Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: cited
SCAR is consistent with the approach adopted more recently by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 (" SZBEL "). SZBEL confirms that conformity with s 360(1) requires the provision of an in-substance opportunity to give evidence and present submissions. At the heart of the reasoning in the joint judgment of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ is the proposition, at 600, that: "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'. The reference to 'the issues arising in relation to the decision under review' is important." (Emphasis original) This reference to s 425(1) applies equally to s 360(1) of the Act . 24 The issues to which ss 425(1) and 360 (1) refer are to be identified by the tribunal: see SZBEL at 600. Thus, at 602, the joint judgment said: "First, there may well be cases, perhaps many cases, where either the delegate's decision, or the tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor. 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 original) This does not mean that the Tribunal is required to comment on what it thinks about the evidence that is given as it is given. It does mean, however, that the Tribunal must conduct itself in a way that takes account of the inquisitorial nature of its review process: cf ss 361(3) , 362 (2) and 363 (3). 25 In the circumstances of SZBEL , the Full Court held that the review applicant was not on notice that two aspects of his account were in issue because the primary decision-maker had not based his decision on them, and the Tribunal did not identify them as important issues: see SZBEL at 602. The Full Court held that the Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about these issues. 26 I accept, as the first respondent submitted, that there is no scope for the operation of the common law notions of procedural fairness outside the specific provisions of Div 5 of Pt 5 of the Act because s 357A applies in the present case: cf ss 357A and 422B ; see also Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at 225-226 per Heerey, Conti and Jacobson JJ and NKBT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [85] per Young J with whom Gyles and Stone JJ agreed. I also accept, as the first respondent submitted, that the reasoning in the joint judgment in SZBEL refers to general principles of procedural fairness. This is unsurprising because s 422B (which is equivalent to s 357A) did not apply in SZBEL . I do not accept, however, that, on account of this, I should have no regard to SZBEL in this case. As I have sought to show, the reasoning in SZBEL in fact depends on the language of s 425(1) , which was said to define the nature of the opportunity to be heard. 31 In this case, the Tribunal did not mislead the appellant in the way contemplated by Lindgren J's example in NAQF (see above at [22]). It has, however, deprived the appellant of an in-substance opportunity to present evidence and argument as effectively as the conduct at issue in SZBEL . The Tribunal in this case identified only one subject as an issue arising in relation to the decision under review. This subject, Ms Tong's communications in 2003, monopolized the Tribunal's attention with the result that it did not identify for the appellant the other issues arising on the review, in order that the appellant might address them by evidence or argument. This constituted a breach of s 360(1) of the Act and jurisdictional error.