Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 
Outcome: considered
This ground of review is based upon the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. The High Court characterised this species of error as a failure to accord procedural fairness. 23 The issues in relation to which the Tribunal is said to have denied the appellant procedural fairness are: &#8226; whether the appellant had an ongoing interest in pursuing the compensation claim; &#8226; whether the appellant avoided protest activities or the pursuit of his compensation claims after he was released from detention because he feared harm from the authorities; &#8226; whether the appellant's relatives had been arrested or had experienced harm, or were likely to, for lodging an appeal in the compensation claim. 31 The principles of procedural fairness which the High Court identified in s 425 of the Act are as follows: 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". ... unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision. See SZBEL at [35]-[36]. 36 The High Court accepted in SZBEL at [35] that it is open to the Tribunal to identify additional issues to those identified by the original decision-maker. Two questions therefore arise. First, are the "issues" to which the appellant refers issues in the sense stated in s 425 of the Act? Second, if so, did the Tribunal sufficiently identify them? 37 It seems to me that the effect of the High Court's explanation of the statutory scheme is that the issues to which s 425 refers are particular factual aspects of an applicant's claim in respect of which the Tribunal is not persuaded when it extends to an applicant an invitation to attend the hearing: SZBEL at [34] [40]. 38 In some cases everything may be in issue; in others, the issues may be specific aspects of the material that is already before the Tribunal: SZBEL at [36], [47]. 39 Here, although the delegate did not make express reference to the three "issues", it is apparent from the strong terms in which he rejected the claim that the appellant should have been sufficiently on notice that the entirety of his factual account was in issue in the review. 40 Moreover, the exchanges between the appellant and the Tribunal were in my view sufficient to bring home to the appellant that the entire factual basis of his claim was in issue. The Tribunal member said in plain terms on several occasions that he did not understand how the confiscation of the appellant's land in 1992 was relevant to his claim to have a well-founded fear of persecution when he left China in December 2004. 42 Nevertheless, the Tribunal's questions and the apparent testiness of the Tribunal member's remarks in the second excerpt must have put the appellant on notice that the foundation of his claim was in issue. It is well-established that it is for an applicant to make out his or her claims: SZBEL at [40]. That was what the Tribunal's questions called for. 43 In my view, the "issues" which the appellant identifies do not fall within the principle stated in SZBEL. Rather, they are either gaps in the appellant's account of his claim or part of the mental processes of the Tribunal. The Tribunal member was not required to disclose them to the appellant: SZBEL at [48]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; Minister for Immigration &amp; Citizenship v Applicant A 125 of 2003 [2007] FCAFC 162 at [89] . 44 This is not a case in which there were specific aspects of the appellant's account that may have been open to doubt and as to which the Tribunal was found to ask the appellant to explain: SZBEL at [47]. Rather, as I have said, the reasons given by the Tribunal addressed gaps in the applicant's evidence. It was for him to give his full account and for the Tribunal to determine whether to accept it: Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [187] .