Case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 81 ALJR 515
Outcome: cited
The ground of appeal is cast as involving a denial of procedural fairness, this being particularised as follows: "(a) The Tribunal conducted a hearing on 2 June 2006. (b) The Tribunal sent the applicant and [sic] 'Invitation to Comment' on Information on 9 June 2006. (c) The Tribunal's decision was made on 19 July 2006 and handed down on 8 August 2006. (d) The Tribunal's decision was based, in part, on the inconsistencies between the appellant's evidence at the hearing and his response to the 'Invitation to Comment on Information'. In those circumstances, the Tribunal was required, by the rules of procedural fairness, to give the Appellant an opportunity to comment on those inconsistencies." I would add that the obligation to give this opportunity is sourced in the appellant's submissions to s 425(1) of the Migration Act 1958 (Cth). That subsection requires the Tribunal to invite the applicant to appear before the Tribunal to give evidence and to present argument "relating to the issues arising in relation to the decision under review": and see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 81 ALJR 515 at [34] - [35] . 3 The appeal is from a judgment of Emmett FM dismissing an application for judicial review of a decision of the Refugee Review Tribunal affirming the delegate's decision not to grant the appellant a Protection visa. The appellant is a Pakistani national whose original refugee application based his alleged fear of persecution on his being a homosexual in Pakistan. 4 Given the course now sought to be taken by the appellant, it is appropriate to refer initially to the delegate's decision which was for s 425 purposes "the decision under review". In rejecting the application the delegate observed: "In considering all of these matters, I do not accept the unsubstantiated claims as feasible and I do not accept that the applicant has provided an honest account of his personal circumstances prior to his departure from Pakistan. The claims relating to his homosexuality are confused and inconsistent with other information he has provided. This leads me to find that he has fabricated a set of claims for himself for the sole purpose of engaging Australia's protection obligations." 11 In support of the claimed basis of the Tribunal's obligation to disclose this "issue" to the appellant for s 425 purposes, reliance is placed on the concluding sentence of [47] of the High Court's reasons in SZBEL . For convenience I have set out the entirety of [47] because the sentence relied upon can only properly be understood in the context of the paragraph as a whole. The Court observed: "... there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. 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." (Emphasis in original.) 12 To anticipate matters, while the appellant contends the present matter is one falling within the final sentence of the quotation, the respondent Minister contends that the first sentence aptly describes this case. 13 The Minister both opposes the grant of leave because the new ground lacks substantive merit and contends as well that the appeal would fail in any event. As I am satisfied that the ground is without merit, I will deal with the substantive ground and grant leave accordingly. 14 Before indicating the reasons for my view, it is appropriate to make an additional reference to the reasons in SZBEL as they enlarge upon the burden of s 425. The Court said (at [33]-[35]) that: "[33] The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited 'to give evidence and present arguments relating to the issues arising in relation to the decision under review '. The reference to 'the issues arising in relation to the decision under review' is important. [34] Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language 'arising in relation to the decision under review' is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons. [35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are 'the issues arising in relation to the decision under review'. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), 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." (Emphasis in original, footnotes omitted) 15 There is, in my view, no room whatever for doubt, as I earlier indicated, that the delegate's reasons put in issue all of the claims that by that stage had been made as to why the appellant had a well founded fear of persecution and moreover that his credibility in relation to his claims was equally in issue. Not only did the Tribunal do nothing to engender any expectation that these were no longer operative issues in the review, the Tribunal in turn accentuated their centrality to it both in the questions it asked of the appellant at the hearing (as recorded in its reasons) and in its s 424A letter which referred (inter alia) to inconsistencies in the evidence he had given, questions asked at the hearing the answers to which cast doubt on his claim to having a well founded fear of persecution, to the veracity of fresh claims made at the hearing and to the authenticity of documents there produced.