FEDERAL COURT OF AUSTRALIA

AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156

THE COURT ORDERS THAT:

1.     The appeal be allowed.

2.    The orders made by the Federal Magistrates Court on 11 March 2010 be set aside and in lieu of those orders there be orders that:

(i)    a writ of certiorari issue, directed to the second respondent, quashing the decision of the second respondent signed on 21 November 2008 (RRT Case Number 0804982); and

(ii)    a writ of mandamus issue, directed to the second respondent, requiring the second respondent to determine according to law the application dated 20 September 2007 and made on 5 October 2007 by the appellants for review of the decision of the delegate of the first respondent to refuse to grant the appellants protection visas.

3.    The first respondent pay the costs of the appellants of the appeal and of the application before the Federal Magistrates Court.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

SIOPIS j:

1    I have had the benefit of reading the draft reasons for decision of Besanko J. For the reasons given by Besanko J, I agree that the appeal should be allowed, and I agree with the orders proposed by Besanko J.

Associate:

Dated:    21 December 2010

REASONS FOR JUDGMENT

BESANKO J:

Introduction

2    The appellants appeal against orders made by the Federal Magistrates Court on 11 March 2010. On that day, the Federal Magistrates Court made an order dismissing the appellants’ application for constitutional writs directed to the Refugee Review Tribunal (“the Tribunal”) and an order for costs. On 21 November 2008, the Tribunal had decided to affirm the decisions of a delegate of the Minister for Immigration and Citizenship not to grant Protection (Class XA) visas (“protection visas”) to the appellants.

3    The appellants’ application for constitutional writs contained three grounds. First, they alleged that the Tribunal member was not validly appointed to constitute the Tribunal and to perform the review. The Federal Magistrates Court rejected that ground and there is no appeal to this Court against that decision. Secondly, the appellants alleged that the Tribunal committed jurisdictional error in that its decisions were “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”. The Federal Magistrates Court rejected that ground and there is no appeal to this Court against that decision. Thirdly, the appellants alleged that the Tribunal failed to put the appellant and, in particular, the female appellant (the first appellant) on notice that her evidence on certain important issues would not be accepted. The Federal Magistrates Court rejected that ground, and, on appeal to this Court, the appellants contend that it erred in doing so. In effect, there is one ground of appeal to this Court and that is that the Federal Magistrates Court erred in not concluding that the appellants had been denied procedural fairness by the Tribunal.

4    The matter has a long history and the history is relevant to the issues to be decided.

History

5    The appellants arrived in Australia on 14 May 2007. They applied for protection visas on 25 July 2007. A delegate of the first respondent decided to refuse to grant protection visas to the appellants on 20 September 2007. The appellants were notified of the decision and of their review rights. They made an application to the Tribunal for review of the decision.

6    A summary of the appellants’ claims to refugee status is set out in the reasons of the delegate. It is sufficient for the purposes of the appeal to refer to that summary.

7    The first appellant was born in Beltoj, Albania, in the province of Shkoder. She claimed that in her village women were treated as the property of their male relatives. She claimed that she was not provided with any educational opportunities after primary school and that she was disliked by her father who beat her regularly.

8    The first appellant claimed that in 2003 she ran away to Italy with an Albanian man by the name of Gjin with an expectation that they would be married. Gjin did not marry her but rather sold her into prostitution. The first appellant claimed that she worked as a prostitute for approximately three months before being rescued by the male appellant (the second appellant). He took her to his home and the following night they left Italy for Albania. They went to the home of the second appellant’s parents which was also in Beltoj. She did not make contact with her family in Beltoj. The appellants married in a registry office in Albania on 30 October 2003 and had a church ceremony on 2 August 2004. The second appellant returned to Italy in February 2005, and he was joined in Italy by the first appellant in October 2005.

9    The first appellant claimed that on 20 January 2007 she was threatened by two men in the street who told her that they would not let her go as they had paid money for her and they knew where she lived. The first appellant managed to run away but no longer felt safe in Italy. The first appellant claimed that she did not report the matter to the police in Italy in case word got back to the Albanians who could target her more easily and also harm her family.

10    The appellants decided to apply for visas to travel to the United States of America (“United States”), which visas were granted on 9 February 2007. The appellants travelled to the United States on 12 April 2007. However, they found there were too many Albanians in the United States, particularly Muslims, and they claimed that there was a very high chance that the first appellant would be killed by the Albanian mafia in the United States.

11    The appellants then applied for visas to travel to Australia, and, as I have said, they arrived here on 14 May 2007. They are living with the second appellant’s cousins in Adelaide, South Australia.

12    The first appellant claimed that she would not be safe in Albania because of the risk from the people who bought her as a prostitute. She also feared harm from her family, who would scorn and reject her if they knew her story. She claimed she would not be safe in Italy and feared that she would be killed by the Albanian mafia. The first appellant has the right to return to the United States but only as a visitor.

13    The appellants’ agent at the time of their application for protection visas advised the delegate that the appellants had resident visas for Italy and believed that they had the right to re-enter Italy. The agent advised that the appellants did not have the right to re-enter the United States. The agent claimed that the appellants had a well-founded fear of Convention-related persecution in Albania, as the first appellant is a member of a social group of “Albanian women” or “Albanian women who had run away from the home of her parents”. The agent claimed that the appellants would not be afforded adequate protection in Italy. The agent claimed that the first appellant was also a member of the particular social group being “Albanian women who had worked as prostitutes” and “Albanian women who have fallen foul of the Albanian mafia/prostitution ring”. The agent claimed that the second appellant is a member of the particular social group defined as “Albanian male who has married a former prostitute” and “Albanian national who has fallen foul of the Albanian mafia/prostitution ring”.

14    The second appellant’s claims for refugee status were dependent on the claims of the first appellant in the sense that it was his relationship with her and her activities which formed the basis of his claims.

15    In a decision made on 20 September 2007, the delegate found that the appellants were nationals of Albania.

16    The delegate found that the appellants had the right to enter and reside in Italy. He considered the provisions of s 36(2), (3), (4) and (5) of the Migration Act 1958 (Cth) (“the Act”). He considered whether the appellants had a well-founded fear of persecution in Italy for a Convention reason (s 36(4)) and whether they had a well-founded fear that Italy may return them to another country where they will be persecuted for a Convention reason (s 36(5)). The delegate found that the appellants were not members of a “particular social group” for the purposes of the Convention. He found that their claimed fears related to the possibility of criminal actions directed at them as a result of their individual circumstances and claimed history. He considered that that was unrelated to the Convention and unrelated to any particular social group. He found that they did not meet the requirements of s 36(4) of the Act and that they did not have a well-founded fear of being persecuted in Italy for a Convention reason. The delegate found that effective state protection was available to the appellants in Italy and he did not accept their claim that they did not feel safe in Italy.

17    The appellants applied for review by the Tribunal. A review was conducted and, on 8 January 2008, the Tribunal affirmed the decisions of the delegate not to grant protection visas to the appellants. I will refer to this as the first Tribunal decision. The first Tribunal found that the harm feared by the appellants involved serious harm and systematic and discriminatory conduct and that the essential and significant reason for the harm feared was their membership of particular social groups. The first Tribunal found that the appellants could not seek effective protection from the government of Albania or its agencies and was satisfied that the appellants had a well-founded fear of persecution for Convention reasons. The first Tribunal found that the appellants would face a real chance of serious harm in the reasonably foreseeable future if they were to return to Albania.

18    The first Tribunal then turned to consider s 36(2), (3), (4) and (5) of the Act. The first Tribunal expressed its conclusions in the following way:

The Tribunal is satisfied on the basis of the evidence and the parties’ submission through their representative that they have a legally enforceable right to enter and reside permanently in Italy. The Tribunal finds that there is a real chance in the reasonably foreseeable future that the applicant and her husband would, if they were to return to Italy, face serious harm for reason of being members of particular social groups (as described above) and that their fear is well founded and is Convention related. However, on the basis of the evidence discussed above, the Tribunal finds that in their circumstances Italy has an appropriate criminal law, provides a reasonably effective police force and a reasonably impartial justice system. The Tribunal finds that the protection available through the police force and justice system would not be withheld from them for reasons of their membership of a particular social group or any other Convention reason.

The Tribunal finds that the applicant and her husband in the reasonably foreseeable future would be able to access Italy’s protection in accordance with international standards.

In accordance with Subsection 36(3) of the Act therefore, Australia is taken not to have protection obligations to the applicant and her husband … The Tribunal is satisfied therefore that Subsection 36(3) does apply in relation to Italy.

