Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: referred to
In relation to the alleged failure to comply with s 424A(1) of the Act , the appellant claimed that he should have been given notice by the Tribunal of its proposed approach to the letter from Mr Dellar and the letter from the senior officer in the PLA. The Federal Magistrate rejected that argument on the basis that that "information" fell within the terms of s 424A(3)(b) of the Act . The appellant claimed that certain country information should have been provided to him, but the Federal Magistrate rejected that claim on the basis that country information fell within the terms of s 424A(3)(a) of the Act . The appellant claimed that the Tribunal's finding that it was highly implausible that if he had been a soldier for many years he would have no reliable documentary evidence at all recording the name under which he had performed his military service was information within s 424A(1). The Federal Magistrate held that this conclusion was not "information" and referred to the decision of the Full Court of this Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 (" SZEEU "). The appellant claimed that the Tribunal's finding that there was no evidence at all that he had brought with him to Australia a level of knowledge about the practice of Falun Gong consistent with his claim to have been a practitioner for seven years or, indeed, at all, in China was within s 424A(1) of the Act . The Federal Magistrate rejected that submission saying that it was "a conclusion drawn from the evidence and was not information comprehended by s 424A". 46 The Federal Magistrate rejected the submission that the Tribunal had taken into account irrelevant information, namely, stale independent country information. It is not necessary to set out the reasons of the Federal Magistrate with respect to that submission because it is not an issue on the appeal. 47 In relation to the Tribunal's alleged failure to comply with s 425 of the Act , the Federal Magistrate said that no evidence had been adduced by the appellant in support of his claim that the Tribunal had failed to provide him with a fair chance to give oral evidence and that on many occasions he was only required to answer the Tribunal's questions. The Federal Magistrate noted that no transcript of the hearing before the Tribunal had been put before him. The Federal Magistrate concluded that on the evidence before him it could not be said that there had been a failure to comply with s 425 of the Act . 71 In my opinion, there has been no breach of s 424A of the Act in relation to the Dellar information and it is not strictly necessary for me to consider the further argument advanced by the Minister to the effect that in any event the Dellar information was information the appellant gave for the purpose of the application and therefore within the exception in s 424A(3)(b). The appellant challenged that proposition on the basis that the information was given by the author of the document and the appellant did no more than provide the document. I am inclined to think that the Minister's contention is correct ( SZEEU (supra) at 52 [252] per Allsop J). In any event, the real thrust of the appellant's complaint are the views of the Tribunal member as to the shortcomings of the information contained in the letter and not the information itself. 72 One final matter in relation to the Dellar information is that the appellant suggested to the Tribunal member that she could contact Mr Dellar by telephone but it seems that she did not do so. It is suggested by the appellant that the Tribunal member erred in not contacting Mr Dellar. I reject that submission. The Tribunal member was not bound to do that and there is nothing that she said that created a legitimate or reasonable expectation in the appellant that she would contact Mr Dellar: SZEEU at 20 [59]-[61] per Moore J, 39 [171]-[172] Weinberg J, at 52 [251] per Allsop J. The Liu information 73 The evidence of Mr Liu was significant because it dealt with the appellant's involvement in Falun Gong after his arrival in Australia. In general terms, it is fair to say that conduct was not in dispute, although the Tribunal member made a finding adverse to the appellant in terms of his motive for engaging in the conduct. 74 The real significance of Mr Liu's evidence lay in what inference (if any) could be drawn from it as to the appellant's involvement in Falun Gong in China. The appellant came to Australia on 13 August 2002 and Mr Liu met him in September or October 2002. Mr Liu's statement that the appellant's knowledge of Falun Gong was "not too basic and not too deep" is very general and, insofar as it suggests some knowledge of Falun Gong, may be explained by the appellant's attendance at Falun Gong exercises in Australia before he met the appellant.