Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Outcome: cited
The third ground of appeal, which claims that the Tribunal erred in relation to s 424A and Scarlett FM failed to take that error into account, is not particularised and is so broad in its claim as to be almost meaningless. If the appellant is referring to the information contained in the letters of October 2005, then in my view there is nothing to add to the findings of Scarlett FM in this regard discussed earlier in this judgment. However at the hearing, Mr Bevan for the Minister referred to the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , and submitted that, on a generous reading, the appellant could be advancing an argument that the issues upon which the Tribunal based its findings on credibility were not raised or noted to him. In SZBEL [2006] HCA 63 the High Court observed that: &#8226; in cases before 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" (at [33]) &#8226; "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'" (at [35]) &#8226; when it is said, as occurred in SZBEL [2006] HCA 63 , that the appellant was not put on notice by the Tribunal that his account of certain events would be rejected as "implausible", and that this conclusion was "not obviously ... open on the known material", the focus of the contention must fall upon what was "obviously ... open" in the Tribunal's review. That can be identified only by having regard to "the issues arising in relation to the decision under review" (at [38]) &#8226; in SZBEL [2006] HCA 63 the Tribunal did not say anything to the applicant at the hearing which would have revealed to him that it was treating certain otherwise unidentified issues as "live issues" influencing its decision ([at 43]) &#8226; accordingly, the High Court held in SZBEL [2006] HCA 63 that the Tribunal did not accord the appellant procedural fairness, and the Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review ([at 44]). 19 In the case before me it appears from the recounting of events which took place at the hearing by the Tribunal which recounting was not challenged by the applicant that all issues impacting on the decision of the Tribunal with respect to the credibility of the appellant were aired at the hearing, and the subject of submissions by the applicant during the hearing. Accordingly, in my view the facts of SZBEL [2006] HCA 63 , and the reasoning of the High Court, are not relevant in this case. 20 In my view the grounds of appeal have no substance, and the appeal should be dismissed with costs. ORDER 1. The name of the first respondent be amended to read Minister for Immigration and Citizenship. 2. The appeal be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 22 March 2007 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: H Bevan Solicitor for the Respondent: Sparke Helmore Date of Hearing: 26 February 2007 Date of Judgment: 22 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/403.html