Case: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [24] , [25]
Outcome: applied
In M55 [2005] FCA 131 Gray J had to deal, amongst other things, with an argument that the Tribunal had wrongly relied on the use by the applicant of his Sri Lankan passport on several occasions in leaving that country, the inference being that because the Sri Lankan authorities had not confiscated it they had no interest in him. His Honour held (at [24]) that the Magistrate was wrong in finding that the provision of the passport as part of the original application for a protection visa was sufficient to exclude the operation of s 424A(1). However, in his Honour's view that was not the end of the matter. He held (at [25]) that because, by means of the written submission of his counsel to the Tribunal, the appellant replied expressly on the terms of his protection visa application he thereby invited reference to the copy passport which was attached to his application form. There could be little doubt that the appellant intended that the Tribunal should look at this material. His Honour said: "In my view, he thereby provided the passport, and the information to be derived from it, to the Tribunal for the purpose of the application for review. This was sufficient for the appellant to have been taken to give the information contained in the copy passport to the Tribunal for the purpose of his application for review, and therefore for that information to fall within s 424A(3)(b) of the Migration Act ." 32 In NAZY [2005] FCA 744 the appellant had made a certain statement in answer to a question in his protection visa application form. The Tribunal in the course of the hearing referred to an inconsistency between the answer to that question and the appellant's oral evidence before the Tribunal as one of the reasons for rejecting his claim. The inconsistency was put orally to the appellant in the course of the hearing. Jacobson J held that s 424A(1) was not complied with. It was put to his Honour that Al Shamry was distinguishable because the appellant had referred to the protection visa application form when asked about it by the Tribunal and said that the information in it was true and correct. Counsel for the Minister relied on Gray J's decision in M55. 34 It would seem that Jacobson J did not regard Gray J's decision in M55 as wrong. Rather, that case was to be distinguished on the basis that there the appellant had expressly adopted and put forward as part of his application to the Tribunal the earlier information whereas in NAZY the appellant had adopted the earlier information in answer to a question from the Tribunal. 39 M55 was not mentioned in SZEEU . Implicitly the members of the Full Court accepted that Jacobson J was correct in treating M55 rightly decided, but distinguishable. 40 In another of the cases dealt with in SZEEU , the case of SZDXA , the relevant information was that the appellant had entered Australia on a business visa. The Tribunal originally came to know this from another source but as Moore J said at [91]: "... it is tolerably clear from the Tribunal's reasons that it discussed this fact ... with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source." 41 The distinction between this case and SZBMI (see [35]-[37] above) was not explained. 42 In dealing with the same case Weinberg J said at [179]: "... 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 [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 part of the reason for affirming the decision under review rather than the later adoption, it must comply with s 424A(1)."