SZUCJ and Ors v Minister for Immigration and Anor (No.2)

This decision of Judge Manousaridis concerned the obligations of the Administrative Appeals Tribunal (the Tribunal) in providing notice to an applicant regarding evidence before it. The applicants, SZUCJ and others, were seeking review of a decision by the Minister for Immigration. The core of the dispute revolved around whether the Tribunal was obliged to inform applicants of evidence it might not accept or consider false, and to advise on the significance and probative value of such evidence.

The legal issues before the court were whether the Tribunal's obligations under section 424A of the Migration Act 1958 (Cth) (the Act) and its duty to provide procedural fairness, as informed by section 425 of the Act, extended to notifying applicants of potential adverse findings regarding specific pieces of evidence or the Tribunal's subjective appraisals of that evidence. Specifically, the court had to determine if the case of *Kaur* imposed such an obligation on the Tribunal.

The court reasoned that *Kaur* should not be read as authority for the proposition that the Tribunal must notify an applicant of evidence it might not accept or consider false, nor of its significance or probative value. This was for two primary reasons. Firstly, such an obligation would exceed the scope of section 424A of the Act, which applies to "information" and does not encompass the Tribunal's subjective appraisals, thought processes, or determinations, nor gaps or doubts in evidence. Secondly, such a requirement would go beyond the Tribunal's obligations under section 425 of the Act, which requires the Tribunal to invite the applicant to present evidence and arguments relating to the issues arising in the decision under review. The court reiterated the principles from *SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs*, which establish that procedural fairness requires an opportunity to present information and submissions, and that the decision-maker must identify critical issues not apparent from the nature of the decision and advise of any adverse conclusions that would not be obvious from the known material. While the Tribunal must identify issues, and may need to ask an applicant to expand on or explain specific aspects of their account if those are considered important and open to doubt, this does not equate to a requirement to foreshadow specific adverse findings on individual pieces of evidence.