Case: SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200
Outcome: cited
In SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 , the appeal arose from a Tribunal decision which had found that the applicant for a protection visa had fabricated his claim and various documents submitted in support of it. In reaching this conclusion, the Tribunal relied upon the fact that the applicant's written statement to the Department did not mention the claims of persecution that the Tribunal ultimately rejected. One of the issues that arose on the appeal to this Court was whether s 424A applied to the information contained in the applicant's original statement to the Department. After referring to VAF, Paul and WAGP , Allsop J at [26] and [34] held that it did: "I have extracted earlier the places in the Tribunal's reasons where the prior statement is used. Having read the whole of the reasons of the Tribunal, it is clear that the comprehensive disbelief of the appellant and the finding that he had brought forward fraudulent documentation was largely, if not wholly, a product of the importance placed by the Tribunal on the form and content of his first statement. In short, the Tribunal found that if what he was saying were true, it would have been referred to earlier. The fact that it was not, demonstrated the falsity of his evidence to the Tribunal. ... In my view, here, the knowledge of the Tribunal of the content of the earlier statement, including the limits of its contents can be seen to be a part of the reason for the decision because its form and content were instrumental in the Tribunal reaching a conclusion that the oral evidence of the appellant was false and the documents he was propounding were fraudulent." In Allsop J's view, the case before him involved something more than what Finn and Stone JJ in VAF at 476-477 [24] had called 'identified gaps, defects or lack of detail or specificity' in evidence given to the Tribunal, or what the Full Court in WAGP had described as a failure to mention something in evidence given to the Tribunal. 47 In separate reasons for judgment, each member of the Full Court in SZEEU considered the application of s 424A(2) to information which the Tribunal had relied on to make adverse credibility findings. The first piece of information concerned a statement which the appellant had made in a document lodged in support of his protection visa application explaining the circumstances in which he had left Bangladesh. The members of the Full Court described this as 'the flight information'. The second piece of information was that the Tribunal had received essentially the same claims in the same words from several other applicants represented by the same migration agent. This was referred to as 'the similar claims information'. Both pieces of information were used by the Tribunal in making an adverse assessment of the appellant's credibility. Each member of the Full Court considered that the information constituted information within the meaning of s 424A(1). Allsop J expressly stated that he adhered to what he had said in SZECF . There was, however, a difference of view between Moore J on the one hand, and Weinberg and Allsop JJ on the other, concerning the approach which should be adopted to the question whether these pieces of information constituted a part of the reason for the Tribunal's affirmation of the decision made by the Minister's delegate.