If a Matter is Referred Back to a Tribunal After Judicial Review There Must be a New Invitation to Appear

Once a Federal Court overturns a tribunal decision, and sends it back for re-hearing then the second tribunal must give the review applicant a second invitation to appear (unless of course the tribunal otherwise decide the matter in the applicants favour).  In SZHKA v MIAC [2008] FCAFC 138 (5.8.08) Gray J concluded about s.425 of the Migration Act which is about the requirement to give a review applicant an invitation to appear at a hearing :

7 The… important aspect of s 425(1) is that the evidence and arguments are to relate to “the issues arising in relation to the decision under review.” The focus on this element of the subsection was the basis for what the High Court of Australia decided in SZBEL v MIMIA [2006] HCA 63 (2006) 228 CLR 152. For present purposes, it is not necessary to quote the whole of what the High Court said in [33]-[40], but certain points emerge clearly from that passage. First, the issues arising are not limited to the question whether the applicant is entitled to a protection visa, but are more particular than that. Second, initially the issues will be defined by the reasons given by the person who made the decision under review, but the issues may, and often will, undergo change in the course of the Tribunal’s conduct of the review of that decision. Third, because the Tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the Tribunal might not be persuaded by that material; the Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal’s specific reservations about the applicant’s case. Thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision-maker takes about the material before the Tribunal, and will therefore be shaped by that person’s thought processes. This is not to say that the Tribunal member must expose all of his or her thought processes to scrutiny by the applicant, as part of the hearing. The High Court recognised this in SZBEL at [38]-[39]. The line between exposing every aspect of the reasoning process and making known to the applicant the issues that the Tribunal member sees as arising may not be easy to recognise in all circumstances, but it does exist.

8 If these propositions are accepted, it becomes difficult to see how a Tribunal member who takes up a review after an earlier Tribunal decision has been quashed can avoid the need to conduct a hearing. Simply to regard the rights given by s 425(1) as an item on a procedural check list, that the member can regard as having already been ticked off, would be for the Tribunal to abdicate its responsibility to conduct a review. Similarly, for the member to regard his or her task as being no more than to repeat the views and conclusions of the member responsible for the earlier Tribunal decision, without the jurisdictional error identified in the proceeding in which that decision was quashed, would be a failure to perform the function of reviewing the primary decision to refuse a protection visa. Once the member embarks on the process of considering the material before the Tribunal, including both the material provided originally by the applicant and the material emerging from the earlier hearing, the Tribunal member’s mind will begin to focus on reasons why he or she is not persuaded by the case that the applicant put. If this were not so, and the member was persuaded as to the applicant’s case, then a visa would be granted and no further hearing would be required. The process of focussing on reasons for being unpersuaded will give rise to issues of the kind that the High Court identified in SZBEL as being issues arising in relation to the decision under review. It is these issues on which the applicant is entitled by s 425(1) to be invited to provide information by giving evidence and to persuade by presenting arguments….

10 There is a further reason why it is difficult to see that a member in the situation of each of the members in the present case can take the view that no further hearing is necessary. That is that it is impossible to guarantee that the issues of the kinds to which the High Court referred in SZBEL will not have changed in the time that has elapsed since the Tribunal’s earlier hearing and its first decision.