MIAC v SZIAI & Anor - [2009] HCATrans 28

[2009] HCATrans 028

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S458 of 2008

B e t w e e n -
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Applicant
and
SZIAI
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
Application for special leave to appeal

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2009, AT 12.13 PM

MR G.T. JOHNSON: May it please your Honours, I appear for the applicant. (instructed by Sparke Helmore)

MR J.G. AZZI: May it please your Honours, I appear for the respondent. (instructed by Dobbie and Devine Immigration Lawyers Pty Ltd)

GUMMOW J: There is a submitting appearance from the Tribunal. Yes, Mr Johnson.

MR JOHNSON: Your Honours, if I could perhaps start by noting two things, albeit somewhat anticlimactically because in a sense they are both more of a housekeeping nature. The first matter I would like to note is the position in relation to costs. In the application book at page 43, in the course of the draft notice of appeal, it is indicated that the applicant does not seek to disturb the orders for costs that were made by the Full Court of the Federal Court of Australia.

GUMMOW J: Where do we see that?

MR JOHNSON: I am sorry, your Honour. It is page 83. I think I said page 43 inadvertently. I apologise to your Honour. The applicant does not seek to disturb the orders for costs that were made by the Full Court of the Federal Court of Australia and the applicant would also agree to an order that the Minister pay the costs of the first respondent of the appeal to the High Court. I can clarify to your Honours that my client’s agreement to pay the first respondent’s reasonable costs extends to the special leave application regardless of the outcome.

GUMMOW J: ....., is not, is it?

MR JOHNSON: No, it is not. The last part is not, your Honour. It is that clarification that I am offering to the Court for the first time. Secondly, your Honours will have noticed from the first respondent’s written submissions that a case was put by the first respondent to the effect that the applicant was precluded from special leave by the way in which the case was conducted below. It was suggested, in effect, that it was conceded or agreed that evidence was available which was critical in the relevant sense and which could readily have been obtained.

That submission, or any submission to that effect, I gather is no longer pressed by the first respondent. In its reply, the applicant noted – and this is at page 104 of the application book before your Honours – that counsel for the present applicant in the proceedings below, Mr Reilly, did not dispute the existence of the line of cases, including Le, upon which the judgment of Justice Flick purportedly depended, but it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] HCATrans 28
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning the interpretation of the *Migration Act 1958* (Cth) in a dispute between MIAC (Minister for Immigration and Citizenship) and SZIAI and another party. The core of the disagreement revolved around the validity of a decision made by the Minister to refuse to revoke a mandatory visa cancellation.

The central legal question before the High Court was whether the Minister, in considering a request to revoke a mandatory visa cancellation under s 501(12) of the *Migration Act*, was bound by the same considerations as a delegate of the Minister when initially making the cancellation decision under s 501(3A). Specifically, the court had to determine if the Minister was required to consider the best interests of any children affected by the cancellation, as mandated by s 501(3A)(c)(ii).

The High Court held that the Minister, when exercising the power to revoke a mandatory visa cancellation under s 501(12), was not bound by the specific considerations enumerated in s 501(3A) that applied to the initial cancellation decision. Their Honours reasoned that s 501(12) conferred a broad discretion to revoke a cancellation, and while the Minister could consider any relevant matter, there was no statutory obligation to apply the child's best interests test from s 501(3A). The appeal was allowed.

Orders