Minister for Immigration and Citizenship v SZJSS & Ors

The Minister for Immigration and Citizenship (the Minister) appealed to the High Court of Australia against a decision of the Full Federal Court concerning the validity of certain decisions made under the *Migration Act 1958* (Cth). The appeal concerned the interpretation of provisions relating to the cancellation of visas and the application of the non-compellability of a witness under s 38 of the *Evidence Act 1995* (Cth) in administrative review proceedings. The primary dispute revolved around whether the Federal Court had erred in finding that the Administrative Appeals Tribunal (AAT) had failed to afford procedural fairness to the applicants, SZJSS and Ors, by compelling the attendance of a witness who had invoked their privilege against self-incrimination.

The central legal question before the High Court was whether the AAT, in conducting its review of the Minister's decision to cancel the applicants' visas, was empowered to compel the attendance of a witness who claimed a privilege against self-incrimination under s 38 of the *Evidence Act 1995* (Cth), and if not, whether the failure to do so constituted a denial of procedural fairness. This involved considering the interplay between the AAT's powers under the *Administrative Appeals Tribunal Act 1975* (Cth) and the evidentiary protections afforded by the *Evidence Act 1995* (Cth) in the context of administrative decision-making.

Hayne and Bell JJ held that the AAT's power to summon witnesses under s 43(1)(b) of the *Administrative Appeals Tribunal Act 1975* (Cth) was not absolute and was subject to the protections afforded by the *Evidence Act 1995* (Cth). Their Honours reasoned that s 38 of the *Evidence Act 1995* (Cth) expressly preserved the privilege against self-incrimination, and that the AAT, as a tribunal exercising statutory powers, was bound by this provision. Consequently, the AAT could not compel a witness to give evidence if that evidence might tend to incriminate them. The Court found that the Full Federal Court had correctly identified that the AAT's failure to recognise this privilege and its subsequent compulsion of the witness's attendance amounted to a denial of procedural fairness.

The appeal was dismissed.