Minister for Immigration and Citizenship v SZIAI

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Gummow,Hayne,Crennan,Kiefel,Bell JJ.,Heydon J.
• Judgment Date: 23 September 2009
• Neutral Citation: 2009-0923 HCA D,[2009] HCA 39
• Docket Number: S37/2009
• Date: 23 September 2009

[2009] HCA 39

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

S37/2009

Minister for Immigration and Citizenship

Appellant

and

Sziai and Anor

Respondents

Representation:

S J Gageler SC, Solicitor-General of the Commonwealth with G T Johnson and G R Kennett for the appellant and for the Attorney-General of the Commonwealth intervening (instructed by Australian Government Solicitor)

N J Williams SC with A M Mitchelmore for the first respondent (instructed by Dobbie and Devine Immigration Lawyers Pty Ltd)

Submitting appearance for the second respondent.

Migration Act 1958 (Cth), ss 414, 424, 424A, 425.

Minister for Immigration and Citizenship v SZIAI

Immigration — Refugees — Review by Refugee Review Tribunal (‘RRT’) — Whether failure to make certain inquiries was unreasonable or constituted failure to conduct review within meaning of Migration Act 1958 (Cth), s 414 — Whether failure to inquire constituted jurisdictional error.

Immigration — Refugees — Review by RRT — Where RRT received allegation that documents provided by visa applicant were ‘fake & forged’, invited applicant to comment in writing, but failed to invite him to further hearing — Whether such failure amounted to denial of procedural fairness, breach of Migration Act 1958, s 425, or failure to conduct review within meaning of Migration Act 1958, s 414 — Whether allegation of forgery raised new ‘issue’ within meaning of Migration Act 1958, s 425.

Words and phrases — ‘failure to inquire’, ‘inquisitorial’, ‘issues’, ‘procedural fairness’, ‘review’.

ORDER

• 1. Appeal allowed.

• 2. Set aside orders 1 to 5 of the orders made by the Federal Court of Australia on 8 September 2008, and in lieu thereof order that:

  • (a) order 2 of the orders made by the Federal Magistrates Court of Australia on 18 June 2008 be set aside; and

  • (b) the appeal be otherwise dismissed.

• 3. Appellant to pay the costs of the first respondent's appeal to this Court.

French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

Introduction

1 The functions, powers and duties of the Refugee Review Tribunal (‘the Tribunal’) are set out in Pt 7 of the Migration Act 1958 (Cth) (‘the Migration Act’). When the Tribunal receives a valid application for the review of an ‘RRT-reviewable decision’ under the Migration Act, it must review that decision 1 . The class of ‘RRT-reviewable decisions’ includes decisions by delegates of the Minister for Immigration and Citizenship (‘the Minister’) refusing the grant of protection visas 2 . In the exercise of its review function, the Tribunal may obtain such information as it considers relevant 3 . In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act 4.

2 In this case the Federal Court, on appeal from the Federal Magistrates Court, quashed a decision of the Tribunal on the erroneous basis that it had committed jurisdictional error by unreasonably failing to undertake its own inquiries into certain matters. Those matters related to the authenticity of documents, provided by the applicant for review, which had been impugned by third party information of which the applicant had been given notice, and to which he had replied in writing 5. The Minister's appeal against the decision of the Federal Court must be allowed. A contention that the Tribunal had a duty to invite the applicant for review to an additional hearing to deal with the third party information is rejected.

Factual and procedural history

3 On 11 February 2008, the Tribunal affirmed a decision of a delegate of the Minister to refuse a protection visa to SZIAI, a citizen of Bangladesh. SZIAI claimed to have converted from the Sunni Muslim faith to become an Ahmadiyya Muslim. He said he had been an active Ahmadi and had been the subject of threats, including threats to his life, from Sunni Muslims. He claimed to have a well-founded fear of persecution if he were to return to Bangladesh.

4 In coming to its decision, the Tribunal had regard to a letter from the Ahmadiyya Muslim Association Australia Inc (‘the Association’) responding to an inquiry from the Tribunal about whether SZIAI was known to the Ahmadiyya Muslim Jamaat in Bangladesh (‘AMJ Bangladesh’) 6. The Tribunal had sent to the Association copies and translations of certificates produced to it by SZIAI and signed by persons purportedly associated with the Ahmadiyya Muslim Jamaat at Khulna. One of the certificates said that SZIAI had joined the Jamaat there on 1 January 2000. Both certificates said that he had taken a responsible role in the Jamaat and was always engaged in its activities. Both certificates bore mobile telephone numbers, apparently those of their authors.

