Case: SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407
Outcome: followed
the Federal Magistrate, the appellant claimed that the Tribunal had erred because it had failed to comply with s 424(3)(a) and s 424B of the Migration Act 1958 (Cth) ( the Act ). The Federal Magistrate took the view that these points were covered by the decision of the Full Court of this Court in SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407. The Federal Magistrate also relied upon a decision of his own in SZNEC v Minister for Immigration and Citizenship [2009] FMCA 432. The Federal Magistrate held that the issues in the present case were indistinguishable from those in SZNEC [2009] FMCA 432. The Federal Magistrate said ( SZMXP [2009] FMCA 495 at [7] ): In my view, it is clear that the outcome in this case is determined by the decision of the Full Court in SZLPO . Based upon the reasoning of the Full Court, and my own analysis of that reasoning in SZNEC , there was no breach of s.424 or s. 424B in this case. Section 424(2) does not apply because the Tribunal was not seeking additional information from a natural person. Neither, on the facts of this case, was DFAT acting as the agent of the Tribunal. Because s.424(2) does not apply, neither does s.424B. It follows that no jurisdictional error in the decision of the Tribunal has been established and the application must be dismissed as a privative clause decision. I will so order. The Federal Magistrate, in my view, correctly applied the principles to be found in SZLPO [2009] FCAFC 51 ; 255 ALR 407. In substance, the following can be gleaned from SZLPO [2009] FCAFC 51 ; 255 ALR 407: (1) Information captured by s 424(2) of the Act must be information additional to information previously given to the Tribunal by the invitee ( SZLPO [2009] FCAFC 51 ; 255 ALR 407 at [99] [100]); (2) The word "person" in s 424(2) means a "natural person" ( SZLPO [2009] FCAFC 51 ; 255 ALR 407 at [103] [108]); (3) The word "person" in s 424(2) is limited by reference to a person whose identity is known at the time of the extending of the invitation ( SZLPO [2009] FCAFC 51 ; 255 ALR 407 at [109] ); and (4) A document is not "information," although it may contain information, and therefore s 424(2) does not apply to an invitation to a person to supply a document to the Tribunal ( SZLPO [2009] FCAFC 51 ; 255 ALR 407 at [110] [114]). In SZLPO [2009] FCAFC 51 ; 255 ALR 407 , the Full Court noted that in some circumstances, DFAT could be treated as an agent of the Tribunal. The Court noted (at [118]) that, where the invitation from the Tribunal leaves it to the recipient of the invitation to determine who to approach, it could not be said that the recipient of the invitation was the agent of the Tribunal. However, at [119] [120], the Full Court went on to say that, where the invitation from the Tribunal requests the recipient to contact a particular person, this circumstance might well suggest that the recipient was the Tribunal's agent. In the present matter, the Tribunal wrote to DFAT and requested that DFAT provide advice on the authenticity of various documents. DFAT replied, advising the Tribunal that it was highly unlikely that a judge would issue one of the letters under consideration and that it was easy in Bangladesh for someone to hire an advocate to issue letters such as the letter submitted by the appellant. DFAT further advised that the officer in charge of the Jagira Police Station in Shariatpur had described the First Information Report and charge sheet as fraudulent and had confirmed that those papers could not be found in the official record kept at that police station. The Tribunal then wrote to the appellant, pursuant to s 424A(1) of the Act, advising him of the content of the DFAT report and putting a series of matters to him that might influence the Tribunal's decision when it was ultimately called upon to decide his application. The appellant had an opportunity to respond to the letter and he did so. His response was that the documents which he had submitted were genuine. In the end, as I have already mentioned, the Tribunal did not accept a great deal of what the appellant had to say in support of his claims. These were all essentially findings of fact. The Federal Magistrate found that, because of the binding nature of SZLPO [2009] FCAFC 51 ; 255 ALR 407 , he was bound to conclude that the Tribunal had not breached s 424 or s 424B of the Act. His Honour also held that s 424(2) of the Act did not apply because the Tribunal was not seeking additional information from a natural person. His Honour also found that DFAT was not acting as the agent of the Tribunal. In my view, the conclusions reached by the Federal Magistrate were correct. In my view, s 424 does not apply in the circumstances of the present case, for the reasons which the Federal Magistrate gave. In addition, the substance of the DFAT report and the sources of the information contained in that report were disclosed to the appellant in the letter which the Tribunal wrote to him and he was given appropriate particulars of those matters. Accordingly, for these reasons, I do not think that the appellant has made out Ground 1.