Case: SZBEL v MIMIA [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: applied
The appellant submits that the Tribunal decision is infected by jurisdictional error for failure to comply with s 425 of the Act. The appellant contends that the Tribunal failed to identify the issues that arose in relation to the decision under review and failed to take the steps necessary to identify the issues other than those that the Delegate considered dispositive ( SZBEL v MIMIA [2006] HCA 63 ; (2006) 231 ALR 592 at [35] ). She says that it failed to ask her to expand upon those aspects of her account that it considered may be important for the decision and may be open to doubt ( SZBEL at [47]). 14 In SZBEL at [36], the High Court observed that an applicant for review of a Delegate's decision 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, unless the Tribunal tells the applicant something different. At [47], the High Court acknowledged that there may be cases where the Tribunal's statements or questions during a hearing sufficiently indicate to an applicant that everything she says in support of the application is in issue. Where there are specific aspects of an account that the Tribunal considers important to the decision and open to doubt, the Tribunal is obliged to ask the applicant to expand on those aspects and explain why the account should be accepted. 15 As the High Court reaffirmed in SZBEL at [26], the particular content to be given to the requirement to accord procedural fairness will depend on the facts and circumstances of the particular case. The Tribunal is required to identify any issue critical to the decision (at [29], citing Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 2). In identifying the requisite opportunity to be heard, the applicant is entitled ' to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material ' ( Alphaone at 590-1; SZBEL at [32]). The High Court (at [33]) emphasised the importance of the reference in s 425 of the Act to ' the issues arising in relation to the decision under review '. 16 Section 425 requires that the appellant understand the issues that are relevant to the Tribunal in its function of reviewing the Delegate's decision. Where the Tribunal made it clear that it was "starting afresh", the appellant could not have assumed that the reasons given by the Delegate would identify for her the issues that arose in relation to that decision because she was not aware of the content of that decision. Accordingly, the Tribunal made it plain to the appellant that all issues identified in her application for a protection visa and the further issues raised at the hearing were, within the context of s 425 , the issues that arise in relation to the decision under review. ' It is those issues which will determine whether rejection of critical aspects of an applicant's account of events was "obviously...open on the known material" ' ( SZBEL at [38]). If every aspect of the claim is in issue or if an issue is made clear to the applicant, it is then open to the Tribunal to accept or reject some or all aspects of the applicant's account ( SZBEL at [39]). 17 The relevant issues can be ascertained from the reasons for the Tribunal decision. The appellant identifies the issues, that she says should have been identified, as relating to: (a) the appellant's practice of her Christian faith in Australia; and (b) the appellant's willingness to risk her livelihood and to endanger her dependent child to assist her friend when the potential consequences of this choice were known to her. 18 The appellant submits that, by reason of s 425 of the Act, the Tribunal was not entitled to relieve itself of the obligation to deal independently with the decision under review, the decision of the Delegate. In circumstances where the Delegate had accepted the appellant as a Christian and made no adverse finding as to her credibility, the appellant contends that she had no reason to believe that she would be disbelieved on this issue. Consequently, the appellant says that she would have been entitled to believe that, on review of the Delegate's decision by the Tribunal, there was no additional issue to be addressed ( SZBEL at [35]). 19 When the appellant told the Tribunal that she was unaware of the Delegate's reasons for decision, the Tribunal did indicate to the appellant that it was looking at the matter afresh, without reference to the Delegate's decision. The issue of the appellant's own practice of the Christian faith, which she began to practise in Australia, was first raised by the appellant at the hearing before the Tribunal. It was not raised before the Delegate. The Delegate's decision was based upon the appellant's claim to be a Christian in China. That was not her claim to the Tribunal. The appellant clearly stated that she was not a Christian while in China. The Tribunal was entitled to consider the claim made to it. Where that conflicted with the basis for the Delegate's decision, the Tribunal was entitled to disregard that decision and the apparent inconsistency in circumstances where the issues before the Tribunal were as presented by the appellant to the Tribunal. 