19    The appellants applied to the Federal Magistrates Court for constitutional writs directed to the Tribunal. On 31 July 2008, that Court granted constitutional writs by consent. The orders made by the Federal Magistrates Court contain the following:

UPON NOTING THAT the First Respondent accepts that the Application must be allowed for the reason set out in ground 1 of the Application, namely, the Refugee Review Tribunal (the “Tribunal”) misconstrued sub-section 36(4) of the Migration Act 1958 (Cth) (the “Act”) in that:

a)    for the purposes of sub-section 36(4) of the Act, the issue of State protection is only relevant to whether the feared conduct constitutes persecution or whether the Applicants’ fear of being persecuted is well-founded;

b)    pursuant to sub-section 36(4) of the Act, the Tribunal found that sub-section 36(3) of the Act did apply as the Applicants “in the reasonably foreseeable future would be able to access Italy’s protection in accordance with international standards”;

c)    however, the Tribunal also found that the Applicants feared persecution in Italy and that their fear of being persecuted in Italy was well-founded; and

d)    the Tribunal therefore misunderstood or misconstrued sub-section 36(4) of the Act.

20    On 3 September 2008, the Tribunal wrote to the solicitor and migration agent acting for the appellants and advised her that it had considered the material before it but was unable to make a favourable decision on that information alone. The appellants were invited to a hearing of the Tribunal on 15 October 2008.

21    On 16 September 2008, the appellants’ solicitor and migration agent wrote to the Tribunal setting out detailed submissions in support of the appellants’ claims for protection visas. The solicitor and migration agent said (among other things):

We submit that given the findings made by the first RRT and the compelling nature of the evidence provided by the applicant in this matter, that the second RRT should proceed to a favourable decision without conducting a further hearing.

We submit that the second Refugee Review Tribunal should accept the findings of fact made by the first Refugee Review Tribunal. Whilst we acknowledge that the second RRT is not “estepped” [sic] from making its own findings, we submit that [the first appellant] has clearly provided a compelling and consistent account of her history. Her treating doctor and the first RRT accepted her claims as truthful and her circumstances have not changed in a way that is relevant to the issues falling for consideration, since the first RRT hearing …

Summary

We ask the Tribunal to take these submissions into account in making a decision in this case. We also reiterate that both the departmental delegate and another Tribunal member have found that the [appellants’] claims to be truthful on prior occasions.

We submit that this is a strong case, and one where a decision favourable to the applicants would be appropriate based on the existing information alone and that the hearing currently scheduled for 15 October 2008 is not necessary.

22    The Tribunal declined to proceed in that way and a hearing took place before the Tribunal on 15 October 2008. The transcript of the hearing is 39 pages in length, and I have read it carefully. Before considering the issues on the appeal and the conduct of the hearing, it is necessary to summarise the Tribunal’s reasons.

The Tribunal’s reasons

23    The critical findings of the Tribunal are as follows:

102.    Weighing up all the above, the Tribunal does not accept that the applicant was abducted, held captive, raped, beaten and forced to work as a prostitute, or that she has worked as a prostitute. It does not accept that she has run away from her parents. It does not accept that she has fallen foul of the Albanian mafia. She is therefore not a member of the particular social groups posited by her adviser that are formulated around those claims, even if those particular social groups were found to exist in Albania. Her husband is not married to a former prostitute nor has he fallen foul of the mafia, and is therefore not a member of the particular social groups formulated around those claims, even if they exist.

103.    Even if the Tribunal were to accept that women in Albania constitute a particular social group, and that some women and girls, because of their individual circumstances, face a real chance of harm partly motivated by gender (such as domestic violence), the country information does not indicate that Albanian women in general face persecution. Any fear of harm that the applicant may have for herself or her daughter is no more than speculative. This applies to any risk that the applicant may be trafficked in future.

It is the conclusions expressed in paragraph 102 which are significant.

24    It appears that the Tribunal did not accept the first appellant as a witness of truth. The Tribunal relied on a number of matters in order to reach this conclusion. Those matters are as follows.

25    The Tribunal noted that the first appellant claimed to have known Gjin for about four to five months, and sufficiently well to fall in love with him and to elope with him. When it first asked the first appellant what Gjin’s family name was, she did not answer the question but said that she only ever knew him as Gjin. When she was pressed, the first appellant said that Gjin did tell her a family name but that it was unpronounceable to her and she had forgotten it. The Tribunal said that it did not find it “readily believable” that the first appellant could not pronounce Gjin’s surname.

26    The first appellant claimed to have been held captive in a house for about three months and to have been taken onto the street each night to work as a prostitute. The Tribunal asked the first appellant to identify the street in which the house was located. The first appellant said that she had forgotten and said something about signs being at the end of the street not near the house, implying that she had not registered them. Later, the first appellant asserted that the house was in an outlying area implying (according to the Tribunal) that it was not in a named street. The Tribunal considered that these explanations contradicted each other. The Tribunal said that “the most telling aspect of the evidence” was the first appellant’s forceful rejection of the validity of the question. The Tribunal noted that there could be plausible reasons for an applicant’s inability to answer such a question. However, it considered that it was an ordinary aspect of human nature even in extreme circumstances for a person to want to know where they are. The Tribunal considered that the women in the house might have shared information about the situation they found themselves in and the Tribunal observed that its question was not insensitive or inappropriate or unrealistic.

27    The Tribunal reached the same conclusion about its question of the first appellant as to who was in charge of the house. The Tribunal considered that it was an aspect of ordinary human experience that people use names with each other even if it is aliases or nicknames. The Tribunal noted that the first appellant’s first response was a comprehensive rejection of the question. The Tribunal said that these ordinary questions about the first appellant’s time in the house evidently took her by surprise and noted that the fact that she did not regard them as a normal part of the narrative was “a strong signal that she did not truly experience captivity and forced prostitution – the core of her claims”.

28    The Tribunal said that other aspects of the first appellant’s claims were also implausible and contradicted by the evidence. The Tribunal did not consider that it was “readily believable” that the first appellant lived in Beltoj for two years with her parents in law without her parents finding out where she was. The claim was even more difficult to believe having regard to the registering of the marriage at a civil registry. The Tribunal said that it was most unlikely that news of this would not have spread.

29    The Tribunal noted the first appellant’s claim that she had had no contact with her family since leaving for Italy in August 2003. The Tribunal noted that the first appellant’s father sent documents to Italy for her in connection with a visitor visa application. The first appellant claimed that they were actually sent by her father-in-law but that she did not want the Embassy to know this because she wanted the Embassy to think that she had a normal relationship with her father. The Tribunal said that this explanation was “not at all persuasive”. It considered that it was not believable that the first appellant would imagine that the Embassy would draw any conclusion from documents being sent by her father-in-law instead of her father.

30    The Tribunal noted that the first appellant told the Embassy that her brother was living with her in Italy. The first appellant now claimed that this was done in order to persuade the Embassy that she was settled in Europe. The Tribunal said that it was understandable that a person needing to obtain a visa for reasons of desperation might provide false information such as denying that they had relatives in Australia, and predict later travel after Australia. However, the Tribunal said that to go so far as to say that her brother actually lived with her in Italy was not so obvious. The Tribunal said that the more likely situation was that her brother did live with her (whether he was registered there or not) and the Tribunal made a finding to that effect.

31    The Tribunal said that the appellants might be expected to have sought protection in the United States if they had a genuine fear of persecution. The Tribunal considered the appellants’ explanations for not doing so were not persuasive. The Tribunal said that if the appellants were afraid of their background becoming known to other Albanians, they were equally at risk here as in the United States. The other explanation was that they could not make a protection visa application without the assistance of their relations. The Tribunal said that that explanation was not compelling at all. The Tribunal said:

The applicants had applied for visas already, for permanent residence in Italy and visitor rights for Australia and the US. Putting oneself in the shoes of someone who is newly arrived and cannot speak English, it still does not seem too difficult to find out where the Immigration Department is, engage an interpreter and undertake the application.

32    The Tribunal’s inability to accept the first appellant’s evidence with respect to these matters led to the conclusions in paragraph 102 of its reasons.

Issues on the appeal

33    In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”) the High Court agreed with the submission in that case that what is required by procedural fairness is a fair hearing not a fair outcome (at 160 [25]). The Court referred to the following passage in the reasons for judgment of Brennan J in Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35-36:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

34    In SZBEL the High Court noted the provisions of s 425(1) of the Act. The Court said that the Tribunal was not confined to whatever may have been the issues that the delegate considered. However, if the Tribunal took no step to identify some issue other than those that the delegate considered dispositive and did not tell the applicant what that other issue was, an applicant was entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. The Court noted that an invitation can be extended to an applicant to appear before the Tribunal to give evidence and make submissions and that, if that is done, ordinarily (at 163 [36]):

… the Tribunal will begin its interview of an applicant who has accepted the Tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more than more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

35    Later in its reasons, the Court said (at 165-166 [47]):

… there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during the hearing sufficiently indicate to an applicant that everything he or she says in support of the application is an 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.

The reasons of the federal magistrate

36    The federal magistrate rejected the claim that the first appellant had been denied procedural fairness by the Tribunal because he concluded that the hearing of the Tribunal demonstrated that the first appellant’s “general credibility” was a known matter in issue or dispute and because to require the Tribunal to go any further would be to require it to provide a “running commentary” with respect to the issues of concern to it. The federal magistrate referred to the fact that the Tribunal is not required to provide a running commentary upon what it thinks about the evidence that is given: SZBEL at 166 [48].

