Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152
Outcome: followed
Minister argued that the tribunal's questioning and statements about the appellant's apparent lack of effort was a sufficient indication to him that his lack of exploration of his being able to go to the Philippines or Ms L's and their daughter's being able to come back to Australia was an issue for the purposes of s 425(1) of the Act. In SZBEL (2006) 228 CLR 512 at 165-166 [47] Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said that the tribunal's statements or questions during the hearing could sufficiently indicate to an applicant for review that everything he or she said in support of the application was in issue. Such an indication could be given in many ways and no particular formula of words was required. However, the questions put to the applicant for review must, taken as a whole, put him or her on notice of the tribunal's concerns. Their Honours said that if there were specific aspects of an applicant's account that the tribunal considered may be important to the decision and open to doubt, it must at least ask the applicant for review to expand upon those aspects of the account and ask him or her to explain why the account should be accepted: SZBEL 228 CLR at 166. In my opinion, the appellant's argument fails. His Honour was correct to hold that the tribunal had not failed to comply with s 425 of the Act and that this ground should be dismissed. The tribunal sufficiently raised its concerns about the appellant's apparent lack of effort to explore other means of being with Ms L and their daughter. It questioned the appellant directly about his exploration of the possibility of him living in the Philippines. The tribunal made the comment that he had not made much apparent effort to be with his family. And it referred to the fact that he had not seen Ms L for about nine years, was not aware of any enquires that she had made about her coming to Australia and had made no enquiries about his going to the Philippines. The tribunal told him: " It seems to me that you don't really have the intention of living together , given that you have been living apart for 8 years, even though you talk to each other and send photographs to each other and you support her financially. But how can I be satisfied given that if you do have to return to Bangladesh that she will come with you ." (emphasis added) Given the real possibility that if the appellant's claim for a protection visa were rejected, he would have to return either to Bangladesh or travel to the Philippines, his lack of any enquiries over a lengthy period to make arrangements to be with the persons he claimed he loved so much that they would live together as a family, was a matter which the tribunal had fairly raised during the course of the hearing. Moreover, I am of opinion that there was no reason to consider that the tribunal's exploration of this issue was not a legitimate approach open to the tribunal to assess the appellant's claim. The appellant argued that Ms L's evidence to the tribunal of the steps she had taken to come to Australia and the reason she gave it for not telling him about those steps was "information" that formed part of the reason for its rejection of the appellant's claim within the meaning of s 424A(1). He argued that the tribunal took into account his apparent unfamiliarity with the steps undertaken by Ms L to seek residence in Australia in forming the view that their relationship was not of the close kind that he asserted. In that context, he contended that the tribunal committed a jurisdictional error in failing to comply with s 424A in respect of this information.