Monday, February 28, 2011

Minister for Immigration & Citizenship v SZGUR

Minister for Immigration & Citizenship v SZGUR [2011] HCA 1


This was an appeal by the Minister from a decision of the Federal Court. The High Court considered whether the provision to the RRT of ‘investigative’ powers under s 427(1)(d) of the Migration Act 1958 (Cth) (‘the Act’) creates an obligation on the Tribunal to consider exercising those powers, or to consider parties’ requests that it exercise its powers. The Court held that the RRT was not under an obligation to consider using its inquisitorial powers, and further, that a failure to refer in its reasons to a request to use those powers did not amount to a jurisdictional error.

Factual Background

The appellant was a Nepalese immigrant who, after arriving legally in Australia, had applied for a protection visa. That application was based on a claim that his close allegiance with the Maoist Communist Party in Nepal meant that he was at risk if he returned. In relation to the relevant hearing the RRT found that there were inconsistencies between the appellant’s various oral accounts and his written account of his links to the Maoist party in Nepal. As a result the RRT sent a letter to the appellant ‘inviting him to comment’ on this ‘information’. The appellant’s lawyer provided a letter to the Tribunal including a psychiatrist’s certificate stating that the appellant was suffering from depression and a number of statutory declarations supporting a claim that he was forgetful. The appellant’s lawyer suggested that as the appellant’s memory was deteriorating, his earlier testimony was likely to be more reliable and should be preferred. Further, he requested that the RRT arrange for an independent assessment of the appellant’s mental state.

The RRT did not follow the request of the appellant’s lawyer, and concluded that while he may have suffered from general forgetfulness, he should still be expected to be capable of remembering important details about his time in Nepal.

The decision was upheld in the Federal Magistrates Court. However, in the Federal Court the appellant amended his argument, contending that the failure of the RRT to exercise its discretion under s 427(1)(d) to obtain a psychiatrist’s report amounted to a failure to exercise its jurisdiction. Rares J allowed the appeal, issuing orders in the nature of certiorari and mandamus. His Honour found that the RRT had not considered the request of the appellant’s lawyers and that this amounted to a jurisdictional error because:

  • was no evidence that the RRT had considered whether or not to exercise its power under s 427(1)(d), and that this amounted to a constructive failure to exercise jurisdiction; and
  • as there was no evidence it had considered the request of the appellant’s lawyer, the RRT had failed to have regard to a relevant consideration.

Tribunal’s Obligation to Invite Comment on Inconsistencies

French CJ and Kiefel J noted that the RRT had not in fact been obligated to invite the applicant to comment on the inconsistencies in question. Their Honours noted that the letter sent out by the tribunal inviting comment was in the terms required under s424A of the Act. However their Honours observed that the issues on which comment had been invited, namely the existence of "inconsistencies" and "contradictions" in an applicant's testimony and written submissions, were not types of ‘information’ within the meaning of that word under s 424 of the Act. Their Honours observed that in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, the Court had held that [9]:

the term "information" in s 424A does not extend to the Tribunal's "subjective appraisals, thought processes or determinations"

Further, they observed that the obligation under s 424A was in accordance with the requirements of common law procedural fairness, which is does not require a decision maker to “expose his or her thought processes or provisional views for comment before making the decision” [9].

Whether RRT Obligated to Consider Exercising Inquisitorial Power?

French CJ and Kiefel J held that the power conferred under s 427 does not impose a correlative obligation on the RRT to consider exercising those inquisitorial powers This affirmed the decision of the Full Federal Court in WAGJ v Minister of Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277.

However, their Honours qualified that observation, noting that there may be circumstances where the Tribunal would be under an obligation to exercise its inquisitorial powers. Their Honours referred to the Court’s decision in Minister for Immigration and Multicultural Affairs v SZIAI [2009] HCA 39, where it was said that:

It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.

Whether Failure to Consider Request a Jurisdictional Error?

The Court then determined whether the RRT was obliged to consider the appellant’s lawyer’s request that it exercise its powers under s 427(1)(d).

French CJ and Kiefel J observed that Rares J’s decision relied on two assumptions. First, s 430 of the Act requires the RRT to provide reasons for its decisions, and second, in Yusuf [2001] HCA 30 it was held that a Court is entitled to infer that any matter not mentioned in those reasons “was not considered by the Tribunal to be material”. As the Tribunal had not expressly referred to the appellant’s request, Rares J inferred that the request had not been considered. Consequently, he held that the RRT had failed to exercise jurisdiction and had failed to take into account a relevant consideration.

However, their Honours held that s 430 does not require the RRT to refer to requests for it to exercise its investigative powers, and failure to do so does not amount to a jurisdictional error. Section 430 requires the RRT to refer to evidence or material relied on, the findings of fact based on that evidence, and the application of law to those findings in making its decision. However, the RRT’s consideration of whether to exercise power under s 427(1)(d), whether requested or not, was neither evidence nor fact on which the tribunal could base findings. Consequently, there was no obligation to refer to such requests.

In his separate concurring decision, Gummow J observed that in some circumstances such ‘procedural decisions’ could form part of the Tribunal’s ‘reasons for the decision’, which it is required to refer to under s 430(b). However, that was not so with the present decision.

Their Honours further observed that in any case the RRT had adequately considered the requests. They had referred to the appellant’s lawyer’s letters in their reasons. Against that background the failure to refer expressly to the specific request did not support an inference that the request had been overlooked. They noted that the RRT may have concluded that any investigation would merely have confirmed their suspicions. Their Honours noted that while the Tribunal may be open to criticism for such reasoning it did not amount to a jurisdictional error.

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