weinberg j
94 I have had the advantage of reading, in draft, the reasons for judgment prepared by both Moore J and Allsop J. I agree with Allsop J that each of these appeals should be allowed. Their Honours have covered most of the matters that I regard as relevant. However, I wish to add a few remarks of my own.
95 The primary question raised in each appeal concerns the meaning to be given to the expression "information … that the applicant gave for the purpose of the application" in s 424A(3)(b) of the Migration Act 1958 (Cth) ("the Act"). On one view, that expression is to be construed narrowly, such that the word "application" in s 424A(3)(b) means "the proceeding before the Tribunal which is the vehicle for such a claim for review". On that view, the section applies only to information that the applicant gave for the purpose of the application to the Refugee Review Tribunal for review of the Minister's decision refusing him or her a protection visa. On another view, the section also extends to information given by the applicant at an earlier stage of the process, provided that the information was given for the purpose of applying to the Minister for a protection visa.
96 The distinction between these two competing formulations has now assumed considerable significance. Section 424A obliges the Refugee Review Tribunal ("The Tribunal") to provide the applicant with particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. This ensures that the applicant is given the opportunity to comment upon the matters so raised. However, the section does not apply to certain types of information. Relevantly, for present purposes, it does not apply to information that falls within s 424A(3)(b), namely information "that the applicant gave for the purpose of the application".
97 If s 424A(3)(b) is interpreted narrowly, and the term "application" is construed as meaning the application for review by the Tribunal only, the procedural requirements set out in s 424A will have significantly greater scope. If, however, the section is given a broader interpretation, and the term "application" is understood to include all information provided by the applicant in support of the visa, s 424A will have correspondingly less scope to operate.
98 As Moore J has noted, this very question of construction has been considered, and determined, by the Full Court in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27. In that case, an applicant for a protection visa, who had been interviewed by an officer of the Minister for Immigration and Multicultural Affairs upon his arrival at Sydney Airport, later filed an application for a protection visa. That application was refused by a delegate of the Minister. The applicant then sought review of that decision by the Tribunal.
99 In its reasons for affirming the delegate's decision, the Tribunal made certain findings that were adverse to the applicant's credibility. It relied, in particular, upon a series of discrepancies between the statements made by the applicant during the airport interview, and his statements in his written application for a protection visa. However, the Tribunal at no stage raised these discrepancies with the applicant. Nor did it give him notice of its intention to rely upon them when determining his case.
100 The applicant then sought judicial review of the Tribunal's decision. He relied upon the fact that the Tribunal had failed to comply with its obligations under s 424A of the Act.
101 At first instance, Madgwick J posited the question to be determined as being whether what the applicant said during the course of his airport interview constituted "information … that the applicant gave for the purpose of the application": Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679. His Honour held that the applicant's words were not "information", at least in the relevant sense. He reasoned that the terms "applicant" and "application", in s 424A(3)(b), when properly construed, were confined to the application for review to the Tribunal. As his Honour noted, at the time of the airport interview, the applicant had not yet applied for a protection visa, still less had he contemplated applying to the Tribunal for review of a refusal to grant such a visa. The interview had been conducted simply as a matter of departmental policy to detect illegal immigrants. It was hardly likely, in his Honour's view, that the applicant would recall what he had said at the time of the interview by the time he finally made his visa application. It was scarcely conceivable that he would recall the details of that interview by the time he finally sought review by the Tribunal of the delegate's decision.
102 The Full Court dismissed the appeal from the judgment of Madgwick J. In a joint judgment, Ryan and Conti JJ rejected the Minister's submission that the "information" constituted by what the applicant had said during the course of the airport interview came within the exception created by s 424A(3)(b). In the course of rejecting that submission, their Honours specifically rejected, at [17], the argument that the term "application" in that section meant:
"all information given by the applicant to officials in the Department (including that provided to the Tribunal) for the purpose of determining whether to grant a protection visa to the applicant".
103 In an important passage, their Honours said, also at [17]:
"In our view, "applicant" wherever appearing in s 424A means "applicant for review by the Tribunal of a Ministerial decision" and "application" correspondingly means the proceedings before the Tribunal which is the vehicle for such a claim for review."
104 In substance, therefore, their Honours' reasoning was relatively straightforward. They noted that s 424A(3)(b) found its place in Div 4 of Pt 7 of the Act. That Division was concerned solely with the conduct of a review before the Tribunal. They reasoned that the term "applicant", and the corresponding term "application", had a particular meaning in the context of that Division.
