Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Outcome: discussed
425(1) obliges the Tribunal to invite the applicant to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review. The nature and extent of that obligation, in the sense of the Tribunal putting the applicant on notice as to the matters he should address at the hearing, was discussed by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [35] , [36] and [47]. In particular, at [36] the Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) said: Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision. It is appropriate, where there has been a remittal of an earlier decision of the Tribunal, to apply that observation to the reasons given by the Tribunal as earlier constituted, provided of course that the reasons for that decision being quashed do not negate the relevant earlier reasons. The problem here, however, is not that the Tribunal did not ask the applicant to expand on those aspects of his claim based upon his asserted political beliefs which would lead him not to undertake further military service and to explain why that account should be accepted. The problem here, as I have found, is simply that the Tribunal appears not to have recognised that the applicant did expand on that aspect of his claim as it did not then consider whether to accept his evidence or to consider its consequences. In my view, the Tribunal's error was not in failing to fulfil the requirements of s 425. It is a different one. For those reasons, I direct that the decision of the Tribunal given on 7 July 2008 be quashed, and the matter constituting the review instigated by application made on 25 May 2007 be remitted to the Tribunal again for consideration according to law. The Minister should pay to the applicant his costs of the application. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 27 May 2009 Counsel for the Applicant: S Ower Solicitor for the Applicant: McDonald Steed McGrath Counsel for the Respondents: C Bleby Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 27 April 2009 Date of Judgment: 27 May 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/554.html