37    This Court has before it the transcript of the hearing before the Tribunal, the delegate’s reasons and the reasons given by the first Tribunal and is in as good a position as the federal magistrate to reach conclusions about whether the appellants were denied procedural fairness.

38    In addition, the federal magistrate relied on the fact that the appellants had been invited to a hearing before the Tribunal as an indication that the Tribunal had concerns about the appellant’s accounts “presently before it”. In my respectful opinion, the federal magistrate erred in placing any weight on the fact that the Tribunal had invited the appellants to a hearing. First, there were aspects of the first appellant’s claim other than those directly related to her claim that she had been “abducted, held captive, raped, beaten and forced to work as a prostitute, or that she had worked as a prostitute” which were in issue or which could reasonably be thought to be in issue. Those issues were the issues connected with the jurisdictional errors committed by the first Tribunal and the subject of the orders made by the Federal Magistrates Court on 31 July 2008. Secondly, even if the fact that the Tribunal invited the appellants to a hearing was an indication that the Tribunal had concerns about aspects of the first appellant’s claim to have been “abducted, held captive, raped, beaten and forced to work as a prostitute, or that she had worked as a prostitute”, it was not necessarily an indication that it had concerns about all aspects of that claim.

Procedural fairness

39    There is no requirement on the Tribunal to give an applicant advance notice of the issues of concern to it, that is to say, in advance of the hearing. There would not appear to be anything to prevent the Tribunal from doing that in a particular case, although there may be difficulties where the concerns or doubts relate to an applicant’s credibility.

40    There is no requirement that the Tribunal follow or adopt the findings of a previous Tribunal or for that matter the delegate. That might mean that in a case such as this an earlier Tribunal finds the applicant is a credible witness and a later Tribunal finds that he or she is not. The appellants’ solicitor and migration agent understood this basic principle.

41    In this case, some of the key elements of the first appellant’s history were accepted by the delegate, or at least not rejected by the delegate. The first Tribunal accepted, for the most part, the key elements of the first appellant’s history. This Court has held that, in considering what issues an applicant (absent action by the Tribunal) is entitled to assume are dispositive, regard may be had to a previous Tribunal decision which has been quashed: SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1 at 7 [20]-[21], 8-9 [28]. I do not need to consider the position where the delegate and a previous Tribunal have considered different issues to be dispositive because the outcome of this appeal does not turn on that issue.

42    I should also make the point that although in this case the Tribunal sent a letter to the appellants after the hearing pursuant to s 424A of the Act, that fact cannot overcome any failure to accord procedural fairness at the hearing: SZIOZ v Minister for Immigration and Citizenship [2007] FCA 1870 at [59]; SZJYA v Minister for Immigration and Citizenship (No 2) (2008) 102 ALD 598 at 611 [56].

43    I turn now to consider the hearing before the Tribunal and in particular those matters it considered relevant to the first appellant’s credibility and which led it to reject the first appellant’s account of what had happened to her.

44    The Tribunal began by making a general statement to the effect that it was not bound by any findings of the delegate or the first Tribunal. The Tribunal said that it had looked at the file and that it was going to ask, “some more questions about some of the areas of your case that aren’t quite clear to me”. The Tribunal said that it would not take evidence from the second appellant unless requested and that it understood that the first appellant was “the primary person giving evidence”.

45    The Tribunal asked about the population of the first appellant’s village and whether she had had any contact with her family. The first appellant said that she had had no contact with her family since leaving Albania in 2003.

46    The Tribunal then asked about Gjin and what the first appellant knew about him. It appears that at about this point the first appellant expressed a reluctance to speak in front of her husband and the second appellant left the hearing room.

47    In the course of the questions on this topic, the Tribunal put to the first appellant that it thought she would have no difficulty remembering Gjin’s surname or in pronouncing it.

48    The Tribunal then asked the first appellant about the house in which she was held captive in Italy and whether she remembered the street name and the name(s) of the person(s) in charge of the house. The Tribunal put to the first appellant that it thought that she would be able to remember the name of the street. The first appellant indicated that she did not think that the question about the name of the person in charge of the house was an appropriate one. There was then some debate about whether the questions were appropriate. At this point, the following exchange took place between the Tribunal and the appellants’ solicitor and migration agent:

Ms Hamilton:    Okay. Let’s move along to the time when you escaped this ---

Ms McGrath:    Just to interrupt, and I’m sorry to do this, but I think that what my client is saying – that if your problems with her plausibility relate to her inability to provide detail, as in the name of the street and the name of the person that owned the building, she’s saying, “I can provide you with the details of what happened to me.” So if you wanted to explore that in greater depth ---

Ms Hamilton:    I have that detail in her statutory declaration. I want to explore the aspects of her case that concern me.

Ms McGrath:    Can I just clarify that at this stage the issues of concern are her inability to name the street or the name of the person that was running the house?

Ms Hamilton:    There will be other issues of concern.

49    The Tribunal told the first appellant that it would have thought she would remember the name or nickname of the person in charge of the house. The Tribunal said that it was interested in issues like whether “the structure and leadership of the gang and their location was ever discussed among the girls”.

50    The Tribunal then asked the first appellant about her time back in Albania between October 2003 and October 2005 and about whether anyone found out that she was there. The Tribunal put to the first appellant that it was surprising nobody found out she was there in view of her marriage.

51    The Tribunal then asked about the first appellant’s encounter with the two men in Italy and asked her why she and her husband did not go to the police.

52    The Tribunal then asked the first appellant why she did not apply for a protection visa in the United States. After hearing an explanation, the Tribunal said that it thought the first appellant would have found a way of applying for a protection visa.

53    There was then some debate about whether the second appellant should be in the hearing room. The Tribunal indicated that it had finished asking questions about the first appellant’s work as a prostitute. The following exchange then took place:

Ms Hamilton:    No, I don’t need to ask any more questions about that. But the problem is that adverse credibility issues arose out of that, and he needs to know about those.

Ms McGrath:    Well, only – I mean, I certainly entirely accept that the tribunal is entitled to test the claim, but I’m not sure what the credibility issues could be that did arise out of that, apart from not knowing the street or the name – the details of the manager of the house. Other than that – and I strongly contest that those shouldn’t be treated as adverse credibility issues. But certainly, if there’s anything that the tribunal – further that the tribunal needs to put to us on that, that can be done in writing then.

Ms Hamilton:    Well, you know, I need to give them the weight that ----

Ms McGrath:    Yes.

54    There was then a debate about whether the Tribunal should hear evidence from a medical practitioner who had seen the first appellant if it had concerns about the veracity of the first appellant’s story.

55    The Tribunal then asked the first appellant why she had been untruthful in saying to the Embassy in Italy that documents had been sent by her father when she was now saying they came from her father-in-law. The Tribunal told the first appellant that she did not find her explanation persuasive. The Tribunal also asked about the first appellant’s statement that her brother was living with her.

56    At about this point, the Tribunal said that it had no more questions to ask the first appellant and she was asked whether she had anything else to say.

57    The appellants’ solicitor and migration agent then gave the Tribunal certain information about the appellants’ inability (as she had been informed) to reside in Italy. She also advised that she had been in contact with the medical practitioner, who had said that, given the first appellant’s circumstances, it was unsurprising that she could not remember the name of the street where she was held captive. She then made submissions in support of the appellants’ case and as to why the first appellant’s evidence about the issues in respect of which she was challenged should be accepted.

58    No complaint is made about the second appellant’s absence from the hearing room.

59    The appellants’ case on appeal involves a series of propositions which in essence identify what the Tribunal was bound to do, but failed to do.

1.    At no time during the hearing did the Tribunal expressly inform the appellants that their evidence as to the first appellant’s claims or the first appellant’s general credibility was an issue under review. In fact, the Tribunal member said that it did not need to hear any evidence from the male appellant “unless you want me to”.

2.    As to all but one of the matters which formed the basis of the Tribunal’s adverse credibility findings, the Tribunal failed to ask the first appellant to expand upon each of the issues or explain why her account should be accepted. The reference to expansion and explanation is no doubt based on the High Court’s reasons in SZBEL at 166 [47] (see [35] above).

3.    The Tribunal referred to “adverse credibility issues” and “other issues of concern” but at no time identified those issues. Furthermore, the Tribunal did not indicate that those adverse credibility issues were going to cast doubts on the entirety of the first appellant’s claim.

4.    The Tribunal did not inform the appellants that due to the specific issues it would, or might, find that the first appellant was not “abducted, held captive, raped, beaten or forced to work as a prostitute, or that she has worked as a prostitute” or that her account of those matters was in issue.

