Case: Minister for Immigration and Citizenship v SZKTI [2009] HCA 30
Outcome: applied
appeal was fixed for hearing on 27 August 2009. On the preceding day, 26 August 2009, the High Court of Australia delivered judgment in Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 ( SZKTI ) by which the High Court allowed an appeal from a Full Court of this Court in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 ; (2008) 168 FCR 256 ( SZKTI (Full Court decision)). Contemporaneously, the High Court heard an appeal in Minister for Immigration and Citizenship v SZLFX [2009] HCA 31 ( SZLFX ) because a common issue of statutory construction was involved in the two appeals. The reasons given in SZKTI were also applicable to SZLFX and the Minister's appeal in the latter case was also allowed. In the present case the Federal Magistrates Court based its decision the subject of the present appeal on the decisions of Full Courts of this Court in SZKTI (Full Court decision); Minister for Immigration and Citizenship v SZLFX [2008] FCAFC 125 ; and SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 ; (2008) 170 FCR 236. The first two of those three cases were the subject of the appeals to the High Court referred to above. The consequence of the High Court's reversals of the Full Court decisions in SZKTI and SZLFX is that the present appeal by the Minister must be allowed. As will appear below, it was after the Federal Magistrate reserved judgment that the three Federal Court Full Court judgments were delivered, and his Honour based his decision favourable to SZKJT on them and not on the grounds which SZKJT had raised. His Honour allowed the parties an opportunity to make further submissions on the s 424 issue the subject of the three Full Court decisions. The Minister did so, submitting (at [41], [42]) that for any one of several reasons, s 424(2) of the Act was not engaged. For reasons that appear below, the appropriate order is that the matter be remitted to the Federal Magistrates Court for determination of the outstanding issues. SZKJT is a citizen of the People's Republic of China (China). He arrived in Australia on 17 April 2006 and applied for a protection visa on 22 May 2006. SZKJT's claims were to the effect that he had had to pay certain fines and debts, and had been active in questioning Chinese authorities in respect of "donations" that he and others had had been compelled to pay. He claimed that as a result of a belief by Chinese authorities that he had encouraged his fellow villagers not to pay these donations, he had been harassed, detained and physically abused by those authorities. He claimed that he had encouraged local people also to protest, and that, as a result, he had been questioned by police, who he had heard were planning to detain him again. On 9 August 2006 the Delegate refused to grant the visa. In SZKTI the High Court has held that the power to "get" information referred to in s 424(1) of the Act is to be distinguished from the power to "invite a person to give additional information" referred to in s 424(2) , and that exercise of the former power does not attract the constraints that are attached to an invitation to a person to give additional information referred to in s 424(2) by ss 424(3) , 424B and 441A . The conclusion is inescapable that the Federal Magistrates Court erred (through no fault of its own) in its finding of jurisdictional error. That finding was founded on the proposition that the telephone call and the written inquiry of DFAT did not comply with ss 424(3) , 424B and 441A . It suffices to say that the effect of the High Court decision in its application to the facts of the present case is that the Tribunal was at liberty to get the information in question from the friend and from DFAT without complying with those provisions. I do not think that [47] of their Honours' reasons for judgment was intended to confine the ratio decidendi to the getting of information over the telephone. It is not necessary to explore other issues, although I note in passing that the inquiries made by the Tribunal of the friend and of DFAT were first time inquiries of those sources and could not be characterised as invitations to them to provide information additional to information that they had previously given to the Tribunal; cf SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407 at [99] , [100]; SZKTI at [4].