SZRAE v Minister for Immigration and Citizenship

The appellant, SZRAE, appealed a decision of the Federal Magistrates Court, which had rejected a judicial review of a recommendation by the Independent Merits Reviewer (IMR) to refuse a protection visa. The court had to determine whether the IMR had denied the appellant procedural fairness by not allowing him to make further submissions after providing additional material following an interview. The court had to decide whether the Reviewer was required to give the appellant a further opportunity to be heard and whether the issues were critical to the decision and not obviously open. The court also had to consider whether the adverse conclusions were not obviously open on the known material.

The court found that the first respondent did not argue that the appellant should fail because there was nothing he could have said if given the opportunity. Instead, the issue was whether there had been a denial of procedural fairness. The court held that it was not the common law that in every case where a party provides further material he or she must be given an opportunity to give evidence and make submissions if the decision-maker is considering making use of the material in a manner adverse to the interests of the party providing it. The court held that the relevant question was about the decision-maker’s processes, not his or her actual decision. The court found that the IMR did not need to give the appellant a further opportunity to be heard because the issues were not critical to the decision and were obviously open.

The appeal was dismissed with costs. The court extended the time for filing a notice of appeal to 21 August 2012.