Case: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 , 164 FCR 14
Outcome: followed
Insofar as the second contention is concerned, it may be accepted that the Tribunal carries out an " inquisitorial process ": SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8. Allsop J there observed: [53] ... the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Pt 7 of the Migration Act . This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. ... ... [57] These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process... [58] This inquisitorial function has become relevant in a number of contexts. In Applicant S 217 CLR 387 at [76] McHugh J said: If the Tribunal had considered the issue that it was legally required to consider, it was open to the Tribunal to investigate whether such a perception existed, whether within the Afghan society or some section of it, or objectively. Indeed, arguably in the context of its inquisitorial process, the Tribunal had a duty to seek evidence concerning this vital matter. See also: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60 at [58] , [2003] HCA 60 ; 201 ALR 437 at 450 1; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [73] , [2004] HCA 32 ; 207 ALR 12 at 30 3. 16 A general answer may be provided to the alleged " duty to investigate ": even though the Tribunal performs an " inquisitorial function ", the primary responsibility nevertheless remains upon an applicant appearing before it to present such evidence and to advance such submissions as are considered relevant to his claims. It is no part of the task of the Tribunal to make out an applicant's case for him: cf Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550. Mason J there observed at 587: ... The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. ... And in Abebe v Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at 576, Gummow and Hayne JJ concluded that the Refugee Review Tribunal was not in the position of a contradictor. Their Honours held that it was: ... for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out. See also: Brehoi v Attorney-General of the Commonwealth [2000] FCA 1747 at [35] per Hely J. The legislative requirement is that an invitation must be extended to an applicant " to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review ": Migration Act , s 425(1). This right is " clearly an important and central right " in the review system established by Part 7 of the Migration Act : Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 at [44] , [2001] FCA 1362 ; 113 FCR 541 at 552; Amankwah v Minister for Immigration and Multicultural Affairs [1999] FCA 1162 at [13] , [1999] FCA 1162 ; 91 FCR 248 at 251. And the obligation imposed upon the Tribunal is an obligation to give a " real and meaningful invitation to comment ": SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8 per Allsop J.