FEDERAL COURT OF AUSTRALIA

SZKJI v Minister for Immigration and Citizenship [2008] FCA 1193

Federal Court of Australia Act 1976 (Cth), s 25(1AA)

Migration Act 1958 (Cth), s 425

SZKJI v Minister for Immigration & Anor [2007] FMCA 1998 related

Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541

SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 

SZKJI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2451 of 2007

GYLES J

12 AUGUST 2008

SYDNEY

THE COURT DIRECTS THAT:

1.                  The appeal proceed before a Full Court.

2.                  The parties approach the appropriate Registrar of the Court for further directions.

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REASONS FOR DIRECTIONS

1                     This appeal from a decision of the Federal Magistrates Court (SZKJI v Minister for Immigration & Anor [2007] FMCA 1998) refusing relief in relation to a decision of the Refugee Review Tribunal (the Tribunal) came on for hearing before me on 28 May last.  The appellant is unrepresented.  The only point of substance which appeared to me to arise out of the appellant’s case was an argument that s 425 of the Migration Act 1958 (Cth) (the Act) had not been complied with.  The appellant had been afforded a hearing by the Tribunal member then constituting the Tribunal.  Following that hearing, the Tribunal was reconstituted and another member substituted.  That Tribunal member refused the appellant’s request for a hearing.  The appellant, in addition to making a general request, had made particular criticisms of the manner in which the previous hearing had been conducted.  Counsel for the first respondent submitted that, although some divergence had emerged between various single judge decisions about the application of s 425, the circumstances of this case were, so far as is relevant, indistinguishable from those the subject of the Full Court decision in Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541 and the appeal was bound to fail.

2                     Having considered the written submissions, and after hearing from the appellant and counsel for the first respondent, I decided to stand the matter over until delivery of the Full Court decision in SZHKA v Minister for Immigration and Citizenship.  That decision was delivered on 5 August last (SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138).  Each of the cases dealt with in that decision concerned a situation in which the first Tribunal decision was set aside for jurisdictional error and that the procedure thereafter was conducted and the decision made by a new Tribunal member.  In those circumstances, it was held that there was an obligation for there to be a s 425 invitation to appear before the new Tribunal member who was actually to decide the case.  Thus, the facts are different from those that apply in the present case which are directly covered by Liu 113 FCR 541.

3                     In my opinion, it is now appropriate that the decision in Liu 113 FCR 541 be reconsidered.  My reasons can be sufficiently gleaned from SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 at [29]–[34], and are consistent with the opinion of Gray J.  The reasons of Besanko J would also require re-examination of Liu 113 FCR 541 in cases where a new issue had arisen.  I might add that there has been a significant change in the relevant division of the Act since the decision in Liu 113 FCR 541 in that s 422B was inserted.

4                     In my opinion, it is appropriate that reconsideration of Liu 113 FCR 541 should be undertaken by a Full Court rather than a single judge.  I might add that the present case appears to me to be a good vehicle for that exercise, apart from the fact that the appellant is unrepresented.  As I have said, the appellant specifically requested a hearing and raised problems with the first Tribunal hearing.  The issue was squarely raised in the proceeding before the Federal Magistrates Court and was summarily rejected based upon the decision in Liu 113 FCR 541.

5                     Therefore, pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth), I am of opinion that the appellate jurisdiction of the Court in this appeal should be exercised by a Full Court and will so direct.  The appeal will be managed in that fashion from here on.  The parties are directed to approach the appropriate Registrar of the Court for further directions.  There is no need to make any special order about costs.  The costs to date will simply be regarded as costs of the appeal.

Associate:

Dated:         12 August 2008