Case: SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
Outcome: followed
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. 31 In Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 the Full Court held that s 51A of the Act operates to exclude the common law fair hearing rule in relation to offshore visa applications. Section 51A relates to ministerial grants of visas to non-citizens. Its effect is similar to that of s 422B in its application to Tribunal hearings. Similar provision is made by s 357A in relation to Migration Review Tribunal hearings. The operation of these sections has been considered in a large number of authorities which were referred to by the Full Court in its judgment. The Court said, in relation to Subdiv AB in which s 51A is found: 66. What was intended was that Subdiv AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule. 67. Other aspects of the common law of natural justice, such as the bias rule are not excluded: see ( VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562 at [27] ). 68. The intention to exclude the common law rules in the present case is especially plain when s 51A(1) is read with s 57(3). The legislature could hardly have intended to provide the full panoply of common law natural justice to visa applicants who are required to be outside Australia when the visa is granted, while conferring a more limited form of statutory protection upon onshore applicants. The same Full Court in SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 , said that s 422B excludes the common law natural justice hearing rule for the reasons given, in relation to s 51A, in Lat [2006] FCAFC 61 ; 151 FCR 214.