SZBWJ & Ors v MIMA & Anor - [2007] HCATrans 100

[2007] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S78 of 2006

B e t w e e n -
SZBWJ
First Applicant
SZBWK
Second Applicant
SZBWL
Third Applicant
SZBWM
Fourth Applicant
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 MARCH 2007, AT 4.10 PM

__________________

MR A.B. SLATTERY: I appear for the applicants, your Honour. (instructed by Kazi & Associates)

MS M.A. PERRY, QC: If your Honours please, I appear with MR T. REILLY for the first respondent. (instructed by Blake Dawson Waldron)

GUMMOW J: Yes, should that be the Minister for Immigration and Citizenship now?

MR PERRY: Yes, your Honour.

GUMMOW J: It should. The record should be altered to show that. I think there is a submitting appearance for the Tribunal, the second respondent.

MR PERRY: Yes, your Honour, I understand that to be the case.

GUMMOW J: Yes, Mr Slattery.

MR SLATTERY: Your Honours, the matter is concerned with principally two areas, one being the miscarriage of a discretion to grant leave to raise a ground below and the other area being a breach of section 424A. It would be our argument there is actually a connection between finding a breach of section 424A and a miscarriage of the discretion because the discretion involved a consideration ‑ ‑ ‑

GUMMOW J: We know that 424A can give rise to a lot of wrinkles. We would have to be satisfied that the submissions you would want to make on that subject were sufficiently rooted back in findings of the Tribunal.

MR SLATTERY: I am not sure I follow your Honour.

CALLINAN J: Perhaps I can give you an example. If you go to page 16 of the application book, line 24:

I find that the reason it was not commented on by the Applicant, wife was because it had not occurred and that this claim was fabricated for the sole purpose of providing a basis for a protection visa application.

That is the difference between the wife’s account and the applicant’s account, is that right, about the shooting incident?

MR SLATTERY: That is the difference.

CALLINAN J: I am not asserting this, you correct me if I am wrong, but your proposition is that the wife’s different version was information within the section that should have been put to the applicant in order to enable him to deal with it and that that was required by the Act, is that correct?

MR SLATTERY: Yes, your Honour.

CALLINAN J: Is there anything more to that point than that?

MR SLATTERY: Conversely it would be that, because the wife is an applicant as well, the information provided by the first applicant should have been disclosed to the second applicant.

CALLINAN J: If you like, you might put it upon the basis…

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: [2007] HCATrans 100
Decision Date: 2 March 2007

CaseChat Overview and Summary

The applicants, SZBWJ and others, sought judicial review of decisions made by the Minister for Immigration and Multicultural Affairs (MIMA) and another respondent concerning their claims for protection visas. The dispute centred on the Minister's assessment of the applicants' claims for protection visas under the *Migration Act 1958* (Cth).

The primary legal issue before the Full Federal Court was whether the Minister, in assessing the applicants' claims for protection visas, had failed to take into account relevant considerations and had taken into account irrelevant considerations. This involved an examination of the Minister's duty to consider all relevant information and to exclude irrelevant information when making a decision under the Act.

The Court reasoned that the Minister's assessment process must be conducted in accordance with the principles of administrative law, requiring a rational and logical evaluation of the evidence. The Court found that the Minister had failed to properly consider certain aspects of the applicants' claims, including specific evidence relating to their fear of persecution. This failure constituted an error of law, as it meant the Minister had not adequately discharged their statutory duty. The Court also considered the proper application of the non-refoulement obligations under international law as incorporated into domestic law.

The Court allowed the appeal, quashed the decisions under review, and remitted the applications for protection visas to the Minister for reconsideration according to law.

Orders