105 Their Honours observed that in s 423, for example, which also appears within Div 4 of Pt 7, and deals with documents to be given to the Tribunal, there is reference to an "applicant". However, the term "applicant" in that section is confined to "[a]n applicant for review by the Tribunal". Their Honours reasoned that if "applicant" in s 423(1) means "[a]n applicant for review by the Tribunal", ordinary principles of construction would suggest that the same meaning should be given to that term, and the corresponding term "application" in s 424A(3)(b).
106 Their Honours went on to add that, in any event, given that s 424A(3)(b) operated to relieve the Tribunal from affirmative obligations imposed by s 424A for the benefit of an applicant, a construction should be adopted which preserved, rather than diminished that benefit. They added that a purposive approach to s 424A would lead to the same conclusion.
107 Merkel J, the third member of the Full Court in Al Shamry, agreed with the reasoning of the majority but went further. His Honour considered that s 424A enacted a basic principle of the common law rules of natural justice. He said that it was understandable that the legislature would require that, in fairness, any adverse information provided by the applicant "prior to review" (to use his Honour's language), the significance of which the applicant might be unaware, should be disclosed to the applicant to enable him or her to respond to it. It was the beneficial purpose underlying s 424A of affording an applicant with the opportunity to respond to the gravamen of any adverse information upon which the Tribunal proposed to act that justified a narrow rather than a broad view being taken of the exception.
108 Al Shamry would hardly have assumed the importance that it now seems to have done had it not been for the recent decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. Though Al Shamry had narrowed the scope of the exception in s 424A(3)(b), and correspondingly broadened the scope of ss 424A(1) and 424A(2), it maintained a significant degree of flexibility in applying those provisions. The Full Court made it clear that any failure on the part of the Tribunal to comply strictly with the requirements of s 424A would not, of itself, give rise to reviewable error. Rather, each case would have to be considered in the light of its own particular facts.
109 The judgment in Al Shamry proceeded on the basis that the grant of relief by the court was discretionary, and that it would be a proper exercise of that discretion to refuse relief if the Tribunal's findings of fact led inevitably to the conclusion that the application for review was destined to fail. In other words, it was a critical aspect of the reasoning in Al Shamry that the court should consider whether the procedural breach involved in failing to comply with s 424A had led to some actual unfairness.
110 It seems clear that the judgment of the High Court in SAAP has radically altered the position. By a three to two majority (McHugh, Kirby and Hayne JJ, Gleeson CJ and Gummow J dissenting), it was held that s 424A required the Tribunal, at the hearing stage, to give the applicant written notice of any information that would be the reason, or a part of the reason, for affirming the decision under review. Having regard to the mandatory language of the section, and irrespective of the merits of the case, nothing less than written notice of such information specified would suffice. Any breach of the requirements of the section (as for example by giving oral notice rather than written notice) would constitute jurisdictional error. Accordingly, non-compliance would render the Tribunal's decision invalid.
111 It is important to note that the majority went on to reject the contention that, in the absence of any actual unfairness being demonstrated, the court should refuse to grant relief in the exercise of its discretion. According to the majority, in the absence of factors such as delay, waiver, acquiescence or unclean hands (which their Honours acknowledged might be relevant to the exercise of judicial discretion), a breach of s 424A, whether it led to actual unfairness or not, would normally result in the Tribunal's decision being set aside.
112 It should be acknowledged that the issues raised in SAAP differ from those raised in the present appeal. It was common ground before the High Court that the "information" in question (which concerned certain evidence given by the first appellant's daughter) was of a nature and significance that triggered the operation of s 424A(1).
113 Mansfield J, at first instance in SAAP, held that there had been no failure to accord procedural fairness because the first appellant was made fully aware of the potential importance of her daughter's evidence, and given a fair opportunity to comment upon that evidence, both during the hearing, and afterwards, had she desired to do so: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 577. The failure to comply with s 424A was of a technical nature only. It was brought about simply because the Tribunal had not given the first appellant written particulars of the information obtained from the daughter, as distinct from oral particulars. In that context, and not surprisingly, Mansfield J held that this breach of s 424A had not resulted in any unfairness. His Honour, therefore, in the exercise of his discretion, declined to grant relief.
114 The Full Court (Heerey, Moore and Kiefel JJ) dismissed an appeal against his Honour's judgment: SAAP of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 411. Their Honours saw no error in the manner in which Mansfield J had exercised his discretion.
