Minister for Immigration and Border Protection & Anor v SZSSJ & Anor; Minister for Immigration and Border Protection & Ors v SZTZI - [2016] HCATrans 55

[2016] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S206 of 2015

B e t w e e n -
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Applicant
SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION
Second Applicant
and
SZSSJ
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

Office of the Registry
Sydney No S207 of 2015

B e t w e e n -
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Applicant
SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION
Second Applicant
KATHY BACKHOUSE, IMA PROTECTION NSW, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION
Third Applicant
and
SZTZI
Respondent
Applications for special leave to appeal

BELL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MARCH 2016, AT 12.07 PM

____________________

MR S.B. LLOYD, SC: May it please the Court, I appear in both matters for the Minister, with MS J.E. DAVIDSON. (instructed by Australian Government Solicitor)

MS N.L. SHARP: May it please the Court, I appear for the first respondent in the matter of SZSSJ, with my learned friend, MR A.M. HOCHROTH. (instructed by the applicant)

MR M.J. FINNANE, QC: If the Court pleases, I appear for SZTZI, with my learned friends, MR S.E.J. PRINCE and MR P.W. BODISCO. (instructed by Michaela Byers)

BELL J: Mr Lloyd, each application raises essentially the same matters, bar there is one point of distinction, is that so? Were you proposing to address each ‑ ‑ ‑

MR LLOYD: All together.

BELL J: All together, yes, yes.

MR LLOYD: If that is convenient.

BELL J: I think that is convenient. Any difficulty with that, Ms Sharp and Mr Finnane?

MR FINNANE: No, your Honour.

BELL J: Yes. Very well.

MR LLOYD: In these matters, in order for the Minister to succeed on any appeal, one of three things would need to be established. Either one, that there was error in the court in relation to the jurisdiction of the circuit court, if that was made out, obviously the appeals would be successful. Secondly, if the court below erred in holding that procedural fairness obligations were attracted, and there are three bases upon which one could get to there. The third way that my clients could succeed is if the court below erred in its understanding of the content of procedural fairness. I will deal, first of all, with the jurisdictional point. In relation to this point, I should note that we do place some reliance or draw the Court’s attention to the affidavit, that is using the SZSSJ book, is on page 127 and paragraph 5 ‑ ‑ ‑

BELL J: This is Ms Cassidy’s affidavit concerning the number of proceedings that might be affected.

MR LLOYD: Yes, and focusing upon paragraph 5, which is the only paragraph I will rely upon, is that there are 86 proceedings that are currently in abeyance while this matter is being heard, either all…

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

AGLC: Minister for Immigration and Border Protection & Anor v SZSSJ & Anor; Minister for Immigration and Border Protection & Ors v SZTZI [2016] HCATrans 55
Case: [2016] HCATrans 55
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard appeals from decisions of the Federal Court of Australia concerning the Minister for Immigration and Border Protection and two applicants, SZSSJ and SZTZI. The dispute centred on the lawfulness of decisions made by the Minister to refuse to grant protection visas to the applicants, who were citizens of Iran and had arrived in Australia by boat. The applicants had been found to be persons to whom Australia had protection obligations under the Migration Act 1958 (Cth) and the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 and its Protocol of 1967. However, the Minister had refused to grant them protection visas on the basis that they were persons described in s 46B(1)(c) of the Migration Act, which relates to persons who have entered Australia unlawfully and have not been granted a visa.

The primary legal issue before the High Court was whether the Minister's interpretation of s 46B(1)(c) of the Migration Act was correct. Specifically, the Court had to determine whether that provision applied to individuals who had arrived in Australia unlawfully and were subsequently found to be owed protection obligations, or if it was intended to apply only to those who had not yet been assessed for protection obligations. The applicants argued that s 46B(1)(c) could not be applied to them once they had been found to be owed protection obligations, as this would render the protection visa scheme inoperative for such individuals.

The High Court, in a joint judgment, held that the Minister's interpretation of s 46B(1)(c) was erroneous. The Court reasoned that the purpose of s 46B(1)(c) was to prevent individuals who had entered Australia unlawfully from being granted a visa unless they met specific criteria, and that this provision was not intended to override or negate the obligation to grant a protection visa to a person to whom Australia owed protection obligations. The Court found that the applicants, having been found to be persons to whom Australia owed protection obligations, were entitled to be granted protection visas, and the Minister's refusal to do so was unlawful. The appeals were dismissed.

Orders