Minister for Immigration & Citizenship v SZGUR [2011] HCA 1 2 February 2011 S179/2010
ORDER
1. Appeal allowed.
2.Set aside paragraphs 1 and 2(a) and (b) of the order of the Federal Court of Australia made on 4 March 2010, as varied by the order of that Court made on 26 March 2010, and in their place order that the appeal to that Court be dismissed.
3. The appellant pay the costs of the first respondent in this Court.
On appeal from the Federal Court of Australia
Representation
S B Lloyd SC with G R Kennett for the appellant (instructed by Clayton Utz Lawyers)
G C Lindsay SC with L J Karp for the first respondent (instructed by Dobbie and Devine Immigration Lawyers Pty Ltd)
Submitting appearance for the second respondent
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Minister for Immigration & Citizenship v SZGUR
Immigration – Refugees – Review by Refugee Review Tribunal ("RRT") –Where visa applicant's migration agent asked RRT to arrange "independent assessment of [applicant's] mental health, if required" – Section 427(1)(d) Migration Act1958 (Cth) gave RRT power to require Secretary to arrange for making of medical examination – Whether duty on RRT to consider exercising power under s 427(1)(d) – Whether general duty to inquire.
Words and phrases – "information".
Migration Act1958 (Cth), ss 424, 424A, 427(1)(d), 430.
FRENCH CJ and KIEFEL J.
Introduction
The function of the Refugee Review Tribunal ("the Tribunal") in reviewing decisions under the Migration Act 1958 (Cth) ("the Migration Act") has been described as inquisitorial. That designation does not mean that there is any general duty imposed on the Tribunal, as part of its review function, to use, or to consider using its investigative powers to obtain information relevant to the review.
In this case, an applicant before the Tribunal, the first respondent SZGUR, supported by statutory declarations from acquaintances and certificates from a psychiatrist, told the Tribunal that he was suffering from depression, Bipolar Mood Disorder and forgetfulness. The information was provided by his migration agent in explaining the existence of contradictions and inconsistencies in SZGUR's submissions and testimony to the Tribunal, about which the Tribunal had invited his comment. The agent asked the Tribunal to arrange an "independent assessment of his mental health, if required". The Tribunal did not do so. The Federal Court, on appeal from the Federal Magistrates Court, held that the Tribunal had committed jurisdictional error by failing to consider whether to use its statutory powers to arrange such an assessment. This was not a matter which had been raised in the Federal Magistrates Court.
The Federal Court was in error in inferring that the Tribunal had failed to consider the agent's request or the exercise of its statutory powers to arrange an independent…
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 Citizenship v SZGUR [2011] HCA 1
Case
[2011] HCA 1
Decision Date
CaseChat Overview and Summary
The Minister for Immigration and Citizenship appealed to the High Court of Australia against a decision of the Federal Court of Australia concerning the review of a protection visa application by SZGUR. SZGUR, a citizen of Nepal, claimed he was at risk of execution by the Royal Nepalese Army due to his support for the Maoist Nepali Communist Party. His protection visa application was refused by the Minister, and subsequent reviews by the Refugee Review Tribunal (RRT) affirmed this decision, despite earlier decisions being quashed and remitted. The Federal Court had found that the RRT failed to consider exercising its power under section 427(1)(d) of the *Migration Act 1958* (Cth) to require the Secretary to arrange a medical examination for SZGUR, following a conditional request from SZGUR's migration agent.
The central legal issue before the High Court was whether the RRT had a duty to consider exercising its power under section 427(1)(d) of the *Migration Act* to arrange for a medical examination of SZGUR, and whether the Federal Court was correct in inferring a failure to do so. This also involved considering whether there was a general duty on the RRT to inquire into the applicant's circumstances beyond the information provided. The RRT's decision had noted a medical certificate and statutory declarations regarding SZGUR's forgetfulness, but found them insufficient, particularly as they did not specifically address the contradictions and inconsistencies in his testimony that formed the basis of the adverse credibility finding.
The High Court allowed the Minister's appeal, holding that the Federal Court had erred in inferring that the RRT had failed to consider the agent's request or its statutory powers under section 427(1)(d). The Court found that the RRT's reasons for decision, while not explicitly mentioning the conditional request for a medical assessment, did refer to and summarise the agent's letters and enclosed documents. The RRT's reasoning demonstrated it had considered the available information, including the medical evidence, and found it lacking in specificity to overcome the significant credibility issues arising from SZGUR's inconsistent statements. The Court concluded that the RRT had not failed in its duty to consider the exercise of its powers.
Consequently, the High Court set aside the orders of the Federal Court and dismissed SZGUR's appeal to that Court. The Minister was ordered to pay SZGUR's costs of the appeal to the High Court.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside paragraphs 1 and 2(a) and (b) of the order of the Federal Court of Australia made on 4 March 2010, as varied by the order of that Court made on 26 March 2010, and in their place order that the appeal to that Court be dismissed.
