Resolution of the appeal
21 The first ground of appeal relates to the primary judge's rejection of the appellants' first ground of judicial review. That ground related to s 424 of the Act. In our view, the appellants have failed to establish any appealable error in this regard.
22 It is desirable to first set out s 424 of the Act:
Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) A written invitation under subsection (2) must be given to the person:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the person is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
23 It is important to note the opening words of the provision. They make clear that the provision, including the obligation it imposes, applies to the Tribunal "[I]n conducting the review". In this case, this is a reference to the Tribunal's review of the delegate's decision refusing the appellants Protection visas. We do not consider that this provision applies to evidence which is sought and obtained by the Tribunal in the context of it conducting a review of an application made by someone else. The information which the Tribunal obtained from Mrs B in her response to the Tribunal's s 424A letter to her is not information which the Tribunal had sought nor had "gotten" in conducting its review of the appellants' cases. Rather, that information is information which the Tribunal had sought and had "gotten" in conducting its review of Mrs B's case. The position might be different if the Tribunal had relied on Mrs B's response in rejecting the appellants' cases. But it did not do so.
24 It is evident from the terms of the Tribunal's letter dated 19 March 2015 that the Tribunal was in possession of information relating to Mrs B in addition to information which it had obtained from the appellant. Some of that information was apparently provided by Mrs B herself in support of her Protection visa application. Other information was apparently obtained from Mrs B at her Tribunal interview on 16 March 2015, which was conducted by the same Tribunal member who was reviewing the appellants' cases. That information included Mrs B's answer to a question from the Tribunal as to the identity of the person whom she stayed with in Canberra and the name of the suburb. The Tribunal recorded in its letter dated 19 March 2015 that Mrs B could only remember the person's first name and she could not remember the name of the suburb. The Tribunal explained in its letter that the information was relevant in its review of the appellants' cases because the Tribunal might find that Mrs B was unable to provide a full name and identify the suburb where she stayed in Canberra and this was due to the fact that Mrs B had not been truthful and that the appellant and Mrs B lived together at the same address in Sydney, an address which they both provided in their respective Protection visa applications.
25 The Tribunal's reasons for decision confirm that it had regard to this information and the appellant's response to it in affirming the delegate's decision (see in particular [20]-[26] of the Tribunal's reasons for decision). Significantly, there was no reference to Mrs B's s 424A response letter in the Tribunal's reasons for decision concerning the appellants' review. There is no basis for inferring that the Tribunal had regard to that response in affirming the delegate's decision concerning the appellants. In circumstances where the information contained in that response was not sought and obtained by the Tribunal for the purpose of conducting a review of the appellants' cases, s 424 was not enlivened in respect of Mrs B's response.
26 We accept the Minister's submission that, if the appellants had wished the Tribunal to take evidence from Mrs B in their review proceeding, they could have made a request under s 426 of the Act. Alternatively, the appellant could have asked the Tribunal to take Mrs B's evidence into account in her response on 1 April 2015, but she did not do so.
27 We consider that the appellants' reliance upon case law which deals with the Tribunal overlooking evidence (including, for example, Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [54]) is misplaced. This is because Mrs B's response letter was never in evidence before the Tribunal in its review of the appellants' cases, thus it was not overlooked.
28 The appellants submitted that another reason why the Tribunal was obliged to take into account Mrs B's response in their review proceeding is because it was corroborative evidence which, if considered, would have been of significance to the course of reasoning that the Tribunal actually took. They relied upon the Full Court's decision in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 (VAAD) at [77], as well as other Full Court decisions dealing with the circumstances where the Tribunal is obliged to consider evidence. In their written submissions, the appellants made the following contention (emphasis added):
The Tribunal chose to find that the appellant had "manufactured the totality of her claims" and was an "untruthful and unreliable witness" based upon what B had said in support of her own protection visa application and similarities between the two applications.
29 For the following reasons, these contentions should be rejected. First, as to the appellants' reliance on VAAD, it may be accepted that whether or not the Tribunal is obliged to consider a document or documents depends upon the circumstances of the case and the nature of the document. The circumstances in VAAD, however, are distinguishable from those here. In VAAD, the document which the Tribunal failed to consider was one which was not only particular to the first appellant in those proceedings but, as the Full Court observed at [77], it was "arguably of critical importance to the claims of all the appellants". That is not the case here. The appellants failed to demonstrate that Mrs B's response was critical or significant to the appellants' claims.
30 As to the claim that Mrs B's response was corroborative of the appellants' claims and the Tribunal had to have regard to those matters, Mr Chia (who appeared for the appellants) said in oral address that such corroboration related to matters such as Mrs B's confirmation that her meeting the appellant at Karachi airport (and travelling alongside her to Australia) was completely coincidental; her explanation as to why she gave her son's address; her subsequent ability to provide the full name of the person she stayed with in Canberra and the suburb where she stayed and how she came to be told by the appellant that the appellant knew that Mrs B had also lodged a Protection visa application.
