Saap v Minister for Immigration and Multicultural and Indigenous Affairs

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,McHugh J,Gummow J,Kirby J,Hayne J
• Judgment Date: 18 May 2005
• Neutral Citation: [2005] HCA 24,2005-0518 HCA B
• Court: High Court
• Docket Number: A28/2004
• Date: 18 May 2005

[2005] HCA 24

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ

A28/2004

SAAP & Anor

Appellants

and

Minister for Immigration and Multicultural and Indigenous Affairs & Anor

Respondents

Representation:

B R M Hayes QC with M S Blumberg for the appellants (instructed by Bourne Lawyers)

J Basten QC with S J Maharaj for the first respondent (instructed by Sparke Helmore)

No appearance for the second respondent

Judiciary Act 1903 (Cth), s 39B. Migration Act 1958 (Cth), ss 424A, 425.

SAAP & Anor v Minister for Immigration and Multicultural and Indigenous Affairs

Immigration — Refugees — Decision of Refugee Review Tribunal (‘Tribunal’) — Tribunal invited the first appellant to appear to give evidence and present arguments under Migration Act 1958 (Cth), s 425 — Evidence was later taken from first appellant's daughter in absence of first appellant — Tribunal affirmed decision under review by relying on information obtained from first appellant's daughter — Tribunal failed to give the first appellant particulars in writing of information — Tribunal failed to invite the first appellant in writing to comment on information — Whether Tribunal breached Migration Act, s 424A.

Immigration — Construction of Migration Act, s 424A — Whether the provisions of Pt 7 Div 4 have sequential or ambulatory operation — Relevance of Refugee Convention in case of ambiguity.

Immigration — Jurisdictional error — Whether a breach of Migration Act, s 424A amounts to jurisdictional error that invalidates the decision.

Immigration — Procedural fairness — General law — Whether Tribunal breached rules of procedural fairness.

Administrative Law (Cth) — Certiorari — Mandamus — Jurisdictional error — Whether grant of relief should be withheld on discretionary grounds — Relevant factors — Judiciary Act 1903 (Cth), s 39B.

Practice — Joinder of party — Tribunal was not named as a party for the relief sought under Judiciary Act, s 39B — Whether the Tribunal was a necessary party to the proceedings — ‘officer or officers of the Commonwealth’ — Judiciary Act, s 39B.

ORDER

1. Appeal allowed with costs.

2. Set aside the order of the Full Court of the Federal Court of Australia made on 11 December 2002 and, in its place, order:

• (a) appeal allowed with costs;

• (b) set aside the orders of Mansfield J made on 10 May 2002 and, in their place, order that:

  • (i) there be an order in the nature of certiorari to quash the decision of the Refugee Review Tribunal (‘the Tribunal’) made on 18 October 2001;

  • (ii) there be an order in the nature of mandamus requiring the Tribunal to review according to law the decision made by a delegate of the Minister on 19 June 2001 to refuse protection visas sought by the applicants;

  • (iii) the respondent pay the applicants' costs.

1 Gleeson CJ. Part 7 of the Migration Act 1958 (Cth) (‘the Act’) provides for administrative review of protection visa decisions by the second respondent, the Refugee Review Tribunal (‘the Tribunal’) 1. The decisions subject to potential review, which include a refusal to grant a protection visa on the ground that a non-citizen is not a refugee within the meaning of the Act and the international instruments by reference to which the Act operates, are commonly made by a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’). Section 414, which is in Div 2 of Pt 7, provides that, if a valid application for review of a decision is made, the Tribunal must review the decision. Pursuant to s 415, the Tribunal may affirm the decision, vary it, remit it for re-consideration, or set it aside and substitute a new decision. Section 420, which is in Div 3 of Pt 7, deals with the Tribunal's ‘way of operating’, which is to be fair, just, economical, informal and quick. The Tribunal is not bound by legal technicalities and forms, and is to act according to substantial justice and the merits of the case.

