged s 424(2) and was not given in the manner required by s 424(3), and the Tribunal also denied procedural fairness by deciding before the promised 28 day period expired; however, relief was refused because the Tribunal assumed the death certificate was genuine and any further evidence of genuineness could not have affected the result. In SZLPP, the challenge based on...

Jurisdiction
Australia
Judgment Date
01 May 2009
Procedural Posture
Migration Judicial Review and Appeal Concerning Refugee Review Tribunal Decisions Affirming Refusals of Protection (class Xa) Visas / Full Court of the Federal Court Exercising Original Jurisdiction in NSD 1227 of 2008 and NSD 1486 of 2008, and Appellate Jurisdiction on Appeal From the Federal Magistrates Court in NSD 970 of 2008
Outcome
The application by SZLPO was dismissed with costs; the appeal by SZLQH was dismissed with no order for costs; the application by SZLPP was dismissed with costs.
Legal Topics
['refugee Review Tribunal Procedure' 'protection Visas' 'jurisdictional Error' 'additional Information Under S 424 of the Migration Act 1958 (cth)' 'written Invitations Under Ss 424, 424 B and 441 a of the Migration Act 1958 (cth)' 'procedural Fairness' 'discretionary Refusal of Relief']
['migration Law' 'administrative Law' 'judicial Review'] ['refugee Review Tribunal Procedure' 'protection Visas' 'jurisdictional Error' 'additional Information Under S 424 of the Migration Act 1958 (cth)' 'written Invitations Under Ss 424, 424 B and 441 a of the Migration Act 1958 (cth)' 'procedural Fairness' 'discretionary Refusal of Relief']

Case Brief

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Procedural Posture

Migration Judicial Review and Appeal Concerning Refugee Review Tribunal Decisions Affirming Refusals of Protection (class Xa) Visas / Full Court of the Federal Court Exercising Original Jurisdiction in NSD 1227 of 2008 and NSD 1486 of 2008, and Appellate Jurisdiction on Appeal From the Federal Magistrates Court in NSD 970 of 2008

Legal Issues

  1. 1 ['Whether the Tribunal made jurisdictional error by inviting a person to give additional information under s 424(2) of the Migration Act 1958 (Cth) without complying with s 424(3).' 'Whether "additional information" in s 424(2) means information additional only to information previously provided to the Tribunal by the invitee.' 'Whether the word "person" in s 424(2) means only a natural person and whether the person must be identified when the invitation is extended.' 'Whether a request for a document is an invitation to give information or additional information under s 424(2).' 'Whether the Tribunal denied SZLQH procedural fairness by deciding before expiry of a 28 day period it had stated would be allowed for further material.' 'Whether relief should be refused on discretionary grounds despite established jurisdictional error or procedural unfairness.' 'Whether the Tribunal in SZLPP could rely on its knowledge of Falun Gong without identifying or providing the literature on which that knowledge was based.']

Ratio Decidendi

Section 424(2) was not engaged in SZLPO because the National Ameer had not previously given information to the Tribunal, so the information sought was not "additional information" within that provision. In SZLQH, the Tribunal’s oral invitation to provide further information about the genuineness of the death certificate engaged s 424(2) and was not given in the manner required by s 424(3), and the Tribunal also denied procedural fairness by deciding before the promised 28 day period expired; however, relief was refused because the Tribunal assumed the death certificate was genuine and any further evidence of genuineness could not have affected the result. In SZLPP, the challenge based on...

Court Disposition

The application by SZLPO was dismissed with costs; the appeal by SZLQH was dismissed with no order for costs; the application by SZLPP was dismissed with costs.

Orders

  • ['In NSD 1227 of 2008, the application be dismissed.' "In NSD 1227 of 2008, the applicant pay the first respondent's costs." 'In NSD 970 of 2008, the appeal be dismissed.' 'In NSD 970 of 2008, there is no order for costs on the appeal.' 'In NSD 1486 of 2008, the application be dismissed.' "In NSD 1486 of 2008, the...