Minister for Immigration & Citizenship v SZGUR

• Jurisdiction: Australia Federal only
• Judge: French CJ,Kiefel J,Gummow J,Heydon J,Crennan J,Gummow,Heydon,Crennan,Kiefel,Bell JJ
• Judgment Date: 07 September 2011
• Neutral Citation: 2011-0202 HCA A,[2011] HCA 1
• Court: High Court
• Docket Number: M127/2010,S179/2010
• Date: 07 September 2011

[2011] HCA 1

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Heydon, Crennan and Kiefel JJ

S179/2010

Minister For Immigration & Citizenship

Appellant

and

Szgur & Anor

Respondents

Representation

S B Lloyd SC with G R Kennett for the appellant (instructed by Clayton Utz Lawyers)

G C Lindsay SC with L J Karp for the first respondent (instructed by Dobbie and Devine Immigration Lawyers Pty Ltd)

Submitting appearance for the second respondent

Migration Act 1958 (Cth), ss 424, 424A, 427(1)(d), 430.

Minister for Immigration & Citizenship v SZGUR

Immigration — Refugees — Review by Refugee Review Tribunal (‘RRT’) — Where visa applicant's migration agent asked RRT to arrange ‘independent assessment of [applicant's] mental health, if required’ — Section 427(1)(d) Migration Act 1958 (Cth) gave RRT power to require Secretary to arrange for making of medical examination — Whether duty on RRT to consider exercising power under s 427(1)(d) — Whether general duty to inquire.

Words and phrases —‘information’.

ORDER

Appeal allowed.

Set aside paragraphs 1 and 2(a) and (b) of the order of the Federal Court of Australia made on 4 March 2010, as varied by the order of that Court made on 26 March 2010, and in their place order that the appeal to that Court be dismissed.

The appellant pay the costs of the first respondent in this Court.

French CJ and Kiefel J.

Introduction

1 The function of the Refugee Review Tribunal (‘the Tribunal’) in reviewing decisions under the Migration Act 1958 (Cth) (‘the Migration Act’) has been described as inquisitorial. That designation does not mean that there is any general duty imposed on the Tribunal, as part of its review function, to use, or to consider using its investigative powers to obtain information relevant to the review.

2 In this case, an applicant before the Tribunal, the first respondent SZGUR, supported by statutory declarations from acquaintances and certificates from a psychiatrist, told the Tribunal that he was suffering from depression, Bipolar Mood Disorder and forgetfulness. The information was provided by his migration agent in explaining the existence of contradictions and inconsistencies in SZGUR's submissions and testimony to the Tribunal, about which the Tribunal had invited his comment. The agent asked the Tribunal to arrange an ‘independent assessment of his mental health, if required’. The Tribunal did not do so. The Federal Court, on appeal from the Federal Magistrates Court, held that the Tribunal had committed jurisdictional error by failing to consider whether to use its statutory powers to arrange such an assessment. This was not a matter which had been raised in the Federal Magistrates Court.

3 The Federal Court was in error in inferring that the Tribunal had failed to consider the agent's request or the exercise of its statutory powers to arrange an independent assessment of SZGUR. The appeal should be allowed. Other matters raised on behalf of SZGUR in a notice of contention do not disclose a basis for otherwise supporting the result in the Federal Court.

Procedural and factual background

4 SZGUR, a citizen of Nepal, arrived in Australia lawfully on 18 December 2004 1. On 21 January 2005, he lodged an application for a protection visa.

5 SZGUR claimed that because of his support for the Maoist Nepali Communist Party he had been at risk of execution in Nepal by the Royal Nepalese Army. He said he had to leave Nepal in order to save his life. If he were to return and the Army were to find him they would kill him. They had already visited his home and interrogated his wife and relatives about his whereabouts.

6 SZGUR's application for a protection visa was refused by a delegate of the Minister for Immigration and Citizenship (‘the Minister’) on 11 February 2005. On 15 March 2005, SZGUR applied to the Tribunal for a review of the delegate's decision. On 30 May 2005, the Tribunal affirmed the decision. That decision of the Tribunal was quashed by the Federal Magistrates Court and remitted to the Tribunal differently constituted. So too, was a further decision of the Tribunal which again affirmed the delegate's decision. Following the second remitter, SZGUR gave oral testimony, on 6 March and 2 April 2008, at hearings before the Tribunal, again constituted differently from its predecessors.