31 The Tribunal was under no legal obligation to have regard to these matters or to put them to the appellant for comment. The relevant information is far removed from the critical piece of corroborative evidence which was not taken into account in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99. Moreover, the matters relied upon by the Tribunal in coming to its ultimate conclusion that the appellant was an untruthful and unreliable witness were based upon a range of matters which extended well beyond what Mrs B had said in her response. This is evident from [26] of the Tribunal's reasons for decision:
The Tribunal considers that the evidence, in conjunction with the Tribunal's findings above, establish that the applicant had made plans to leave Pakistan and travel to Australia and to fabricate claims for protection upon her arrival in an attempt to remain in Australia. The Tribunal does not accept the applicant's claim that it was "coincidental" that she had a visa to travel to Australia, granted shortly before she claims to have been detained and arrested by the police on the instruction of the Mullah. The applicant had not previously travelled to Australia and the Tribunal does not accept that it was fortunate or coincidental that she had obtained a visa to travel to Australia and had intended to do so shortly before she was detained by the police in Pakistan. The Tribunal has also not accepted that it was a "coincidence" that the applicant and [Mrs B] travelled together, lived at the same address and lodged applications for protection using the same migration agent. In the Tribunal's view, the applicant's travel to Australia with [Mrs B] and their lodgement of Protection visas was planned and orchestrated and her denials in relation to this is indicative of the fact that she is an untruthful and unreliable witness. The Tribunal also does not accept that the applicant's husband's evidence in relation to this issue is truthful.
32 The appellants' contention that the Tribunal's finding that the appellant was an "untruthful and unreliable witness" was based upon what Mrs B had said is not supported by the Tribunal's reasons for decision. The Tribunal's adverse credibility finding in respect of the appellant was based not on what Mrs B had said but rather upon its rejection of the appellant's account of the circumstances surrounding her association with Mrs B and them travelling together to Australia and the other events which then occurred.
33 For these reasons, we consider that the appellants have failed to establish any appealable error on the part of the primary judge in rejecting their first ground of judicial review.
34 We consider that the appellants have also failed to make good their second ground of appeal which, as noted above, is to the effect that the Tribunal's s 424A letter did not give "clear particulars" of information which the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate's decision.
35 It is desirable to set out s 424A of the Act:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
36 The relevant contents of the 19 March 2015 s 424A letter are set out at [8] above. On a fair reading of that document, it is evident that the Tribunal was concerned that the appellant had not given truthful evidence at the Tribunal hearing regarding her association with Mrs B and the circumstances of them travelling to Australia together, that they gave the same residential and contact address and then both made Protection visa applications using the same migration agent. The appellant had claimed that these were matters of coincidence and that she did not know that Mrs B had also sought protection.
37 The obligation to give "clear particulars" did not oblige the Tribunal to provide the appellants with a full copy of Mrs B's written response. The chronology of events was as follows. The Tribunal wrote its s 424A letter to the appellants on 19 March 2015. By that time, the same Tribunal member had conducted a hearing in respect of Mrs B's separate review application. It is evident from the terms of the Tribunal's s 424A letter dated 20 March 2015 to Mrs B that the Tribunal held serious doubts about Mrs B's credibility. Evidently, however, the Tribunal did not consider, as at 19 March 2015 or subsequently, that its concerns regarding Mrs B's credibility would form part of the reason for affirming the delegate's decision to refuse the appellants Protection visas. In our view, the primary judge correctly concluded that the particulars as set out in the Tribunal's letter dated 19 March 2015 complied with the requirements of s 424A(1)(a). The position did not change when the Tribunal received Mrs B's response to her s 424A letter. It is notable that the Tribunal's reasons for decision in respect of the appellants' review proceeding make no reference to that response being relied upon in any way by the Tribunal in coming to the decision which it did in respect of the appellants.
38 The appellants' claim that they had not been provided with "clear particulars" as required by s 424A(1) of the Act was primarily directed to that part of the 19 March 2015 letter which referred to:
The statement provided with the application for a Protection visa made by [Mrs B] is in a very similar format to your statement provided with your application and you have both made similar claims to fear harm from the Taliban in Pakistan.
39 These particulars were sufficient for the purposes of s 424A. The appellant was told in the s 424A letter that both she and Mrs B had used the same migration agent to lodge their claims for Protection visas. It is evident from the terms of the appellant's response letter of 1 April 2015 that she acknowledged that she had used the same migration agent and that, although she said that she did not know whether the format for Mrs B's application was similar, she reasoned that because they had used the same migration agent "he could have used the same format". The appellant needed no further particulars in order to provide a meaningful response on this issue.
40 As to the clarity of the particular information that the appellant and Mrs B had both made "similar claims to fear harm from the Taliban in Pakistan", we reject the appellants' contention that this meant that the details of their respective claims to fear persecution were the same. The Tribunal was highlighting that both the appellant and Mrs B had claimed to fear harm from the Taliban in Pakistan. That was an accurate statement and no greater particularisation was required under s 424A(1)(a).
41 In any event, even if this be wrong, we would accept the Minister's submission, raised by his notice of contention, that s 424A(1) was not engaged at all by the information provided by Mrs B. Time should be extended under r 1.39 of the Federal Court Rules 2011 (Cth) to enable the Minister to rely upon his notice of contention in circumstances where the appellants pointed to no prejudice and the point raised by the notice of contention was plainly arguable. An acceptable explanation was provided by Mr Reilly (who appeared for the Minister) for the late raising of the proposed notice of contention. That was because the Minister's legal representatives had, until recently, considered that no notice of contention was required because the relevant point was simply another way of coming to the same conclusion that s 424A had not been contravened. This was a reasonable view, even if it was wrong.
42 It is well settled that, for s 424A(1)(a) of the Act to be engaged, the material in question must in its terms contain a "rejection, denial or undermining" of the review applicant's claims (see SZBYR & Anor v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 96 ALD 1 at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 at [22] per French CJ, Heydon, Crennan, Kiefel and Bell JJ). The information provided in Mrs B's response was largely information about her travel arrangements, travel to Australia and living arrangements in Australia and was not of a character which was caught by s 424A(1) (see, in not dissimilar circumstances, the observations of Yates J in Minister for Immigration and Border Projection v SZTJF [2015] FCA 1052 at [31]-[32]).