20 The appellant accepts that the Tribunal asked her about her experiences at the Blacktown Screaming Sect but says that at no stage did the Tribunal put her on notice that she would be disbelieved, or that the perceived paucity of the information she provided would be the basis for an adverse finding as to her credit; the Tribunal did not challenge her evidence, express any reaction or invite her to amplify her account. 21 As the issue was raised for the first time before the Tribunal, the appellant should have been in no doubt that it was an issue arising in relation to the Tribunal's consideration and in relation to the decision under review. Therefore, she could not have assumed that it was not in issue because of the Delegate's decision. The Tribunal asked the appellant a number of questions about her understanding of Christianity and her practice of it, to which the appellant responded. The issue was clearly raised. The tenor of those questions made it apparent that the Tribunal did not accept the mere assertion and was testing it. The Tribunal was not obliged to explain its reasoning or its thinking to the appellant. 22 The appellant says that the Tribunal did not specifically tell her that it disbelieved her account of her practice of Christianity. That is correct. However, the practice of Christianity in Australia was not a basis of the appellant's claim to have a well-founded fear of persecution on her return to China. She did not make that claim at the hearing. She spoke of her practice in Australia in response to the question ' are you a Christian? '. Her response was ' I wasn't a Christian when I was at home. I became a Christian after I arrived in Australia '. In her visa application, the appellant said ' I have been regarded as a person to smuggle the illegal Bible from the overseas to China; and it means that I must be arrested by the Chinese government immediately on my return '. That is, it was her past involvement in Bible smuggling and not her present practice of Christianity that founded her claimed fear of persecution. The Tribunal did, however, consider her claim to practise Christianity and rejected it, based on its conclusions about the appellant's credibility. 25 The Tribunal clearly put the appellant on notice that it was having real difficulty in accepting that she would take the risk of being involved in a smuggling operation and being the target of the PSB. Those statements and questions by the Tribunal sufficiently indicated to the appellant that everything she said on this subject was in issue ( SZBEL at [47]). The issue for the Tribunal was whether to believe the appellant. That raised the issue of whether she would have smuggled Bibles in view of the potential risk. The question is whether the fact that she had a business and a dependent child were issues in themselves or factual matters that related to the issue of risk. If they are factual matters that go to the issue arising in relation to the decision under review (ie, risk generally), the Tribunal is not obliged to put each of those factual matters to the appellant. The Tribunal is obliged to inform her of the issue but not of each fact that relates to it. 26 Was the risk to the business and the child, independently of the general issue of risk, important to the Tribunal decision and open to doubt? If so, the Tribunal should at least have asked the appellant to expand on those aspects and to explain why the account should be accepted ( SZBEL at [47]). This is not to require the Tribunal to give the appellant a ' running commentary ' upon its thinking ( SZBEL at [48]). 27 There is no doubt that the Tribunal considered it important that the risks involved with smuggling Bibles weighed against the appellant's asserted reason for engaging in that activity. That reason was that her friend, with whom she had a commercial arrangement, had assisted her financially to establish a business. The existence of risk was an important factor in the rejection by the Tribunal of the appellant's claim to have been involved in the smuggling. After stating the various factors, the Tribunal said that: ' the Tribunal does not accept that armed with this knowledge ', that her friend had had to flee the country and another person had been sentenced to three years in a labour camp, ' that the [appellant] would take the risk of being involved in a smuggling operation that had been the target of the PSB '. After stating this conclusion, the Tribunal noted that the appellant had a business and an eleven year old dependent child and said that it ' cannot accept that the [appellant] would become involved in this activity given her knowledge of the adverse consequences of this type of activity '. 28 In the context of the Tribunal decision, the business and the child were not the issues on which the decision to reject the appellant's claim were based. They were not determinative but additional factual matters that elaborated the matters to be balanced against the risk. The key point in the Tribunal's assessment was the fact that there was a risk to the appellant and, in those circumstances, it did not accept that there was sufficient reason for her to take such a risk. The appellant was directed to that issue at the hearing, asked about it and told that the Tribunal found it difficult to accept her evidence. The Tribunal did not fail to comply with s 425 of the Act in this regard.