Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: applied
The Tribunal has referred to the fact that in the period before the hearing before it the appellant did not claim that political affiliations were important. That may have been relevant to its assessment of the appellant's credit either on that particular topic, or more generally. The Tribunal did not say so in express terms. The fact that the information (assuming for the moment it is information) is used by the Tribunal in the assessment of an applicant's credit, either on a particular topic or generally, may be the reason or part of the reason for affirming the decision that is under review within the provisions of s 424A of the Act: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 (' SZEEU ') per Weinberg J at 252 [158] and Allsop J at 262-263 [220]-[221]. In other words, the obligation in s 424A(1) may apply even though the information does not of itself lead to a positive factual finding but is of significance only by way of demonstrating an inconsistency with other information provided on a different occasion. 20 In the case of a challenge on the basis that it is said that the Tribunal failed to comply with s 424(1) of the Act, it is necessary for the applicant to show that in fact the information was the reason or part of the reason the Tribunal affirmed the decision that is under review. That is sometimes a difficult question to determine and I agree with Weinberg J in SZEEU (at 253 [163]) that in cases of doubt, the matter should generally be resolved in favour of the applicant. In this case, the first respondent did not argue that the obligation did not arise because the information (again, assuming it is information) was not a reason or part of a reason the Tribunal affirmed the decision that is under review. I think that it was, and I refer to the passages set out in [15] and [16] above. 21 The question whether the matter relied upon by the Tribunal in this case was information for the purposes of s 424A of the Act is a difficult one. It is possible to characterise what the Tribunal relied upon as: 1. The contrast between the information given by the appellant prior to the second Tribunal hearing and the information given by the appellant at the second Tribunal hearing. 2. The failure to mention allegations in the information given by the appellant prior to the second Tribunal hearing. 3. The inference to be drawn from the contrast between the information given by the appellant prior to the second Tribunal hearing and the information given by the appellant to the second Tribunal hearing, namely, that the appellant may not be a witness of credit either on the particular topic concerned or generally. 22 Although I accept that the matter relied upon by the Tribunal may have had an important bearing upon its conclusions, I find it difficult to characterise the matter as 'information' within s 424A of the Act. It seems to me that the matter is no more than an inference which the Tribunal drew from the way in which material, which is no doubt information, was provided to it. A number of the difficulties which arise from the use of the word 'information' in s 424A of the Act are identified and discussed by Weinberg J in SZEEU . As to the difficulties raised by a case of the present nature, I refer to his Honour's observations at 255 [176]-[178]. 23 I am inclined to think that the matter relied on by the Tribunal was not information for the purposes of s 424A , but I do not need to decide the point because even if the matter was information within the section, it falls within the exception in s 424A(3)(b). 24 The obligation in s 424A(1) does not apply to information that the appellant gave for the purpose of the application for review (s 424A(3)(b)). It is clear from the authorities that the obligation does apply to information the appellant gave prior to the application for review. In my opinion, the exception applies to information the appellant gave not only to the second Tribunal hearing but also to the first Tribunal hearing. Such information was information that the appellant gave for the purposes of his application for review to the Tribunal. In my opinion, on a fair reading of the Tribunal's reasons the matter (assuming it to be information) was information the appellant gave at the first Tribunal hearing. I refer to the passages in the Tribunal's reasons set out above (at [14]). In those circumstances the obligation in s 424A(1) did not apply to the information.