Case: SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138
Outcome: referred to
The scope of s 425 of the Act has been considered recently by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 and by the Full Court of this Court in SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138. Relevantly, for the purposes of this case, the following principles emerge: (1) On a matter being remitted to the Tribunal after a successful application for constitutional writs, the Tribunal must issue a further invitation to appear unless one of the exceptions in s 425(2) applies: SZHKA at [23] per Gray J; at [26] per Gyles J. (2) In SZBEL the High Court decided that an applicant for review was entitled to know of the issues arising in relation to the decision under review so that he or she is able to give evidence and present arguments relating to those issues. That entitlement arose by reason of the common law rules of procedural fairness and s 425. SZBEL was decided in a statutory context which did not include the present s 422B. An applicant is entitled to assume unless advised to the contrary that the issues before the Tribunal are those matters identified in the reasons of the delegate. In SZBEL the High Court did go on to say the following (at 165-166 [47]): 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, as here, there are specific aspects of the 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. I see no reason why for the purposes of these principles an issue may not be identified by questions asked at a previous hearing of the Tribunal as well as by the reasons of the delegate. In this case that means that the Court can look at the questions asked at the hearing before the second Tribunal. (3) In SZHKA , Gray J and I took the view that if an issue within s 425(1) emerges after an invitation to appear and hearing, then the Tribunal must issue a further invitation to appear. I take the liberty of repeating what I said at [103]: An invitation to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review is an essential part of the review conducted by the Tribunal and if an issue in relation to the decision under review emerges after the hearing conducted by the Tribunal then, in my opinion, a second invitation to appear must be given. I would add the following observations on the third argument advanced by the first respondent. The argument assumes that a broad meaning is to be given to the word issues in s 425(1) and that there is a far-reaching obligation on the Tribunal to advise the applicant for review of the issues. Those assumptions require examination. In order to succeed in showing that s 425(1) has not been complied with, an applicant for review must show that there is a matter which is an issue arising in relation to the decision under review and that he was not given the opportunity to appear before the Tribunal to give evidence and present arguments relating to that issue because it was not apparent to him that it was an issue and he was not warned by the Tribunal that it was or may be an issue. That is the nature of the obligation, although it must be accepted that questions of fact and degree will often be involved. Furthermore, there is a distinction between evidence relating to an issue and the issue itself and it seems to me that not every matter which might engage the obligation in s 424A involves a new issue or a further issue or a previously unidentified issue. I then went on to set out the passage from the reasons for judgment of the High Court in SZBEL set out in [11(2)] above. 12 There is a point of difference between this case and the circumstances in SZKHA . In SZHKA the second Tribunal, that is, the Tribunal constituted by a member to hear the application after it had been remitted to it, did not give the applicant for review an invitation to appear. In this case, the Tribunal as constituted after the application had been remitted to it for the second time did give the appellant an invitation to appear and it advised him that it could not make a decision in his favour on that information alone. He chose not to appear at a hearing where the alleged issues might have been raised with him. I refrain from deciding if this is a material point of difference. I do not need to decide the point for reasons which will appear. 13 In my opinion, in so far as the matters raised in the Tribunal's s 424A letter were issues within s 425 , they would have been apparent to the appellant before the Tribunal sent its invitation to appear to him and the obligation in s 425(1) was not reactivated by the identification of the matters in the Tribunal's s 424A letter. 14 The issues must be identified by reference to the Tribunal's reasons and I have already identified the relevant passages in [6] above. In my opinion, it is clear from the Tribunal's description of the matters raised with the appellant by the second Tribunal that those issues would have been apparent to the appellant before he received the invitation to appear. It is clear that at the hearing before the second Tribunal he was closely questioned about the alleged incidents in 2003 and the information contained in the three medical certificates. The only matters mentioned in the Tribunal's s 424A letter which appear not to have been raised at the hearing before the second Tribunal relate to the fact that the certificates are all dated the same day and were not given to the first Tribunal. Those two matters are not sufficient to reactivate the obligation in s 425(1) because they were not relied on by the Tribunal, or, even if they had been, they are so intertwined with the other matters which were apparent to the appellant that they that are not of themselves issues.