60    I start with the second and third propositions which may be considered together. It seems to me that the “adverse credibility issues” and “other issues of concern” are the matters referred to in paragraphs 25-31 above, which matters were raised with the first appellant and which formed the basis of the Tribunal’s adverse credibility finding. Those issues were identified by the Tribunal to the first appellant during the hearing. The procedure adopted at the hearing was one of questions put by the Tribunal and answers given by the first appellant. In the course of that procedure, the first appellant was given an adequate opportunity to expand on her evidence on those issues and explain why her account should be accepted. I do not think there was any failure by the Tribunal on that account. I do not think it was incumbent on the Tribunal to give the first appellant advance notice of those matters. To do so would be very difficult and would involve the Tribunal having to reveal its provisional state of mind at particular points in time. I think that by the end of the hearing the matters raised with the first appellant by the Tribunal were such that it ought reasonably to have been appreciated that they were going to cast doubt on the entirety of her claim.

61    I turn to the first and fourth propositions. I have reached the conclusion that the appellants have not been accorded procedural fairness, although I would not necessarily express my conclusions in terms of the first and fourth proposition.

62    An applicant for review is entitled to be advised of the issues on the review and to be given the opportunity to expand on his or her evidence and explain why their account should be accepted. The appellants were, in the circumstances of this case, entitled to be advised of the fact that the key elements of the first appellant’s case were in issue. It seems to me that that might have been done in one of two ways. First, the Tribunal might, at the outset of the hearing, have advised the appellants that the key elements of the first appellant’s account were in issue and that they should give whatever evidence they wished to in support of their claims. That might have led the first appellant to recount her evidence in detail and to the second appellant giving evidence. The first appellant might have said something that had the “ring of truth” about it and the second appellant might have been able to corroborate some aspects of the first appellant’s claim or even just one aspect which might have proved important. The Tribunal did not adopt that course. In fact, the Tribunal said it did not propose to take evidence from the second appellant. The fact that the Tribunal said it was not bound by the delegate’s findings or those of the previous Tribunal was not enough.

63    In the alternative, the Tribunal might, through the question and answer approach it adopted in this case, have asked questions which enabled the first appellant to expand on her evidence with respect to the key events. The Tribunal did not do that. It is not suggested that the six matters relied on by the Tribunal were irrelevant or could not support the conclusions it reached. The ground that the Tribunal’s decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds was not (correctly in my view) pursued in this Court. Nevertheless, the matters relied on by the Tribunal did not directly go to the key elements of the first appellant’s account. Questions about them did not give the first appellant the opportunity to relate the key elements of her account which may have involved evidence that persuaded the Tribunal that although some aspects of the first appellant’s account were questionable, her basic account should be accepted. I do not think that it is enough that by the latter stages of the hearing the appellant was on notice that the key elements of her account were an issue on the review.

64    In my opinion, in the somewhat unusual circumstances of this case, the appellants have been denied procedural fairness.

Conclusion

65    In my opinion, the appeal must be allowed and the orders made by the Federal Magistrates Court set aside. In lieu of the orders made by the Federal Magistrates Court there should be an order that a writ of certiorari issue, directed to the second respondent, quashing the decision of the second respondent signed on 21 November 2008 (RRT Number 0804982) and a writ of mandamus issue, directed to the second respondent, requiring the second respondent to determine according to law the application dated 20 September 2007 and made on 5 October 2007 by the appellants for review of the decision of the delegate of the first respondent to refuse to grant the appellants protection visas. The first respondent should pay the costs of the appellants of the appeal and of the application before the Federal Magistrates Court.

66    I make one final point. This matter will be reconsidered by the Tribunal. It will be entitled to test the appellants’ claims and to form its own view as to issues such as credibility. None of the matters put to the first appellant were inappropriate or improper matters. Indeed, the appellants did not argue in this Court that the Tribunal’s reasoning was illogical or irrational. I only mention these obvious points because of correspondence sent to the Tribunal (not by the appellants or their solicitor and migration agent) after the hearing but before it delivered reasons, which is summarised in paragraph 86 of its reasons and which was highly critical of the Tribunal’s conduct of the hearing and of some of the issues which were of concern to it.

Associate:

Dated:    21 December 2010

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

67    I agree with the conclusion of Besanko J that the second Tribunal failed to afford the appellants procedural fairness. However, I have come to this conclusion by a somewhat different process of reasoning to that of Besanko J. Essentially, I consider that in the quite peculiar circumstances of these appeals, the obligation of the second Tribunal to identify the central and determinative issues in the review was more extensive than Besanko J has found. The following are the reasons why I have come to that conclusion.

Background Facts

68    Besanko J has set out the factual background to these appeals at some length, so I do not need to undertake that exercise myself. However, I do need to detail some aspects of the procedural history that I consider are significant to the conclusion I have reached.

Procedural History

The Delegate

69    The delegate refused the appellants’ applications for protection visas on 20 September 2007. As at the date of the delegate’s decision, the appellants held valid permits which allowed them to re-enter Italy and stay there for a period of time. In the delegate’s mind, this raised the application of ss 36(3), 36(4) and 36(5) of the Act. Those sections state that:

(3)    Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

(4)    However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.

(5)    Also, if the non-citizen has a well-founded fear that:

(a)    a country will return the non-citizen to another country; and

(b)    the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion; subsection (3) does not apply in relation to the first-mentioned country.

70    The delegate found that, because they had valid permits to re-enter Italy, they had a legal right “to enter and reside in a safe third country” under s 36(3) of the Act. He therefore rejected their applications on the basis that s 36(3) of the Act applied to them. In reaching that conclusion, the delegate also found that neither s 36(4), nor s 36(5), of the Act applied to them. In relation to s 36(4), the delegate held that the appellants were not part of a socially recognisable group within Italian society, and therefore they did not have a well-founded fear of persecution in Italy for a Convention reason. Instead, the delegate found that the appellants’ claimed fears related to the possibility of criminal actions directed at them as a result of their individual circumstances and claimed history. In relation to s 36(5) of the Act, the delegate held that there was no basis for the appellants’ concerns that Italy would return them to Albania, particularly if they made a claim that they would suffer persecution in Albania.

71    Of significance to these appeals, while the delegate questioned the veracity of the appellants’ claims because of their failure to leave Italy at the earliest opportunity and their willingness to return to Italy once they had departed, he made no adverse credibility findings in relation to the appellant wife’s account of her experience in Italy while she was forced to work in the prostitution ring. Indeed, in his reasons, the delegate stated that: “I believe that Italy offers effective protection to victims of sexual trafficking. There is no information to suggest that the applicants would be denied state protection in Italy from criminal elements within the community, including Albanian criminals or Albanian sex traffickers operating in Italy” and that: “The applicants claim to fear death upon return to Italy or Albania. I find that the claims made by the applicants involve serious harm and systematic and discriminatory conduct as required by Section 91R of the Migration Act”.

The first Tribunal

72    On 8 January 2008, the first Tribunal affirmed the delegate’s decision not to grant the appellants protection visas. However, in the process, the first Tribunal found that the harm faced by the appellants involved serious harm and systematic and discriminatory conduct by reason of their membership of particular social groups. In particular, the first Tribunal held:

In respect of the first named applicant, on the basis of the information the Tribunal accepts her claim of being a member of a particular social group which maybe described as: “women who have fallen foul Albanian prostitution ring”. By extension it follows that the applicant husband fears of persecution by the same aggressors because of his association with the first named applicant as her husband. Accordingly the Tribunal accepts that the applicant husband is a member of a particular social group which may be described as: “Husbands of women who have fallen foul of Albanian prostitution rings.” [sic] (at AB127)

73    The Tribunal also stated in its findings that it was “sympathetic to the applicant’s genuine fear that despite the efforts by the Italian government and its agencies, there remains a chance that she may face serious harm if she were to return to Italy”. However, the Tribunal found that Italy had a reasonably effective police force and reasonably impartial justice system, and that protection would not be denied to the appellants in Italy by reason of their membership of the particular social groups concerned. Accordingly, the first Tribunal concluded that s 36(3) applied and Australia therefore had no protection obligations to the appellants.

The second Tribunal

74    In its decision record, the second Tribunal concluded (at [104]) that it was not satisfied that the appellant wife or her husband faced a real chance of serious harm in Albania in the reasonably foreseeable future for any Convention reason, or that the appellant wife and her husband had a well-founded fear of persecution within the meaning of the Convention. In reaching these conclusions the second Tribunal decided (at [102]) that, weighing up all the evidence, it did not accept that the appellant wife was abducted, held captive, raped, beaten and forced to work as a prostitute, or that she worked as a prostitute. It also did not accept that the appellant wife ran away from her parents, or that she had fallen foul of the Albanian mafia. Therefore, the Tribunal found that neither the appellant wife, nor her husband, were members of the particular social groups that they claimed.

75    In deciding to reject the whole of the appellant wife’s claims about being forced into sex slavery in Italy, the second Tribunal pointed to a number of specific aspects of her account that it considered were lacking in credibility. Some of these aspects were directly related to the details of her claim to have been subjected to sex slavery in Italy, while others involved unrelated matters. Set out below is a summary of the Tribunal’s conclusions about the main aspects taken from the Findings and Reasons section of its decision record. They appear in approximate chronological order.

