Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Outcome: cited
After argument concluded in this appeal, the Full Court (Moore, Weinberg and Allsop JJ) handed down its decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (" SZEEU ") which incorporates four related appeals. The main issue addressed by the Full Court was whether the authority of Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 (" Al Shamry ") should be reconsidered. The Court held unanimously that it should follow the construction of s 424A(3)(d) adopted in Al Shamry . 47 In separate reasons for judgment, each member of the Full Court in SZEEU considered the application of s 424A(2) to information which the Tribunal had relied on to make adverse credibility findings. The first piece of information concerned a statement which the appellant had made in a document lodged in support of his protection visa application explaining the circumstances in which he had left Bangladesh. The members of the Full Court described this as 'the flight information'. The second piece of information was that the Tribunal had received essentially the same claims in the same words from several other applicants represented by the same migration agent. This was referred to as 'the similar claims information'. Both pieces of information were used by the Tribunal in making an adverse assessment of the appellant's credibility. Each member of the Full Court considered that the information constituted information within the meaning of s 424A(1). Allsop J expressly stated that he adhered to what he had said in SZECF . There was, however, a difference of view between Moore J on the one hand, and Weinberg and Allsop JJ on the other, concerning the approach which should be adopted to the question whether these pieces of information constituted a part of the reason for the Tribunal's affirmation of the decision made by the Minister's delegate. 48 Moore J adopted and applied what had been said by Finn and Stone JJ in VAF : see SZEEU at [22] [25]. In his Honour's view, the flight information was not of sufficient significance to warrant a conclusion that it formed part of the Tribunal's reasons for affirming the decision of the Minister's delegate. This was because it was a subsidiary and peripheral reason which the Tribunal relied upon to reject the applicant's claim that charges were outstanding against him in Bangladesh. Other factors referred to by the Tribunal were of greater significance. As for the similar claims information, Moore J noted that the Tribunal only referred to this information after analysing and rejecting the applicant's central claims. In his Honour's view, the Tribunal therefore rejected the central claims of the appellant by a process of reasoning not dependent on the similar claims information: see SZEEU at [27]-[28]. 50 Allsop J held that the test which had been advanced in Paul and VAF had to be reconsidered in the light of the High Court's decision in SAAP . His Honour said that, to the extent that Paul and VAF both include notions of fairness derived from the rules of procedural fairness as part of the analysis of whether something is part of the reason for affirming the decision, those decisions are in conflict with the approach of the majority of the High Court in SAAP . In consequence, his Honour set out what he thought that the approach to be adopted in the future should be at [215]: "In my view, in the light of SAAP , in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s 424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one find them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision. To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character which would make it unfair not to invoke the procedures of s 424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason." The application of these principles by the majority in SZEEU necessarily led to the conclusion that both the flight information and the similar claims information fell squarely within s 424A. It was sufficient that both pieces of information were referred to and relied upon by the Tribunal as relevant and operative considerations, whether or not they could be described as a subsidiary or a minor part of the reason for the Tribunal's decision. 51 On the question whether the Keskin information and the HRA letter were a part of the reason for the Tribunal's affirmation of the decision made by the Minister's delegate, I consider that I am bound by, and ought to follow, SZEEU as the most recent considered statement of principle by the Full Court. 52 I do, however, wish to make one observation. In my view, it does not follow from the decisions in SAAP and SZEEU that the statutory purpose of s 424A is irrelevant to its proper construction and application. In SAAP , McHugh J at 181 [73] said that s 424A is a statutory formulation of the obligation to accord procedural fairness in the conduct of a review, and endorsed statements in this Court to the same effect: see SAAP at 179 [66]. Hayne J emphasised the crucial role played by the language, scope and objects of s 424A in its construction and application: see SAAP at 211 [208]. In Paul , Allsop J construed and applied s 424A in the light of its purpose of 'ensuring that the claimant is fully informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it': see Paul at 429-430 [104]. In Al Shamr y at 40 [39], Merkel J said that s 424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise. Cases may arise in which it is appropriate to take account of the statutory purpose of s 424A in determining whether there is any information within the meaning of s 424A, or whether particular information is the reason, or a part of the reason, for the Tribunal's decision. I do not consider that there is anything to the contrary in SZEEU . 64 The HRA letter was provided to the Department in connection with the appellant's application for a protection visa; it was not given to the Tribunal for the purposes of the review application. In these circumstances, the exception in s 424A(3)(b) is inapplicable. It only applies to information that is given for the purposes of the review application before the Tribunal: see Al Shamry per Ryan and Conti JJ at 33-34 [17]-[20] and per Merkel J at 38-39 [35]; and SZEEU per Moore J at [9], per Weinberg J at [154] and per Allsop J at [199]. The first respondent did not contend that the exception applied, or dispute the appellant's submission that it was inapplicable. 69 Does the HRA letter constitute information to which s 424A applies? The first respondent advanced two reasons why s 424A did not apply. First, it was argued that the Tribunal's subjective appraisal of the HRA letter, in weighing it against the appellant's oral statements and explanations to the delegate and to the Tribunal, did not constitute information for the purposes of s 424A. Secondly, the first respondent argued that any reservations which the Tribunal had about the letter could not be considered integral to, nor an important aspect of, the Tribunal's reasoning process so as to enliven the Tribunal's obligations under s 424A. The second argument must be rejected having regard to the Full Court's decision in SZEEU . The first argument has more substance.