Case: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396
Outcome: cited
The appellant submitted that, by selectively providing the information in the email, the Tribunal failed to ensure that the appellant was, in words taken from Paul v Minister for Immigration [2001] FCA 1196 ; (2001) 113 FCR 396 at 429, "fairly informed of information adverse to his or her case ... so that investigation may be made, and steps may be taken, somehow, if possible, to meet it." 20 As to the Tribunal's rejection of the genuineness of the two medical reports purportedly made by two different doctors, submissions were made to the Federal Magistrate by the appellant regarding a supposed failure to comply with s 424A on the basis that the information used by the Tribunal was not simply each of the two documents compared. The conclusion drawn from those documents, that the handwriting was identical, was the information which must be given to the appellant by virtue of s 424A(1)(b). His Honour rejected those submissions on the bases that either the "information" referred to was merely the Tribunal's thought processes rather than information, or because the information had been provided to the Tribunal by the appellant himself and so was excluded by operation of s 424A(3)(b). 21 The appellant submitted that the Federal Magistrate erred in his application of s 424A(3)(b) in relation to the medical certificates created by third parties and provided to the Tribunal by the appellant. 22 The appellant also alleged a further error in the application of s 424A(3)(b) on the basis that a submission given to the Tribunal by the appellant's agent was said to have adopted earlier material. Such adoption was held to apply to the statutory declaration that the appellant made for the purposes of the protection visa application, and all other documents provided by his advisors, together with the protection visa application and the application for review to the first Tribunal in 2003, including the document headed "Background". The foundation for holding that this material was information given by the applicant for the purposes of the review at hand was a statement by the appellant's agent in closing written submissions following the 2006 Tribunal hearing. The agent said [the appellant's] claims are set out in detail in the statutory declaration provided with his application to the Department of Immigration. A submission provided with this application contains additional information relating to his case. [The appellant] continues to rely on these submissions. 26 The respondent submitted that the appellant had overstated the duty imposed on the Tribunal by s 424A. In NATL v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 112 , the Full Court held at [14] that "[t]he section does not require the provision of evidence. The test is whether an applicant is fairly informed of the information considered to be adverse: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396." (Emphasis added.) The respondent also relied on comments of Heerey and Allsop JJ in Paul [2001] FCA 1196 ; 113 FCR 396. The Tribunal' s 1 March 2006 letter clearly identified the information that the Tribunal considered would be, subject to the appellant's response, a reason for affirming the delegate's decision. The factual proposition referred to in the letter was clear: the Tribunal had received information that the appellant had changed money prior to his arrival in Sydney, whereas the appellant had stated that he learned of a danger in Pakistan from his family by telephone after he arrived in Sydney. According to the respondent, the letter also explained the relevance of the information: that the changing of money prior to his arrival suggested that the appellant planned to stay in Sydney before he spoke with his family and it was therefore not true that he decided to stay in Sydney due to fears arising from his conversations with his family.