115 In the High Court, McHugh J delivered what was perhaps the leading judgment of the majority. His Honour concluded that there had been a failure to comply with s 424A. He held that the section continued to apply at the stage when, under s 425, the applicant was invited to appear before the Tribunal to give evidence and to present arguments. Once it became clear that the Tribunal had not provided written notification, as s 424A required, it was no answer, in his Honour's view, to say that oral notification had been given. Jurisdictional error could arise where a decision-maker failed to discharge "imperative duties", or to observe "inviolable limitations or restraints". Nothing in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 suggested that a failure to comply with the requirements of s 424A, even in the absence of actual unfairness, should result in anything other than invalidity. In addition, his Honour held that there had been no basis for withholding discretionary relief.
116 Both Kirby J and Hayne J arrived at essentially the same conclusions, albeit by subtly different routes. Gleeson CJ and Gummow J each delivered powerful and, with respect, highly persuasive, dissents.
117 It is interesting to note that of the five members of the Court in SAAP, only McHugh and Gummow JJ made any reference to Al Shamry. McHugh J cited Al Shamry several times, though not in the body of his judgment, but only in the footnotes to paragraphs [50], [65], [66] and [68]. It is also interesting to note that his Honour did not comment upon the correctness or otherwise of the reasoning in that case, though this is perhaps explicable on the basis that the particular issue that arose for determination in Al Shamry was not before the Court in SAAP.
118 Gummow J discussed Al Shamry at some length at [116] and [118]. His Honour said, at [116]:
"Paragraph (b) of s 424A(3) relieves the RRT from what otherwise might be an obligation to give particulars of information already supplied by the applicant for the purpose of the application. In Minister for Immigration and Multicultural Affairs v Al Shamry, the Full Court indicated that the subject-matter of the exception is information provided by the applicant for review by statutory declaration under par (a) of s 423(1) and in response to an invitation by the RRT under s 424(2). That construction was not challenged on this appeal and should be accepted." (emphasis added and footnote removed)
119 He added at [118]:
What can be stated is that the evident object of s 424A is that, with the qualifications and exceptions just mentioned, fairness to the applicant is to be provided by alerting the applicant to adverse material and affording an opportunity to comment upon it. In Al Shamry, Merkel J correctly observed:
"Section 424A does not require the RRT to provide to an applicant all of the information upon which it proposes to act, other than information provided by an applicant for the purpose of the review. Rather, the section requires the RRT to provide the applicant with "particulars of any information" that the RRT considers would form part of its reason for refusing the application for review, to explain to the applicant why that information is relevant to the review and to invite a response to it." (footnote removed)
120 What seems to emerge from these passages in Gummow J's judgment is that his Honour did not harbour any doubts as to the correctness of Al Shamry. Indeed, he seemed to regard Al Shamry as having been correctly decided. If McHugh J had any doubts regarding the reasoning in that case, it can at least be said that he did not express them.
121 It is the unanticipated but potent combination of Al Shamry and SAAP that has given rise to the difficulties raised in these appeals. Had Al Shamry stood alone, any breach of s 424A would simply have been dealt with on its merits. If no actual unfairness could be demonstrated, or, alternatively, if it could be shown that there had been no such unfairness (Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346), relief would simply be denied in the exercise of judicial discretion.
122 SAAP seemingly precludes this approach from being adopted. Henceforth, any Tribunal decision based on "information" adverse to the applicant, and where such information does not fall within any of the exceptions contained within s 424A(3), is likely to be set aside, irrespective of whether there has been any actual unfairness to the applicant. The rigidity of this approach makes the construction of s 424A(3)(b) of particular importance.
123 In the appeals presently before this Court, the Minister initially contended that Al Shamry could be largely disregarded because the reasoning on the question of construction of s 424A(3)(b) was merely dicta. It was submitted that the principle set out in [17] of the joint judgment of Ryan and Conti JJ (extracted above at [103] of these reasons for judgment), went beyond anything that was strictly necessary to decide the case. In accordance with orthodox theories of precedent, that meant that their Honours' observations formed no part of the ratio of the case.
124 Ultimately, and under some pressure from the Court, counsel for the Minister appeared to resile somewhat from that submission. After being given time to consider carefully the Minister's position, she acknowledged, correctly in my view, that the passage in question had to be regarded as ratio.
