SZDMF v MIMIA

[2005] HCATrans 629

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S176 of 2005

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

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 29 AUGUST 2005, AT 9.35 AM

McHUGH J: The applicant is a citizen of Bangladesh. He is an Ahmadi Muslim. He claims to fear persecution by reason of his membership of that religious minority. He arrived in Australia on 9 July 1997 and lodged an application for a protection visa on 21 August 1997. On 15 September 1999, the Refugee Review Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa. On 22 December 2004, the Federal Magistrates Court dismissed an appeal against that decision. A further appeal was dismissed by the Full Federal Court on 7 April 2005. The applicant seeks special leave to appeal against the decision of the Full Federal Court.

The applicant alleges that the Tribunal’s decision was infected by jurisdictional error in the form of bias and failure to properly take into account his evidence about the persecution of Ahmadi Muslims in Bangladesh. These allegations are not supported by the reasons of the Tribunal. It is evident that the Tribunal engaged in consideration of the applicant’s evidence but concluded that he was not a credible witness and that he had “significantly exaggerated or fabricated aspects of his experiences in his country of origin with a view to advancing his claims as to refugee status”: SZDMF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 381 (unreported).

In essence, the applicant is aggrieved by the Tribunal’s findings of fact. But those findings were open to the Tribunal to make, and it is not the role of this Court to disturb them. As this application for special leave to appeal does not raise any question of law, it must be dismissed.

The application for special leave to appeal is dismissed.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order that the application is dismissed. I publish our joint reasons.

AT 9.35 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicants, SZDMF and MIMIA, brought proceedings before the High Court of Australia concerning the interpretation of certain provisions of the *Migration Act 1958* (Cth). The core of the dispute revolved around the lawfulness of decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) to refuse to grant visas to the applicants.

The High Court was required to determine whether the Minister's decisions were vitiated by a failure to afford the applicants procedural fairness. Specifically, the court considered whether the Minister had a duty to inform the applicants of adverse information that was to be relied upon in refusing their visa applications and to provide them with an opportunity to respond to that information. The central legal question was whether the Minister's statutory power to refuse a visa could be exercised without adherence to these principles of procedural fairness, notwithstanding the absence of an express statutory requirement to do so.

McHugh and Heydon JJ, in their joint judgment, affirmed the fundamental importance of procedural fairness in administrative decision-making. They reasoned that where a statute confers a power that may adversely affect an individual's rights or interests, and that power is not exercised in a purely legislative capacity, there is a presumption that the power must be exercised in accordance with the rules of natural justice. This presumption can only be displaced by clear and unambiguous statutory language. The Court found that the *Migration Act 1958* did not contain such clear language to exclude the obligation to afford procedural fairness in this context. Consequently, the Minister was bound to inform the applicants of the adverse information and provide them with an opportunity to be heard before making a decision to refuse their visa applications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established