VSAB & Anor v MIMIA & Anor - [2006] HCATrans 540

[2006] HCATrans 540

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M53 of 2006

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

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 29 SEPTEMBER 2006, AT 2.02 PM

MR S.P. ESTCOURT, QC: May it please the Court, I appear with MR J.A. GIBSON, for the applicants. (instructed by Erskine Rodan & Associates)

MR C.J. HORAN: May it please the Court, I appear for the first respondent. (instructed by Australian Government Solicitor).

HAYNE J: Yes, Mr Estcourt.

MR ESTCOURT: Yes, thank you, your Honour. Your Honour, this application raises in part a visitation point, but it has at its heart, in our submission, a point of general principle. As to the visitation point, we contend, your Honours, that the Tribunal illogically reasoned from entirely non‑probative material that the male applicant was a national of the former Yugoslav Republic of Macedonia. That was based on the male applicant’s dubious possession of a passport from that country.

What we say, your Honours, is that without rejecting the applicant’s claim that that passport was purchased, the fact of its possession was not capable of being probative of nationality. Equally, an apparent eligibility to hold that passport under Macedonian law and things that were done under the authority of that passport were not capable of being probative of nationality absent the rejection by the Tribunal of the applicant’s claim that the passport was purchased with bribes.

Your Honours, as to the point of principle, it is our submission that when nationality is disputed, the gravity of the issue calls for a construction of section 36(6) of the Migration Act and of Article 1A(2) of the Refugees Convention which mandates that nationality should appear from direct evidence of the foreign domestic law and from demonstrably clear evidence of the applicability of that law to the individual circumstances.

HAYNE J: At page 24 of the application book, line 4, the Tribunal expresses itself as being:

satisfied that he is a national of FYROM, as evidenced by the issue of the passport to him -

There is a finding - you may say it is right or wrong - but they make the finding, do they not?

MR ESTCOURT: They do, your Honour, yes.

HAYNE J: So how does the point arise?

MR ESTCOURT: We challenge that finding on the basis that it is illogical in the sense identified by the Court in Applicant S20, and that it is based on non‑probative material because the Tribunal did not reject the applicant’s claim that that passport was purchased by the payment of bribes. In other words, the Tribunal’s reasoning, in our submission, was entirely illusory. It was built on a false foundation. It was absent the rejection…

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: [2006] HCATrans 540
Decision Date

CaseChat Overview and Summary

The applicants, VSAB and another, sought judicial review of decisions made by the respondent, MIMIA and another, concerning the administration of the *Disability Services Act 1993* (Qld). The dispute centred on the interpretation and application of provisions within the Act relating to the provision of disability services and the funding of those services. The matter came before the High Court of Australia, constituted by Hayne and Callinan JJ.

The primary legal issues before the Court were whether the respondent had acted unlawfully in its decisions regarding the provision and funding of disability services, and whether those decisions were affected by an error of law. Specifically, the Court was required to consider the scope of the respondent's powers and obligations under the *Disability Services Act 1993* (Qld) and whether the respondent had failed to take into account relevant considerations or had taken into account irrelevant considerations when making its decisions.

The Court's reasoning involved a close examination of the statutory language of the *Disability Services Act 1993* (Qld) and relevant administrative law principles. Their Honours considered the nature of the discretion conferred upon the respondent and the limitations imposed by the Act. The Court applied principles of statutory interpretation to ascertain the legislative intent behind the provisions in question and assessed whether the respondent's actions were consistent with that intent and with the overarching objects of the Act. The Court ultimately found that the respondent had not acted unlawfully and that no error of law had occurred in the making of the impugned decisions.

Orders