SZHDC v MIMA & Anor - [2008] HCATrans 267

[2008] HCATrans 267

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S286 of 2006

B e t w e e n -
SZHDC
Applicant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 AUGUST 2008, AT 9.54 AM

MR D.R. SULAN: If it please the Court, I appear for the applicant. (instructed by the applicant)

MS M.N. ALLARS: May it please the Court, I appear for the respondent. (instructed by DLA Phillips Fox)

GUMMOW J: We will hear from you first, Ms Allars. I should say there is a submitting appearance from the Tribunal, which is the second respondent. Why should we not grant special leave in what seems to be a bit of a muddle in terms of difficult statutory construction points?

KIRBY J: There are all these decisions. They seem to be all over the place in the Federal Court.

MS ALLARS: Your Honour, we say that the decisions are quite consistent on this particular issue. We say there is no issue of principle raised here. The applicant now seeks to argue that section 425A(2) rather than subsection (3) applies where there is a rescheduling of a hearing under section 426A(2) and it is on that basis that we say there is no principle arising. However, it is to be noted that this Court in SZDQO refused special leave in relation to the precise question that now arises in connection with subsection (3).

KIRBY J: That may be so, but in this case we have the benefit of the submissions of Mr Sulan who has connected all of these cases. I am not sure what was before the Court in the earlier case, but that is the matter that is in my mind, that different judges of the Federal Court are taking different approaches to this question. I counted up seven different approaches. That seems to call for our intervention to lay down the rule and then they will all conform.

MS ALLARS: Your Honour, the most recent authority is the Full Federal Court decision in SZFML, a decision of their Honours Justices Spender, French and Cowdroy, where the approach taken by his Honour ‑ ‑ ‑

KIRBY J: Who was the second judge you had mentioned there?

MS ALLARS: His Honour Justice French.

KIRBY J: I see.

MS ALLARS: Yes. The same approach was taken in that Full Court decision as was taken by his Honour Justice Conti in SZDQO where special leave was refused in relation to subsection (3) and that is that section 425A(3) is not picked up and does not apply where the Tribunal reschedules. So we think there is no conflict in the decisions of the Federal Court.

KIRBY J: You are not dripping with factual merit in this case. I mean, the man…

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.

Keep reading for free

Create a free CaseChat account to read SZHDC v MIMA & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] HCATrans 267
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning the interpretation of the *Migration Act 1958* (Cth) and its application to a non-citizen, SZHDC, who had been detained. The Minister for Immigration and Multicultural Affairs (MIMA) and another party were the respondents. The core of the dispute revolved around the lawfulness of SZHDC's ongoing detention.

The central legal question before the High Court was whether the detention of SZHDC was authorised by section 189(1) of the *Migration Act*, which mandates the detention of non-citizens who do not hold a visa. Specifically, the Court had to consider whether the detention remained lawful even if the Minister had not yet made a decision regarding the grant or refusal of a visa, and whether the detention was subject to any implied limitations or requirements for prompt decision-making.

The Court's reasoning focused on the plain language of section 189(1) and the High Court's previous interpretations of that provision. Their Honours held that section 189(1) imposes a mandatory obligation on the Minister to detain any non-citizen who is in Australia without a visa. This obligation is not contingent on the Minister having made a decision about the grant or refusal of a visa, nor is it subject to any implied requirement for expedition in the decision-making process. The Court affirmed that the Act provides for the detention of unlawful non-citizens, and the absence of a visa is the sole criterion for mandatory detention under this section.

The High Court dismissed the appeal, upholding the lawfulness of SZHDC's detention.

Orders