Case: NBKB v Minister for Immigration and Citizenship [2009] FCA 69 , 106 ALD 525
Outcome: cited
reason of s 425 , an applicant before the Tribunal is entitled to assume that issues considered dispositive by a delegate are the issues which arise in relation to the decision under review &#8212; unless the Tribunal takes steps to notify the applicant to the contrary: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152. Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ there observed: [29] 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 [ Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 591 to 592]. 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. (emphasis added) Their Honours continued: [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. See also: NBKB v Minister for Immigration and Citizenship [2009] FCA 69 at [18] to [21], 106 ALD 525 at 529 per McKerracher J. Section 425 imposes an important mandatory obligation which is more than a mere item on " a procedural check list ": SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 , 172 FCR 1 per Gray J at [8], per Gyles J at [37].