Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: cited
The grounds of appeal were in the following terms: 1. Federal Magistrate grossly breached the rules procedural fairness (and also appellant's fundamental right to be heard) by refusing to consider the written submission made by the appellant on the date of final hearing while taking oral submissions made by the legal representatives for the first respondent. [sic] 2. Federal Magistrate erred in law by rejecting to apply the law created by the High Court in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 and instead applying a Federal Court cases MIMA v Lay Lat [2006] FCAFC 61 and SZCIJ v MIMA [2006] FCAFC 62. This is contrary to the fact that the High Court applied " Kioa" in recent refugee cases in 2006 and 2005. [sic] 3. Federal Magistrate erred in law by ignoring the submission that the tribunal breached the s 441A thus the tribunal committed an jurisdictional error. [sic] 4. Federal Magistrate erred in law in her finding that the appellant is entitled to "limited" rules of procedural fairness. Appellant says that this is contrary to the findings of High Court in cases such as VEAL v MIMA [2005] HCA 72 , SAAP v MIMA [2005] HCA 24 , SZBEL v MIMA [2006] HCA 63 , and NAFF v MIMA [2004] HCA 62. [sic] PARTICULARS Federal magistrate found that the appellant is not entitled to the rules of procedural fairness established by the High Court of Australia; instead the appellant's only entitlement in procedural fairness is limited to the sections of the Act. 5. Federal Magistrate erred in law by ignoring an important procedural fairness issue raised in the application to the court; in particular the appellant complained that "the tribunal member while taking evidence did not allow the appellant to refer to his written notes and still regarded appellant's changed memory of date of assault (April 2001 and later April 2002) was a serious mistake". [sic] 6. Federal Magistrate erred in law by finding that the tribunal is entitled to obtain the independent information from whatever the sources it chooses. [sic] This is a serious misreading of s 424(1) of the Migration Act 1958 . I will now deal with each of the grounds of appeal in turn. 30 In dealing with ground 1 of the judicial review application in which the appellant had alleged failure by the Tribunal to comply with s 424A , the learned Federal Magistrate noted that he had referred in his written submissions to various extracts from judgments of the High Court in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550. She said (at [35]): Counsel for the First Respondent correctly submitted that the common law principles of procedural fairness identified by the High Court in Kioa are not necessarily applicable to the proceeding before this Court. Section 422B of the Act has the effect that all that is required of the Tribunal in so far as procedural fairness is concerned is to comply with the provisions of the Act ( Minister for Immigration and Multicultural Affairs v Lay Lat [(2006) [2006] FCAFC 61 ; 151 FCR 214] and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62). Accordingly, the Applicant's written submissions referring to the common law rule of procedural fairness are misconceived in so-far as they relate to the matter before this Court. 34 No separate submissions were made in respect of this appeal ground. It appears to be a revisiting of the Kioa [1985] HCA 81 ; 159 CLR 550 point. The scope of the hearing rule aspect of the rules of procedural fairness is limited by s 422B as already discussed. This ground therefore fails. 35 No submission was made in support of this ground. No factual basis for it was identified. This ground fails. 36 The appellant referred to s 424 empowering the Tribunal to obtain any information that it considers relevant. He contended that this did not authorise the Tribunal to get any information from any source. In this respect there is no basis for the contention that the Tribunal or the learned magistrate erred. In so saying I would express my concern about the quality of some of the information on which the Tribunal acted. A six year old report of a telephone conversation between somebody unknown in a Canadian agency, with somebody unknown in an American University, might not be thought to provide a particularly solid foundation for an important administrative decision which could affect the life or liberty of the person concerned. In fairness however, it must be acknowledged that the independent evidence relating to the treatment of Burghers in Sri Lanka was peripheral to the case and relevant to a matter which the Tribunal raised as a possible basis for the grant of a protection visa. The matter of persecution on the grounds of ethnicity had not been raised by the appellant.