125 This is not the occasion for a lengthy excursus into theories of precedent. It is sufficient simply to observe that it is not always easy to distinguish between the ratioof a case, and statements of principle that are mere dicta. Indeed, there is no consensus among jurists as to the test to be applied in order to determine whether a statement of legal principle is ratio or dicta.
126 In Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1 at 24, Devlin J (as his Lordship then was) suggested the following test:
"This is a matter which the judge himself is alone capable of deciding, and any judge who comes after him must ascertain which course has been adopted from the language used and not by consulting his own preference."
127 In other words, his Lordship ascribed to the judge deciding a case almost total freedom to determine which of that judge's observations should be regarded as ratio, and which dicta.
128 The degree of autonomy that this gave the judge was criticised by the learned authors in R Cross and JW Harris, Precedent in English Law (4th ed, 1991) ("Cross and Harris") at 42:
"If a judge has this amount of freedom to determine which of his observations is ratio decidendi and which obiter dictum, is there not a grave danger that he will exercise an undue influence on the future development of the law? He only has to state twenty propositions and say that he bases his decision on each of them to have created twenty new legal rules."
129 Irrespective of the cogency of Devlin J's approach, there are several factors that will always tend to redress the balance in favour of those judges who come afterwards. By emphasising the need to have regard to the facts of the previous case, and the language of prior or subsequent judgments, orthodox rules of judicial practice considerably curtail the influence that can be exercised in legal development by means of the reasons which a particular judge sees fit to give for his or her decision.
130 It goes without saying that any judgment must be read in the light of its own particular facts. In addition, every judgment must be read in the light of other judgments on similar points.
131 Professor Goodhart, in AL Goodhart "Precedent in English and Continental Law" (1934) Law Quarterly Review 40, wrote that the ratio decidendi of a case was to be determined by ascertaining the facts treated as material by the judge. In his view, the ratio was the principle to be derived from the judge's decision on the basis of those facts. Any court bound by the earlier case would have to come to a similar conclusion unless there was a further fact in the case before it which it was prepared to treat as material, or unless some fact treated as material in the previous case was absent. In other words, in Goodhart's view, the ratio of a case was not found in the reasons given in the opinion, but only in the facts treated by the judge as material, and the decision based on those facts. And this was as much a matter for a later court to determine as it was for the judge whose decision was being subsequently considered.
132 Professor Glanville Williams (Learning the Law (1982, 11th ed)), cited in Cross and Harris at 73, agreed with Goodhart that "[c]ourts do not accord to their predecessors an unlimited power of laying down wide rules". It is a fact that broad statements of principle by even ultimate appellate courts are sometimes interpreted restrictively by lower courts. That is because the later court considers that the formulation of the rule adopted went beyond the particular facts of the case, and was not a necessary part of the reasoning leading to the conclusion.
133 In Cross and Harris, the learned authors proffer the following description of the ratioof a case at 75:
"… any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion".
134 They also cite the following passage from the South African case of Pretoria City Council v Levison 1949 (3) SA 305 at 317 per Schreiner JA as a helpful statement of principle:
"As I understand the ordinary usage in this connection, where a single judgment is in question, the reasons given in the judgment, properly interpreted, do constitute the ratio decidendi, originating or following a legal rule, provided (a) that they do not appear from the judgment itself to have been merely subsidiary reasons for following the main principle or principles, (b) that they were not merely a course of reasoning on the facts (cf. Tidy v. Battman (1934, L.J.K.B. 158 at p. 162)) and (c) (which may cover (a)) that they were necessary for the decision, not in the sense that it could not have been reached along other lines, but in the sense that along the lines actually followed in the judgment the result would have been different but for the reasons."
135 I have no doubt that the passage at [17] in the joint judgment of Ryan and Conti JJ in Al Shamry was intended to explain the reason for their Honours' decision. I am equally in no doubt that, viewed objectively, that passage was a necessary aspect of the decision. It was no mere passing observation, nor was it merely a link in the chain of reasoning that led their Honours to their conclusion.
136 It is perhaps a minor point, but I am supported in my view that their Honours intended the passage to be ratio on the basis that it is incorporated in the headnote to the authorised report of the judgment. Not only does that headnote pick up the passage almost verbatim, but it treats it as ratio. That is of some significance in the context of this case. Headnotes in authorised reports are routinely submitted to the judges concerned for their comment, and approval.
