SZEWL v Minister for Immigration and Citizenship [2009] FCA 209

SZEWL v Minister for Immigration and Citizenship [2009] FCA 209

The tribunal used Ms L's evidence about her visa inquiries and her failure to tell the appellant about them as part of its reason for rejecting the claimed committed familial or de facto relationship. That evidence was information given by a witness, not information given by the appellant within s 424A(3)(b), and it went to the heart of the appellant's protection visa claim. Because the tribunal failed to give the appellant written notice under s 424A or oral particulars under s 424AA, it committed jurisdictional error. The Court was not satisfied that compliance could have made no difference, so relief was granted and the matter remitted.

Jurisdiction
Australia
Judgment Date
09 March 2009
Procedural Posture
Migration Appeal Concerning Refusal of a Protection Visa and Constitutional Writ Relief / Appeal From the Federal Magistrates Court of Australia
Outcome
Appeal allowed with costs; Federal Magistrates Court orders set aside; tribunal decision quashed and matter remitted to be heard and determined according to law.
Legal Topics
['protection Visa' 'procedural Fairness' 'jurisdictional Error' 'refugee Review Tribunal' 'migration Act 1958 (cth) S 424 a Information' 'witness Evidence in Tribunal Proceedings' 'inquisitorial Tribunal Procedure']
['migration Law' 'administrative Law'] ['protection Visa' 'procedural Fairness' 'jurisdictional Error' 'refugee Review Tribunal' 'migration Act 1958 (cth) S 424 a Information' 'witness Evidence in Tribunal Proceedings' 'inquisitorial Tribunal Procedure']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Migration Appeal Concerning Refusal of a Protection Visa and Constitutional Writ Relief / Appeal From the Federal Magistrates Court of Australia

Legal Issues

  1. 1 ["Whether the Refugee Review Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) by not sufficiently identifying issues about the appellant's relationship with Ms L and their child." 'Whether evidence given by Ms L about steps she had taken to seek residence in Australia and why she had not told the appellant was information to which s 424A applied.' 'Whether information given orally by a witness nominated by an applicant under s 426(2) is information that the applicant gave for the purpose of the application for review within s 424A(3)(b).' "Whether the tribunal committed jurisdictional error by relying on Ms L's evidence without giving written notice under s 424A or oral particulars under s 424AA." 'Whether relief should be granted despite the jurisdictional error.']

Ratio Decidendi

The tribunal used Ms L's evidence about her visa inquiries and her failure to tell the appellant about them as part of its reason for rejecting the claimed committed familial or de facto relationship. That evidence was information given by a witness, not information given by the appellant within s 424A(3)(b), and it went to the heart of the appellant's protection visa claim. Because the tribunal failed to give the appellant written notice under s 424A or oral particulars under s 424AA, it committed jurisdictional error. The Court was not satisfied that compliance could have made no difference, so relief was granted and the matter remitted.

Court Disposition

Appeal allowed with costs; Federal Magistrates Court orders set aside; tribunal decision quashed and matter remitted to be heard and determined according to law.

Orders

  • ['The appeal be allowed with costs.' 'The orders made by the Federal Magistrates Court on 3 November 2008 be set aside, and, in lieu thereof, the following orders be made:' 'An order in nature of an order absolute in the first instance for a writ of certiorari to quash the decision of the second respondent, signed...