Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152
Outcome: applied
His Honour concluded that the principles discussed by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 did not assist the appellant because she was 'clearly put on notice by the delegate's decision and the s 424A letter that the truth of her whole narrative was in issue' ( SZJYA [2007] FMCA 613 at [22] ). His Honour dismissed her argument that the tribunal had failed to comply with s 424A. 23 The appellant argued that: &#8226; his Honour erred in holding that it was not illogical, capricious or perverse for the tribunal to accept that in Australia the appellant had acquired knowledge of the Local Church and attended its meetings while concluding that she had not engaged in its activities in China as she claimed; &#8226; the tribunal failed to accord her procedural fairness in accordance with s 425 of the Act. The appellant argued that the delegate's decision had not identified or involved any finding that she had acquired knowledge of the Local Church and attended meetings only in Australia. Indeed, it would have been very difficult for the delegate to have made such a finding since the application for a protection visa was made within six weeks of her arrival her and did not refer to any involvement she had with the Local Church in Australia. That local involvement appears to have arisen at the end of the tribunal hearing (based on its recitation in its statement for decision and reasons of what happened then) and the tribunal's investigation of the letter dated 8 October 2006 from the Local Church; &#8226; the delegate had found that she had had a low key role within the Local Church in China and that the tribunal had not referred to this as an issue arising in relation to the decision under review for the purposes of s 425(1) of the Act, as explained in SZBEL 228 CLR at 162-164 [33]-[40] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. In effect, the appellant argued that she had not been informed that an issue arising on the review was that she had fabricated her association with the Local Church by attending meetings in Australia and gaining her knowledge of Christian beliefs and practices solely in the short period in which she was in this country, in particular the period between lodging her application and its refusal by the delegate. In this regard, she relied on the formulation that I had considered to be arguable when granting leave to appeal ( SZJYA [2007] FCA 1168 at [12] . 24 In SZBEL 228 CLR at 164 [38] the Court said that it was important to identify the issues arising in relation to the delegate's decision which was under review. Those issues determine whether rejection by the tribunal of critical aspects of an applicant's account of events was obviously open on the known material. 25 The Minister argued that it followed from the Court's reasons in SZBEL 228 CLR at 164-166 [39]-[49] that the delegate had rejected the appellant's account on the basis that there was no evidence to support her claims. Thus, he argued that the delegate could not accept her credibility and this finding put her on notice that the whole of her claim was in issue on the review. The Minister particularly relied upon what the Court had said in SZBEL 228 CLR at 165 [43]. Their Honours held that nothing in the delegate's reasons for decision in that case indicated that two identified aspects of SZBEL's account were in issue. Nor had the tribunal in that case identified those aspects of his account as important issues. In that case the delegate had not based his decision on those two matters. Prior to giving its decision, the tribunal had not challenged what SZBEL had said on the two matters, so that he was not alerted to them being live issues in the tribunal's decision against him. 26 The Minister argued that, based on the delegate's decision, the appellant here was on notice that her whole credibility and account were in issue. 27 Here, the tribunal dealt with an issue which was not before the delegate concerning the genuineness of the appellant's beliefs and current practising. It found that it did not accept that 'she is currently a genuine practitioner' and referred to s 91R(3) of the Act. 28 In SZBEL 228 CLR at 165 [47] the Court noted that there may well be many cases, where either the delegate's decision or the tribunal's statements or questions during a hearing sufficiently indicate to an applicant for review that everything he or she says in support of the application is in issue. They said that that indication could be given in many ways. If there were specific aspects of an applicant for review's account that the tribunal considered may be important to the decision and may be open to doubt, it had at least to ask the applicant to expand upon those aspects of the account and to explain why it should be accepted. 29 The Minister argued that because there was no transcript or affidavit evidence of what happened in the hearing before the tribunal, it was impossible to find on the material before me that the tribunal had not asked the appellant to expand upon the aspects of her account concerning her belief and practice of Christianity both in China and here, and to explain why it should be accepted. He argued that the fact that, after the hearing, the appellant had seen fit to provide the tribunal with the letter from the Local Church in Sydney showed that she was on notice that this was an issue. And, the Minister argued that whatever might be contained in the tribunal's statement of decision and reasons, it was not obliged to set out the full course of the hearing, but only to perform the duty imposed by s 430(1). Accordingly, he argued that it ought not be found that the tribunal's recital of so much of the hearing as appears in its statement of reasons and decision was full and complete. 