SZQVM v Minister for Immigration and Citizenship [2013] FCA 5

SZQVM v Minister for Immigration and Citizenship [2013] FCA 5

The Tribunal had both emails before the hearing but gave them no weight without making inquiries into authenticity or truth, without putting its concerns to the appellant, and without giving the appellant an opportunity to respond. It also gave little weight to Mr Young's evidence on the basis that it was hearsay without putting that concern to the appellant or Mr Young. Because the evidence was relevant and probative, and because the Tribunal was not entitled simply to discard or discount it for those reasons without inquiry or notice, the Tribunal failed to consider relevant evidence and failed to discharge its statutory obligation to review the delegate's decision. That failure was...

Jurisdiction
Australia
Judgment Date
15 January 2013
Procedural Posture
Migration Appeal From Federal Magistrates Court Judicial Review of Refugee Review Tribunal Decision Affirming Refusal of Protection (class Xa) Visa / Appeal
Outcome
Appeal allowed; Federal Magistrate's orders set aside; Refugee Review Tribunal decision quashed and remitted for determination according to law; Minister ordered to pay costs.
Legal Topics
['protection Visa' 'refugee Review Tribunal' 'judicial Review' 'jurisdictional Error' 'hearsay Evidence' 'procedural Fairness' 'notice of Contention' 'extension of Time']
['migration' 'administrative Law' 'practice and Procedure'] ['protection Visa' 'refugee Review Tribunal' 'judicial Review' 'jurisdictional Error' 'hearsay Evidence' 'procedural Fairness' 'notice of Contention' 'extension of Time']

Case Brief

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Procedural Posture

Migration Appeal From Federal Magistrates Court Judicial Review of Refugee Review Tribunal Decision Affirming Refusal of Protection (class Xa) Visa / Appeal

Legal Issues

  1. 1 ['Whether the Refugee Review Tribunal committed jurisdictional error by giving no weight to two emails because it had not spoken to the authors, tested the evidence or verified authenticity.' "Whether the Refugee Review Tribunal committed jurisdictional error by giving little weight to Mr Ted Young's evidence because it was described as hearsay and based on what he had been told." "Whether the Federal Magistrate erred in distinguishing SZIEW on the basis that the emails were provided after the Tribunal hearing when they were in the Tribunal's possession before the hearing." 'Whether the Minister should be granted an extension of time to file a notice of contention outside the time prescribed by r 36.24 of the Federal Court Rules 2011.']

Ratio Decidendi

The Tribunal had both emails before the hearing but gave them no weight without making inquiries into authenticity or truth, without putting its concerns to the appellant, and without giving the appellant an opportunity to respond. It also gave little weight to Mr Young's evidence on the basis that it was hearsay without putting that concern to the appellant or Mr Young. Because the evidence was relevant and probative, and because the Tribunal was not entitled simply to discard or discount it for those reasons without inquiry or notice, the Tribunal failed to consider relevant evidence and failed to discharge its statutory obligation to review the delegate's decision. That failure was...

Court Disposition

Appeal allowed; Federal Magistrate's orders set aside; Refugee Review Tribunal decision quashed and remitted for determination according to law; Minister ordered to pay costs.

Orders

  • ['The appeal be allowed.' 'The orders made by the Federal Magistrate on 8 June 2012 be set aside.' "The Refugee Review Tribunal's decision made on 10 October 2011 be quashed." 'The application to the Refugee Review Tribunal for a review of the decision of the delegate of the Minister for Immigration and Citizenship...