Case: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 ; (2009) 83 ALJR 1123
Outcome: applied
the Minister, attention was appropriately and necessarily directed to the then pending decision of the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 ; (2009) 83 ALJR 1123 ( SZIAI ), judgment in which came to be delivered on 23 September 2009. The outcome in that case served to underscore the correctness of the submission made on behalf of the Minister in the present case, which was that, though the Tribunal was a type of inquisitorial forum, it was not under any general duty to conduct inquiries of its own motion. Given the reasoning and outcome in SZIAI , it is not necessary to refer to the predecessor authorities which the Minister called in aid in support of that submission in the present appeal. It was further submitted for the Minister that, insofar as the male Appellant had invited the Tribunal so to do, it did not follow from this that the Tribunal was bound to take up that invitation, although it was evident that the Tribunal had given the invitation due consideration. I agree that the mere extending by a visa applicant of an invitation to the Tribunal to conduct inquiries itself does not thereby convert a course of action that it would be permissible but not obligatory for the Tribunal to undertake into one which it is bound to undertake. Rather, the singular circumstances of a particular case may, exceptionally, give rise to an obligation on the part of the Tribunal in that case to make its own inquiry with respect to a critical fact. A failure so to do could in such a circumstance give rise to a conclusion that the Tribunal had failed to exercise the review jurisdiction consigned to it and thereby made a jurisdictional error: SZIAI at [25]. In allowing for the possibility of such a jurisdictional error the language employed in the joint judgment in SZIAI counsel's restraint in concluding that it is present, "a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained". In practice, with respect, whether such restraint has been observed by a reviewing court may be controversial for, in cases at the margin, reasonable minds might reasonably differ as to whether a particular inquiry was "obvious". The present may well be a case in point. The Tribunal had before it evidence in the form of the Departmental file notes to which I have referred of the facility with which telephonic inquiries had been able to be made at the fish farm in respect of the male Appellant's employment status in relation to what must have been the routine processing student visa applications. Especially given the nature of the class of visa sought by the Appellants and the impact which it would have on an assessment as to whether the Tribunal was satisfied in the way the Migration Act required for the granting of such a visa, it does not seem to me a transgression of the restraint counselled in SZIAI to hold that the making of a telephonic inquiry of the fish farm as to whether there had been a forfeiture or confiscation of an interest which the male Appellant had at that farm or perhaps just as to why he was no longer employed there was an obvious inquiry about a critical fact. As it happens, there are, for the reasons set out above, other bases upon which it is possible to conclude that the Tribunal's decision was tainted by jurisdictional error. However, this is also, in my opinion, one of those exceptional cases in which it is possible in the circumstances to conclude that the Tribunal constructively failed to exercise the review jurisdiction consigned to it by s 414 of the Migration Act because it failed to make an obvious inquiry about a critical fact. For these reasons, the appeal must be allowed, the orders made by the Federal Magistrates Court set aside and the matter remitted to the Tribunal to hear and determine the review application according to law. For that purpose, the Tribunal should not be constituted by a member who has hitherto heard and determined that review application. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 10 December 2009 Counsel for the Appellants: The Appellants appeared in person Counsel for the Respondents: Ms L Clegg Solicitor for the Respondents: Clayton Utz Lawyers Date of Hearing: 18 and 19 August 2009 Date of Judgment: 11 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1470.html