Case: MZXFQ v Minister for Immigration and Citizenship [2007] FCA 826
Outcome: distinguished
After the foregoing reasons had been prepared counsel for the appellant sought and obtained leave to file further written submissions because of the publication of reasons in two other cases. The reasons had been published after I had reserved judgment in the present proceeding. The two cases were the decision of Rares J in SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 and that of Kenny J in MZXFQ v Minister for Immigration and Citizenship [2007] FCA 826. Written submissions in reply were also filed by counsel for the Minister pursuant to leave. 28 One of the issues in MZXFQ related to the application of s 424A(3)(b) in circumstances in which the appellant had given oral evidence before the Tribunal in which he confirmed, at the invitation of the Tribunal, that his previous written statements were accurate. He had also lodged with the Tribunal a statutory declaration in which he made reference to his initial statement in support of his protection visa application. The Minister argued that, in these ways, the appellant had republished to the Tribunal information which had been made in his initial statement. Her Honour rejected this submission. She said, at [47]: "The Tribunal purported to rely on information in the initial statement in assessing the appellant's credibility although the appellant did not invite reference to his initial statement in the course of the Tribunal hearing. I would reject the contention that the appellant "gave" the whole of his initial statement to the Tribunal, when, in answer to the Tribunal's question, he confirmed with the Tribunal that he did not wish to amend it or his 2005 statutory declaration. ... I would also reject the contention that, because of the terms of his 2005 statutory declaration, he "gave" the information in his initial statement to the Tribunal for the purposes of its review. His affirmation that, whilst his initial statement was "correct and true" he sought to provide the Tribunal with "extra details" in the 2005 statutory declaration did two things. It affirmed that his claims had not altered over time and that there were more particulars he could give in relation to them. In and of itself this did not republish the initial statement to the Tribunal. There is, moreover, nothing else in the 2005 statutory declaration or in the circumstances of the case that would give rise to the implication that the initial statement had been republished to the Tribunal. On the contrary, the terms of the 2005 statutory declaration indicate that it was intended to take the place of the initial statement as a fuller embodiment of the applicant's claims than the initial statement. Despite reference to the initial statement, the statutory declaration plainly stood by itself. It did not require the reader to refer to the earlier document in order to understand its contents." 29 Unlike MZXFQ the present case concerns a situation in which the appellant failed to raise a claim in his initial statement which he subsequently advanced before the Tribunal. There is no doubt, in my opinion, for the reasons which I have given in para [24] above that the appellant "gave" the Tribunal the information that he had not previously made the relevant claim. This case did not involve an alleged republication of the whole of the appellant's initial statement. Moreover it did not involve a mere assertion that what had been said in the initial statement was true and correct. The Tribunal was told that the claim had not been made in the initial statement and given the reasons why that was so. Accordingly, in my opinion, the decision of her Honour does not assist the appellant in this case. 30 The appeal should be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 15 June 2007 Counsel for the Appellant: Mr J Gibson Solicitor for the Appellant: Clothier Anderson &amp; Associates Counsel for the Respondent: Mr J Pizer Solicitor for the Respondent: Clayton Utz Date of Hearing: 7 April 2007 (Written submissions received 4 &amp; 7 June 2007) Date of Judgment: 15 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/663.html