137 There are those who regard the quest for ratio as an exercise in formalism that is ultimately sterile. I need not canvass the views of the extreme rule sceptics. Professor Julius Stone, a less trenchant critic, regarded the concept of ratio as being, in his terms, nothing more than a "category of illusory reference": see J Stone, Legal System and Lawyers' Reasonings (1964) at 278-80. As is well known, Stone contended that there was no single binding ratio in any case, and that there were always leeways of choice available to later courts in determining how widely, or narrowly, an earlier statement of legal principle should be read.
138 However cogent these criticisms of legal formalism may be, the courts, in England and Australia, have always proceeded upon the basis that a ratio can be distilled from most cases. A good example is Attorney-General for NSW v Perpetual Trustee Co (Ltd) (1952) 85 CLR 237, where Dixon J (as his Honour then was), explained why he regarded himself as bound to follow an earlier decision in Commonwealth v Quince (1944) 68 CLR 227, even though he regarded the reasoning in that case as being erroneous. At the time, an appeal from a decision of the High Court lay to the Privy Council. That fact plainly influenced the outcome. See also John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438-40.
139 The House of Lords traditionally regarded itself as bound by its own previous decisions. In 1966, as a result of a Practice Statement issued by their Lordships, that practice was modified: Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. Lord Gardiner LC, speaking for their Lordships, said at 1234:
"Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.
This announcement is not intended to affect the use of precedent elsewhere than in this House."
140 In Miliangos v George Frank (Textiles) Ltd [1976] AC 443, the House of Lords held that the instability which had overtaken the pound sterling and other major currencies since the decision of their Lordships in In re United Railways of Havana and Regla Warehouses Ltd [1961] AC 1007, as well as other developments, justified departure from that decision in terms of the Practice Statement since a new and more satisfactory rule could be stated to enable the courts to keep step with commercial needs.
141 The English Court of Appeal has traditionally regarded itself as bound by its own previous decisions. The rigidity of that doctrine is ameliorated by three exceptions, the third of which is in some respects relevant to this appeal. The Court does not regard itself as bound by its own previous decision pronounced per incuriam (Young v Bristol Aeroplane Company, Limited [1944] 1 KB 718 ("Bristol Aeroplane")). An example of such a decision is where a statute (or a rule having statutory effect) that would have affected the decision was not brought to the attention of the earlier court.
142 Following Bristol Aeroplane, Lord Denning MR nonetheless stated on a number of occasions that the Court of Appeal was not bound by its previous decisions. In Davis v Johnson [1979] AC 264, a majority of three out of five members of the Court of Appeal, including Lord Denning, found that Bristol Aeroplane could at least be expanded to allow new exceptions. This finding was unanimously rejected by the House of Lords: Davis v Johnson [1979] AC 264. At 325, Lord Diplock described Lord Denning's efforts as:
"a one-man crusade with the object of freeing the Court of Appeal from the shackles which the doctrine of stare decisis imposed upon its liberty of decision by the application of the rule laid down in the Bristol Aeroplane case to its own previous decisions".
143 Accordingly, it is now beyond doubt that the Court of Appeal is only free to depart from its previous decisions in the three narrow exceptions outlined in Bristol Aeroplane.
144 In Australia, the High Court used to regard itself as bound by its own previous decisions. Of course, it no longer holds that view. For example, in Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645, the Court declined to follow its earlier decision in Viro v The Queen (1978) 141 CLR 88. That does not mean that the Court will routinely reconsider its own previous decision merely because it is arguable that the decision is erroneous. In addition to the normal requirements that govern the grant of special leave, it is generally the case that leave is required to reargue a point that has been authoritatively determined by the Court.
145 In Australia, the position regarding intermediate appellate courts is somewhat different. In general, these courts do not regard themselves as strictly bound by their own previous decisions. However, they will depart from those decisions only in quite limited circumstances.
146 In relation to the Federal Court, a Full Court will follow a decision of an earlier Full Court unless satisfied that the earlier decision was "plainly wrong". Indeed, the same principle applies in relation to decisions of other intermediate appellate courts on questions of interpretation involving uniform national legislation. The High Court has held, in such cases, that unless convinced that an interpretation involving such legislation is "plainly wrong", an intermediate appellate court should follow a decision of another intermediate appellate court, even outside the hierarchy of courts within which it lies: Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485 at 492; cf the somewhat different approach to judicial statements regarding the construction of statutes taken by the Privy Council in Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32 at 39.