7 On 11 April 2008, the Tribunal wrote to SZGUR inviting him to ‘comment on or respond to information that the Tribunal considers would, subject to any comments or response you make, be the reason, or a part of the reason, for affirming the decision that is under review’. The language of the invitation was taken from s 424A of the Migration Act which requires the Tribunal to give to an applicant ‘clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’ 2. In such a case the Tribunal is required to invite the applicant to comment on or respond to the information 3.

8 The ‘information’ upon which the Tribunal invited comment, was the existence of ‘contradictions and inconsistencies’ between what SZGUR had stated orally and in writing to the Tribunal, variously constituted, during the iterations of the review process. The contradictions and inconsistencies, which were elaborated at some length in the letter, related to SZGUR's claimed involvement with the Communist Party of Nepal, whether he and his family had gone into hiding in Nepal, whether he had been helped to leave the country and his claim that two colleagues had been executed by the Nepalese Army.

9 Despite the language of the Tribunal's letter, the existence of ‘inconsistencies’ and ‘contradictions’ in an applicant's testimony and written submissions to the Tribunal is not ‘information’ of the kind to which s 424A is directed. As was explained by the plurality in

SZBYR v Minister for Immigration and Citizenship 4, the term ‘information’ in s 424A does not extend to the Tribunal's ‘subjective appraisals, thought processes or determinations’ 5. Their Honours said:

‘However broadly “information” be defined its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.’

The exclusion of this class of information from the obligation imposed by s 424A is consistent with limits on the procedural fairness hearing rule at common law. Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision 6. That is not to say that the Tribunal cannot or should not, in the exercise of its discretion, invite an applicant for review to make supplementary submissions in relation to apparent inconsistencies, contradictions or weaknesses in his or her case which have been identified by the Tribunal. Indeed it may be that such an invitation, once issued, amounts to a binding indication by the Tribunal that the review process will not be concluded until the applicant has had an opportunity to respond 7. But an invitation to comment on perceived inconsistencies and contradictions is not an invitation under s 424A. The Tribunal's letter of 11 April 2008, despite its phrasing, was not sent pursuant to the obligation imposed by that section. Part of

the reasoning in the Federal Court depended upon the incorrect view that it was such an invitation

10 SZGUR, by successive migration agents, requested and was granted two extensions of time to respond to the Tribunal's letter. In a letter of 20 May 2008 requesting an extension of time, SZGUR's agent said he had been provided with evidence from a psychiatrist that SZGUR was suffering from depression and would be ‘unable to work until 29 May 2008’. The letter enclosed a certificate from a psychiatrist as to SZGUR's depression and five statutory declarations by people testifying to his forgetfulness.

11 On 20 June 2008, SZGUR's agent wrote to the Tribunal in response to its letter of 11 April 2008. He said that SZGUR was ‘going through depression & disorder of some kind’ and attached another two statutory declarations, and a certificate from the psychiatrist which stated that SZGUR was being treated for Bipolar Mood Disorder, was receiving regular medication and was attending consultations with the psychiatrist. The agent said that SZGUR confirmed that he could not remember things that happened a long time ago and that SZGUR accepted that there were inconsistencies in the information he had provided to the Tribunal from time to time. SZGUR could not tell which information was correct and which was not. The agent had attempted to get clarification from SZGUR on various issues which had been raised by the Tribunal, but he had ‘mixed up the things all the time’. The agent said that SZGUR was unable to provide ‘categorical comments’ on the issues raised by the Tribunal. Because his forgetfulness was worsening the information provided in his original application for a protection visa and at the first Tribunal hearing would be more correct than information provided at later hearings. The agent's letter concluded with a request:

‘For the above reasons I would like to request you to assess his application based on his original application and evidences considering his mental health.

To further assess his mental health situation, I would like to request you to arrange independent assessment of his mental health, if required. The applicant confirms that he would pay the cost of the assessment.

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