Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: followed
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 which applied the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Court held that a Tribunal is not obliged to put to an applicant its own appraisals of the applicant's evidence unless they are not an obvious and natural appraisal of such material. The meaning of natural and obvious 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 Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [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. For similar observations, see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal &amp; Torres Strait Islander Affairs [2000] FCA 1113 ; (2000) 103 FCR 539 at 557 and Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11] . 20 In SZBEL [2006] HCA 63 ; 231 ALR 592, the High Court observed of s 425 of the Act (at [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. 21 The appellant was put on notice of the issues for determination at the Tribunal hearing as demonstrated, inter alia, by the following passages from the Tribunal's decision: I told him that I understood that it was easy to get official looking documents in China which were not genuine so that I would have regard to that when I was considering whether to accept that these documents were what they were purported to be. 22 The Tribunal's decision also reveals that the appellant did not experience difficulties in understanding the interpreter at the Tribunal hearing and it specifically noted that the appellant: ... gave oral evidence with the assistance of a suitably accredited interpreter. He said that he had no difficulty understanding the interpreter and no objection to using her services during the hearing. Later, referring to the appellant's claim that his assistant in running the underground church was arrested, the Tribunal said: I told him that I was finding his evidence about her role very vague and asked him again what precisely she did when she took over the management of the orders for the paper. He responded that she was also a leader. He added nothing more.