SZNWA v Minister for Immigration and Citizenship & Anor

[2010] HCATrans 259

[2010] HCATrans 259

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S141 of 2010

B e t w e e n -

SZNWA

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 OCTOBER 2010, AT 11.24 AM

Copyright in the High Court of Australia

MS K. WELSHMAN:   May it please the Court, I appear for the applicant.  (instructed by Austin Haworth & Lexon Legal)

MR G.R. KENNETT:   May it please the Court, I appear for the Minister.  (instructed by Australian Government Solicitor)

HEYDON J:   Yes, Ms Welshman.

MS WELSHMAN:   This case concerns a decision of the Refugee Review Tribunal to affirm the decision of a minister’s delegate to refuse a protection visa to the applicant.  We say that the matter is a suitable vehicle for clarifying the proposition that administrative decision‑makers are under a duty to inquire into factual matters that can be readily determined and are of critical significance to a decision made under statutory authority.  The questions of principle that encompass this proposition have not been fully considered by the court.  We say it is uncertain, on the present state of authorities, whether an unreasonable failure to inquire amounts to a breach of procedural fairness or qualifies as a failure to review or otherwise affects the validity of an administrative decision.

CRENNAN J:   How would this differ from SZIAI in terms of matters of principle?

MS WELSHMAN:   In matters of principle it would not differ.  In SZIAI further inquiry would have been futile.  We say that in this matter further inquiry would not have been futile because there was evidence before the Federal Magistrates Court to indicate what information might have been elicited had the inquiry been made. 

In this case the material that the applicant says was readily available to the Tribunal was a document that has been referred to throughout the history of the matter as a penalty notice.  The applicant gave evidence at the Tribunal that this penalty notice had been issued to her upon her detention in China and we say this document was critical in that it was the only piece of documentary evidence in existence that supported the applicant’s account of her detention.  It may well have changed the outcome of the review, had the Tribunal taken steps to seek it.

The Tribunal became aware of the existence of the penalty notice at the hearing conducted on 13 May 2009.  The relevant exchange appears at page 44 of the application book in the decision of the Federal Magistrates Court.  The applicant indicated there that she had given the penalty notice to the agent.  When asked by the Tribunal why the agent had not given the penalty notice to the Department or the Tribunal, the applicant’s rather odd answer was:

Because she is my agent.

The Tribunal then asked what was written on the penalty notice and how her agent came to have it.  The subject was then permanently dropped.  The Tribunal, in its reasoning, referred to the failure of the applicant to produce this document and on the basis of that failure held – this is at page 11 of the application book around lines 50 to 60:

The Tribunal is not satisfied that the applicant was detained, as claimed.

There is no doubt that the penalty notice was readily available.  There is no doubt that the applicant’s failure to produce it was central to the Tribunal’s decision ‑ ‑ ‑

CRENNAN J:   His Honour’s reasoning on this aspect of the case is to be found at application book 77 in paragraph 41 where his Honour essentially finds that in all the circumstances, “It was not unreasonable for the Tribunal to proceed” the way it did.  His Honour mentions the fact that the applicant herself could have produced the penalty notice or taken steps to produce the penalty notice, or could have sought to bring it to the attention of the Tribunal in some way.  So his Honour is saying in the circumstances of this case there was no duty upon the Tribunal to undertake the seeking out of the penalty notice.  Where is the error in that reasoning?

MS WELSHMAN:   The error is that there was an obvious conflict or there was some confusion in that the applicant had said that she had given the notice to her agent, yet the document was not with the Tribunal.  The applicant did give evidence in the Federal Magistrates Court, which was not accepted, that she did not understand from that exchange that the Tribunal did not have the document.  We say that because of that there was obvious confusion on her part.  It is clear from her responses that it was unreasonable to proceed because of the confusion and because the document would have been so significant if the Tribunal had taken steps to seek it.  It is not as though the applicant was unwilling to present the notice to the Tribunal.  She had arranged for it to be sent to her agent; she could describe it and explain how it made its way from China to Australia.

The other point raised by this case is the nature of the Tribunal’s obligation to give applicants a sufficient opportunity to give evidence or make submissions about issues which are – or turn out to be – determinative in relation to the review in circumstances where those issues have already been raised or broadly touched upon by the Department.  We say that this point also merits special leave because it affects so many applicants for

protection visas whose applications are rejected due to doubts about their credibility and the genuineness of their fears.

The applicant submits that the Federal Court erred in holding that the delegate’s decision made clear that everything the applicant claimed had been doubted by the delegate and that because of that doubt everything she claimed later on was also going to be in issue before the Tribunal, regardless of the fact that a number of new issues were raised in the Tribunal’s decision. 

We say that if this were the case then it would mean that any doubts regarding an applicant’s credibility expressed either by the Minister’s delegate or during the Tribunal hearing would relieve the Tribunal of an obligation to ask an applicant to expand upon aspects of their account and explain why their account should be accepted.  Even if new issues or a new issue were to emerge, as it certainly did in this case, the applicant says that this is inconsistent with the Tribunal’s obligation to invite an applicant to appear and present evidence under section 425. 

The other aspect of the Federal Court’s handling of the SZBEL‑style complaint is its characterisation of those matters that the applicant called issues as mere factual matters or just factual matters; for example, on page 76 of the application book at around line 30.  We say that it is up to the Tribunal to identify the issues on the review.  If it identifies issues with great particularity, as it did in this case, then according to the Court’s decision in SZBEL it must reveal to the applicant that they are live issues.

In relation to at least some of those issues, what the Federal Court has done in its decision is retrospectively characterise what the Tribunal considered to be issues as mere factual matters, thereby excusing the Tribunal’s failure to comply, we say, with the requirements of SZBEL.

CRENNAN J:   I think that was only a characterisation given to the evidence about the flight to Wuhan.  I think in paragraph 33 of his Honour’s reasons, to be found at application book 76 his Honour indicates that he took the view that the Tribunal sufficiently indicated to the appellant that everything she said “was in issue” and that she was asked to expand on all matters with the exception of her flight to Wuhan.  That was the only matter, I think, that fell into the category that you were describing as a factual matter, a point that there falls distinguishable from SZBEL.

MS WELSHMAN:   Yes, that is right.  Those are my submissions, unless I can assist the Court.

HEYDON J:   Yes, thank you, Ms Welshman.  We need not trouble you, Mr Kennett.

The decision of the Federal Court of Australia is not attended with sufficient doubt to warrant a grant of special leave to appeal and the interests of justice do not require such a grant.  Accordingly, special leave is refused with costs.

The Court is adjourned to 10.15 on Monday, 18 October in Perth.

AT 11.34 AM THE MATTER WAS CONCLUDED