Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: cited
The next step in the appellant's proposed challenge was premised upon what are said to be findings made by his Honour that the Tribunal did take account of inconsistencies between his visa application statement and his oral evidence, notwithstanding it disclaimed so doing. I will return to these findings below. What is contended is that because the Tribunal relied upon those inconsistencies in reaching its decision it was, as I noted above, obliged to put the inconsistencies to the appellant either as a matter of procedural fairness or because, in the circumstances it was required to do so by s 425 of the Act as explained in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at [33] - [36] . 30 By way of background to my consideration of that contention, I should refer to aspects of the provisions of s 422B , s 424A and s 425. Section 422B(1) of the Act provided at the relevant time: " Exhaustive statement of natural justice hearing rule (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matter it deals with." 31 Section 424A provided, insofar as presently relevant: " Applicant must be given certain information (1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; ... (3) This section does not apply to information: ... (b) that the applicant gave for the purpose of the application." 36 In SZBEL , the High Court commented of s 425 (at [33]-[36]) that: "[33] The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by 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 '. The reference to 'the issues arising in relation to the decision under review' is important. [34] Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language 'arising in relation to the decision under review' is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the minister's delegate), but also to the fact that the tribunal is to review that particular decision, for which the decision-maker will have given reasons. [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 steps 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. [36] It is also important to recognise that the invitation to an applicant to appear before the tribunal to give evidence and make submissions is an invitation that need not be extended if the tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the tribunal will begin its interview of an applicant who has accepted the tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But 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."