MIAC v SZLFX; MIAC v SZKTI & Anor - [2008] HCATrans 389

[2008] HCATrans 389

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S341 of 2008

B e t w e e n -
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Applicant
and
SZLFX
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent

Office of the Registry
Sydney No S309 of 2008

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

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 2008, AT 2.39 PM

__________________

MR S.B. LLOYD, SC: May it please the Court, I appear in both matters with my learned friend, MR G.T. JOHNSON. (instructed by Sparke Helmore Lawyers and DLA Phillips Fox Lawyers)

MR G.C. LINDSAY, SC: May it please the court, on the first of the two matters I appear with MR L.J. KARP, for the first respondent. (instructed by Christopher Levingston & Associates)

MR R.P.L. LANCASTER: May it please the Court, I appear with MR S.J. FREE for the first respondent in the second matter. (instructed by Gilbert & Tobin Lawyers)

GUMMOW J: There is a submitting appearance for the Tribunal, which is the second respondent in each application. Yes, Mr Lloyd.

MR LLOYD: May it please the Court. Central to both judgments in these cases is the construction of section 424 of the Migration Act. The Full Court in SZLFX approved and applied the reasons of the Full Court in SZKTI. In SZKTI the court considered that the Minister had failed to provide – as their Honours put it – any plausible alternative legal meaning to section 424. I propose to begin to go to the heart of the issue and advance what we say is the correct construction of section 424, which we say is not only plausible, but preferable having regard to the ‑ ‑ ‑

KIRBY J: You read an affidavit of Wan Shum affirmed 19 September 2008?

MR LLOYD: I do, your Honour, and also there is another affidavit as well.

KIRBY J: Juliet Carrington, sworn 14 October 2008.

MR LLOYD: In both matters.

GUMMOW J: This is designed to show ‑ ‑ ‑

KIRBY J: Lots of affectation.

GUMMOW J: Yes.

MR LLOYD: Well, it shows at least that there are dozens of cases currently that are known to be affected and potentially a great deal more, given that this is an area where people backdate, as it were, emerge again and we suspect there will be many cases where someone will say, “In my case the Tribunal asked someone for some information some years ago and they did not do that”. So it affects at least dozens of cases and potentially a higher ‑ ‑ ‑

KIRBY J: I think I read that you agreed to pay the costs of the respondents, whatever the outcome, and in one you said…

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.

Continue reading MIAC v SZLFX; MIAC v SZKTI & Anor

Details

AGLC: MIAC v SZLFX; MIAC v SZKTI & Anor [2008] HCATrans 389
Case: [2008] HCATrans 389
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals from decisions of the Federal Court of Australia concerning the interpretation of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). The appellants, MIAC, sought to challenge decisions made by the Federal Court in favour of the respondents, SZLFX and SZKTI & Anor, who were visa applicants. The core of the dispute revolved around the validity of certain decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs (MIAC) in relation to the respondents' applications for visas.

The central legal question before the High Court was whether the Minister's decisions to refuse to grant visas to the respondents were vitiated by a failure to provide them with adequate notice of adverse information that was to be considered in the assessment of their visa applications. Specifically, the Court had to determine whether the principles of procedural fairness, as applied to administrative decision-making under Australian law, required the Minister to afford the respondents an opportunity to respond to adverse information before making a final decision to refuse their visas.

The High Court, in a joint judgment, affirmed the importance of procedural fairness in administrative decision-making. Their Honours reasoned that where a decision-maker proposes to make a decision adverse to an individual, and that decision is based on information that is not already known to the individual, procedural fairness generally requires that the individual be given notice of that information and an opportunity to comment on it. In this instance, the Court found that the Minister had failed to provide the respondents with adequate notice of the adverse information that formed the basis of the visa refusal decisions. Consequently, the Minister's decisions were held to be invalid.

The High Court allowed the appeals, set aside the orders of the Federal Court, and remitted the matters to the Federal Court for further consideration in accordance with the reasons of the High Court.

Orders