Case: SZFKL v Minister for Immigration &amp; Indigenous Affairs [2005] FCA 931
Outcome: cited
In reaching this conclusion, his Honour relied upon observations in SZFKL v Minister for Immigration &amp; Indigenous Affairs [2005] FCA 931. 55 His Honour observed that two factors influenced the conclusion that s 424A had no application in the circumstances of the present case. Firstly, the Tribunal had regard to the inconsistencies per se in the two versions of events proffered by the Appellant rather than acting in reliance upon an acceptance of information contained in the Appellant's protection visa application as information forming part of the reason for affirming the decision of the Respondent's Delegate. Secondly, the Appellant gave evidence at a hearing before the Tribunal in the course of which information concerning the Appellant's personal details, educational achievements and employment history was tested. These matters were specifically put to the Appellant. 56 Thus, in his Honour's view, the Appellant provided the relevant information to the Tribunal itself for the purposes of the review of the decision of the Respondent's Delegate. On that footing, the information was given by the Appellant to the Tribunal for the purposes of the application before the Tribunal as contemplated by s 424A(3)(b). 57 The feature of the ground of appeal going to s 424A which is decisive of the appeal is this. 58 By the Appellant's letter to the Tribunal dated 12 March 2004, in the context of the Appellant's application to the Tribunal for a review of the Delegate's decision, the Appellant contended that the Delegate had not considered all of his claims 'fairly and carefully' and that as a result of factual matters set out in the letter, the 'obvious' conclusion open was that, 'the decision-maker has never ever carefully considered my claims and he has never ever understood my circumstances correctly' . 59 In the context of an application to the Tribunal to undertake the jurisdictional task of reviewing the decision of the Respondent's Delegate, these statements of the Appellant can only be construed as an express request by the Appellant of the Tribunal to gather together before the Tribunal all of the documents and information describing the circumstances, facts and contentions going to the Appellant's claim for a protection visa including all material before the First Respondent's Delegate and to review that material so as to reach a focused, informed and accurate assessment for itself of the strengths and weaknesses of the claim to a well-founded fear of persecution. Such a request might be described as a republication but its proper character is an express request of the Tribunal to descend into the merits of the claim and to properly have regard to all of the facts, circumstances and contentions which are said by the Appellant to be persuasive of the Appellant's claim of a well-founded fear of persecution. In determining that question in the exercise of the Tribunal's jurisdiction, the Tribunal must necessarily have regard to all of the information put to the First Respondent by the Appellant in connection with the application for a protection visa. 60 In so doing, the Tribunal acts conformably with the express request of the Appellant. 61 In those circumstances, information that the Tribunal considers to be a part of the reason for affirming the decision by reason of its utility in determining whether there are inconsistencies in the versions given by the Appellant, is information given by the Appellant to the Tribunal for the purposes of s 424A(3)(b) and there is thus no obligation under s 424A(1) to give particulars of that information drawn from the Appellant's protection visa application to the Appellant so as to provide the Appellant with an invitation to comment on it. 62 No contentions have been addressed to the Court in relation to s 425 of the Act.