76    At [91] of its findings, the second Tribunal dealt with the appellant wife’s inability to say what Gjin’s family name was. On the appellant wife’s account, Gjin was the man with whom she had fallen in love and eloped to Italy. He was also the man who she claimed took her to a house in Torino where he abandoned her and she was forced to become a prostitute. In these circumstances, the second Tribunal did not find it believable that the appellant wife could not pronounce or did not know what Gjin’s last name was. Furthermore, it found that her claim that Albanian Muslim surnames were foreign to her did not sit easily with her claim that she was deceived as to Gjin’s religion.

77    At [92] of its findings, the second Tribunal dealt with the appellant wife’s inability to give the street name of the house in Torino where she was held captive and the two contradictory explanations it considered she gave as to why that was so. The Tribunal noted that the first explanation was that the street signs were at the end of the street and that the house was in the middle of the street, so that she had not registered them. The second explanation was that the house was in an outlying area, implying that it was not a named street.

78    Then at [93] to [94] of its findings the second Tribunal concluded that the most “telling” aspect bearing on the credibility of the appellant wife’s account was her forceful rejection of the validity of the Tribunal’s questioning regarding the location of the house and who was in charge of the house. The Tribunal considered that its questioning on these aspects was not insensitive, inappropriate or unrealistic. The Tribunal observed that even in extreme circumstances, a person would usually want to find out where they were, and who was in charge of their capture. Furthermore it observed that it was an aspect of human nature that people use names with each other, even if the name is just a nickname.

79    Finally, on this aspect, at [95] of its findings, the second Tribunal held that the fact that these ordinary questions “took the applicant by surprise and that she did not regard them as a normal part of the narrative was a strong signal that she did not truly experience captivity and forced prostitution – the core of her claims”.

80    As to the appellant wife’s claim that she had spent two years with the appellant husband’s family in Beltoj, Albania, without any of the local residents, including her family, finding out she was there, the second Tribunal found (at [96]) that this was not readily believable. Further, it considered this claim was even more “strained” when one took into account her claim that she had married the appellant husband there at the local registry office without the news of that spreading in the local community.

81    At [97] and [98] of its findings, the second Tribunal was not persuaded about the appellant wife’s claims that she had had no contact with her family since leaving for Italy in 2003. In the process, it rejected her claim that her father in law, rather than her father – with whom she claimed to be estranged – had sent a letter to the Australian Consulate in Italy. It also rejected her claim that she falsely claimed that her brother was living with her in Italy in an attempt to persuade the Consulate that she was settled in Europe. It concluded that the more likely situation was that her brother did in fact live with her in Italy.

82    On the question whether the appellants had sought protection in Italy or the United States of America before coming to Australia, going to whether their fears of persecution were genuine, the second Tribunal noted (at [99]) that the appellant wife did not approach the police after she was threatened in Florence and it concluded (at [100]) that their explanation for not seeking protection in the United States was not persuasive.

83    While the second Tribunal recorded (at [45]) the fact that the appellants’ application were: “… remitted due to uncertainty about whether the Tribunal had applied the correct test in relation to s 36(3) …” – the terms of the Federal Magistrates Court’s remittal order are set out at [18] of the reasons of Besanko J – it is significant, in my view, that the second Tribunal did not discuss this issue anywhere in its decision record. There is a passing reference to the issue at [51] where the second Tribunal said: “… the adviser state[d] that the applicants’ own right of residency in Italy appeared to now be in doubt, due to the length of time they had been away…”. However there is no mention, much less any analysis of it, anywhere in the Findings and Reasons section of the second Tribunal’s decision record.

The Federal Magistrates Court

84    On 11 March 2010, the Federal Magistrates Court dismissed the appellants’ application for judicial review of the second Tribunal’s decision. While three grounds of review were raised before that Court, only the third of those grounds was pursued on this appeal. That ground alleged that the second Tribunal had failed to put the appellant wife on notice that her evidence on certain critical issues may not be accepted as credible. Further, it was alleged that if the second Tribunal were to revisit an issue that had been determined in the appellants’ favour by the delegate and the first Tribunal, s 425 of the Act required that the appellants had to be notified that this would be an issue arising on the review.

85    The Federal Magistrate held that the transcript before the second Tribunal showed that the appellant wife’s general credibility was “a known matter in issue” in the review: see [2010] FMCA 62 at [49]. Furthermore, his Honour held that the fact that the second Tribunal had not been able to decide the matter on the papers in the appellants’ favour and had invited the appellants to a hearing showed that it had concerns about the appellants’ account: ibid at [49]. Finally, his Honour held that, according to the relevant authorities, the second Tribunal was not required to give a running commentary in relation to the appellant wife’s complaints: ibid at [50].

The present appeal

86    On 1 April 2010, the appellants filed a notice of appeal in this Court against the Federal Magistrates Court’s decision. As noted above, they alleged that the Federal Magistrate had erred in finding that the second Tribunal had put the appellant wife on notice that her credibility may be in issue in the review, and that the invitation to appear before the second Tribunal also constituted such notice.

Consideration

Section 425 and other relevant provisions of the Act

87    Section 425 of the Act requires that, unless the Tribunal considers that it should decide the review in an applicant’s favour (or certain other exceptions that are not presently relevant), the Tribunal must invite an applicant to appear before it to give evidence and present arguments in relation to the “issues arising in relation to the decision under review”. Further, subject to certain conditions, the Tribunal is obliged, under s 424A(1)(a) of the Act to give to an applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review. Furthermore, under s 424A(1)(b) the Tribunal must ensure that an applicant understands why such information is relevant, and the consequences of it being relied upon. Then, under s 424A(1)(c), the applicant must be given an opportunity to comment and respond.

88    In essence, the issue in these appeals is the content of the obligation placed upon the second Tribunal under s 425 of the Act to ensure that the appellants were given notice of the issues arising in relation to the decision under review.

The relevant authorities – Szbel

89    The High Court decision of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”) is particularly relevant in these appeals. That decision examined the content of the Tribunal’s obligation to afford procedural fairness to an applicant at a hearing conducted under s 425 of the Act.

90    The Court began by emphasising that the content of a decision-maker’s obligation to afford procedural fairness depends on its statutory framework and the facts and circumstances of each case. It said (at [26]):

It has long been established that the statutory framework within which a decisionmaker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case. As Kitto J said in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation:

“[T]he books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity [‘to correct or contradict any relevant statement prejudicial to their view’] in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place.”

(emphasis in original)

91    The Court then considered the relevant provisions of the Act, including ss 424A and 425. Next, it referred to two parts of the decision of the Full Court of this Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (“Alphaone”), which described the general obligations of a decision-maker to afford procedural fairness. First, (at [29]):

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

(emphasis in original)

92    Secondly, (at [32]):

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.

(emphasis in original)

93    At this point it is convenient to note that later in its decision (at [49]), the High Court referred back to what the Full Court had said in Alphaone and stated:

Finally, even if the issues that arise in relation to the decision under review are properly identified to the applicant, there may yet be cases which would yield to analysis in the terms identified by the Full Court of the Federal Court in Alphaone. It would neither be necessary nor appropriate to now foreclose that possibility.

94    This appears to be a reference to the comments that are emphasised in the quote from Alphaone set out at [91] above. There the Full Court suggests that there may, in certain circumstances, be a more extensive obligation:

to identify … any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made .. [and].. to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.

(emphasis in original)

95    At [33]–[34] of SZBEL, the Court emphasised the importance of the reference in s 425(1) of the Act to “the issues arising in relation to the decision under review” and observed that those issues will not be properly identified in every case by simply describing them as whether the applicant is entitled to a protection visa. On this aspect, the Court highlighted the significance of the issues identified by the delegate and a failure by the Tribunal to identify any other issues. It said (at [35]):

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.

96    Referring to the invitation that must be given to an applicant to appear before the Tribunal, following a decision by the Tribunal that it was not able to decide the matter in the applicant’s favour on the material already before it, the Court observed that, if this occurs, the applicant will arrive at the hearing knowing that the Tribunal is not persuaded to decide the review in his or her favour on the material already before it. However, the Court added (at [36]):

… That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

(emphasis added)

97    Thus the Tribunal needs to communicate to the applicant, or in some way alert him or her to, the “live issues” on the review: see at [43] of SZBEL. On this requirement, the Court gave the following guidance (at [47]):

… [T]here 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 added)

98    The Court then reiterated a point it had made in earlier decisions that the Tribunal is not required to give an applicant a running commentary about what it thinks about the evidence given by the applicant, nor is the Tribunal to disclose to the applicant what it is minded to do so that he or she can criticise its mental process before it reaches its final decision: see at [48] of SZBEL. Whether this principle applies in the particular circumstances of these appeals is considered further below.

