Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592
Outcome: considered
The appellant is a citizen of Bangladesh who claimed to fear persecution from the Awami League by reason of his involvement in the Bangladesh National Party ("BNP"). He also claimed to fear persecution from Jamat e-Islam which continued to harass people opposed to its fundamentalist beliefs and against whom no protection would be afforded. The written submissions advanced by the appellant rely largely on principles set out in the High Court decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592. 3 That case dealt with the question of procedural fairness. The High Court observed that an applicant is entitled to assume that issues which a delegate considered critical are the relevant issues which arise when the decision comes under review. In the absence of any indication by the decision-maker in the Tribunal to the contrary, the Court at [35] said that: '... unless some other additional issues are identified by the tribunal ... 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.' 4 In that case at [47] the Court noted that there should be an indication by the Tribunal sufficient to show that what an appellant says in support of the application is in issue. While it is not necessary to spell out all the matters which concerned the Tribunal, where there are specific aspects of an account that the Tribunal considers may be important to the decision and which may be open to doubt, the Tribunal must at least ask the applicant to expand on those aspects and explain why his or her account should be accepted. 5 The appellant says that this was not done in this case. I have considered the reasons for decision of the Tribunal and the transcript and other documents included in the appeal papers and, having regard to the transcript in particular and to the letter sent to the appellant by the Tribunal, I consider that the appellant was sufficiently alerted, from the manner and content of the questioning, the information sought and the reasons given for seeking that information, to the issues of concern to the Tribunal member. When the matter came on for hearing the appellant was invited to make any further oral submissions but, albeit understandably in the absence of any legal representation, was either unable or did not want to do so. The critical issue which was raised was whether the appellant had any past or present association with the BNP or any political party. The Tribunal was not satisfied on the material. In relation to other matters there are comments and reasons given and conclusions reached in relation to the appellant's overall credibility which are adverse to the appellant. 6 In my view and on my reading of the material I am not persuaded that there has been any reviewable error shown in the reasoning of the Tribunal, or in the approach taken by it in conducting the hearing and eliciting information, or informing the appellant of the matters which were in dispute. I note that in the notice of appeal the two grounds raised both depend on the decision in SZBEL . In the circumstances of this case, the reasoning underlying the principles expressed in SZBEL is not applicable because sufficient opportunity was given to the appellant to expand on those aspects in relation to which his case was rejected. 7 Accordingly, my conclusion is that since there was no error in the decision of the Tribunal and consequently no error in the decision of the Magistrate, the appeal is dismissed with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 28 May 2007 Counsel for the Appellant: None Solicitor for the Appellant: None Counsel for the Respondents: Ms V. McWilliam Solicitor for the Respondents: Sparke Helmore Date of Hearing: 14 May 2007 Date of Judgment: 14 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/819.html