Case: Minister for Immigration &amp; Citizenship v SZIAI &amp; Anor [2009] HCA 39
Outcome: considered
was said in the very recent decision of the High Court in Minister for Immigration &amp; Citizenship v SZIAI &amp; Anor [2009] HCA 39 (23 September 2009) to clarify when those 'strictly limited' circumstances exist. At [25] in the joint judgment, it was said: 'Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. 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. ...' (Citations omitted) The second difficulty with this ground in the present case is that on the hearing of the application, the Minister led evidence (Ex. B) as to the summonses he filed at the Tribunal for issue to various courts for the production of files relating to sentences handed down for offences in respect of which the applicant had been convicted; details of the files that were produced; and to the fact that on review of all the documents produced, none contained any sentencing remarks, by way of mitigation or otherwise, beyond those made by Blanch CJ in an appeal to the District Court in June 2006. His Honour confirmed a conviction of the Sutherland Local Court of nine months with a three month non-parole period but which his Honour suspended on condition that the applicant enter into a bond to be of good behaviour for a period of nine months. His Honour took this course, according to the sentence remarks, because the applicant had not been to gaol previously, and bearing in mind the nature of the facts of the charge; hardly mitigating circumstances. In the face of this, the Minister submitted that it could hardly be contended that it was 'obvious' that there was further 'readily available' material which the Minister or the Tribunal could have, but did not, seek out. The deponent of the affidavit that was Ex. B was cross-examined on a document headed 'Attorney-General's Department New South Wales Court and Tribunal Transcripts', when it was suggested to the witness that following the procedures in that document may have been more productive of transcript of sentencing remarks than the summonses to produce. He was asked: 'Would you agree that those summonses to produce were unlikely to yield sentencing remarks?---When the summonses were prepared we were trying to be as broad and as inclusive as possible so rather than limiting any request for documents to simply sentencing remarks, we were being more inclusive and trying to look for court files which, if the transcript did exist, we thought would have been contained in the court file that had been requested. But would you agree that having regard to this document which I have just asked you some questions about, transcripts are not kept as a matter of course on court files?---Reviewing this document after the summonses, it looks like there are transcripts kept at this place, on that database, yes.' Two observations can be made concerning this evidence. First, it does not lead to the conclusion that it is 'obvious' that material centrally relevant to an issue whether the applicant is of good character against the criteria of s 501(6)(c)(i) exists; it may exist, but then again it may not. Second, in the face of what was produced in response to the summons, it was not so unreasonable in the Wednesbury sense for the view to be taken that such material was not readily available. It was not, in my view, 'a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained' (emphasis added), to use the words from the joint judgment in SZIAI at [25].