Case: Minister for Immigration &amp; Citizenship v SZIAI [2009] HCA 39 ; (2009) 259 ALR 429
Outcome: applied
scope of the "duty to inquire" on the part of the Tribunal was recently considered in Minister for Immigration &amp; Citizenship v SZIAI [2009] HCA 39 ; (2009) 259 ALR 429. The High Court stated at [24] that it is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law, even apart from s 422B of the Act. As the High Court pointed out at [25], considerations of a failure to make obvious inquiries or a duty to inquire direct consideration away from the question of whether the decision of the Tribunal is vitiated by jurisdictional error. However, the High Court continued in [25]: 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. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. This raises a number of considerations, namely: The existence of a court case in Latvia was a critical fact in the appellants' claim. The lack of information concerning the claimed Latvian case was critical to the Tribunal's conclusion that there had been no such case. However, it is necessary to examine the basis of the Tribunal's conclusion at [61] that it was not satisfied as to the appellants' general credibility and finding that they fabricated their core claims relating to the alleged court case. The Tribunal said at [62]: The Tribunal has formed the view that if indeed the applicants had initiated court proceedings as they claim, even if that court case no longer exists, they would have had some documents relating to the case and more information regarding the court where the case was allegedly filed. The applicants claim that it was too dangerous for them to have or transport documents relating to the case. However, the Tribunal has formed the view that the applicants have no documents, and only vague information regarding the court where the alleged court case was filed, because there was no court case and they did not instigate any legal action in Latvia against the police, the authorities, or the government. The Tribunal finds that these claims were fabricated by the applicants to enhance their protection visa applications and it does not accept as credible the applicants' claim that they instigated any action against individual police officers, government officials, the authorities, or the government of Latvia. The question is not what was in the minds of the appellants but whether there was jurisdictional error on the part of the Tribunal that vitiates its decision ( SZIAI ). It may well be the case, as the appellants contend in their submissions on the appeal, that the appellants were awaiting a response from the Tribunal to ask for the details of the lawyer which, according to the appellants, they had proferred to the Tribunal and which the Tribunal had refused to accept. The appellants say that after that refusal they assumed that they could not force the Tribunal to accept the details. They assumed that if the Tribunal thought that they were important, the Tribunal would ask them to submit those details. There is no evidence from the appellants, who appeared in person assisted by an interpreter, but a reading of the transcript does support the appellants' case in this regard. However, as the Tribunal noted in its reasons, in the further submissions sent by the appellants to the Tribunal after the hearing, they again asked the Tribunal to contact the lawyer but did not actually provide the lawyer's contact details. The Tribunal would be forgiven for thinking that if the appellants really did have those details, they would have provided them at that stage. The appellants say that they were not given the opportunity to provide the lawyer's details. While that may have been the case at the Tribunal hearing, that contention cannot stand in view of the opportunity given by the Tribunal to the appellants to give any further information to it in writing after the Tribunal hearing. The failure by the Tribunal to press the appellants to provide the lawyer's contact details could not, in the circumstances, be said to be so unreasonable as to support a finding that the Tribunal decision was affected by jurisdictional error ( SZIAI at [26]). As it was the responsibility of the appellants to make out their own case and in the context of the failure to provide any documents or details of the court case, it was reasonable for the Tribunal to leave the onus on the appellants to provide the contact details of the lawyer to the Tribunal if they wished the Tribunal to make further inquiries. Given the two opportunities the appellants had to provide more information, in particular in the further written submissions sent after they had been provided with the tapes of the hearing, it was not unreasonable for the Tribunal to find that the appellants did not provide any real information because the court case did not exist and they had no useful information to provide. The appellants have not established jurisdictional error by lack of compliance with s 420 or s 425. Section 424A