2 Division 4 of Pt 7 deals with the conduct of a review. Section 423 prescribes the procedure to be followed after an application for review has been lodged. As a result of the lodging of the application, the Registrar of the Tribunal will have been furnished with the findings of the original decision-maker, a statement of the evidence on which the findings were based, and a statement of the reasons for the decision (s 418). Under s 423, the applicant may provide the Registrar with a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider, and written argument about the issues. The Secretary of the Minister's Department may give the Registrar written argument about the issues. Section 425 obliges the Tribunal to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues. That requirement is subject to certain exceptions that did not apply in the present case, but that are relevant to a question of construction that arises. Section 429 provides that what it describes as the hearing of an application for review must be in private. Division 5 of Pt 7 deals with the manner in which the Tribunal is to record and publish its decisions.

3 Within that framework, Div 4 of Pt 7 contains certain other provisions relating to the conduct of the review. It has been noted that s 423 provides for the applicant to submit evidence as to matters of fact, and written argument, and also for the Secretary to submit written argument, and s 425 provides for the applicant to be invited to appear before the Tribunal, give evidence, and present argument. Between ss 423 and 425 there are four sections dealing with ‘information’ and ‘comments on information’.

4 Section 424 confers on the Tribunal a general power to ‘get any information that it considers relevant’. If the Tribunal gets such information, it must have regard to it. In particular, the Tribunal may invite a person to give ‘additional information’, which must mean information additional to that already obtained under s 418, or provided under s 423.

5 Section 424A obliges the Tribunal to give the applicant, in the way the Tribunal considers appropriate, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review, to ensure, as far as reasonably practicable, that the applicant understands why it is relevant, and to invite the applicant to comment on it (s 424A(1)). The information and invitation must be given by a prescribed method, involving handing, or sending, to the applicant, by post or other specified form of communication, a document (s 424A(2)). Section 424A does not apply to certain kinds of information, being information that is not specifically about an applicant, or information that the applicant gave for the purpose of the application, or non-disclosable information (s 424A(3)). There have been some uncertainties about the precise scope of that qualification, but they are not presently relevant. It is s 424A(2) that is of particular relevance in this case.

6 Section 424B deals further with the manner and form of inviting additional information under s 424, or comment on information under s 424A. Those provisions are relatively flexible. The invitee, who may or may not be the applicant, may or may not be invited to give the information, or make the comments, at an interview, and a procedure for fixing time limits is established. Section 424C deals with the consequences of failure to comply with the time limits. It empowers the Tribunal to proceed with its decision-making process without the information or the comments. Section 425 requires the Tribunal to invite the applicant to appear before the Tribunal. That requirement is subject to exceptions. One exception is where the applicant consents to the decision being made without the applicant appearing before the Tribunal (s 425(2)(b)). Another is where s 424C applies to the applicant. There is also an exception if the Tribunal considers that it should find in favour of the applicant on the material before it. It will be necessary to return to those exceptions.

7 Section 426 entitles the applicant to notify the Tribunal that the applicant wants the Tribunal to obtain evidence from some other person or persons. The Tribunal is empowered, by s 427, to take evidence on oath or affirmation, adjourn the review from time to time, and summon witnesses. Another person may be authorised by the Tribunal to take evidence (s 428). Oral evidence for the purposes of a review may be taken by telephone, closed circuit television, or any other means of communication (s 429A). As already noted, the hearing of an application for review must be in private (s 429).

8 What is described in s 429 as the hearing is to be understood in the wider statutory context. The prescribed procedure is not that of adversarial litigation, with evidence taken and issues debated at a climactic trial. Indeed, in many cases there will not be a hearing. The procedure is administrative and inquisitorial. Even so, the statutory references to appearance and hearing, adjournment, summoning witnesses, taking evidence, and proceeding to decision in default of appearance, show that this is a form of administrative decision-making which, having the capacity to affect human rights, borrows from judicial procedure. While it is true that fairness in administrative decision-making is not measured by reference to a judicial paradigm, judicial procedure ought to be an example of fairness in action, and it is not surprising to find some aspects of that procedure taken up for some administrative purposes.

9 The problem in the present appeal arises out of an alleged failure on the part of the Tribunal to comply with the requirements of s 424A, in particular, s 424A(2).

10 The...