Case: SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: referred to
The appellant submitted that there had been a denial of procedural fairness in light of the principles applied in SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 ; (2006) 231 ALR 592 because the Tribunal had rejected the appellant's claims on five grounds which were not obviously open to it on the material presented to it. 14 Barnes FM found that the Tribunal placed the appellant on notice by both the first s 424A(1) letter and the second s 424A(1) letter that the Tribunal might not have a further hearing and gave the appellant an opportunity to address the issues of concern to the Tribunal. Barnes FM found that there was no error in the exercise of discretion by the Tribunal to not hold a second hearing. 15 Barnes FM found that s 424C(1) of the Act applied because the appellant had been invited to give additional information and had not given it within the time provided. Accordingly, pursuant to ss 425(2)(c) and 425 (3) the appellant was not entitled to appear before the Tribunal. Her Honour contrasted the situation in SZBEL [2006] HCA 63 ; 231 ALR 592 to the circumstances in the case before her, observing that in the present case there was no existing obligation upon the Tribunal to invite the appellant to a hearing and to give evidence and present arguments in relation to the issues under review. Her Honour also found that it had not been established that the Tribunal made its decision on the basis of matters not obviously open on the material before it. Accordingly, no lack of procedural fairness was established and Barnes FM dismissed the application. 16 The Notice of Appeal to this Court raises two grounds as follows: 17 The appellant submitted that the Tribunal failed to take into account, when assessing his Application for Review, the fact that he had sent documents to the Tribunal on 23 August 2005. However it was pointed out to the appellant that the Tribunal's decision referred to the documents which he had forwarded and made specific reference to each of them in its decision. 21 The appellant's first ground of appeal claims that the Tribunal failed to identify to him five bases upon which it made its decision. The first basis for the Tribunal's decision which the appellant claims was not identified to him was the finding that the threat of harm to the appellant in relation to the horse theft was not related to a Convention reason. Barnes FM noted that this issue was raised at the Tribunal hearing and that the Tribunal had written to the appellant informing him that it would listen to the tapes of the first Tribunal hearing and give the appellant an opportunity to comment on that decision. It was clear that the basis for the appellant's claimed persecution was in issue: see SZBEL [2006] HCA 63 ; 231 ALR 592 at [36] . 26 It is apparent that the issues of concern to the Tribunal were made abundantly clear to the appellant by the first s 424A(1) letter and the second s 424A(1) letter. The appellant's responses to the Tribunal's invitation to comment addressed those issues. In SZBEL [2006] HCA 63 ; 231 ALR 592 which applied the decision of the Full Court of this Court in Alphaone 49 FCR 576 the Court held that a tribunal is not obliged to put to an applicant its own appraisals of the material before it unless they are not an obvious and natural appraisal of that material. The meaning of obvious and natural in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108. In Re Minister for Immigration and Multicultural and Affairs; Ex parte S154/2002 (2003) 77 ALJR 1909 at 1923 [86] Kirby J said: The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice .