Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152
Outcome: discussed
reason of s 425 , an applicant before the Tribunal is entitled to assume that issues considered dispositive by a delegate are the issues which arise in relation to the decision under review &#8212; unless the Tribunal takes steps to notify the applicant to the contrary: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152. Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ there observed: [29] No submission was made on behalf of either the appellant or the Minister that the existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Act. Rather, the argument proceeded, for the most part, by reference to what had been said by the Full Court of the Federal Court in Alphaone [ Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 591 to 592]. The Full Court (Northrop, Miles and French JJ) said: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material . Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (emphasis added) Their Honours continued: [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. See also: NBKB v Minister for Immigration and Citizenship [2009] FCA 69 at [18] to [21], 106 ALD 525 at 529 per McKerracher J. Section 425 imposes an important mandatory obligation which is more than a mere item on " a procedural check list ": SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 , 172 FCR 1 per Gray J at [8], per Gyles J at [37]. The present facts would also appear to stand in contrast to those in SZBEL where Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ observed: [3] ... At no stage did the Tribunal challenge what the appellant said, express any reaction to what he said, or invite him to amplify any of the three particular aspects of the account he had given in his statutory declaration, and repeated in his evidence, which the Tribunal later found to be 'implausible'... [2006] HCA 63 at [3] , [2006] HCA 63 ; 228 CLR 152 at 155. Contrary to the case sought to be advanced on behalf of the Appellant that he was denied the opportunity guaranteed by s 425 by not having the question as to the genuineness of his faith specifically put to him, upon a fair reading of the Tribunal's reasons (cf Liang, supra) it emerges that the Tribunal did " challenge " the Appellant's account. The reasons for decision of the Tribunal thus recount the following exchange: [96] ... I also mentioned to the applicant that it was of concern to the Tribunal that he did not tell his agent his real name or that he was in fear of religious persecution. It was also of concern to the Tribunal that he did not attend church until 15 November 2000, even though he arrived in Australia in June 1999. I mentioned to the applicant that a chronology of his applications indicated that he had exhausted all lines of application by August 2000. The applicant stated that he did not know his application had been rejected. I mentioned to the applicant that it was difficult for the Tribunal to understand why he did not attend the church before November 2000 given his claims of being a committed Christian. I mentioned to the applicant that he told the Tribunal that the reason he attended an underground church in China was because he valued the community spirit which was not available at the official church. I mentioned to the applicant that if that was the case it was difficult to see why he did not seek that out as soon as he arrived in Australia where he could do so freely. The applicant stated that he had no Christian friends so he worshiped [ sic ] on his own. [97] I discussed with the applicant section 91R(3) of the Act. The applicant stated that he did not go to church with the intention of enhancing his refugee claims.