SZTPL v Minister for Immigration - [2016] FCCA 361

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTPL v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 361

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether Tribunal breached s.425 of the Migration Act 1958 (Cth) – jurisdictional error found – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.36, 46A, 425, 476

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
SZORZ v Minister for Immigration and Citizenship [2011] FCA 593
SZTQS v Minister for Immigration & Border Protection & Anor [2015] FCCA 978
Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152
Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11; (1989) 166 CLR 245
SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486
SZIMM v Minister for Immigration & Anor [2008] FMCA 34
SZQSP v Minister for Immigration & Anor [2012] FMCA 890
SZRRX v Minister for Immigration & Anor [2013] FMCA 84

Applicant:

SZTPL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3000 of 2013

Judgment of:

Judge Nicholls

Hearing date:

6 November 2015

Date of Last Submission:

6 November 2015

Delivered at:

Sydney

Delivered on:

24 February 2016

REPRESENTATION

Applicant:

In Person

Counsel for the Respondents:

Solicitors for the Respondents:

Mr T Reilly

Australian Government Solicitor

ORDERS

The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
A writ in the nature of certiorari issue quashing the decision of the second respondent made on 7 November 2013.
A writ in the nature of mandamus issue compelling the second respondent to reconsider the application according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3000 of 2013

SZTPL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 3 December 2013 seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 7 November 2013 which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.

Background

A bundle of relevant documents filed by the Minister is in evidence before the Court (“the Court Book” – “CB”). In evidence also is the applicant’s affidavit made on 13 November 2013 which annexed a copy of the Tribunal’s decision record, and a letter from Grama Niladhari, Batticaloa of 5 June 2013 stating that the applicant was involved in a shooting incident on 15 July 2010 in Karuveppankerny (Sri Lanka) and was taken into custody on 17 July 2010.
The following relevant background can be ascertained from these documents.
The applicant is a citizen of…

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: [2016] FCCA 361
Decision Date: 24 February 2016

CaseChat Overview and Summary

This decision was made by Judge Nicholls in the matter of SZTPL (the applicant) and the Minister for Immigration (the respondent). The dispute concerned whether the applicant had been afforded procedural fairness by the Tribunal in its consideration of his case. Specifically, the applicant argued that the Tribunal had failed to adequately notify him of the issues it considered important to its decision, thereby preventing him from meaningfully availing himself of an opportunity to be heard.

The central legal issue before the Court was to determine the appropriate level of particularity required when identifying issues for the purposes of section 425(1) of the Migration Act 1958 (Cth), and whether the Tribunal's approach in this case met that standard. This involved considering how the Tribunal's own identification of important matters, and the principles of procedural fairness, inform what constitutes a relevant issue that a party must be put on notice of. The Court was required to assess whether the Tribunal's focus on the applicant's potential release on bail, and the role of a family member as a guarantor, was sufficiently articulated to allow the applicant to respond effectively.

Judge Nicholls reasoned that the appellate Court's decision in *SZTQS* provided the governing analysis for this matter. The Court in *SZTQS* emphasised that the identification of issues must be sufficiently particularised and informed by what the Tribunal considers important to its decision, recalling that matters leading the Tribunal to reject a claim are inherently issues. The Judge noted that the Minister's submission that the current case differed from *SZTQS* due to the absence of a financial element was accepted, but that the core question remained whether the applicant could be granted bail in Sri Lanka, making his remand "short". The Judge found that the Tribunal's reference to a "family member as guarantor" was an integral part of its reasoning for affirming the delegate's decision, implying a guarantee for the applicant's conduct. While acknowledging this did not necessarily mean a financial payment, the Judge concluded that the Tribunal's use of the phrase indicated a relevant factor that the applicant should have been put on notice of, particularly as the Minister's submission that family members would be willing to act as guarantors was not supported by evidence of their ability, willingness, or acceptability to Sri Lankan authorities.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

That, however, in my respectful view, must now be understood in light of the analysis and direction provided by the appellate Court in SZTQS. That is, in each case it is necessary to identify the issue with sufficient particularity and (SZTQS at [52]):“…In doing so, it should be recalled that what is, and what is not, an issue for the purposes of s 425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision (SZBEL at [47]). The matters identified as issues in SZBEL were matters that had led the Tribunal to reject SZBEL’s claim (see at [20]).”[Emphasis added.] Further, in addition to [58] (set out above [53] above), and in particular, I respectfully note [59] of SZTQS:“Nor does SZMUF assist the Minister’s case. As Flick J stated there at [22]:Wherever the line may be drawn in individual cases, a party must be sufficiently put on notice of those matters which place him in a position where he can meaningfully avail himself of an opportunity to be heard.” In my respectful view, the Court in SZTQS made clear that the determination (arising from what the Tribunal considers) of what is an issue requires a degree of specificity appropriate to, and relevant to, the particular circumstances presented in any one case. That degree of specificity is also informed by having regard to the concepts of procedural fairness. In the current case the Minister’s submissions focussed on the differences between the subject matter in SZTQS and the current case (money/no money). That difference is accepted. However, the question in the current case (as it was in SZTQS) is focussed on whether the applicant could be granted bail within a short period of time following his return to Sri Lanka, thereby making his being held on remand “short”. In that light, the matter of the guarantee by a family member was, having regard to the Tribunal’s own statement at [60] (at CB 186) of its decision record, an integral part of the Tribunal’s reasoning for affirming the delegate’s decision. Even when read fairly, the words “with a family member as guarantor” (as they appear at [60] of the Tribunal’s decision), can only be seen as an integral part of the Tribunal’s finding that “he is likely to be released on his own recognisance”. In my view, the parallel that can be drawn with the analysis in SZTQS is that in SZTQS the financial ability of the family to pay the surety was a relevant matter. Similarly, in the current case, the family’s ability to provide a guarantee (albeit without the payment of money) was equally relevant. The Tribunal’s use of the phrase (“family member as guarantor”) in context did not mean that the guarantor would have to pay any money. However, the use of the phrase by the Tribunal must have meant something. In context, it could only be that a family member would provide some guarantee for the conduct of the applicant in complying with the terms of his bail. In the current case the Minister submits that there was no reason to think that the applicant’s family members in Sri Lanka would be unwilling to assist him to get bail by acting as guarantor. The Minister points to the applicant’s evidence that he was in contact with his wife. This, however, says nothing about whether she, or indeed any other family member, would be able, willing, or even acceptable to the authorities, to provide the guarantee.

Ratio Decidendi

Legal Principle Established

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