5 The Association responded to the Tribunal by letter dated 10 January 2008 advising that it had received information from the AMJ Bangladesh. It enclosed a letter signed by Mobasherur Rahman, the National Ameer of the AMJ Bangladesh. That letter said, inter alia:

‘Please refer to your letter No 386 dt 25.11.07 regarding [SZIAI]. For your kind information on enquiry our Khulna Jamaat informed me that they could not find out any such name in their record. Both the certificates submit by him are fake & forged. Moreover as you know local Ameer/Presidents can only issue certificates for transfer of a member from one local Jamaat to other Jamaats within the country. Only National Ameer can issue a certificate for international travel/transfer of a member.’

6 On 14 January 2008 the Tribunal, acting under s 424A of the Migration Act, sent a lengthy letter to SZIAI's solicitors inviting him to ‘comment on information that the Tribunal considers would, subject to any comments you

make, be the reason, or a part of the reason, for affirming the decision under review.’ A number of matters were identified. One of those matters was the letter from the National Ameer. A copy was enclosed. The Tribunal said in its letter that the advice from the National Ameer might lead it to conclude that there was no truth to SZIAI's claims of fear of persecution by reason of his religion if he were to return to Bangladesh

7 SZIAI's solicitors wrote back to the Tribunal on 29 January 2008 saying:

‘We refer to the RRT's recent correspondence, inviting comment in relation to information received that suggests that the applicant is not an Ahmadi.

We are instructed to inform the RRT that the applicant disagrees with the information forwarded and states that he is an Ahmadi. He cannot, however, otherwise prove that to be so.

If you have any enquiries please contact me.’

8 In its reasons for decision the Tribunal referred to the correspondence from the Association and the letter from the National Ameer. It set out what it had said to SZIAI in its letter of 14 January 2008 and noted the response. Having regard to the information referred to in its letter of 14 January 2008, the Tribunal concluded that SZIAI was not a witness of the truth and that there was no truth to the claims he had made in support of his application for a protection visa.

9 An application for judicial review was dismissed by the Federal Magistrates Court on 18 June 2008 7. SZIAI appealed to the Federal Court. On 8 September 2008, Flick J ordered that the appeal be allowed, the orders made in the Federal Magistrates Court be set aside, the decision of the Tribunal be quashed and the matter be remitted to the Tribunal to be determined according to law 8. Special leave to appeal against his decision was granted by this Court on 13 February 2009. It was granted upon the undertaking by the Minister that he would not seek to displace the costs orders in favour of SZIAI in the Federal Court and that he would bear the reasonable costs of SZIAI of this appeal, including the costs of the special leave application.

The reasoning in the Federal Court

10 Flick J correctly eschewed any suggestion that the power of the Tribunal to make inquiries imposed upon it any duty or obligation to do so 9. However he also said that ‘jurisdictional error may be exposed by a failure to inquire and that such a failure may render a decision manifestly unreasonable’ 10. The circumstances in which a Tribunal decision would be set aside on such grounds might be ‘a confined category of case’ 11.

11 His Honour was evidently satisfied that the case before him fell within such a category. The authenticity of the certificates had been placed in issue by the information which the Tribunal had obtained from the Association. The issue to which they were directed was ‘centrally relevant to the decision reached’. He held with ‘considerable reservation’ that the Tribunal should have made an inquiry of the authors of the certificates 12. He concluded that the Federal Magistrates Court had erred in not holding that the Tribunal's decision was vitiated by reason of its failure to make inquiries.

The issues

12 The questions raised by the grounds of appeal and by a notice of contention filed on behalf of SZIAI were:

• 1. Whether the Tribunal had committed jurisdictional error by not making its own inquiries in relation to the allegation that the certificates provided by SZIAI were forgeries.

• 2. Whether the Tribunal denied procedural fairness, failed to comply with s 425 of the Migration Act, or failed to conduct the review required by s 414 in failing to invite SZIAI to a further hearing following receipt of

  the allegation that the two documents provided by him to the Tribunal were ‘fake & forged’.

The jurisdiction of the Federal Magistrates Court

13 The statutory jurisdiction of the Federal Magistrates Court is ‘the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of...