SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs

The High Court unanimously found that the appellant had been denied procedural fairness, because he had not been given an opportunity to rebut adverse conclusions that had been made against him by the Tribunal.

The applicant had incorrectly assumed that the reasons given by the original decision-maker were the relevant 'issues arising' at his review. The tribunal was obligated, and had failed, to put the applicant on notice of issues arising that would be determinative of the review. The Tribunal had failed to give the appellant opportunity to give evidence on two of the three relevant issues.^[4]

The court wrote that;^[5]

'The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no steps 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 ... 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'

It then remitted the decision for reconsideration.

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