Case: SZBEL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] HCA 63 , 228 CLR 152
Outcome: followed
" Considerable care ", however, needs to be exercised in effecting a dichotomy between an " adverse conclusion ... which would not obviously be open on the known material" and " mental processes ": SZBEL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] HCA 63 at [31] , [2006] HCA 63 ; 228 CLR 152 at 162. Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ there referred to the argument then being advanced seeking to advance such a dichotomy and then applying that dichotomy to the facts before the Court. Their Honours observed: [31] Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision-making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged. Their Honours continued: [33] The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review" (s 425(1) (emphasis added)). The reference to "the issues arising in relation to the decision under review" is important. [34] Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons. [35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. 11 The Appellant in the present appeal has pursued a course whereby his application has been rejected by the delegate and thereafter considered by the Refugee Review Tribunal on two occasions -- the first being its decision in February 2004; the second being that of the reconstituted Tribunal in October 2006. 12 The delegate concluded in part as follows: 3.2.4 I accept that the applicant may have been a supporter of a political party in Bangladesh that is currently opposed to the present BNP led government. ... 3.2.5 ... The information above indicates that merely belonging to an opposition party does not attract persecution in Bangladesh. These and other findings led the delegate to conclude that the now Appellant did not have a real chance of being persecuted should he return to Bangladesh. 19 First, it is not considered that " the issues arising in relation to the decision under review " are to be defined in all cases by the decision of the delegate. Their Honours in SZBEL did observe: ... But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review".... The issues which a delegate considers dispositive of the application may well be the issues which an applicant has to confront and answer when an appeal is lodged with the tribunal, eg SZJKU v Minister for Immigration &amp; Citizenship [2008] FCA 308 at [37] [45] per Emmett J. But the object of s 425 is to ensure that an applicant is given an opportunity " to give evidence and present arguments ", being evidence and argument " relating to the issues arising in relation to the decision under review ". And that is an obligation imposed upon the tribunal hearing the application before it, whether it be the tribunal initially hearing the application or any subsequent tribunal. 24 To give the terms of s 425(1) the width of operation that naturally follows from the terminology employed by the Parliamentary draftsman does not transgress the qualifications recognised by their Honours in SZBEL , supra , namely that there are many ways in which a tribunal may indicate to an applicant that it questions the account being given and that there is no requirement upon a tribunal to give a " running account " of the evidence. 25 As to the former qualification, their Honours in SZBEL observed: [47] ... there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. 26 Rather than narrowly confining the identification of those matters which may constitute " issues " to which s 425(1) applies, it is considered that their Honours were there recognising that the " issues " arising in relation to a decision may be many and various and were recognising that there had to be a practical manner in which tribunal members could extend to an applicant an opportunity to " give evidence and present arguments " in relation to those " specific matters " that may assume importance. 27 Third, reliance by the Respondent Minister in the current appeal upon the adverse findings made by the reconstituted Tribunal is also not considered persuasive. The obligation imposed by s 425 upon a Tribunal is to extend the invitation there set forth. If that invitation has not been extended, and it should have been, it matters not that the Tribunal has thereafter proceeded in a manner which necessarily involves it in making factual findings. Indeed, the importance of s 425 is to ensure that the process of making those findings of fact is a process informed by, or at least assisted by, the evidence and arguments presented by an applicant. 28 If the application of s 425 is not to be confined in the narrow manner being urged by the First Respondent, it remains to consider whether the reconstituted Tribunal did in fact put the now Appellant on notice that some " specific " issues which had previously been resolved in his favour remained matters in respect to which it had reservations. It remains to consider whether the reconstituted Tribunal did in fact extend to the Appellant a meaningful opportunity " to give evidence and present arguments " in respect to those " specific " issues. 29 It is considered that the reconstituted Tribunal did not give the Appellant such an opportunity. The manner in which the Tribunal as reconstituted discharged its task of giving the Appellant such an opportunity was a matter for it. But the failure of the Tribunal to extend the opportunity emerges because nowhere in the transcript of the proceedings is there any indication given to the Appellant that he could not proceed upon the basis that he was, in summary, a person with a long record of political activities and a person who remained politically active.