Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152
Outcome: discussed
Section 425(1) requires only that the Tribunal "invite" the applicant to appear to give evidence and present arguments. The appellant did not claim that she had not received an appropriate invitation. The appellant rather submitted that neither in the relevant invitation, nor at the hearing, was she given sufficient notice that the Tribunal might decide the case by reference to the various issues identified in the first ground. This complaint arose primarily out of the reasoning of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152. The circumstances giving rise to that case are briefly summarized in the reasons at [3] and [4] as follows: 3 The Tribunal wrote to the appellant telling him that it was unable to make a decision in his favour on the information he had supplied, and invited him to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425(1)). The appellant took up this invitation and appeared before the Tribunal in February 2003. The Tribunal member began proceedings by telling the appellant that on reading all of the material, she was not able to be satisfied that the appellant qualified for a protection visa. The Tribunal member then asked the appellant questions that elicited from him the same description of events as he had given in his statutory declaration. At no stage did the Tribunal challenge what the appellant said, express any reaction to what he said, or invite him to amplify any of the three particular aspects of the account he had given in his statutory declaration, and repeated in his evidence, which the Tribunal later found to be "implausible". Rather, the first the appellant knew of the suggestion that his account of events was implausible in these three respects was when the Tribunal published its decision. 4 Did the courts below err in holding that the Tribunal had not denied the appellant procedural fairness? 47 It seems that, as in the present case, no reference was made to s 422B or to s 424A , although both were then in force. Indeed, at [29], the Court said: No submission was made on behalf of either the appellant or the Minister that the existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Act. Rather the argument proceeded, for the most part, by reference to what had been said by the Full Court of the Federal Court in Alphaone ... . The Full Court (Northrop, Miles and French JJ) said ...: "Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (Original Emphasis) 48 In SZBEL at [33]-[35] the High Court said: 33 The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425(1) (emphasis added). The reference to "the issues arising in relation to the decision under review" is important. 34 Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons. 35 The Tribunal is not confined to whatever may have been the issues that the delegate considered. 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". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. (Original Emphasis) 49 Section 425 offers guidance as to the requirements of procedural fairness in proceedings which follow an invitation pursuant to that section. The High Court considered that the Tribunal had failed to extend the degree of procedural fairness implicitly contemplated by s 425(1). The decision does not mean that all relevant matters in dispute must be raised in an invitation issued pursuant to s 425(1). Notice of a particular issue may be given in the course of the hearing. I do not understand the appellant to have submitted to the contrary.