Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Outcome: discussed
The appellant submitted that a breach of s 424A is jurisdictional error whenever the Tribunal fails to disclose information that forms part of its reasons. Citing SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (" SZEEU ") at [158] per Weinberg J and [225] per Allsop J, the appellant argued that there is error even where the information concerned only a minor and subsidiary part of the reasons. 17 The appellant argued that the education information provided in the original protection visa application was not subject to the exception in s 424(3)(b) of the Act. Moreover, the appellant submitted that the mere adoption at the hearing of any information contained in the visa application would not bring that information within the s 424(3)(b) exception. 19 The appellant relied on SZEEU at [17] and [20] per Moore J and NAZY v MIMIA [2005] FCA 744 at [37] per Jacobson J for the proposition that information does not fall within the exception of s 424A(3)(b) unless it is put forward as evidence in chief and the applicant is aware of the significance of the information. Thus, in the appellant's view, his brief responses to leading questions regarding his education in India did not mean this was information given for the purpose of the application for review under s 424A(3)(b). 21 In support of his application to amend his notice of appeal the appellant noted that SZEEU had not been delivered at the time of the hearing before the Federal Magistrate. The appellant suggested that it is unlikely that any further evidence would have been led below if the new ground had been argued there. Moreover, the appellant suggested that any prejudice to the first respondent could be cured by allowing her to tender a transcript of the Tribunal hearing. 22 The first respondent submitted that the Court should not grant leave to amend the notice of appeal. The first respondent noted that although SZEEU had not been decided at the time of the hearing before the Federal Magistrate, SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 and Al Shamry had been decided at that time. Further, the first respondent argued that leave to amend should be refused because the new ground of appeal was futile. 25 The first respondent contrasted this case to the facts of SZEEU . In SZEEU , the Court had considered the case of SZBMI who, in an airport interview upon arrival, had provided information concerning his flight from his home country. Before the Tribunal, he had affirmed that this statement was accurate. The Court, at [20] per Moore J and [157] per Weinberg J, held that the adoption of the earlier statement at the hearing before the Tribunal did not render it information provided by him in his application for review. The first respondent argued that this case is different because, rather than adopting a large statement in which a specific item of information was contained, the appellant had specifically discussed his educational background with the Tribunal. According to the first respondent, it followed that the information fell within the exception of s 424A(3)(b). 26 Although it was discussed before the Federal Magistrate, neither party raised the issue of Anshun estoppel in this Court. 29 The Court in SZEEU accepted that the word 'information' in s 424A refers to "knowledge of relevant facts or circumstances communicated to or received by the Tribunal": see SZEEU at [23]-[25] per Moore J, at [94], [157], [171] per Weinberg J and [205] per Allsop J. I accept that the Tribunal's knowledge of the educational institutions and dates of attendance and employment history set out in the appellant's visa application (referred to below as educational information) could constitute knowledge of relevant facts or circumstances communicated to or received by the Tribunal and therefore 'information' for the purposes of s 424A of the Act. It was not suggested that the Tribunal had given the applicant particulars of such information as s 424A(1) would require if it applied. 30 SZEEU contains various discussions of the expression "a part of the reason" in s 424A: see [164] per Weinberg J and [216]-[217] per Allsop J. As Allsop J said at [216], "[i]t is only necessary that the information be a part of the reason". In this case, however, the appellant has not established that the educational information set out in his visa application was "a part of the reason" for the Tribunal's decision, because other detailed information on the same subject was specifically provided to the Tribunal at the Tribunal hearing. The information given at the Tribunal hearing fell within the exclusion in s 424A(3)(b) of the Act. 31 For present purposes, I accept that the Tribunal's finding that it was reasonable for the appellant to relocate because he "is well educated and has demonstrated sufficient personal resourcefulness to enable him to settle here" was a part of the reason for the Tribunal's decision. However, consideration of the transcript of the hearing before the Tribunal makes it clear that the appellant specifically gave his educational and employment history to the Tribunal at that hearing. 32 At the hearing before the Tribunal, the Tribunal member asked questions regarding the appellant's educational and employment history. In response to the question "You came as a student did you?" the appellant explained that he had been studying business management at Sydney International College and that he had completed his studies there. He was then asked what he was studying at the time of the hearing. The appellant answered that he was studying commercial cookery at the Australian College of Hospitality. 35 It is clear that the appellant specifically provided the Tribunal with his educational details. I reject the appellant's submission that the information does 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. The appellant gave direct answers. The relevant information was simple and could be easily given in response to such questions. Further, SZEEU provides support for the proposition that where an applicant affirms a specific fact before the Tribunal that information will be covered by the exclusion in s 424A(3)(b). At [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said: "While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal's reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source." Similar reasoning applies in this case. The appellant gave the Tribunal information concerning his educational and employment history at the Tribunal hearing, although the Tribunal had reference to the appellant's visa application in discussing some aspects of his history with him. 36 I reject the appellant's submission that at the Tribunal hearing he merely adopted the education information in his visa application. This was not a case where an applicant merely adopted the contents of a document as a whole and in so doing was said to have conceded the correctness of items of information within it: contrast SZEEU at [15] and [17] per Moore J. It may be recalled that in SZEEU the Full Court held that the applicant's global adoption of an earlier statement (which contained the 'flight information') did not bring the flight information before the Tribunal for the purposes of s 424A(3)(b) of the Act. The present case is entirely different from the 'flight information' in SZEEU . It is plain enough from the transcript of the Tribunal hearing that the appellant separately and specifically gave detailed information concerning his education and employment to the Tribunal. It was open to the Tribunal on the basis of this information, which clearly fell within s 424A(3)(b), to find that the appellant was well-educated and resourceful so as to make relocation reasonable. Accordingly, the appellant's proposed new ground, which asserts breach of s 424A(1) of the Act, is untenable. 37 I would refuse leave to amend the notice of appeal and, since the appellant advanced no other ground that requires consideration, I would dismiss the appeal instanter. I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 25 May 2006 Counsel for the Applicant: Mr A Slattery Counsel for the Respondent: Mr S Hay Solicitor for the Respondent: Clayton Utz Date of Hearing: 24 May 2006 Date of Judgment: 25 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/627.html