Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: considered
It seems to me that the real question on the application to adduce further evidence is whether the alleged non-compliance with s 425(1) of the Act can be raised on appeal in the way in which it is now sought to be raised. Although the appellant raised an allegation of non-compliance with s 425(1) before the Federal Magistrate the allegation was not developed in the way it is now sought to be developed and it is not suggested by the appellant that the Federal Magistrate erred in rejecting the allegation as it was put to him. Nevertheless, I think the appellant should be permitted to raise the alleged non-compliance with s 425(1) in the way it is now put bearing in mind the fact that the appellant was not represented before the Federal Magistrate, the fact that the Minister is unable to point to any prejudice if the appellant is permitted to raise the point on the appeal and the fact that at the time of the hearing before the Federal Magistrate the High Court had not delivered its decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 (" SZBEL "), a decision which discusses the scope of s 425(1). 9 In conclusion, the appellant is permitted to raise the matter in ground 1 of the amended notice of appeal, and I will receive as further evidence the transcript (both the appellant's copy and the Minister's copy) as further evidence on the appeal. 10 For reasons which will become clear, the alleged failure to comply with s 425(1) of the Act means it is necessary to consider the delegate's decision in some detail and it is to that subject that I now turn. 49 There are three issues on the appeal to this Court. They are as follows: 1. The appellant submits that the Federal Magistrate erred in failing to conclude that the Tribunal had not complied with the rules of procedural fairness or s 425(1) of the Act , or both. The submission was that the Tribunal member found that the appellant had not been involved with the Falun Gong movement in China whereas the delegate had found that he had been involved in the Falun Gong movement in China and that the Tribunal had not complied with its obligation said to arise in those circumstances to put the appellant on notice at or before the hearing that the question of whether he was a Falun Gong practitioner in China was an issue before it. The appellant referred to the recent decision of the High Court in SZBEL. 2. The appellant submits that the Federal Magistrate erred in failing to conclude that the Tribunal had not complied with the provisions of s 424A of the Act . There were two limbs to that submission. First, in relation to the matters referred to in the letter which was sent after the hearing (see [35] above) the Tribunal had not complied with the provisions of s 424A because it was aware of each of those matters before the hearing and should have given notice (that is, the letter) before the hearing. In the alternative, it was submitted that the letter was deficient because it did not contain any or any sufficient explanation as to why the information referred to in the letter was relevant to the review. Secondly, it was submitted by the appellant that the information listed below (I have adopted the appellant's description of each piece of information) fell within the terms of s 424A(1) of the Act , and yet was not the subject of notice under that section. (1) the Dellar information; (2) the Liu information; (3) the PLA information; (4) the household registration information; (5) the change of name information. 3. The appellant submits that the question whether he was a Falun Gong practitioner in China was a jurisdictional fact and that the finding of the Tribunal member that he was not was erroneous and was made in circumstances in which she overlooked material evidence. As the submission was developed, it seemed to me that the effect of the submission was that the Tribunal member had overlooked material evidence in terms of the alleged fact and had gone so far as to say (erroneously according to the appellant) that there was no evidence with respect to the alleged fact. 50 Section 425 is in the following terms: 425 Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. Subsections (2) and (3) are not relevant in this case. 51 In SZBEL the High Court gave an example of how the obligation might arise in the context of the Act when it said (at 601 [37]): Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the tribunal, there would be no issue in the tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1) ; the applicant would not have been accorded procedural fairness. 52 The decision in SZBEL involved a consideration of the common law rules of procedural fairness and the provisions of s 425(1) of the Act . Although it seems to me the decision was based on a failure to comply with the common law rules of procedural fairness, the Court referred to the provisions of s 425(1) and in the example set out above said that not only would there have been a failure to accord procedural fairness, but also there would be non-compliance with s 425(1) of the Act . 