Case: SZEZI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1195
Outcome: distinguished
Minister appeared to assume that information was involved but submitted that the information identified in these particulars was not the reason or a part of the reason for affirming the decision to refuse to grant the appellant a protection visa. Of [57] of the Tribunal's reason it was said: 'This is no more than a finding that the information relating to the appellant's visit to India did not satisfy the Tribunal, to the requisite level, that the appellant feared persecution on Convention related grounds. It does not transform the information into the reason or part of the reason for the decision: SCIA v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2006] FCA 238 per Allsop J at [12]; SZEZI v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1195 per Allsop J at [29].' The authorities to which the Minister refers are distinguishable. In both cases the appellant had not attended the hearing before the Tribunal: SZEZI at [5]; SCIA at [5]. In each case the Tribunal proceeded to determine the applications upon the material before it, which included the respective protection visa applications: SZEZI at [7]; SCIA at [6]. In SZEZI Allsop J raised with counsel for the Minister the question of whether there had been a breach of s 424A in the circumstances. His Honour answered that question at [29]: 'On one view, it might be said that since the only information that was before the Tribunal about the appellant's circumstances was information not withdrawn from the operation of s 424A(1) by s 424A(3)(b) , it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis. In SZECF [(2005) 89 ALD 242] I discussed the purpose of s 424A. Its operation is to be understood conformably with that purpose. Whilst in some cases an "unbundling" is necessary in order, sensibly, to apply s 424A to the expressed reasons of the Tribunal, here, the reason for the decision is plain. The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.' His Honour then applied the comments he had made in SZEZI . Allsop J was dealing with a very different situation in both of those cases. There the Tribunal's questions about the applicants' claims remained unanswered by virtue of their respective failures to attend the hearing. Here the questions were answered. The Tribunal evaluated those answers and, relevantly, rejected them. Moreover, in SZCIA his Honour expressed the view that the reasoning in SZEZI was in conformity with the approach of the Court in SZEEU : at [13] ]14]. I have referred to and applied that approach above. The suggestion that SZCIA and SZEZI mandate a different approach cannot be sustained and the Minister's submission should be rejected. This particular refers to information that 'because the appellant's daughter's name is "widely used in Bangladesh ... and appears to have Koranic origin" the appellant will unlikely experience difficulties upon refoulment'. This particular mischaracterises the context in which the Tribunal referred to the daughter's name. It is apparent that the point made, was not that by reason of the child's name, the appellant was unlikely to experience difficulties upon refoulment; it was that the failure to choose a Christian name cast doubt on the claim to have converted to Christianity.