Case: SZEPZ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2006) 159 FCR 291
Outcome: applied
Fifthly, the appellant asserts that the Tribunal committed jurisdictional error by referring to his evidence from the original Tribunal hearing where the matters were not put to him in accordance with s 424A(1) of the Act. Information given to the Tribunal by the appellant is an exception to the requirement in s 424A(1) by reason of s 424A(3)(b). The reference in the Act to the Tribunal does not depend on the identity of the particular member constituting the Tribunal. Until the Tribunal has made a valid decision on the review that has been initiated by valid application under s 414 , it has a duty to perform that particular review. The Tribunal as reconstituted still has properly before it the materials that were obtained when the decision that had been set aside was made ( SZEPZ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs (2006) 159 FCR 291 at [39], [41]). 15 This ground of appeal does not point to any particular error on the part of the Federal Magistrate in reviewing the decision of the Tribunal other than a claim that the Federal Magistrate did not consider the appellant's arguments in relation to the Tribunal's decision. 16 In his written submissions, the appellant contends that the Tribunal did not assess his claim according to s 91R of the Act because it came to an incorrect factual finding as to his political profile. Contrary to the appellant's submissions, the Federal Magistrate did consider this ground. His Honour concluded that this was not, as submitted by the appellant, an impermissible limiting of the criteria of s 91R but a factual finding on the appellant's claims (at [52]). This was evident from the elaboration of this ground by the appellant at the hearing, when he explained that his political activity was at a "high level" which attracted attack and that the Tribunal had been wrong to conclude otherwise. The factual finding by the Tribunal to the contrary was open to it and a matter for the Tribunal. 17 The appellant has not shown that his Honour was in error in concluding that the Tribunal had properly discharged the functions conferred on it under the Act. 18 There is no evidence to support an assertion that the appellant was misled or "confused" or "misguided" by the 6 June letter. He responded to it in detail and did not assert in his reply that he failed to understand it. The Federal Magistrate did observe that there was ' one confusing or puzzling aspect in what the Tribunal has done in this regard ' (at [42]) but that related to his Honour's observation that the Tribunal was not obliged by s 424A(1) of the Act to invite comment in writing on the subject matter of the letter, being information given to the original Tribunal by the appellant or contained in country information, within the exceptions in s 424A(3). While his Honour also concluded that the letter may have been sent pursuant to s 424 rather than s 424A of the Act and was directed to the provision of additional information rather than being concerned with the opportunity to comment on information already before the Tribunal (at [43]), this does not support this ground of appeal and does not give rise to jurisdictional error. The Tribunal noted that it had regard to the information. 19 The appellant asserts that the Tribunal did not give any explanation regarding the letters. The Tribunal did in the 6 June letter indicate the relevance of the first two pieces of information. The third piece of information was country information which the Tribunal was under no obligation to explain. Further, it was apparent from the subject matter of the letter in the context of the claims that in each case the appellant was being asked to comment on information regarding aspects of his claims and the matters he had put to the Tribunal in support. 20 It follows that the appeal should be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 20 February 2008 The Appellant was self represented Counsel for the Respondent: A Mitchelmore Solicitor for the Respondent: Sparke Helmore Date of Hearing: 12 February 2008 Date of Judgment: 21 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/92.html