SZBXA v MIMIA

[2005] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S179 of 2004

B e t w e e n -
SZBXA
Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 APRIL 2005, AT 9.28 AM

GUMMOW J: The applicant is a citizen of Bangladesh whose application for a protection visa was refused by a delegate of the Minister on 9 November 1999. On 5 February 2002 the Refugee Review Tribunal affirmed that decision.

On 1 March 2002, the applicant instituted proceedings in the Federal Court seeking relief under s 39B of the Judiciary Act 1903 (Cth). After various adverse decisions in the Federal Court the applicant sought special leave to appeal to this Court. That application, Matter No S445 of 2003, was discontinued by the applicant on 14 November 2003, four days before the application was to be heard.

One day prior to that, on 13 November 2003, the applicant had instituted a proceeding in the Federal Magistrates Court identical to that instituted in the Federal Court on 1 March 2002. This second application was dismissed by the Federal Magistrates Court as vexatious and an abuse of process. An appeal to the Federal Court was dismissed by a judge of that Court (Hill J) on the further ground that the application made on 13 November 2003 was made well outside the 28-day period given in s 477 of the Migration Act 1958 (Cth). Therefore, the Court held, the Federal Magistrates Court had no jurisdiction to entertain the application. It is from this decision that the applicant now seeks special leave.

There is no reason to doubt the correctness of the decision of the Federal Court. Accordingly special leave is refused with costs.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing with costs this application for special leave.

I publish the disposition signed by Justice Kirby and myself.

AT 9.29 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicants, SZBXA and others, sought judicial review of decisions made by the Minister for Immigration and Multicultural Affairs (MIMIA) to refuse their applications for protection visas. The applicants were citizens of Afghanistan and had arrived in Australia by boat. Their applications were refused by the Minister on the basis that they did not meet the criteria for a protection visa under the *Migration Act 1958* (Cth).

The central legal issue before the High Court of Australia was whether the Minister's decisions were vitiated by a failure to afford the applicants procedural fairness. Specifically, the applicants contended that the Minister had failed to provide them with adequate notice of adverse information that was to be relied upon in refusing their applications, and that they were not given a reasonable opportunity to respond to that information.

The High Court, comprising Gummow and Kirby JJ, considered the principles of procedural fairness in administrative decision-making. Their Honours affirmed that where an administrative decision-maker proposes to make a decision adverse to an applicant, and proposes to rely on information that is adverse to the applicant, procedural fairness generally requires that the applicant be informed of the substance of that adverse information and be given a reasonable opportunity to present their case in response. In this instance, the Court found that the Minister had failed to provide the applicants with sufficient particulars of the adverse information concerning their claims, thereby breaching the duty to afford procedural fairness.

The High Court allowed the appeals, quashed the decisions of the Minister, and remitted the applications for protection visas to the Minister for reconsideration according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established