Case: SZEEU v Minister for Immigration and Multicultural Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: cited
The Federal Magistrate considered the second claimed breach of s 424A(1) of the Act that country information was not put to the appellant. He held, correctly, that the country information fell within the exception set out in s 424A(3)(b). His Honour accepted that the Tribunal relied in part on the information that the appellant left China legally, that the information was provided in the protection visa application and that the appellant's reference in his review application to the statement in the protection visa application did not refer to that information. However, his Honour found the appellant did provide the information that he left China legally at the hearing before the Tribunal. The Tribunal had asked specific questions about the appellant leaving China legally and the appellant had answered those questions. He held that the appellant would have clearly understood the nature and importance of what he was saying and that he had not only acknowledged the information in his protection visa application but "volunteered" that information as to how he left legally. Accordingly he found that the information was excepted by s 424A(3)(b) of the Act . In so finding he considered relevant authority including particularly: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357; SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 ; SZEEU v Minister for Immigration and Multicultural Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214. 39 Although it is not necessary in the present case in order to establish the application of s 424A(3)(b) , the answers given by the appellant in the course of the oral hearing before the Tribunal also rendered the protection visa application information which the appellant "gave" the Tribunal for the purposes of the review. The appellant gave oral testimony that the statement in the visa application might be inaccurate as well as incomplete. He said he had not read that statement. However he relied on his written submissions to correct the statement if it was inconsistent with the written submissions, and also sought to supplement the statement generally. This testimony also supports the inference that the appellant intended the written submissions to be read with the statement in the protection visa application. In SZDXA v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 842 an appeal determined in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 the appellant submitted that his statement, but not the balance of the visa application form or the copied pages of the passport, had been incorporated into the application for review by the Tribunal. The information critical to succeeding on the basis of non-compliance with s 424A was contained in the copied pages of the passport rather than in the statement. Moore J, with whom Weinberg J and Allsop J agreed, held that the appellant had not established the fact that the copies pages were not incorporated by having been enclosed with the application for review. Moore J also held that information about the appellant having a business visa and travelling for work interests fell within s 424A(3)(b) when that was information given by the appellant in evidence before the Tribunal. 40 The approach taken in SZEEU to the SZEEU appeal itself could be regarded as inconsistent, indicating that Moore J considered that an applicant's adoption at a Tribunal hearing of what is contained in his protection visa application does not transform its contents into information provided by the applicant in his application for review. In VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 Heerey J considered the SZDXA and SZEEU appeals and concluded that information is given for the purposes of s 424A(3)(b) if the application conveys to the Tribunal, whether in answer to a question posed by the Tribunal, or by volunteering the information to the Tribunal. Where an applicant says at the hearing that he relies on what was said in his protection visa application then what is in the protection visa application is information given for the purposes of the application for review, within s 424A(3)(b).