Case: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609
Outcome: cited
In SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 , a decision of the High Court which was handed down on 13 June 2007, the High Court gave close attention to the circumstances in which s 424A was engaged. At [22] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, in their joint judgment, drew attention to the 'limited scope of s 424A' and at [15] and [21] said: '15 ... Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. ... ... 21 ... Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the Tribunal. ...' 53 On 17 October 2007 the Tribunal wrote to the appellant's agent following the Tribunal hearing before the third Tribunal member on 12 October 2007, presumably in the belief that certain information which it had available to it came within s 424A(1)(a) of the Act. The letter invited comment on five separate items. These included: 'First, in the statutory declaration accompanying your original application you said that your friend Mr Li ... had been involved in a traffic accident in June 2003 "while he tried to dodge a big truck which had overtaken him illegally". At the hearing on 12 October 2007, however, you said that the accident had involved a small car, not a big truck, and that the car had not been overtaking your friend but had in fact been coming from the opposite direction. You said this in an attempt to explain your claim that the assistant driver on Mr Li's truck had been able to jump off the truck and had thus escaped with only a minor injury although the truck had fallen in a ravine. At the hearing on 12 October 2007 you claimed that the statutory declaration accompanying your original application had not been read back to you in your own language. However you signed the statutory declaration before a Justice of the Peace ... and you initialled each page of the statutory declaration ... The Tribunal may therefore not accept your claim that you had no knowledge of what was written in the statutory declaration accompanying your original application. This inconsistency between what you said in the statutory declaration ... and what you said at the hearing ... is relevant to the review because it may lead the Tribunal to conclude that your claims regarding the accident in which your friend Mr Li was involved (and therefore your claims regarding your involvement in protests following that accident) are not true. The inconsistency in your evidence is also relevant to the review because it cast doubt on your credibility, that is, whether you can be believed. Secondly, in the statutory declaration accompanying your application you said that on 10 October 2003 you had organised more than 100 people to hold a big protest at an intersection of the highway from Xiamen City to Fuzhou City. At the hearing before the Tribunal (differently constituted) on 20 November 2006 you said that the demonstration had been at the mid point on the highway between Xiamen and Fuzhou. You said that there had been a crossroads there and that you had been at the centre of it but that you had not been obstructing traffic. At the hearing on 12 October 2007 you said that the demonstration had been in the city of Putian, at an entrance ramp where vehicles from Putian joined the highway. You said that you and the other people involved in the demonstration had stood by the side of the road. The inconsistency in your evidence regarding whether the demonstration was at a crossroads or at an entrance ramp and whether you and the other people involved in the demonstration stood at the centre of the crossroads or by the side of the road is relevant to the review because it casts doubt on whether you are telling the truth about the demonstration. The inconsistency in your evidence is once again also relevant to the review because it casts doubt on your overall credibility. Thirdly, if, as you said at the hearing before the Tribunal (differently constituted) on 20 November 2006, you were not obstructing traffic, it is difficult to accept that you would have been arrested as a result of this demonstration as you claim. Conversely, if you had been regarded as a key organiser of anti-government activity, as you likewise said at the hearing before the Tribunal (differently constituted) on 20 November 2006, it is difficult to accept that you would not have been charged with some offence and imprisoned for longer than the period of two and a half months for which you claim to have been detained. Your representative referred at the hearing on 12 October 2007 to your claim in the statutory declaration accompanying your original application that you had been calling on your fellow self-employed drivers to establish their own union. However, as the Tribunal noted, people who have tried to organise workers to form unions in China have been charged with offences and imprisoned ... This information is relevant to the review because it may lead the Tribunal to conclude that you are not telling the truth when you claim that you were arrested following the demonstration on 10 October 2003 and detained for two and a half months and that you were regarded as a key organiser of anti-government activity. Once again this information is also relevant to the review because it casts doubt on your overall credibility. ...' 54 Other information was put to the appellant concerning the Taiwanese passport on which it was said that the appellant had travelled when leaving the People's Republic of China and an apparent inconsistency between a disclosure in the appellant's application for a protection visa, where he had indicated that he had no close relatives in Australia, and the fact that the appellant's brother had come to Australia in May 2000. Reference was also made to the fact that the appellant had apparently obtained a passport from the People's Republic of China on 7 August 2002 which passport was produced to the authorities when the appellant was detained in October 2006.