3. The appellant pay the costs of the first respondent in this Court.
Background
Background to the litigation
The Federal Court was in error in inferring that the Tribunal had failed to consider the agent's request or the exercise of its statutory powers to arrange an independent assessment of SZGUR. The appeal should be allowed. Other matters raised on behalf of SZGUR in a notice of contention do not disclose a basis for otherwise supporting the result in the Federal Court. Procedural and factual background SZGUR, a citizen of Nepal, arrived in Australia lawfully on 18 December 2004[1]. On 21 January 2005, he lodged an application for a protection visa. [1]He arrived on a sub-class 679 visa. SZGUR claimed that because of his support for the Maoist Nepali Communist Party he had been at risk of execution in Nepal by the Royal Nepalese Army. He said he had to leave Nepal in order to save his life. If he were to return and the Army were to find him they would kill him. They had already visited his home and interrogated his wife and relatives about his whereabouts. SZGUR's application for a protection visa was refused by a delegate of the Minister for Immigration and Citizenship ("the Minister") on 11 February 2005. On 15 March 2005, SZGUR applied to the Tribunal for a review of the delegate's decision. On 30 May 2005, the Tribunal affirmed the decision. That decision of the Tribunal was quashed by the Federal Magistrates Court and remitted to the Tribunal differently constituted. So too, was a further decision of the Tribunal which again affirmed the delegate's decision. Following the second remitter, SZGUR gave oral testimony, on 6 March and 2 April 2008, at hearings before the Tribunal, again constituted differently from its predecessors. On 11 April 2008, the Tribunal wrote to SZGUR inviting him to "comment on or respond to information that the Tribunal considers would, subject to any comments or response you make, be the reason, or a part of the reason, for affirming the decision that is under review". The language of the invitation was taken from s 424A of the Migration Act which requires the Tribunal to give to an applicant "clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review"[2]. In such a case the Tribunal is required to invite the applicant to comment on or respond to the information[3]. [2]Migration Act, s 424A(1)(a).[3]Migration Act, s 424A(1)(c). The Tribunal is also required to ensure, as so far as is reasonably practicable, that the applicant understands why the information is relevant and the consequences of it being relied on in affirming the decision under review: s 424A(1)(b). The "information" upon which the Tribunal invited comment, was the existence of "contradictions and inconsistencies" between what SZGUR had stated orally and in writing to the Tribunal, variously constituted, during the iterations of the review process. The contradictions and inconsistencies, which were elaborated at some length in the letter, related to SZGUR's claimed involvement with the Communist Party of Nepal, whether he and his family had gone into hiding in Nepal, whether he had been helped to leave the country and his claim that two colleagues had been executed by the Nepalese Army.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
GUMMOW J
HEYDON J
CRENNAN J
On 30 July 2010, Gummow and Kiefel JJ granted an application by the Minister for special leave to appeal against the decision of Rares J. The Minister gave an undertaking that he would not seek to disturb the orders as to costs which had been made in the courts below, and that he would pay SZGUR's costs of the appeal including the costs of the application for special leave. The Tribunal's decision In its reasons for decision, the Tribunal referred to and summarised the contents of the letters of 20 May 2008 and 20 June 2008 from SZGUR's migration agent and the documents enclosed with them. However, it made no reference to the conditional request in the letter of 20 June 2008 that it arrange a medical assessment of SZGUR. The Tribunal did not find SZGUR to be a credible witness. His inconsistent and contradictory statements indicated that, contrary to his claims, "[he] was not a supporter of and closely associated with the Maoists; did not collect money for the Maoists or provide security information; the army was not looking for him; and he and his family did not go into hiding". The Tribunal took into account the medical certificate, the statutory declarations as to SZGUR's forgetfulness, the stress of separation from his family and the time which had elapsed since he left Nepal, but added:"However, the Tribunal was not provided with any further details about the applicant's condition by himself or [the consulting psychiatrist] nor did the medical certificates specifically address the issues raised in the Tribunal's letter of 11 April 2008 or the applicant's forgetfulness." The Tribunal drew a distinction, adverse to SZGUR, between forgetfulness about everyday events, dates and names and his claimed forgetfulness about specific details central to his need to leave Nepal. The Tribunal said it would expect him to remember when he started to collect donations, where he collected them, who provided assistance to him to leave Nepal, whether the assistance was pre-arranged and whether it was provided by a relative or some other person. Another basis for the adverse credibility finding was the "implausibility of [SZGUR's] central claim about the number of business people in one area that he would have spoken to in up to 13 years of collecting donations for the Maoists". The statutory framework This appeal focused upon s 427(1)(d) which confers powers on the Tribunal in terms which have remained unchanged since it was introduced as part of Pt 7 of the Migration Act in 1992[10]. It provides: "For the purpose of the review of a decision, the Tribunal may: …(d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination."At the heart of the decision of the Federal Court under appeal in this case was the proposition that the Tribunal had failed to consider whether it should require the Secretary of the Department of Immigration and Citizenship to arrange for a medical examination of SZGUR. This constituted, so it was said, a failure by the Tribunal to consider whether to exercise the power conferred on it by s 427(1)(d). [10]The provision was introduced as s 166DD(d) by s 32 of the Migration Reform Act 1992 (Cth), but has since been renumbered.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ,
GUMMOW J,
HEYDON J,
CRENNAN J