Case: SZJBA v Minister for Immigration &amp; Citizenship [2007] FCA 1592 , 164 FCR 14
Outcome: followed
In those circumstances, it is not possible to conclude that the now Appellant husband, when he attended the Tribunal hearing, was deprived of the opportunity to make submissions as set forth in s 425(1) of the Migration Act 1958 (Cth). That section provides as follows: Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. ... This right to a hearing is " clearly an important and central right " in the review system established by Part 7 of the Migration Act : Liu v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1362 at [44] , [2001] FCA 1362 ; 113 FCR 541 at 552; Amankwah v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 1162 at [13] , [1999] FCA 1162 ; 91 FCR 248 at 251. The invitation to attend an oral hearing " must not be a hollow shell or an empty gesture ": Mazhar v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5. The obligation imposed upon the Tribunal is an obligation to give a " real and meaningful invitation to comment ": SZJBA v Minister for Immigration &amp; Citizenship [2007] FCA 1592 at [53] , [2007] FCA 1592 ; 164 FCR 14 at 27 8 per Allsop J. 20 Albeit not raised by any of the Grounds of Appeal , Counsel for the Respondent Minister quite properly did not oppose exploring the question as to whether there had been a breach of s 425 by reason of the Appellant not having the opportunity to place further documents or further information before the Tribunal. However, it was contended by the Minister that, in the absence of any basis upon which it could be concluded that the Tribunal was on notice that potentially there may have been further information or documents relevant to its consideration (but not then available to the now First Appellant at that hearing), it is difficult to conclude that the obligation in s 425 to afford an opportunity has been breached. The Tribunal in discharging its function is engaged in an " inquisitorial process " -- but there must nevertheless remains a reason or a basis upon which it can be said that it should inquire beyond that factual material placed before it. In SZJBA Allsop J thus observed: [53] ... the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Pt 7 of the Migration Act . This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. ... ... [57] These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process ... [58] This inquisitorial function has become relevant in a number of contexts. In Applicant S 217 CLR 387 at [76] McHugh J said: If the Tribunal had considered the issue that it was legally required to consider, it was open to the Tribunal to investigate whether such a perception existed, whether within the Afghan society or some section of it, or objectively. Indeed, arguably in the context of its inquisitorial process, the Tribunal had a duty to seek evidence concerning this vital matter. Where there is material which on its face suggests that the Tribunal is not in receipt of all materials, the Tribunal should normally " take simple administrative steps to address the issue ": SZHVM v Minister for Immigration &amp; Citizenship [2008] FCA 600 at [63] per Middleton J.