Case: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; 235 ALR 609
Outcome: followed
In relation to the requests for adjournments his Honour found that the method in which they were dealt with did not constitute a failure to provide a hearing under s 425 of the Act but rather fell more within the ambit of a question of apprehended bias which the appellant had not pursued. His Honour stated that the conduct of the Tribunal was not sufficient to give rise to an apprehension of bias. He noted the appellant's evidence that was presented during the hearings. In relation to the appellant's claims that he should have received a s 424A notice in relation to the Tribunal member's findings that some of his claims were inconsistent and the fact that the Tribunal did not accept his wife's evidence, his Honour applied SZBYR v The Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 and held that s 424A did not apply in relation to inconsistencies in evidence or concerns regarding credibility. 17 His Honour also noted that the appellant and his wife were aware of this issue throughout the hearing process and were able to respond as they saw fit. Further, the Federal Magistrate found that the evidence given by each of the parties went to credibility and s 424A did not require the Tribunal to notify the appellant' or the appellant's wife that it had rejected the evidence of the other. 18 The notice of appeal to this court was filed on 12 December 2007. The appellant claimed that the Federal Magistrate failed to consider all of the issues relating to procedural fairness, failed to consider all of the grounds in the appellant's amended application dated 29 March 2007 and erred in making findings in relation to s 424A of the Act . Those findings concerned the issue of whether the date of the appellant's passport went to the appellant's credibility and an asserted requirement that the tribunal send a s 424A notice to the appellant's wife. 19 At the hearing this morning, counsel for the appellant developed three arguments. The first related to alleged breaches of the requirements of s 425 of the Act . The second alleged that there were certain breaches of the requirements of s 424A of the Act and the third was that two of the grounds appearing in the application for review before the Federal Magistrates Court were not dealt with by the Federal Magistrate. 20 I will deal first with the s 425 point. Section 425 of the Act provides that the "Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review". Counsel pointed to three matters which it was said gave rise to a constructive failure on the part of the Tribunal to observe the obligations imposed on it by s 425. The first was the refusal by the Tribunal at the end of the February hearing to accede immediately to an application made on the appellant's behalf for an adjournment of the hearing so that he could confer with his wife and return and give additional evidence if so minded. 31 There was therefore no occasion, in my opinion, under s 424A(1) for the notice to be given. There is another reason why that was not necessary. That reason is provided by the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; 235 ALR 609 to which the learned Federal Magistrate referred, which makes it plain that where issues of credit are involved s 424A(1) is not engaged. 32 The second contravention of s 424A that was relied on was, as I have indicated, a failure to put to the appellant a statement appearing in support of his original application for a protection visa. That statement may have served as an antidote or partial antidote to the Tribunal's opinion that the appellant had given internally contradictory evidence by, on the one hand, asserting, as the Tribunal understood him, that he obtained a passport and a visa to enable him to leave Turkey after there had been a visit to a family home by police officers, which was not accepted because the passport on which the appellant travelled bore a date which indicated that it had been issued before the alleged incident with the police officers in Turkey. 33 For the purposes of s 424A it is first to be observed that there is no reference at all to the statement in the Tribunal's reasons and in any event it was plainly not a piece of information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review. Further, the issue went to credit and for reasons already given, the High Court's decision in SZBYR makes it clear that in such cases no obligation arises under s 424A(1). 34 The final matter that I mention in this context was that the issue concerning the date of the passport was expressly raised in a s 424(A)(1) letter sent to the appellant and a full opportunity was given to the appellant to resolve the apparent inconsistencies. He did not do so. The letter, as it happens, was sent before the High Court decision in SZBYR was handed down and in all probability, had the Tribunal been aware of the High Court's decision, it may well have chosen not to send the notice anyway. The arguments advanced in support of the second ground are therefore rejected. 35 The third ground may shortly be dealt with. It is that grounds four and five in the appellant's amended application to the Federal Magistrates Court were not dealt with by the Magistrate. The two grounds appearing in those paragraphs were grounds dealing with alleged abuse of Kurds in Turkey based on country information, and secondly, an allegation that there was no evidence to support the Tribunal's findings that the applicant did not belong to a particular social group. 36 The Federal Magistrate's reasons record at paragraph 5 that counsel for the appellant submitted that his argument related to two areas. The first was procedural fairness and the second the operation of s 424A. Counsel, who appeared in this Court today and who was the same counsel who has appeared before the learned Federal Magistrate, confirmed that that indeed was what he advised the Court and that he did develop those two issues. Grounds four and five were not referred to in oral argument and an examination of the written submissions advanced by counsel for the appellant before the Federal Magistrate confirms that insofar as the matters raised by these grounds were referred to, they were referred to in the context of developing points under s 424A of the Act and were not pursued as separate arguments.