Case: Minister for Immigration and Citizenship v SZIAI and Another [2009] HCA 39 ; (2009) 259 ALR 429
Outcome: followed
decision of the High Court in Minister for Immigration and Citizenship v SZIAI and Another [2009] HCA 39 ; (2009) 259 ALR 429 was due to be handed down shortly after the hearing of these proceedings. The Court granted leave to the appellant and Minister to make further submissions in reliance upon this decision and for both the appellant and Minister to make further submissions in reply to each other's further submissions. Both the appellant and Minister took advantage of the leave to make submissions on the effect of SZIAI , and the Minister has also made submissions in reply to the appellant's submissions on the effect of SZIAI . As will become apparent, the Court finds such submissions to be highly relevant to its decision. The Court will make its decision in the present matter having reliance only on the first ground of appeal made by the appellant and submissions on the effect of SZIAI . The Court does not need to, and therefore declines to, make any findings in relation to the other grounds of appeal, though it should be noted that submissions in relation to the other grounds of appeal are partially relevant for the consideration of ground one. The factual matrix The present proceedings arise out of very distinct factual circumstances. All of the following observations are made based on the information that was before the Tribunal. Firstly, it appears that there was no interview between the delegate and the appellant on 10 March 2008, as had been scheduled. No record existed explaining why there was no interview. There was no record of the rescheduling of the interview to 1 April 2008 when the decision was made. These facts must be considered against the background of detailed records of communications made and received between the Department and the appellant in previous communications such as those regarding the first notice. The absence of any information explaining what occurred on 10 March 2008 is, to say the least, puzzling. One would have expected there to be some record of events which occurred on that day, even if the proceedings were simply adjourned. In the circumstances, the Court considers that the test at [25] of SZIAI may be apposite. 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 '. The majority in SZIAI found that a failure to make an inquiry in the above circumstances could constitute a jurisdictional error because of a constructive failure to exercise jurisdiction. As will be discussed, the majority also left open the door for failure to make an inquiry being a jurisdictional error for other reasons. Therefore a failure of a Tribunal to make inquires in certain circumstances may also constitute jurisdictional error due to ' Wednesbury unreasonableness' (see [62] of Le regarding Wednesbury ). Despite comments in SZIAI at [13]-[15] and [22]-[23] noting the difference between judicial review under the Administrative Decisions (Judicial Review) Act 1977 and judicial review under s 75(v) of The Constitution , SZIAI would not appear to disturb Le . Indeed at [26] of SZIAI the majority stated: ' no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal's decision was infected by jurisdictional error ' [emphasis added]. Such statement would appear to confirm that a failure to make an inquiry could constitute jurisdictional error for at least two different reasons. Those are, a constructive failure to exercise jurisdiction in fulfilling the role of the Tribunal to review, and ' Wednesbury unreasonableness'. ...about a critical fact... Both SZIAI and Le formulate the type of information similarly: ' an obvious inquiry about a critical fact ' (in SZIAI at [25]) or ' obtain important information on a critical issue ' (in Le at [63]). The Court believes that the information in the present circumstances satisfies such test. It was critical to the review whether the appellant's failure to comply with his visa conditions was due to exceptional circumstances beyond his control. The Tribunal was on notice that there evidently were exceptional circumstances claimed through the decision record of the delegate, and the unexplained medical records. However, on the information before the Tribunal, it could not be clear precisely what those grounds were. Further to the above, SZIAI requires that the inquiry be an obvious one in the circumstances. The exact nature of the inquiry could have been to seek to contact the appellant by another means such as email or telephone since the Tribunal had his details. Alternatively, the Tribunal could have contacted the delegate or Department. The Minister submits that it would be strange that in the circumstance that s 359C and s 360(3) prevented the Tribunal from inviting the appellant before it that it should be able to seek oral evidence under s 359(1) and s 366. However, that informal mechanism is exactly what the High Court has said is available in SZKTI at [47]. Even if the Tribunal did not seek oral evidence, the Tribunal could have sought to clarify whether the appellant had, in fact, received the invitation. To repeat, this is not to suggest that such step is always required of the Tribunal, merely that in certain circumstances it should be taken. Both SZIAI and Le make it plain that the inquiry must be directed towards information, ' the existence of which is easily ascertained ' (in SZIAI at [25]) or ' which the decision-maker knows, or ought reasonably to know is readily available ' (in Le at [63]). In SZIAI the majority found (at [26]): ...there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI's solicitors to the tribunal's letter of 14 January 2008 itself indicated the futility of further inquiry. The Court considers that the latter ground is relevant for the current circumstances. The Court considers that traditionally Wednesbury unreasonableness has been seen as only applicable in the most extreme of circumstances. That may well be why the High Court allowed the appeal in SZIAI . The Court does not consider that the Tribunal's failure to make further inquiries was so unreasonable that no reasonable person would have adopted such course. Rather, the Court prefers the view that the failure to make further inquires of the appellant, or to inquire of the delegate or Department; coupled with the ease at which such inquiry could be made; coupled with the paucity of information the Tribunal had to make its decision; coupled with the type of inquiry required by reg 2.43(2)(b) of the Regulations leads to the conclusion that the Tribunal failed to conduct a proper review. Despite the prolixity of the Tribunal decision, in reality, the Tribunal only served as a 'rubber stamp' for the primary decision, a decision that was obviously highly problematic, even on the evidence before the Tribunal. The affidavit The Court makes such finding in the absence of reliance on the affidavit of the appellant. The Court does not need to rely on such affidavit, and it would be problematic to do so, given that the appellant has not been cross-examined on it, although the Minister declined the opportunity to do so in both the Federal Magistrates Court and before this Court. The Court accepts that when the appellant's affidavit was provided to Raphael FM the Minister was justified in considering that it was not relevant to any issue which was then identified. However, since the Federal Magistrate relied upon the affidavit in reaching his decision, this Court was obliged to take it into consideration.