147 It follows from all this that the Minister faces a considerable hurdle in these appeals in so far as it is submitted that Al Shamry should not be followed. It is not sufficient merely to persuade this Court that there is an alternative, and preferable, construction of s 424A(3)(b) available. The Minister must go further and demonstrate that the decision in Al Shamry was "plainly wrong".
148 The word "plainly" does more than simply add emphasis. It suggests that the error must be manifest or, if it does not rise to that level, at least capable of being easily demonstrated. In a sense, the error must be so clear as to enable a later court to say that the point is not reasonably arguable.
149 An example of plain error would be that discussed in Bristol Aeroplane, namely that the earlier judgment was given "per incuriam". However, an earlier decision may be "plainly wrong", within the meaning of that expression, for other reasons as well. It goes without saying that such a finding will not be lightly made. As Allsop J correctly observes, there is a need to be "convinced or persuaded" of the earlier Full Court's error, and that can not be achieved in a case in which minds might reasonably differ as to the proper construction of a particular statutory provision.
150 Undeterred by the difficult hurdle that had to be overcome, and in an endeavour to satisfy the "plainly wrong" test, counsel for the Minister sensibly abandoned the argument that had been advanced in Al Shamry on behalf of her predecessor, and put forward a more cautious and modified submission. She acknowledged that the term "application" in s 424A(3)(b) could not, as a matter of construction, extend to an airport interview, prior to the making of any application for a protection visa. To that extent, she accepted that Al Shamry had been correctly decided, at least on the facts of that particular case. She submitted, however, that the passage in [17] of the joint judgment was too widely expressed, because the term "application" in s 424A(3)(b) should, as a matter of construction, be regarded as encompassing all information provided by an applicant in any application for a protection visa, and not simply such information as had been provided for the purpose of an application for review. Such information, counsel for the Minister submitted, fell properly within the expression "that the applicant gave for the purpose of the application". In other words, that expression only excluded information provided by the applicant at a stage prior to any visa application having been made, together with any information that was not provided "for the purpose" of seeking a protection visa. It did not exclude information of the kind provided in these appeals.
151 The Minister supported this modified contention by noting that an application for review of a decision refusing a protection visa is a hearing de novo. The Tribunal in effect "stands in the shoes" of the original decision-maker, the Minister's delegate. This was said to be significant because, as counsel noted, s 424A is couched in terms similar to those contained in s 57 of the Act. That section imposes upon the Minister an obligation to give relevant information to an applicant, and is expressed in language that is virtually identical to that which imposes upon the Tribunal the obligation to give to the applicant particulars under s 424A(1) and to afford an opportunity to comment upon it. In other words, the application process should be viewed as one continuous exercise, and not as two separate and unconnected steps.
152 Put in this modified way, the Minister's submission is considerably more cogent than that considered, and rejected, by the Full Court in Al Shamry. A problem with the earlier submission was that it lacked any significant textual support. The modified submission can at least be reconciled with the language of the statute, though it still requires the terms "applicant" and "application" in s 424A(3)(b) to be read more broadly than the term "applicant" in s 423. The counter argument, of course, is that the legislature has chosen expressly to refer to "an applicant for review" in s 423, but has used the term "applicant", without qualification, in s 424A(3)(b). That could support an argument that these terms were intended to have different meanings.
153 Notwithstanding the helpful and persuasive manner in which the Minister's counsel put her submission to this Court, I find it difficult to see how it can be plausibly contended that the reasoning in Al Shamry is "plainly wrong". In argument, counsel could not point to any statutory provision, or significant precedent that had not been addressed by Ryan and Conti JJ in their joint judgment. It was not submitted that the reasoning that commended itself to their Honours was in any way logically flawed.
154 All that counsel for the Minister could realistically say was that there was another interpretation of s 424(3)(b) available, and that, on one view, that interpretation was preferable. As previously indicated, that submission falls well short of providing any basis for departing from Al Shamry. Accordingly, the contention that Al Shamry should not be followed must be rejected.
155 That leaves for consideration the question of how each of these individual appeals should be determined. It also leaves for consideration the question whether, as a result of SAAP, any modification of the earlier pronouncements of this Court regarding the construction of s 424A(3)(b) is necessary. On this latter point, I agree with the observations of Allsop J regarding the impact of SAAP upon the reasoning of the Full Court in both Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471.
156 It is now necessary to consider just how the combination of Al Shamry and SAAP apply to the facts in each of these five appeals.