Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 47
Outcome: followed
While it may be that a Tribunal must notify an appellant adequately of the issues to which its reasoning processes might be directed, 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 he has given of certain events. Proceedings before the Tribunal are not adversarial and the Tribunal is not to adopt the position of the contradictor (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 47). There was no error on the part of the primary judge in his conclusions. 13 The primary judge also considered other possible jurisdictional errors on the part of the Tribunal of which there was no suggestion in the appellant's application of 12 April 2006. There is no apparent error in his Honour's observations on those matters. 14 The grounds stated in the notice of appeal are as follows: "I do not believe that Federal Magistrates Court give me a fair judgment of my protection visa application. I am a Falun Gong member and I will be prosecuted if I go back to China. It is wrong that RRT member did not invite me to comment on any doubts she had during or after hearing. I did not have any chance to explain. RRT member also believes that my evidence seemed rehearsed without any evidence. Court should listen to the tape of RRT hearing and know what is really happening on that day." The grounds are not helpful, but appear to be an assertion that the Federal Magistrates Court erred in failing to hold that the Tribunal committed jurisdictional error by not inviting the appellant to comment on doubts as to the appellant's credibility. I have already referred to that matter. 15 In any event, whether or not such an omission could constitute jurisdictional error, it does not appear to be the case here. That is to say, the reasons of the Tribunal suggest that it put in express terms to the appellant its concerns about inconsistency between his evidence and independent information. There was no error on the part of the Federal Magistrates Court. 16 The appeal should be dismissed with costs. The Minister asks for costs in the fixed amount of $3,200. While there is no evidence as to the reasonableness of that fee, I am not persuaded that it is unreasonable. In the absence of the appellant it seems to me to be appropriate to accede to the Minister's request in order to avoid unnecessary further costs. I order the applicant to pay the first respondent's costs in the sum of $3,200. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 28 February 2007 The Appellant did not appear. Solicitor for the Respondent: Sparke Helmore Date of Hearing: 15 February 2007 Date of Judgment: 15 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/229.html