Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152
Outcome: cited
I should refer to the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152. In the course of considering the present appeal I became concerned by the fact that the decision made no reference to s 422B , although the Tribunal hearing had apparently taken place after the commencement of that section. I wrongly assumed that as s 422B is a procedural section, it would have applied to all hearings taking place after its commencement. However Mr Knackstredt has pointed out to me that the amending legislation expressly provided that it apply only in connection with applications made on, or after, its commencement. 36 The outcome of this case is by no means satisfactory in the administration of justice. Experience suggests that it is only on rare occasions that applicants will seek to cross-examine witnesses in the Tribunal. It may be said that if it is allowed in one case, it will become more common. There may be a degree of truth in that. However it is impossible to overlook the frustration and dissatisfaction which must be caused to an applicant for a protection visa where his or her claim is significantly undermined by evidence from a witness whom he or she may not even know, and whose evidence is not to be tested in any objective way. The right to face and challenge one's accuser or opponent is a fundamental aspect of the public trial process, on both the civil and the criminal sides. Although the Tribunal process may not be adversarial, the matters which it decides are of great importance for the parties, particularly for applicants. The Tribunal cannot, and should not, assume its own omniscience. It may know little or nothing about the motivation of a witness who gives damning evidence about a protection visa applicant. Experience suggests that one way of testing such evidence is to allow cross-examination. I do not suggest that Mrs Sun should have been treated as being in any way a suspect witness. However one can understand why the appellant was not satisfied by the way in which the Tribunal decided to act to his detriment in reliance on her evidence. 37 Whilst one would not like to encourage lengthy and unnecessary cross-examination in connection with visa applications and review proceedings, each case must be approached on its merits. I am inclined to think that in this case the merits lay in the direction of allowing a limited degree of cross-examination. It is a great pity that the appellant has been deprived of that opportunity. However, given the limited availability of judicial review, I can see no basis for intervening. 38 In the circumstances the appeal must be dismissed. I once again thank counsel for their enthusiastic assistance in this matter. I will hear submissions as to costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 2 October 2008 Counsel for the Appellant: Mr BP Jones (Pro Bono) Counsel for the First Respondent: Mr JP Knackstredt Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent did not appear Date of Hearing: 8 May 2008 Date of Judgment: 2 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1474.html