Case: SZDPY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 627 at [35] , [36]
Outcome: applied
In SZDPY [2006] FCA 627 the Tribunal had relied on the appellant's educational history in India and in Australia as a basis for its finding as to the reasonableness of relocation within India. The appellant conceded that at the hearing before the Tribunal he had done more than simply adopt information concerning his education in Australia; in response to the Tribunal's questioning he had actively given details of his education in this country. However, he argued that answers regarding his education in India were in response to leading questions from the Tribunal where in effect he was asked to do no more than confirm the details in his original visa application. 47 Kenny J found that the appellant specifically provided the Tribunal with his Indian education details. Her Honour (at [35]) rejected the submission that the information did not fall within s 424A(3)(b) because it was given in response to questions in the nature of cross-examination. The Tribunal's questions "were specific and arose, naturally enough, from the appellant's visa application". Her Honour considered that SZEEU supported the proposition that where an applicant affirms a specific fact before the Tribunal that information will be covered by s 424A(3)(b) , even if it came from another source. Her Honour found (at [36]) that the appellant did not "merely adopt" the education information in his visa application. At the Tribunal hearing he "separately and specifically" gave detailed information about his Indian education. 48 For no apparent reason, almost all the discussion of s 424A(3)(b) in the cases proceeds on the basis that the provision uses the word "provide". The subsection in fact uses the verb "to give", which simply conveys the notion of delivering or handing over (Shorter Oxford English Dictionary). If this matter were free from authority, there would be much to be said for the view that an applicant "gave" information for the purpose of the Tribunal review application if the information was delivered to the Tribunal by the applicant, whether in answer to a question asked by the Tribunal or whether volunteered. Either way, the information is conveyed from applicant to Tribunal. If we were to read or hear "At the trial, A gave information about fact X to the court", we would take that as equally comprehending the possibility of A giving evidence about X in chief, or in cross-examination, or in answer to a question from the judge. 49 Likewise, if an applicant says to the Tribunal "What I said in my visa application is true" and that application contains fact X, the normal meaning conveyed would be that the applicant is giving the information constituted by fact X to the Tribunal, as well as the further fact that fact X had been asserted by the applicant when he made the visa application. 51 In any event, in the present case, the information in question was positively advanced on behalf of the appellant in the letter of 9 December 2002. The reasoning in M55, SZCKD, SZCJD and SZDPY applies. 52 Counsel submitted that the Tribunal had to determine "substantive issues which arise on the evidence and material before it". He referred to a number of instances where the Tribunal had used expressions such as "The evidence ... has led me to be unable to accept that the essential and significant reason for the assault was his religious practice", "Aspects of the applicant's account have led me to doubt that he has provided accurate accounts of what occurred", and "I am unable to accept the accounts he has provided of what occurred in June and December 1999 are accurate" etc.