30 The Minister submitted that where, as here, a party argues that something did not happen, namely that the appellant was not put on notice that the genuineness of her belief in Christianity was in issue, the only way that lack of notice could be proved was by tendering what actually happened at the hearing through either the transcript, a tape recording or an affidavit. He said that, absent such evidence, it would be mere speculation to conclude that the fact asserted by the appellant here had been proved. 38 As the Court pointed out in SZBEL 228 CLR at 160 [25], what is required by procedural fairness is a fair hearing, not a fair outcome. The trial judge said that the appellant had clearly been put on notice by the delegate's decision in the s 424A letter that the truth of her whole narrative was in issue. I do not agree that that is so or that it was sufficient. First, in SZILQ 163 FCR at 316 [33] Buchanan J observed, correctly, that it is an essential premise of s 91R(3) that an applicant for review have a proper opportunity to satisfy the tribunal (or the Minister or a delegate) that the conduct in Australia which is said to be relevant was not engaged in just for the purpose of strengthening his or her claim to be a refugee. 44 In SZBEL 228 CLR at 163 [36], the Court said that in the ordinary situation of an applicant attending a hearing before the tribunal following an invitation under s 425(1): '... 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.' 45 Here, the appellant was found by the tribunal to be '... able to provide details of Christian belief and of Local Church beliefs and practices ...'. The tribunal said that her reasoning for becoming a member and leading a group to prevent smoking was not credible. It added that, '... [i]n addition she was unable to provide details of the Local Church which the Tribunal would expect would be known by someone who had genuinely been a member since March 2005, including approximately six months practice in Australia' (emphasis added). 46 Next the tribunal referred to the appellant's evidence and subsequent response to the s 424A letter. It noted that she had said, both at the hearing and in the response to the s 424A letter, that the Local Church did not mix with the Chinese registered church. In evidence she had told the tribunal, however, that the Local Church accepted other churches, whereas country information was to the contrary. The tribunal considered this was an issue for it. 54 The tribunal was required, by s 430(1)(d) of the Act, to refer in its statement '... to the evidence or any other material on which the findings of fact were based'. The tribunal gave a number of reasons stating that it found shortcomings and implausibilities in the appellant's knowledge of some Local Church doctrines. But, the delegate had not based his or her decision on this aspect or on the suggested Australian acquisition of knowledge by the appellant: cf SZBEL 228 CLR at 165 [45]. I agree with Buchanan J who observed in SZILQ 163 FCR at 316 [33] that it is an essential premise of s 91R(3) that the applicant for review have a proper opportunity to satisfy the tribunal (or decision-maker) of the matters with which that section deals. 57 The appellant had no opportunity to give evidence or to make submissions, in accordance with s 425(1), that she had not just learnt what she knew about Christianity and the Local Church since arriving here. That was a denial of procedural fairness: SZBEL 228 CLR at 165 [44]. 58 The tribunal's statement of its decision and reasons indicated that it asked the appellant about basic Christian doctrine as well as doctrines of the Local Church. The tribunal questioned the appellant as to her selection of the Local Church as opposed to some other denomination. Although it did not have an obligation to set out everything that occurred at the hearing, I infer from the detail of its recitation of the questioning and answers at the hearing that it had set out the substance of all of the matters which it regarded as having significance to its function of conducting a review. While there is no transcript in evidence, nonetheless I am satisfied, in accordance with s 140 of the Evidence Act , that the tribunal did not ask the appellant why her account of being a Christian should be rejected: SZBEL 228 CLR at 166 [47]. 59 There is nothing in the tribunal's account of what occurred at the hearing to suggest that the appellant had been put on notice that the genuineness of her Australian participation in the Local Church's activities was in issue, as opposed to the level at which she claimed she participated. The tribunal did not record that the appellant had made any claim that her attendance at the Local Church in Sydney or religious practice in Australia supported her claim for a refugee visa. The tribunal said it disregarded this conduct, in assessing her case as required by s 91R(3). But instead of disregarding the conduct it used this conduct to find against the appellant. The tribunal's only investigation of what the appellant did in Australia in relation to the Local Church was to confirm the content of the letter concerning her attendance. It then speculated about the inability of the appellant to provide '... details of the Local Church which the Tribunal would expect would be known by someone who had genuinely been a member since March 2005, including approximately six months practice in Australia' (emphasis added). This was one of the matters it stated had led it to conclude that she was not credible and had not become a member of the Local Church. Yet the tribunal's decision record does not record any account of the appellant being questioned about practice in Australia except simply in relation to her attendance at the Blacktown Local Church. 60 In SZBEL 228 CLR at 166 [47] the Court said: 'But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt , the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.' (non-italic emphasis added)