Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2006] HCA 63 ; (2006) 228 CLR 152
Outcome: applied
The appellant relies upon SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2006] HCA 63 ; (2006) 228 CLR 152 in which the High Court of Australia held that the Tribunal erred because it did not challenge or express any reaction to answers provided by the appellant and later rejected claims which had been accepted by the delegate. 37 In SZBEL the High Court of Australia said at [35]: 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". 38 Smith FM said at [40]: The present case has no direct parallel with SZBEL, since the Tribunal's finding which is complained of did not concern an issue of credibility which appeared uncontentious in the delegate's decision. In the present case, the applicant first presented his full claims to the Tribunal, and in particular his claim to fear reprisal from individuals in whose arrest he had been involved more than 20 years previously. 39 Contrary to such finding, and the Minister's submission that SZBEL only relates to issues of credibility, the Court finds that SZBEL does apply. The decision in SZBEL makes it plain that if the Tribunal is to determine the application before it adversely to the applicant for a specific reason, it is obliged to put that circumstance to the applicant and to invite the applicant to respond. The Court in SZBEL said at [47]: But where...there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. [emphasis in original] 40 The Tribunal letter addressed the appellant's claims relating to his fear of persecution including his claim that he feared persecution from individuals whom he had arrested, and invited the appellant to comment on such claims generally. It was necessary for the Tribunal to put directly to the appellant that one of its concerns was his inability to identify the persons who might harm him if the Tribunal was going to make a factual finding adverse to the appellant on that issue. Since the Tribunal had not specifically asked for the identity of the relevant persons at the hearing and had not requested details of such in the Tribunal letter, the appellant was not placed on notice that unless he provided such detail, the Tribunal might make an adverse finding against him. 41 The Court is satisfied that the 'issues to which those reasoning processes were directed' (see SZBEL at [21]) were not adequately notified to the appellant. The Tribunal's finding that the appellant could not 'name or identify those persons' was a finding in respect of an issue upon which the appellant had not been afforded an opportunity to respond. 42 The Court is satisfied that a breach of s 425 of the Migration Act has occurred. It follows that the appellant's appeal is upheld. The first respondent is to pay the costs of the appellant. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 17 June 2008 Counsel for the Appellant: Mr Prince with Mr Bradley Solicitor for the Appellant: Henry Davis York Counsel for the Respondent: Mr Cleary Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 21 April 2008 Date of Judgment: 17 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/910.html