Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Outcome: discussed
The Minister also relied on what Gray J had said in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 and what Moore J had said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [20] when he was dealing with the SZBMJ case. Moore J dissented in this point. 56 Supplementary written submissions were filed on 3 March 2006 pursuant to directions which I made at the hearing to take account of the imminent decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. There, the Minister characterized the appellant's statement in his letter forming part of the application to the Tribunal for review, set out in [5] above namely: 'I gave full explanations in my previous statement' as inviting reference to the whole previous statement, not just that section which dealt with the subject matter of the appellant's work unit in China. The Minister submitted that there could '... be little doubt that the [a]ppellant intended that the Tribunal look at this material and thereby provided this information to the Tribunal ...' within the meaning of s 424A(3)(b). But, for the reasons I have given, I am of opinion that it is essential to consider, objectively, what was the extent of the material which the applicant for review was thereby giving to the Tribunal within the meaning of s 424A(3)(b). 57 The Minister made further submissions on 13 March 2006 on this issue in response to a letter from the Court. The Minister drew attention to the Tribunal having said that the matter had been '... determined on the evidence available' arguing that it thus had assessed the totality of the evidence. The Minister pointed to the reference in the application for review (see [5] above) in which the appellant 'cavilled' with the delegate's reasons, and, so the submission ran, thus incorporated the appellant's letter of 22 June 2003 to the delegate. 59 His Honour's reasoning on the exercise of the discretion to withhold prerogative relief cannot now be supported because in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 184-185 [83] per McHugh J 203 [174] per Kirby J and 211-212 [210]-[211] per Hayne J it was held that any failure to comply with s 424A(1) was a jurisdictional error. Their Honours held that where there had been no delay, waiver, acquiescence or other conduct of the appellant such as might found a reason for the exercise of the Court's discretion to refuse prerogative relief, a writ of certiorari should issue to quash the decision and a constitutional writ of mandamus should issue to require the Tribunal to hear the application for review according to law. In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [111] , [155], [231]-[232], which was decided after the oral hearing in this matter, the majority, Weinberg and Allsop JJ decided that this was the proper approach to the grant of relief where a contravention of s 424A(1) had occurred in the Tribunal. 68 Subsequently in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [224] Allsop J, with whose reasoning on this Weinberg J agreed ([2006] FCAFC 2 [155], [158]-[164]) adhered to and adopted what he had earlier said in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 concerning the reasoning of Finn and Stone JJ in VAF v Minister (2004) 206 ALR 471 at 477 [24 (iii)]. He said that: '... it is necessary to exercise care in applying what was said in VAF by Finn J and Stone J at [24(iii)] that the word information does not: Extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc.' 69 Allsop J, with whose reasons Weinberg J appears to have agreed ([2006] FCAFC 2 at [94], [155], [158], [169]) held that the operation of s 424A(1) is not limited to circumstances where the information imports some positive factual finding ([2006] FCAFC 2 [221]). Rather, his Honour observed, that was but one way in which information could be part of the reason for affirming a decision under review within the meaning of s 424A(1)(a). He continued ([2006] FCAFC 2 [221], [223]: 'Another would be the inconsistency between the information and what was now being said. If the Tribunal considers that inconsistency relevant to the assessment of the claims, it may be that the information would be part of the reason. If a Tribunal says that it does not believe an applicant for reasons that can be seen to include the fact that one thing was said in the prior statement and another at the hearing, or the fact that if what is now being asserted at the hearing is true it would have been in the prior statement in that form, the information would be part of the reason. The information is the knowledge imparted to the Tribunal of a prior statement in a particular form. The significance given to it by considering it in the light of evidence is the product of mental processes. This significance and those mental processes are not information, but rather, are why the information is relevant for s 424A(1)(b). ... ... I do not see Finn J and Stone J in VAF in [24(iii)] of their reasons as requiring a formalistic analysis of information such as prior statements depending upon whether its or their relevance is from the text or from the absence of text. Where there are things such as a prior statement or a visa application form, the information for the purposes of s 424A will be that a document in that form was provided. That information may have relevance to the Tribunal for all sorts of reasons. Such relevance is not limited to whether the information leads to a positive factual finding based on its terms. It may be relevant because it plays some part (as here) in the conclusion as to the truthfulness of the applicant.' 70 Ordinarily, the reason why an omission of information from the initial claim is relevant to a review is that a person in the position of the Minister or his or her delegate or the Tribunal would be able to expect the initial claim to include all material 'information' which the applicant for a visa had to put forward in support of his or her claim. A later provision of such a material matter could be capable of being characterized as a recent invention calculated to enhance the claim rather than as a genuine supplementation of the original material (see e.g. the analysis of Weinberg J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [177] - [180] ). Hence in such a situation, the relevance to the review of the 'omission' may be its bearing on the likelihood that each of the applicant's initial claim, and the later addition, would be accepted as reliable or as satisfying the Tribunal, as the decision maker, for the purposes of s 65(1) of the Act. 71 A process of reasoning which uses an 'omission' in the way described above is both common in every day life and, provided the facts support its use, unexceptionable. But, often times it will proceed upon the unstated premise that the initial claim gave, or could be expected to give, a full account of all the material facts which an applicant had available to give. That is, where such a premise is present, the initial claim will have included a representation, by implication or inference, that all of the bases which the applicant knew of had been put forward then and there by him or her. After all, the only person or the best person to tell the applicant's whole story in support of his or her claim, is ordinarily that applicant. As Allsop J said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [205] : 'Information is that of which one is told or apprised; it is knowledge concerning some particular fact, subject or event.' 72 The later provision of some material fact to support a claim is often, if not usually, able to be characterized as an 'omission' from the initial claim only because the initial claim conveys a representation, by implication or inference, that it is itself a complete account. And, in such a case it will be that latter representation which, in my opinion, is 'information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision which is under review' within the meaning of s 424A(1)(a). 73 The law dealing with representations, as well as the law concerning defamatory meanings or imputations, looks at the overall effect of the words and conduct of a representor or publisher and assesses whether, in the context in which the communication was made, a particular piece of information a representation or imputation was conveyed by it to an ordinary reasonable person in the position of a recipient of the communication. 85 As Viscount Sankey LC said on behalf of a strong Judicial Committee in In re Piracy Jure Gentium [1934] AC 586 at 600 of attempts to be prescriptive: 'However that may be, their Lordships do not themselves propose to hazard a definition of piracy. They remember the words of M. Portalis, one of Napoleon's commissioners, who said "We have guarded against the dangerous ambition of wishing to regulate and to foresee everything ... A new question springs up. Then how is it to be decided? To this question it is replied that the office of the law is to fix by enlarged rules the general maxims of right and wrong, to establish firm principles fruitful in consequences, and not to descend to the detail of all questions which may arise upon each particular topic." (Quoted by Halsbury LC in Halsbury's Laws of England, Introduction, p. ccxi.)' (see too per Weinberg J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [174] , [182], [183])