SZUYL v Minister for Immigration - [2016] FCCA 405

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUYL v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 405

Catchwords:
MIGRATION – Application for review of the Tribunal decision – whether Tribunal breached s.425 of the Migration Act 1958 (Cth) – whether Tribunal’s finding was illogical or unreasonable – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 422B, 424A, 425, 476, Pt. 7

Applicant:

SZUYL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2357 of 2014

Judgment of:

Judge Nicholls

Hearing date:

12 November 2015

Date of Last Submission:

12 November 2015

Delivered at:

Sydney

Delivered on:

4 March 2016

REPRESENTATION

Counsel for the Applicant:

Mr P W Bodisco

Solicitors for the Applicant:

Australian Business Underwriter

Counsel for the Respondents:

Mr B O’Donnell

Solicitors for the Respondents:

DLA Piper

ORDERS

The application made on 22 August 2014 and amended on 4 November 2015 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2357 of 2014

SZUYL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR…

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 405
Decision Date: 4 March 2016

CaseChat Overview and Summary

This decision concerns an application by SZUYL against the Minister for Immigration. The dispute centres on whether the Administrative Appeals Tribunal (the Tribunal) provided SZUYL with adequate notice of the issues it considered relevant to its decision, thereby affording procedural fairness. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the Court was to determine the degree of particularity required in identifying "the issue" for the purposes of section 425(1) of the Migration Act 1958 (Cth), and whether the Tribunal's failure to provide sufficient notice of a particular factual conclusion breached the applicant's right to procedural fairness. This involved considering the distinction between an "issue" and the "substratum of facts" to an issue, and how these concepts are informed by what the Tribunal considers important to its decision and the overarching principles of procedural fairness.

Judge Nicholls, referencing previous decisions including *SZTPL v Minister for Immigration & Anor* [2016] FCCA 361 and *SZTQS*, explained that the identification of an issue under section 425(1) requires a degree of specificity relevant to the particular circumstances of the case. This specificity is influenced by what matters the Tribunal considers important to its decision and the need for a party to be put on notice to meaningfully avail themselves of an opportunity to be heard. The Court found that, irrespective of the precise classification of the passport matter, the applicant's nationality and the Tribunal's doubts about his Indian citizenship were clearly raised with him during the hearing, as evidenced by the transcript.

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

As I said in SZTPL v Minister for Immigration & Anor [2016] FCCA 361 at [52] – [53] and [61] – [64]:“[52] In SZTQS, the Court explained the direction given by SZBEL to the degree of particularity required in the task of identifying ‘the issue’ in a review for the purposes of s.425(1) of the Act. Noting, of course, that the language of s.425(1) of the Act directs attention to what the Tribunal ‘considers’ to be the issue, or issues, on the review (SZTQS at [48] – [57]).[53] The Federal Court, in applying this to the circumstances in SZTQS, stated (SZTQS at [58]):‘That is not the case here. As the primary judge found, the Tribunal made a factual conclusion, which was a necessary link in the Tribunal’s chain of reasoning in rejecting SZTQS’s claim, without any notice to SZTQS that the conclusion might be made or that the factual question was in issue. That factual conclusion was to the effect that the applicant would only be detained for a short period because a member of his family would provide surety and he would be granted bail.’…[61] There is authority that distinguishes between an issue (that is caught by the obligation in s.425 of the Act) and the substratum of facts to that issue (which is not so caught) (SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 per Bennett J, SZIMM v Minister for Immigration & Anor [2008] FMCA 34 at [41] – [72] per Judge Barnes, SZQSP v Minister for Immigration & Anor [2012] FMCA 890 and SZRRX v Minister for Immigration & Anor [2013] FMCA 84).[62] 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.][63] 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.’[64] 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 any event, it is not necessary in the current matter to resolve the exact nature of the passport matter in relation to the review. That is, whether it is an issue, a part of an issue, or part of the substratum of facts to an issue. It is clear on any plain reading of the transcript of the Tribunal hearing, put before the Court by the applicant, that the issue of the applicant’s nationality and the Tribunal’s doubts that he was an Indian citizen were put to him at the hearing (see T7, T8 and T13).

Ratio Decidendi

Legal Principle Established

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