SZDFZ – a second or reconstituted Tribunal

99    It is important to note that SZBEL involved the first and only review by the Tribunal of the delegate’s decision not, as here, a second review by a reconstituted Tribunal where the first Tribunal had made findings and come to conclusions on the issues it thought arose in relation to the decision under review. In SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1; [2008] FCA 390 (“SZDFZ”), Flick J considered the obligation under s 425 of the Act where this occurs, that is, where a second or reconstituted Tribunal is conducting a review of a delegate’s decision after the first Tribunal’s decision has been set aside. About this situation, his Honour observed (at [19]):

First, it is not considered that “the issues arising in relation to the decision under review” are to be defined in all cases by the decision of the delegate. …

The issues which a delegate considers dispositive of the application may well be the issues which an applicant has to confront and answer when an appeal is lodged with the tribunal, eg SZJKU v Minister for Immigration & Citizenship [2008] FCA 308 at [37]–[45] per Emmett J. But the object of s 425 is to ensure that an applicant is given an opportunity “to give evidence and present arguments”, being evidence and argument “relating to the issues arising in relation to the decision under review”. And that is an obligation imposed upon the tribunal hearing the application before it, whether it be the tribunal initially hearing the application or any subsequent tribunal.

100    In the next paragraph, his Honour expanded upon these observations as follows (at [20]):

To confine that opportunity to those issues identified by the delegate and the tribunal that ultimately may consider the appeal is to ignore the phrase “relating to the issues arising in relation to the decision under review”. Issues may arise out of the initial decision of a delegate; they may also arise out of a decision of an intervening tribunal that has been set aside by the Federal Magistrates Court with the consequence that a reconstituted tribunal is thereafter called upon to resolve afresh the claims made. A decision of any such intervening tribunal may resolve some factual issues adversely to an applicant but nevertheless proceed to uphold his claim. Just as those adverse factual findings of the intervening tribunal would need to be addressed before any subsequent tribunal, as “issues arising in relation to the decision under review”, so too would favourable findings made by the intervening tribunal be issues arising in a like manner.

(emphasis added)

101    It followed, as Flick J went on to explain that, while a second Tribunal would be free to form its own conclusions on the relevant issues of fact, including those factual findings previously made in favour of an applicant, in doing so: “it is considered that they would be bound to make apparent to an applicant that these were findings or issues which should be addressed”: see at [21].

The basic principles

102    It follows from these decisions that the basic principles are these. Under s 425 of the Act, procedural fairness requires that an applicant has to be provided with the opportunity to give evidence and present arguments about the central and determinative issues on the review. This requires the Tribunal to identify those issues to the applicant. Unless some contrary indication is given, those issues will be the issues that the previous decision-maker – here both the delegate and the first Tribunal – identified as being determinative against the applicant. This includes any adverse or favourable factual findings made by the previous decision-maker that are critical to those issues.

103    Such a contrary indication may, however, be given in any number of ways. It may be apparent from the fact the Tribunal had decided it could not decide the application on the materials before it and had invited the applicant to a hearing. Or, it may be apparent from the nature of the Tribunal’s questioning that everything the applicant says in support of his or her application is in issue. In this regard, the Tribunal does not have to go as far as saying to the applicant that he or she is lying, or may not be accepted as truthful, or is exaggerating, nor does the Tribunal have to give a running commentary on its reactions to, or thoughts about, the evidence the applicant is giving, so long as it makes it clear from its questioning that the whole of the applicant’s claims are in issue. On the other hand, the Tribunal may consider that only specific aspects of the applicant’s account are questionable, or open to doubt. In that event the Tribunal must ask the applicant to expand upon those specific aspects and to explain why his or her account should be accepted.

Differing issues and findings

104    However, these appeals raise a number of matters that are not addressed by these basic principles. It is clear from their decisions that the central and determinative issue before both the delegate and the first Tribunal was whether ss 36(3) to 36(5) of the Act applied to deny the appellants’ applications, i.e. the issue was whether effective state protection existed in Italy. Hereafter, I will refer to this issue as the s 36 issue. Furthermore, it is clear that both accepted the appellant wife’s claims that she genuinely feared serious harm if she were to return to Albania as a consequence of her being forced to work as a prostitute in Italy. The delegate found that the appellants’: “… claims [to fear death upon return to Italy or Albania] … involve serious harm and systematic and discriminatory conduct as required by Section 91R of the Migration Act”: see at [71] above. Likewise, the first Tribunal accepted the appellant wife’s claims: “… of being a member of a particular social group which maybe described as: ‘women who have fallen foul [of an] Albanian prostitution ring’”; and it also accepted the appellant husband’s claims of being: “a member of a particular social group which may be described as: ‘Husbands of women who have fallen foul of Albanian prostitution rings” : see at [72] above.

105    It is also clear from its decision record that the central and determinative issue in the review before the second Tribunal was not the s 36 issue at all. Instead, it was the concerns the second Tribunal had about specific aspects of the appellant wife’s account that it considered undermined the credibility of the whole of her (and her husband’s) claims that she was subjected to sex slavery in Italy and that they both feared serious harm if she were to return to Albania, such that none of their claims was credible. Hereafter I will refer to this issue as the credibility issue.

106    Of course, the second Tribunal was quite entitled to decide the review on a different issue and, in the process, to make different, even diametrically opposed, findings of fact to those of the delegate and the first Tribunal. However, the critical issue in these appeals is whether it afforded the appellants procedural fairness in doing so.

A more extensive notice requirement

107    To afford procedural fairness in the peculiar circumstances outlined above, I consider the second Tribunal was obligated to communicate to, or inform the appellants, that:

(a)    The s 36 issue was no longer the central and determinative issue in the review; and

(b)    Instead, the central and determinative issue was the credibility of the whole of their claims in that, specific aspects of the appellant wife’s account may lead to the Tribunal not accepting the whole of the credibility of her claim to have been subjected to sex slavery in Italy; and specific aspects of the appellants’ claims may lead to the Tribunal not accepting the whole of the credibility of their claims to fear serious harm if they were to return to Albania.

108    The first of these matters arises from the basic principles outlined in SZBEL. Since the second Tribunal intended to decide the review on a completely different issue to that of the delegate and the first Tribunal, I consider it was obligated as a matter of procedural fairness to inform the appellants that was so. The most obvious way to do that was to include a statement to that effect in the letter inviting the appellants to attend the s 425 hearing. Alternatively, it could have informed the appellants of this fact at the outset of the hearing, although such a dramatic change to the issues in the review at that late stage would probably not have afforded the appellants a sufficient opportunity to give evidence and present arguments at the hearing on the new issue and would most probably have led to an adjournment. In either situation, I cannot see how such a notice would interfere unduly with the review process, or place any onerous obligation on the Tribunal, or require it to disclose any of its thought processes. If the s 36 issue was no longer a live issue in the review, it presumably had no thoughts about that issue other than the fact it was not an issue.

109    However, the second of these matters does place a more onerous obligation on the Tribunal and probably does require the Tribunal to at least disclose its provisional views about what aspects of the appellants’ accounts may affect the credibility of the whole of their central claims. In my view, this obligation essentially arises from one of the circumstances identified by the Full Court in Alphaone, viz an adverse conclusion which is not obviously open to an applicant on the known materials. In that situation the High Court accepted in SZBEL that the usual principle that a decision-maker is not obliged to expose his or her mental processes or provisional views to comment, may have to give way to the need to ensure the applicant is afforded procedural fairness by receiving notice of what that adverse conclusion is, and how it may affect the central and determinative issue in the review.

110    Here, the possibility that the second Tribunal may come to an adverse conclusion on the credibility of the whole of the appellants’ central claims was not obviously open on the known materials. This was so because first, based on the previous decisions, the s 36 issue was the central and determinative issue in the review; secondly, the factual issues involved in that issue were quite separate from the credibility issue – they dealt with whether the appellants could obtain effective state protection in Italy; and thirdly, the delegate and the first Tribunal had made favourable credibility findings on the appellants’ central claims. Indeed, both had accepted the central elements of the appellants’ claims: that the appellant wife was forced into sex slavery in Italy; and that, as a consequence, they feared serious harm if they were to return to Albania. In these circumstances, I consider the second Tribunal was obligated to give the more extensive notice described in [107(b)] above.

111    To assess whether the second Tribunal did so it is necessary to carefully examine the transcript of the hearing before it.

The hearing before the second Tribunal

112    On 3 September 2008, the second Tribunal sent a letter to the appellants inviting them to appear before it to give oral evidence and present arguments, stating that it was unable to make a favourable decision on the material already before it. As was observed in SZBEL, this invitation should have alerted the appellants that the second Tribunal was not persuaded by the materials already before it to decide the review in their favour. However, this letter did not identify any particular issue as being important to, or determinative in the review and, in my view, the appellants would have been quite justified in presuming the s 36 issue remained the central and determinative issue.