53 In SZBEL , s 422B(1) did not apply to the appellant's application whereas it does apply to the appellant's application in this case. That section is in the following terms: (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. 54 In my opinion, s 422B means that the issue in this case must be decided by reference to, and only by reference to, s 425(1). The common law rules in relation to the particular obligation in issue have been excluded by the Act . 55 Section 425(1) refers to "the issues arising in relation to the decision under review" in the context of extending an invitation to the applicant to appear before the Tribunal, and sections which follow, namely, s 425A and s 426A of the Act deal with the notice of invitation to appear and the failure to appear in response to the invitation under s 425. It might be said that if the obligation to identify an issue arises it can be satisfied only at the invitation stage and not (assuming it is not done at the invitation stage) at the hearing before the Tribunal. It appears, conversely, that the analogous common law obligation can be satisfied by the Tribunal at the hearing before it ( SZBEL at 602 [47]. I do not need to determine the question whether the obligation under s 425(1) can, like the obligation at common law, also be satisfied by the Tribunal at the hearing before it because even if it can be so satisfied, having read the transcript of the hearing before the Tribunal, I am not convinced that it was. 56 As I understand the decision in SZBEL an obligation arises under s 425(1) to advise an applicant that a particular matter is in issue if that matter was not a reason the delegate relied on to decide to reject the application for a protection visa ( SZBEL at [34]-[37]). I reject what I understood to be the Minister's submission that every matter in issue before the delegate, or every matter that must be established by an applicant to make out his claim for a protection visa, is taken to be in issue before the Tribunal and need not be the subject of notice by the Tribunal. That could be the case in a particular factual situation if, for example, the delegate rejected every aspect of an applicant's claim but it is not necessarily the case. An applicant is entitled to assume unless and until told otherwise that the issues are the matters decided adversely to him in a manner which is determinative of his claim. 57 The question in this case is whether on a fair reading of the delegate's reasons she decided that the appellant was a Falun Gong practitioner in China, albeit not one of interest to the authorities, but rejected his claim for a protection visa on other grounds. There can be no doubt the Tribunal rejected the claim by the appellant that he was Falun Gong practitioner in China (see [39], [40] and [41] above). For example, the Tribunal member said: In the present case, I have found that the applicant was not involved in Falun Gong before he left China ... . 58 The delegate gave extensive reasons for her decision refusing to grant a protection visa to the appellant. The critical findings on this point are summarised in [13], [14] and [16] above). 59 I think reading the reasons of the delegate as a whole she did conclude and then proceeded on the basis that the appellant was a Falun Gong practitioner in China, albeit not one of interest to the authorities. The Tribunal did not advise the appellant at or before the hearing that that fact was in issue. The letter from the Tribunal sent after the hearing, it seems with its obligation in s 424A in mind, raises that issue but a letter after the hearing cannot satisfy the provisions of s 425(1) of the Act . The Tribunal failed to comply with the obligation in s 425(1). It must be said that there may be circumstances where it will not be easy for the Tribunal to determine when the applicant for review should be given notice of an issue by reason of the provisions of s 425(1) of the Act . Those circumstances may arise if, on one view, the issue may be seen as but a part of a larger or more general issue which is clearly in dispute and which is not caught by the notice requirement in s 425(1). The difficulties will be exacerbated if (as happened in this case) the applicant for review makes considerable changes to his or her story after the delegate's decision and before the Tribunal hearing. I have given anxious consideration to the question whether the applicant's alleged practice of Falun Gong in China, albeit in a way that did not attract the attention of the authorities, was but part of a larger or more general issue which was clearly in dispute. I have decided that it was not because, absent any other relevant circumstances, the question is to be determined by reference to the reasons of the delegate and she drew a distinction between the two matters. This approach is consistent with that taken by the High Court in SZBEL . Finally, I note that it was not argued by the Minister that granting relief would be futile. It seems to me that in any event such an argument could not succeed. One might have some doubts as to whether the appellant has additional evidence but the onus to make out futility is much higher than that: Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181.