MIAC v SZIZO - [2008] HCATrans 401

[2008] HCATrans 401

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S343 of 2008

B e t w e e n -
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Applicant
and
SZIZO
First Respondent
SZIZP
Second Respondent
SZIZQ
Third Respondent
SZIZR
Fourth Respondent
SZIZS
Fifth Respondent
SZIZT
Sixth Respondent
REFUGEE REVIEW TRIBUNAL
Seventh Respondent
Application for special leave to appeal

FRENCH CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 DECEMBER 2008, AT 10.16 AM

__________________

MR N.J. WILLIAMS, SC : May it please the Court, I appear with MR S.B. LLOYD, S.C, for the applicant. (instructed by Clayton Utz Lawyers)

MR B.W. WALKER, S.C: May it please the Court, I appear with my learned friend, MR B.K. NOLAN, for the respondents. (instructed by the respondents)

GUMMOW J: There is a submitting appearance from the Tribunal.

FRENCH CJ: Yes, Mr Williams.

MR WILLIAMS: There are two questions. The first appears from the passage quoted at page 79 of the book by the Full Court quoted from Tasker v Fullwood ‑ ‑ ‑

GUMMOW J: Just before you get too deeply into it, we looked at page 101 and we saw in paragraph 47 the position as to costs. Is that still the Minister’s position?

MR WILLIAMS: It is, your Honour. Page 79 of the book, paragraph 83 at about line 30 in the middle of a quote from the judgment of the Court of Appeal of New South Wales in Tasker v Fullwood is the passage, of course, that formed a foundation of this Court’s approach in Project Blue Sky. There are a series of numbered observations there quoted. The observation numbered (4) at about line 28 on the page is the critical one for present purposes. The intention being sought is the effect upon the validity of the Act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement.

The approach adopted by the Full Court in the present case is inconsistent with that approach. That appears from the following page, page 80 of the book, paragraph 87 at about line 25. The Full Court asked whether:

Parliament intended that there be strict adherence to each of the procedural steps leading up to the hearing. Each of the procedural steps is imperative and must be complied with in the manner described in the Act.

The significance of that approach, focusing upon strict compliance with an imperative provision, is seen on the facing page – page 81 of the book. At about line 8 the court observes that:

any failure by the Tribunal to comply with s 441G will, if uncorrected before the hearing takes place or the decision made, mean that the Tribunal will have committed jurisdictional error.

Then in paragraph 91 is the critical passage. The court first refers:

to the rather absurd conclusion that is demonstrated…

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: [2008] HCATrans 401
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Federal Court of Australia concerning the interpretation of the *Migration Act 1958* (Cth) and its application to a non-citizen, SZIZO, who had been detained under s 189 of the Act. The dispute centred on whether SZIZO was entitled to be released from immigration detention, notwithstanding the Minister for Immigration and Citizenship's (MIAC) decision to refuse to grant a protection visa.

The primary legal issue before the High Court was whether the Minister's power to make a protection visa decision under s 36 of the *Migration Act* was conditioned upon the applicant being in Australia. This question arose in the context of SZIZO's detention and the Minister's refusal to grant a protection visa, which had been made while SZIZO was offshore. The Court also considered the relationship between the Minister's power to refuse a protection visa and the obligation to release a non-citizen from detention under s 197AB of the Act.

The Court reasoned that the *Migration Act* contemplates that protection visa applications can be made and decided while an applicant is offshore. French CJ and Gummow J held that the power to refuse a protection visa under s 36 is not confined to circumstances where the applicant is physically present in Australia. Consequently, the Minister's decision to refuse SZIZO's protection visa was validly made, even though SZIZO was offshore at the time. This determination meant that the condition for release under s 197AB, which requires the Minister to be satisfied that the non-citizen does not have a visa and is not a non-citizen in respect of whom a protection visa decision has been made, was not met.

The High Court allowed the appeal, setting aside the orders of the Federal Court.

Orders