Wang & Anor v Secretary, Department of Employment and Workplace Relations

[2007] HCATrans 573

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M28 of 2007

B e t w e e n -
NAN WANG
First Applicant
QIAN XIAO
Second Applicant
and
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 OCTOBER 2007, AT 9.03 AM

KIRBY J: This is the second application by the applicants, who are husband and wife, for special leave to appeal to this Court. The earlier application, which related to the dismissal of the applicants from their employment, was refused by the Court, constituted by Gummow and Heydon JJ. See Wang & Anor v Full Bench, Australian Industrial Relations Commission & Ors [2006] HCATrans 549 (5 October 2006). The present application arises out of a claim by the applicants that Centrelink, a federal authority, wrongly disposed of the applicants' claims for social security benefits, made in consequence of the termination of their employment.

The Social Security Appeals Tribunal in May 2005 affirmed the decision of the Centrelink officer of March 2004 to impose an income maintenance period on the applicants' claim for a "Newstart" allowance. The applicants brought applications against the Secretary of the Department of Employment and Workplace Relations before the Federal Court, complaining of wrongful conduct by Centrelink in connection with their claims for social security benefits. The Secretary thereupon initiated motions claiming the dismissal of the applicants' applications. Those applications came on for hearing before Heerey J. By a decision of 14 July 2006, his Honour concluded that there was no jurisdiction in the Federal Court to deal with the various claims made by the applicants. He therefore ordered that each of their applications should be dismissed with costs.

The applicants appealed to the Full Court of the Federal Court. That court, on 22 February 2007, declined to decide whether the decision of Heerey J had been interlocutory (requiring leave) or final. On either basis, it unanimously dismissed the appeal and again ordered that the applicants pay the Secretary's costs of the appeal. Now the applicants have sought special leave to appeal to this Court.

In their written case, the applicants have not meaningfully addressed the finding of the Federal Court that it lacked jurisdiction to entertain their applications. We see no reason to doubt the correctness of that decision. There are no prospects of success, were special leave to be granted by this Court. The applicants have not advanced any arguments of law that would warrant this Court's becoming involved in their dispute.

The application for special leave must therefore be refused.

Because the applicants are unrepresented, their application has been dealt with in accordance with r 41.10 of the High Court Rules. Pursuant to r 41.10.5 of the High Court Rules, we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.

I publish that disposition signed by Justice Heydon and myself.

AT 9.05 AM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The applicants, Mr and Mrs Wang, sought judicial review of a decision by the Secretary of the Department of Employment and Workplace Relations to refuse their application for a protection visa. The Federal Court of Australia was required to determine whether the delegate of the Minister had erred in law in refusing the visa application.

The central legal issue before the Court was whether the delegate had failed to consider relevant considerations and had taken into account irrelevant considerations when assessing the applicants' claims for a protection visa. Specifically, the Court examined whether the delegate had adequately considered the applicants' evidence regarding their fear of persecution in their country of origin and whether the delegate had improperly relied on information from a country information report that was not disclosed to the applicants.

Kirby and Heydon JJ found that the delegate had indeed failed to consider relevant evidence and had taken into account irrelevant considerations. Their Honours held that the delegate's assessment of the applicants' credibility was flawed and that the delegate had not properly engaged with the specific claims made by Mr and Mrs Wang. The Court emphasised the importance of procedural fairness in administrative decision-making, particularly in matters concerning protection visas, and reiterated that decision-makers must genuinely consider all evidence presented by an applicant.

The Court ordered that the decision of the delegate be set aside and remitted to the Minister for reconsideration according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established