Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: discussed
One of the items which the tribunal recorded as having been put to the delegate in support of the original application was a print out (created on 4 September 2002) of the website of DSP and which identified Mr Goo as the production manager. It gave an address of DSP in Granville, New South Wales. Another item that was before the delegate and referred to by the Tribunal as such was a pithy sole agency agreement dated 10 April 2002 between Dongsung and DSP. Neither of those two documents was given by Mr Goo to the Tribunal for the purpose of his application within the meaning of s 359A(4)(b) as interpreted by the authorities culminating in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214. So much is common ground. 7 Mr Goo's then migration agent wrote to the tribunal on 2 May 2005 enclosing, among other things, a service seller agreement dated 26 August 2003 between Dongsung and Mr Goo. Among other things, that contained an entire agreement clause specifically providing for contents of the service seller agreement to supersede any and all prior agreements or understandings between those parties. Also included in the material supplied with the letter of 2 May 2005 to the tribunal was another copy of the printout of the DSP website created on 2 May 2005 which again showed Mr Goo as the production manager. That printout gave an address for DSP's business at Riverstone in New South Wales. 8 It is clear that the printout of the website before the delegate was of a different document and it contained different information from that which was provided to the Tribunal by Mr Goo in the letter of 2 May 2005. This distinction, if it had a difference, is said to be critical to the outcome of the appeal. 13 Mr Goo's argument is that had the tribunal had regard to and used as the reason or part of the reason the description of Mr Goo as production manager in the printout provided as part of the submission of 2 May 2005, it would have said so. In SZEEU 150 FCR at 255 [178]-[180] Weinberg J discussed the highly refined and extraordinarily sophisticated reasoning which the analogue of s 359A (s 424A) has engendered. To say that this legislation has created a technical minefield not only for tribunals but for applicants is an understatement. However, it is the role of the Court to apply the law, not to comment on the wisdom of its provisions. 14 Weinberg J indicated that the source of information may be critical to determining whether or not a notice in writing needs to be given for the purposes of the analogue of s 359A. And, he identified some odd results that can flow. Mr Goo in particular relies upon his Honour's discussion of the possible use of information given to the delegate in support of a visa applicant's case which is affirmed by the applicant for review at the hearing before the tribunal. In the example that his Honour gave (150 FCR at 255 [179]), the applicant for review repeated or adopted what he or she had said to the delegate in the course of giving evidence to the Tribunal. If the Tribunal chose the original statement, as opposed to its reaffirmation in the evidence before it, as the reason or part of the reason for its conclusion of disbelieve or lack of credibility on the basis of inconsistency between that information and some other information before it, different results would follow. He said (150 FCR at 255 [179]): '[179] In the same way, the present position can lead to odd results. As can be seen from the appeal in SZEEZ , if an applicant makes a statement during the course of an airport interview that is inconsistent with later evidence given at a hearing, s 424A(1) requires that written notice be given of the possible use of that statement to draw inferences against the applicant. If, however, the applicant repeats the earlier statement at some stage during the course of the hearing, and adopts it as true, and then subsequently resiles from that statement, the Tribunal is not obliged to afford the applicant an opportunity to comment upon the discrepancy: see generally SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 per Bennett J. This is because the adoption of the earlier statement brings it within the scope of the s 424A(3)(b) exception. If, however, the Tribunal proposes to use the earlier statement as the " reason ", or "a part of the reason " for affirming the decision under review, rather than the later adoption, it must comply with s 424A(1).' 15 Mr Goo focuses on the last sentence of this passage and says that by referring to the website description of him as production manager in [17] of its reasons, the Tribunal was using that information (i.e. the website printout of 4 September 2002) as the reason or part of the reason for affirming the decision of the delegate. He says that because the Tribunal did not set out in its reasons, in terms, the same description, albeit in a different document (i.e. the website printout of 2 May 2005) with some other different information it must have relied on the 'information' before the delegate. 16 Mr Goo says that the Tribunal was under a duty under s 368(1)(d) of the Act to refer to the evidence or any other material on which its findings of fact were based and the omission to refer to the printout of the website enclosed with the letter of 2 May 2005 demonstrated that it was the earlier printout which was the information upon which the Tribunal proceeded. 22 The critical information to which the Tribunal had regard was Mr Goo's self-description as a production manager. Unlike the situation discussed by Weinberg J in SZEEU 150 FCR at 255 [178]-[180], there is no question here of any inconsistency in information which Mr Goo was providing as to his status of production manager. The Tribunal referred in its reasons to 'available evidence' as showing Mr Goo as production manager of DSP. It did not have to set out the source of every repetition of that evidence. I am of opinion that it would expose the Tribunal's reasons to an overzealous review to conclude that the reason or part of the reason for its decision was specifically that contained in the source of the description 'production manger' which was before the delegate. There is no reason to think that the Tribunal did not also read and consider the submission given to it on 2 May 2005 in which the same information, patently uncontroversial in the instant case, was provided to it by Mr Goo for the purposes of the review. 23 I am of opinion that the Tribunal did not have to set out every reference in the material before it to a source for that description, which was uncontroversial and was a self-description. It is not suggested to be in any way inaccurate. What Weinberg J was addressing in SZEEU at 150 FCR at 255 [179] was a situation in which the Tribunal was using information given variously at an earlier occasion and later to it as a basis for not accepting that information or not accepting other information from Mr Goo that was relevant to that information. 24 Here, the source of the description 'production manager' was on each occasion Mr Goo's provision of the material in the website printout, first, to the delegate and second, to the Tribunal. There was no inconsistency between that material. Mr Goo intended that the Tribunal act on the information he provided, including the website printout of 2 May 2005, and because of the operation of s 359A(4)(b)that was information which the Tribunal did not have to give back to him. 25 There was no part of the reasoning of the Tribunal which relied upon any distinction between the times at which that same information was provided to the delegate or to the Tribunal. A fair reading of [20] of the Tribunal's reasons indicates that it had regard to the overall position of DSP including that it was a business name he owned and Mr Goo's relationship with Dongsung.