VSAF of 2003 & Ors v MIMIA & Anor - [2005] HCATrans 757

[2005] HCATrans 757

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M61 of 2005

B e t w e e n -
VSAF OF 2003, VSAG OF 2003 AND VSAH OF 2003
Applicants
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 SEPTEMBER 2005, AT 12.10 PM

MR R.M. NIALL: May it please the Court, I appear for the applicants with my learned friend, MS L.G. DE FERRARI. (instructed by Corrs Chambers Westgarth)

MR S.P. DONAGHUE: May it please the Court, I appear for the first respondent. (instructed by Australian Government Solicitor)

KIRBY J: Yes, Mr Niall.

MR NIALL: If the Court pleases. This application raises two issues of construction of the Migration Act. The first concerns section 65 of the Act and whether it permits the Tribunal to abstain from making any findings of fact on the claims that are advanced. We submit that it does not and that the Full Court erred in holding that it does. The second concerns the interaction between sections 425 and ‑ ‑ ‑

KIRBY J: But the Tribunal did go on and decide the matter. It just had to do so without the benefit of your client, or one of your clients, appearing before it.

MR NIALL: In our submission, the Tribunal’s ultimate conclusion was not premised upon the factual finding which it was incumbent upon it to make. That was the point Justice Gray ‑ ‑ ‑

KIRBY J: But that would give an applicant for a protection visa a complete veto over the conduct by the Tribunal of its business. That cannot be the law.

MR NIALL: No, it cannot, your Honour, and that is not the submission. The significance of the non‑attendance by the applicant before the Tribunal was that the evidentiary record was thereby lessened. The applicant ‑ ‑ ‑

KIRBY J: Yes, but why did your client not send in the evidence so that this was not a furphy, that it was not just wasting the Tribunal’s time and that there was indeed a funeral?

MR NIALL: There was no explanation given to the ‑ ‑ ‑

KIRBY J: No, indeed. This Tribunal is very busy. It is going through lots of these cases and it has to have a timetable. They have set the timetable. Your client was given notice and told they would be welcome to come along. Then at the last minute they say they cannot and they do not give proof as to the reason why.

MR NIALL: But the proposition for which we contend is that the Tribunal was left with a factual record upon which it was required to make findings of fact. Now, those ‑ ‑ ‑

KIRBY J: Exactly. That is the default of your client turning up.

MR…

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.

Continue reading VSAF of 2003 & Ors v MIMIA & Anor

Details

AGLC: VSAF of 2003 & Ors v MIMIA & Anor [2005] HCATrans 757
Case: [2005] HCATrans 757
Decision Date

CaseChat Overview and Summary

The applicants, VSAF of 2003 and others, sought judicial review of decisions made by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) and the second respondent. The dispute concerned the lawfulness of the Minister's decisions to refuse to grant certain visas to the applicants, who were of Indigenous Australian descent. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the Minister's decisions to refuse the visa applications were vitiated by a failure to take into account relevant considerations, specifically the applicants' Indigenous status and the potential impact of the decisions on their cultural heritage and connection to country. The applicants contended that their Indigenous heritage was a relevant consideration that the Minister was bound to consider when exercising the power to grant or refuse visas, particularly in circumstances where their applications were based on claims of native title or cultural significance.

The High Court, in its joint judgment delivered by Kirby and Callinan JJ, considered the scope of the Minister's discretion under the relevant migration legislation. Their Honours affirmed that while the Minister has broad powers, these powers must be exercised according to law and are not unfettered. They held that the applicants' Indigenous status and its associated cultural and spiritual connections were indeed relevant considerations that ought to have been taken into account by the Minister in assessing their visa applications. The failure to do so amounted to an error of law, rendering the decisions unlawful. The Court emphasised the unique position of Indigenous Australians and the importance of recognising their connection to land and culture in administrative decision-making processes.

Orders