113    At the outset of the hearing, the second Tribunal member stated: “I’m not bound by any of the findings made by the delegate or by the Tribunal ...”, and that: “I’m going to ask you some more questions about some of the areas of your case that aren’t quite clear to me”. In my view, there was nothing in either of these statements to alert the appellants to the fact that the s 36 issue was not the central and determinative issue in the review, but rather that issue had changed to specific aspects of their accounts that may lead to their central claims not being accepted by the Tribunal.

114    Soon after the hearing began, the appellant husband left the room due to the sensitive nature of the questions that were to be asked in relation to the appellant wife’s time working as a prostitute in Italy. It is not clear from the transcript, but it seems he returned sometime later after the questioning moved onto different topics. While this course was understandable and was apparently acquiesced in by the appellants, I do not consider it completely removed the obligation of the second Tribunal to, at some appropriate stage, inform the appellant husband that his claims, derivative as they were, may be rejected on credibility grounds. I will return to this issue further below.

115    Once the appellant husband left the hearing, the second Tribunal proceeded to ask the appellant wife about a number of specific aspects of her account. Consistent with the second Tribunal’s reasons for decision, some of these aspects were directly related to the details of her claim to have been subjected to sex slavery in Italy and the others involved unrelated matters. The Tribunal member began by asking her about the circumstances in which she left Albania on the first occasion with a man named “Gjin”. In particular, the Tribunal member asked what Gjin’s surname was. The appellant wife answered that she could not remember because it was a difficult name. The Tribunal responded that: “If he was from your area in Albania, I wouldn’t have thought you would have difficulty pronouncing his surname or remembering it”. Ms McGrath, the appellants’ representative, intervened at this point and explained that she thought that the appellant wife was trying to draw the distinction between Gjin’s actual real name and what the appellant wife had been told his name was. The Tribunal responded: “I don’t get that impression”. The appellant wife then proceeded to give a detailed explanation about why she could not remember his real name as follows:

INTERPRETER: I can’t remember anything what he told me. Later on I understood that he had a different religion and they used to call him with a different surname. We have different names. Maybe because it looks like different, it’s different here, and maybe you wonder, but in Albania is different. I was very young at the time, and I just met him. He said his name, and – like, for example, in Albania, if somebody would have said to my father that, “I want your daughter for my son,” I would have gotten married to him without knowing him at all. Maybe it surprises you, but that’s the way – how it is in Albania. It’s not that you have to know the person for very long. Like, I met him there for a while, and that was it. Now I understand things, but not at the time.

116    To this explanation the Tribunal member responded: “Okay. So what did he tell you about his family?” The Tribunal member then asked the appellant wife a series of questions about whether she had left Albania before 2003 and whether she had a passport or identity document when she went to Italy. From the transcript, it appears that the Tribunal member was satisfied with the answers that the appellant wife gave.

117    Then the Tribunal asked the appellant wife to name the street in Torino where she was forced to live and work as a prostitute. She also asked her the name of the person who was in charge of the house where she lived. The appellant wife responded that she did not know, or could not be expected to remember, the name of the street, and she gave a long explanation in an attempt to explain why that was so. Her explanation was to the effect that the streets were not well marked in that particular area of Italy and that the house was in the middle of the street, not at the beginning or end of the street where a street sign would typically be placed. As to the person in charge of the house, her initial reaction to that question was: “… what kind of question is that”. However, she went on to say that she could only speak a few words to one of the other girls present and her captors did not tell her who they were. A little later in her reply, she said they used to change all the time. At the end of these questions and explanations, the following exchange occurred:

TRIBUNAL MEMBER: Well, I may come back to that argument later, but anyway - - -

INTERPRETER: But, please, ask me – I don’t want to discuss it in front of my husband, so please ask me now.

TRIBUNAL MEMBER: I don’t necessarily agree that the things that I’m finding strange are because Albania and Italy are different places from here. I mean, of course they are different places, but these concerns that I have relate to the plausibility of this experience you claim to have. There have been incidents of a sexual flavour here in Australia, and I would expect those applicants to be able to come here and tell me what street it was in Fitzroy or Brunswick that they were kept in.

118    In response to this statement, the appellant wife offered to provide more detail and the Tribunal member asked a few more questions, after which she stated “Okay. Let’s move along …”. At this point, Ms McGrath intervened and asked the Tribunal member whether there were issues of concern relating to her ability to name the street or the person running the house, to which the Tribunal member responded: “There will be other issues of concern.”

119    The appellant wife then repeated her explanation as to why she did not know who was in charge of the house. To this, the Tribunal member responded: “I would have thought that you would have had a sense of who was running the operation and recall, you know, even their nicknames that they went by …” The appellant wife then embarked upon another explanation. As the Tribunal observed in its decision, this explanation appeared to be inconsistent with the earlier explanation she gave for not knowing the name of the street where she was living and working in Torino. She said:

I haven’t got a clue who was the person – who was in charge in there and who was second in charge there. It’s not they let us to stay with them (indistinct) we used to be separated from them. They didn’t let us talk on the phone or use anything at all, so I don’t know. And they used to change all the time. There were a few houses in there, not only one. It wasn’t one house. There were a few houses in there, but then in the middle of nowhere – like, in the middle of the bush or – not the bush, like in the middle in the field.

It’s not like the houses were inhabited by people. They were – all the houses (indistinct) and the houses are not like veneer; they are houses which are made with brick – double brick. And they have – in the windows they have the bars, which were as thick as my hands. The houses are not like in here. They had few doors (indistinct) one door in the front, one door in the back. They had only one door, the door which you enter – and the windows with the big bars.

120    To this, the Tribunal member eventually responded: “Okay. I may come back to this area later, but I want to move on”. Despite this indication, the Tribunal member did not return to this aspect later in the hearing.

121    The Tribunal member then questioned the appellant wife about her return to Albania with the appellant husband and the two years she spent living there with his parents. The Tribunal member was interested to know how she managed to do this without anyone discovering she was there. The appellant wife explained that the appellant husband’s parents’ house was not near any other houses and because she was in bad shape from her time in Italy, she spent most of her time indoors. The Tribunal member then asked about the details of her marriage to her husband. The appellant wife answered that they were first married in a registry office and then later in a church. His parents attended and “… It wasn’t a big ceremony or something like that”. The Tribunal member responded: “All the same, I would have thought that having registered your marriage in the local civil registry and later on having a church wedding in your own village officiated by a priest – it’s surprising that nobody found out that you were there.”

122    The appellant wife repeated her explanation, after which the Tribunal member moved on to another issue.

123    The Tribunal member also questioned the appellant wife about their return to Italy in 2005 and the incident when she encountered some men from the prostitution ring she was involved in when she was last in Italy. In the course of this questioning, the Tribunal member asked why they did not go to the police, and commented:

All the same, the police are there to combat violent crime, and you say that you had been subject to threats of violence. I also understand that the police (indistinct) when they question their effectiveness, do have the authority and the policy to try to combat sexual slavery in Italy. So it’s a bit difficult to say that the police – that you have no state protection from the Italian authorities when you never gave them the opportunity to do anything (indistinct)

124    After a lengthy explanation from the appellant wife, the Tribunal member said: “Okay. So you decided to leave Italy and you went to the United States.”

125    The Tribunal member then asked the appellant wife why the appellants went to the United States before arriving in Australia. The appellant wife explained that they went to the United States on the assumption that her auntie would help them. After this did not eventuate, the appellants left the United States of America and returned to Italy. The Tribunal member asked why they did not apply for protection visas while they were in the United States of America and she responded that she did not know how to and because she did not speak the language it was very difficult for her.

126    After this questioning, the Tribunal member became concerned that the appellant husband had not heard a significant portion of the evidence. Significantly, the Tribunal stated that “… the problem is that adverse credibility issues arose out of [the questioning in relation to the appellant wife’s time as a prostitute], and he needs to know about those” and further that “I need to give them the weight that … needs to be given and, if I’m giving them any weight at all, then he’s entitled to know”. On this aspect, it is to be noted that the questioning about the appellants’ return to Albania, their subsequent return to Italy and their trip to the United States of America (summarised at [121]–[125] above) were all matters that were unrelated to the sensitive aspects of the appellant wife’s account of prostitution in Italy and were matters upon which the appellant husband would presumably have been able to give evidence and present arguments.

127    At this point, Ms McGrath intervened and claimed that the Tribunal should not have had any concerns about the veracity of the appellants’ evidence, and suggested that the Tribunal contact the appellant wife’s doctor who, she said, accepts the truthfulness of the appellants’ claims. The Tribunal said: “But he can’t answer the questions” and further: “I accept that he has that opinion”. The hearing was then adjourned for a short break.

128    When the hearing resumed, there was a discussion between the Tribunal member and Ms McGrath about a telephone conversation she had had with the Italian Embassy during the break. The Tribunal member then asked the appellant wife about her application for a visa to come to Australia and a parcel that arrived at the Australian Consulate in Rome purportedly from her father, but which she had claimed was in fact posted by her father-in-law. The appellant wife explained that her father-in-law put the appellant wife’s father’s name on the parcel because the Consulate wanted the documents to come from her father. The Tribunal member stated: “I don’t find that persuasive. I don’t understand why the documents would have to come from your father and not your father-in-law”. Soon after this questioning, the hearing concluded. However, immediately before that happened, the following exchange occurred:

TRIBUNAL MEMBER: Do you want to say anything else at the moment?

