Case: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553
Outcome: applied
SZLLY v Minister for Immigration and Citizenship [2009] FCA 185 ; (2009) 107 ALD 352 at [19] , Perram J observed that: The Full Court's decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 establishes three propositions which are pertinent. First, the invitation contemplated by section 425 must not be a hollow shell or an empty gesture: at [33]. Second, another way of putting the first requirement may be to say that the tribunal must provide a 'real and meaningful' invitation: at [37]. Third, what is real and meaningful is to be objectively determined and the obligation exists whether or not the tribunal is aware of the circumstances which would defeat that obligation: at [37]. Like Perram J in SZLLY, I am bound by the Full Court's decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553. Even if it were open to me to embark upon a debate as to the correctness of that decision and. constituting the appellate division as a single judge I do not consider that it is open, the circumstances of this case do not give rise to a violation of the hearing invitation requirement in s 425. A hearing date was reasonably offered and no advantage was taken of it. Even objectively, there is no basis for apprehending a breach of s 425 based on circumstances prevailing at the time but unknown to the Tribunal. There was no obligation on the part of the Tribunal, that hearing having long since past, even to consider whether or not to defer the making of a decision pending the taking of oral evidence from the witness named in the Appellant's letter of 17 October. The position might have been different, for example, had there been an explanation in the letter of 17 October as to why that witness had not hitherto been available and details given of exactly the evidence the witness proposed was to give. What remains then is a complaint concerning the rejection by the Tribunal of an information report regarding the kidnapping of the Appellant's brother. It is not apparent that this ground was one pressed in the proceeding before the Federal Magistrate, although that might just perhaps be a matter of inadequacy of command of language on the part of an Appellant who has some knowledge but an incomplete knowledge of English. It is important though to remember that the jurisdiction exercised by this Court is appellate, not original, in respect of matters such as this. The short answer, in any event, to the second ground of appeal is that, having regard to the Tribunal's reasons, it was open to the Tribunal to reach the views that it did. The Tribunal is not obliged on the strength of a review application alone to be satisfied in terms of a protection obligation existing. It is for an applicant to put such material as he or she is able to engender that state of satisfaction. That ability includes an ability on request to attend at a hearing. It also extends to making a response to s 424A request for information. The appellant did not take advantage of either of these opportunities. The views that the Tribunal reached were reasonably open to it on the basis of the material that it had.