Case: MZWMQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1263
Outcome: followed
McInnis FM noted that the Tribunal had made a series of adverse findings in relation to the appellant's credibility. His Honour observed that those findings, free of jurisdictional error, were largely incapable of supporting a decision that there had been an error of law. In relation to the husband's inconsistent evidence, McInnis FM relied on the decision of Marshall J in MZWMQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1263 (" MZWMQ ") to determine that the appellant's husband was an applicant before the Tribunal and that accordingly, s 424A(3)(b) of the Migration Act 1954 (Cth) ("the Act") operates to excuse the Tribunal from having to give written notice to the appellant of the evidence given by her husband. In any event, two significant findings in relation to the appellant's credibility were made on matters where the evidence of the appellant's husband was not relevant; first, the implausibility that someone in the appellant's position would be regarded as a political threat; and secondly, the fact that the appellant did not claim to be a refugee earlier. 18 Section 424A(1)(a) of the Act requires that the Tribunal provide to the appellant particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. However, the issue before McInnis FM was whether the husband's evidence, as a dependant applicant, fell within the exception in s 424A(3)(b) of the Act in that it was information that 'the applicant gave for the purposes of the application'. McInnis FM relied on MZWMQ to reach the conclusion that the husband's evidence fell within the exception in s 424A(3)(b). The first respondent contended that the facts in this case are similar to those considered by Marshall J in MZWMQ . As a result, the Tribunal was not required to given written notice to the appellant of her husband's inconsistent evidence. 20 Counsel also referred to two additional cases that address the status of dependant applicants. In Peniche v Minister for Immigration and Multicultural Affairs [1999] FCA 709 , Weinberg J treated dependant family members as applicants in their own right for the purposes of s 425 of the Act, the section which gives the applicants an opportunity to give evidence to the Tribunal. However, in VBAM v Minister for Immigration and Multicultural Affairs [2003] FCA 504 , Gray J interpreted s 424A(3)(b) widely so as to include evidence given by witnesses called on behalf of the applicant to the Tribunal. As counsel for the respondents noted, the proposition that the exception in s 424A(3)(b) extends to all evidence given on behalf of the appellant, including that given by other unrelated witnesses, goes further than MZWMQ , and beyond the issue raised by this case. 21 I am not satisfied that I am only entitled to depart from the decision of Marshall J if I consider that his Honour was plainly wrong. There is no doubt that this proposition applies when a Full Court of this Court is asked to depart from a previous decision of the Full Court. But there seems to be no authority extending the principle to the decision of a single judge who was exercising appellate jurisdiction. So much was conceded by counsel for the respondents. The view I have reached is that I should accord MZWMQ the same authority and respect that I would accord other single judge decisions in this Court, and that I should not depart from it unless I am satisfied that it was wrongly decided. 22 The appellant and her husband are joint applicants in the proceedings before me, the appellant's application and the husband's dependant application having been combined pursuant to reg 1401(3)(c). I infer from the Tribunal's reasons that the appellant was present when her husband gave evidence to the Tribunal. The Tribunal specifically notes that the appellant was asked about discrepancies between her evidence and her husband's evidence. It also notes her responses that her husband was a very forgetful person and not very good with dates, and that her husband had confused the political parties that they were supporting. 23 In my opinion, it is consistent with the object and statutory purposes of s 424A(3)(b) to construe its reference to an application as including joint applications which are combined pursuant to the Regulations . In all the circumstances, including the reasons put forward by counsel for the respondents, I am not satisfied that MZWMQ was wrongly decided by Marshall J. I propose to follow MZWMQ and apply it in this case. Accordingly, I reject the appellant's claim that the Tribunal erred in not giving particulars of the husband's evidence to the appellant in the manner contemplated by s 424A(1)(a). As a joint applicant, the evidence given by the husband fell within the exception in s 424A(3)(b). 24 It also follows that, in my view, the Federal Magistrate did not err in rejecting the claim based on s 424A.