INTERPRETER: Maybe (indistinct) something later on, because I’m completely, completely blocked now, unless we have a short break and I can think about something. I remember something to tell now. (indistinct) for example (indistinct) told me before that I don’t – how come that you live for two years in (indistinct)

TRIBUNAL MEMBER: Mm’hm.

INTERPRETER: People stay at home because the blood feuds over there and they are there and nobody knows that they are (indistinct) the surname (indistinct) I can’t remember what’s the surname (indistinct) Maybe (indistinct) They were not like relatives or blood related or anything at all.

TRIBUNAL MEMBER: Yes, okay. Anything else?

INTERPRETER: This is my second tribunal, and if you want to clarify something with me, please do so.

TRIBUNAL MEMBER: Well, I’ve asked you all of the questions that I want to.

…

[The appellant wife then made a long statement about life in Australia, the risks in Italy and the lack of protection offered by the government in Italy and the material she had provided to the Tribunal.]

…

TRIBUNAL MEMBER: Okay. Anything else?

INTERPRETER: (indistinct) please, so I think a bit more clearly.

TRIBUNAL MEMBER: Well, I am going to be writing you a letter, which will give you another opportunity to submit any more information (indistinct)

INTERPRETER: But if I am here, why (indistinct)

TRIBUNAL MEMBER: I have to write the letter. Have you (indistinct) the information on your visitor visa card? If I can hear from your adviser, I’ll ask her to make her submissions and then I’ll give you another opportunity to say anything else that you want to.

The s 424A letter

129    On 28 October 2008, the Tribunal sent a letter to the appellants inviting them to respond to the information which the Tribunal considered would, subject to a response, be the reason or part of the reason for affirming the decision under review. This information included: the appellant wife’s travel before leaving Albania for the first time; the appellant wife’s contact with her family; the cousins of the appellant husband living in Australia; the protection that was available in the United States; and the fact that the appellant wife could not remember the street name where she was held captive in Italy, or who was running the house. The appellants both provided statutory declarations in response to these concerns.

130    The question arises as to whether this letter, sent by the second Tribunal to the appellant after the hearing, satisfies its s 425 obligations. In SZIOZ v Minister for Immigration and Citizenship [2007] FCA 1870 the Tribunal sent a letter to an applicant after the hearing advising that a certain fact was in issue. The Tribunal had not advised the applicant that this fact was in issue during the hearing. Besanko J held (at [59]) that this sort of letter cannot satisfy the provisions of s 425(1) of the Act. Rares J came to the same conclusion in SZJYA v Minister for Immigration and Citizenship (No 2) (2008) 102 ALD 598; [2008] FCA 911 at [56]. I respectfully agree with these conclusions

The second Tribunal did not inform the appellants of the central and determinative issues in the review

131    In my view, it is quite clear from this analysis of the transcript of the hearing that the second Tribunal did not at any stage alert the appellants to the fact that the s 36 issue was no longer the central and determinative issue in the review, and neither did it sufficiently alert the appellants to the fact that the credibility of the whole of their claims was the central and determinative issue in the review. Further, since the second Tribunal did not alert the appellants to the central and determinative issue in the review at this more general level, it is obvious that it did not inform them as to what specific aspects of their account may lead to it rejecting the whole of their central claims on credibility grounds.

132    It is self evident that the beginning of the hearing is the point at which the Tribunal member would ordinarily be expected to outline the issues that she thought were central to the review. What the Tribunal member said at that point was: “I’m not bound by any of the findings made by the delegate or by the Tribunal ...” and that: “I’m going to ask you some more questions about some of the areas of your case that aren’t quite clear to me”.

133    However, none of these statements made it clear that there had been a change of issues and the s 36 issue was no longer the issue, but instead the credibility issue had become the central and determinative issue in the review. Further, while the Tribunal clearly stated that it was not “bound” by any of the findings made by the delegate or the first Tribunal, that statement did not, in my view, serve to inform the appellants that the second Tribunal may reverse the favourable credibility findings the earlier decision makers had made on the appellants’ central claims. Furthermore, the statement “some of the areas of your case that aren’t quite clear to me” did not serve these purposes either. On its face it merely suggests there is a lack of clarity in relation to some aspects of the appellants’ case, not that, contrary to the conclusions of the previous decision makers, the whole of their central claims may completely lack credibility.

134    The closest the Tribunal came to informing the appellants that the central and determinative issue in the review was the credibility of the whole of their claims was four statements it made, as follows: “I don’t necessarily agree that the things I’m finding strange are because Albania and Italy are different places from here” (see at [117] above); “It’s surprising that nobody found out that you were [in Beltoj]” (see at [121] above); “the problem is that adverse credibility issues arose out of [that questioning]” (see at [126] above); and “I don’t find that persuasive. I don’t understand why the documents would have come from your father and not your father-in-law” (see at [128] above).

135    There are a number of observations to be made about these four statements. First, after the first two statements, the appellant wife proceeded to give a further explanation in response, and after that further explanation the Tribunal responded by stating “Okay”, and then moving onto another topic, or in the case of the second statement simply moving on to another subject. By any reasonable assessment this approach indicated that the Tribunal member was satisfied with the further explanation the appellant wife had given, and that her evidence was no longer open to doubt on that aspect. If any doubt still existed, one would have reasonably assumed that the Tribunal member would have continued with her questioning on that aspect, or used suitable words to express her disagreement with the further explanation given.

136    Secondly, the third statement has to be viewed in its context. First, this statement occurred near the end of the hearing. Secondly, at no stage during the hearing did the Tribunal member identify what those credibility issues were or, more importantly, that they would cast doubts on the whole of the appellants’ central claims. On the same aspect, the Tribunal member also said that “there would be other issues of concern”, however none of those issues were clearly identified at any point during the hearing. Thirdly, as I have already observed, there is nothing in the transcript to indicate when, if ever, the appellant husband returned to the hearing room. More importantly, the transcript shows the appellant husband was not, at any stage of the hearing, told what the “adverse credibility” issues were. Finally, since the Tribunal member went on to state that: “If I’m giving [the adverse credibility issues] any weight at all, then he’s entitled to know”, it must follow that the Tribunal member must have decided not to give the credibility issues any weight.

137    Finally, as to the fourth statement, this was the only occasion when the Tribunal member clearly communicated her rejection of an aspect of the appellant wife’s evidence. This evidence concerned the documents the appellant wife said were sent by her father-in-law (as opposed to her father) to the Australian Consulate. However, this related to the period in 2005 when the appellants were applying for visas to come to Australia and it was quite remote in time and subject matter from the appellant wife’s central claim to have been abducted, beaten and forced to work as a prostitute in Italy in 2003 and, as a consequence, to have feared serious harm in Albania since then. Thus, even if the Tribunal member made it plain she disbelieved the appellant wife on this aspect of her account, I do not consider this could constitute reasonable notice that she may disbelieve her on the credibility of the whole of her claims.

138    It follows, in my view, that none of these statements could be taken to have fairly alerted the appellants to the fact that the credibility of the whole of their claims had become the central and determinative issue in the review.

139    The appellants do not need to demonstrate that they would have been believed, or that they would have presented their case differently, if they had been properly informed of the central and determinative issues in the review. They only need to show they lost the opportunity to a fair review hearing: see NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 228 CLR 470 at [10]. Nonetheless, while it may be idle to do so, it is not difficult to speculate that, if they had been properly informed that the credibility issue was the central and determinative issue in the review, the appellant wife may have been less indignant about being asked the location of the house in Torino and who was in charge of it, and those questions may not have taken her by surprise. If so, the Tribunal member may not have been able to rely upon the appellant wife’s reaction to this questioning to reject her central claim about being forced into prostitution in Italy: see at [78] above. Similarly, if the appellant husband had given evidence in support of his wife’s account about them living in hiding in Beltoj when they returned to Albania in 2003, the Tribunal member may not have been able to reject so readily their central claim that they feared serious harm in Albania if they were to return there: see at [80] above.

Conclusion

140    For these reasons, I consider the second Tribunal did not afford the appellants procedural fairness in that it did not alert them to the central and determinative issues in the review, whether that be the abandonment of the s 36 issue, its replacement by the credibility issue, the specific aspects of their account that may bring down the whole of their central claims, or that it may reverse the favourable credibility findings made by the earlier decision makers. I consider the decision in SZBEL demonstrates that any one of these failings constitutes a jurisdictional error. It follows that the Federal Magistrate was in error in concluding that the second Tribunal had committed no such error: see the summary of that decision at [19] above.

141    These appeals must therefore be allowed. I agree with the orders proposed by Besanko J.

Associate:

Dated:    21 December 2010