NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744

NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744

The appellant's answer in the protection visa application was adverse information forming an integral part of the RRT's reasons. The RRT raised the application form and the inconsistency during its questioning of the appellant; the appellant did not himself provide or expressly adopt that information as part of his application for review in a way that converted it into information given for the purpose of the review. Accordingly, s 424A(3)(b) was not enlivened, the RRT breached s 424A(1), and the decision was invalid. The appeal was allowed and certiorari and mandamus were ordered.

Jurisdiction
Australia
Judgment Date
23 June 2005
Procedural Posture
Migration Appeal From the Federal Magistrates Court Concerning Refusal of a Protection Visa / Appeal to the Federal Court From Orders Dismissing an Application for Review of a Refugee Review Tribunal Decision
Outcome
Appeal allowed.
Legal Topics
['protection Visa' 'refugee Review Tribunal' 'migration Act 1958 (cth) S 424 A' 'written Particulars of Adverse Information' 'procedural Fairness' 'jurisdictional Error' 'joinder of Refugee Review Tribunal']
['migration Law' 'administrative Law' 'practice and Procedure'] ['protection Visa' 'refugee Review Tribunal' 'migration Act 1958 (cth) S 424 A' 'written Particulars of Adverse Information' 'procedural Fairness' 'jurisdictional Error' 'joinder of Refugee Review Tribunal']

Case Brief

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Procedural Posture

Migration Appeal From the Federal Magistrates Court Concerning Refusal of a Protection Visa / Appeal to the Federal Court From Orders Dismissing an Application for Review of a Refugee Review Tribunal Decision

Legal Issues

  1. 1 ['Whether the Refugee Review Tribunal was required by s 424A(1) of the Migration Act 1958 (Cth) to give the appellant written particulars of information concerning an inconsistency between his protection visa application and his oral evidence.' 'Whether the information in the protection visa application fell within the exception in s 424A(3)(b) as information given by the appellant for the purpose of the application for review by the Refugee Review Tribunal.' "Whether breach of s 424A invalidated the Refugee Review Tribunal's decision notwithstanding that the inconsistency had been put to the appellant orally." 'Whether the Refugee Review Tribunal should be joined as a respondent.']

Ratio Decidendi

The appellant's answer in the protection visa application was adverse information forming an integral part of the RRT's reasons. The RRT raised the application form and the inconsistency during its questioning of the appellant; the appellant did not himself provide or expressly adopt that information as part of his application for review in a way that converted it into information given for the purpose of the review. Accordingly, s 424A(3)(b) was not enlivened, the RRT breached s 424A(1), and the decision was invalid. The appeal was allowed and certiorari and mandamus were ordered.

Court Disposition

Appeal allowed.

Orders

  • ['The appeal be allowed.' 'The Orders of Scarlett FM made on 10 March 2005 are set aside.' 'There be an order in the nature of certiorari to quash the decision of the RRT handed down on 11 December 2003.' 'There be an order in the nature of mandamus requiring the RRT to review according to law the decision made by a...