Minister for Immigration & Citizenship v SZGUR [2011] HCA 1

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HEYDON, CRENNAN AND KIEFEL JJ

MINISTER FOR IMMIGRATION & CITIZENSHIP APPELLANT

AND

SZGUR & ANOR RESPONDENTS

Minister for Immigration & Citizenship v SZGUR [2011] HCA 1

2 February 2011

S179/2010

ORDER

1. Appeal allowed.

2. Set aside paragraphs 1 and 2(a) and (b) of the order of the Federal Court of Australia made on 4 March 2010, as varied by the order of that Court made on 26 March 2010, and in their place order that the appeal to that Court be dismissed.

3. The appellant pay the costs of the first respondent in this Court.

On appeal from the Federal Court of Australia

Representation

S B Lloyd SC with G R Kennett for the appellant (instructed by Clayton Utz Lawyers)

G C Lindsay SC with L J Karp for the first respondent (instructed by Dobbie and Devine Immigration Lawyers Pty Ltd)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minister for Immigration & Citizenship v SZGUR

Immigration – Refugees – Review by Refugee Review Tribunal ("RRT") –Where visa applicant's migration agent asked RRT to arrange "independent assessment of [applicant's] mental health, if required" – Section 427(1)(d) Migration Act 1958 (Cth) gave RRT power to require Secretary to arrange for making of medical examination – Whether duty on RRT to consider exercising power under s 427(1)(d) – Whether general duty to inquire.

Words and phrases – "information".

Migration Act 1958 (Cth), ss 424, 424A, 427(1)(d), 430.

FRENCH CJ and KIEFEL J.

Introduction

1. The function of the Refugee Review Tribunal ("the Tribunal") in reviewing decisions under the Migration Act 1958 (Cth) ("the Migration Act") has been described as inquisitorial. That designation does not mean that there is any general duty imposed on the Tribunal, as part of its review function, to use, or to consider using its investigative powers to obtain information relevant to the review. 2. In this case, an applicant before the Tribunal, the first respondent SZGUR, supported by statutory declarations from acquaintances and certificates from a psychiatrist, told the Tribunal that he was suffering from depression, Bipolar Mood Disorder and forgetfulness. The information was provided by his migration agent in explaining the existence of contradictions and inconsistencies in SZGUR's submissions and testimony to the Tribunal, about which the Tribunal had invited his comment. The agent asked the Tribunal to arrange an "independent assessment of his mental health, if required". The Tribunal did not do so. The Federal Court, on appeal from the Federal Magistrates Court, held that the Tribunal had committed jurisdictional error by failing to consider whether to use its statutory powers to arrange such an assessment. This was not a matter which had been raised in the Federal Magistrates Court. 3. The Federal Court was in error in inferring that the Tribunal had failed to consider the agent's request or the exercise of its statutory powers to arrange an independent assessment of SZGUR. The appeal should be allowed. Other matters raised on behalf of SZGUR in a notice of contention do not disclose a basis for otherwise supporting the result in the Federal Court.