BFE15 v Minister for Home Affairs

Background facts 5 The appellant arrived in Australia on 7 April 2014 using a Malaysian passport that he had purchased and which was a forgery. 6 On arrival, the appellant attended an interview during which he acknowledged having purchased a forged passport. In the course of the interview, the appellant also provided an explanation as to why he had decided to leave Malaysia. He said that he had been raised as a Sunni Muslim but had converted to Shia Islam. The appellant said that, after declaring his conversion, he was subjected to threats, including an assassination attempt by passing motorcyclists, but that fortunately he had not been hit by the shot. Despite informing police of his position, they had taken no action. He also said that his friends and relatives had disowned him. 7 On 20 August 2014, the appellant applied for a Protection (Class XA) visa. By operation of s 45AA of the Migration Act and reg 2.08F of the Migration Regulations 1994 (Cth), with effect from 16 December 2014, the application was taken to be an application for a Temporary Protection (Class XD) visa. 8 In his application for a protection visa, the appellant referred to his conversion from Sunni to Shia in March 2010. The appellant claimed that he had disclosed the fact of his conversion to a childhood friend who had become the Mufti of a local Sunni mosque. The appellant claimed that his conversion to the Shia faith had become widely known despite his desire to maintain privacy about the matter. The appellant's protection visa application had an annexure in which additional claims were made. 9 The appellant appointed a migration agent and attended an interview with a delegate of the first respondent (the Minister). The appellant's migration agent provided the delegate with a submission which restated and expanded upon the matters on which the appellant had relied in making his application for a protection visa. On 18 November 2014, the delegate made a request for the provision of detailed information by the appellant. The appellant responded to that request progressively. 10 On 17 December 2014, the delegate refused the application for a protection visa. Although the legislative and regulatory changes referred to in [7] had come into effect, the delegate's refusal was expressed in terms of a refusal to grant a Protection (Class XA) visa, rather than a Temporary Protection (Class XD) visa. 11 The appellant applied to the then Refugee Review Tribunal for review of the delegate's decision. 12 On 12 June 2015, the Refugee Review Tribunal in substance affirmed the decision of the delegate to refuse the application for a protection visa. The decision of the Tribunal was to set aside the decision refusing the grant of a Protection (Class XA) visa and to substitute a new decision refusing the grant of a Protection (Class XD) visa. This decision was the first of two tribunal decisions in relation to the appellant's application for a protection visa. I will refer to the Refugee Review Tribunal that made this decision as the First Tribunal and its statement of decision and reasons as the First Tribunal Reasons. 13 The appellant applied to the Federal Circuit Court for judicial review of the decision of the First Tribunal. 14 On 16 June 2016, the Federal Circuit Court set aside the decision of the First Tribunal: BFE15 v Minister for Immigration and Border Protection (2016) 309 FLR 352. The single ground of review, which the Federal Circuit Court upheld, was that the Tribunal's decision was affected by jurisdictional error because the Tribunal failed to afford the appellant procedural fairness and failed to comply with its obligations under s 425(1) of the Migration Act. In particular, it was contended (and the Federal Circuit Court accepted) that the Tribunal failed to notify the appellant that it was likely to make an adverse finding on a certain matter (namely, that the appellant and his family had received threatening letters and phone calls in relation to his conversion to the Shia Muslim faith) that the delegate had accepted. The Federal Circuit Court ordered that the matter be remitted to the Administrative Appeals Tribunal (differently constituted) for reconsideration. 15 On 19 August 2016, the appellant submitted to the Tribunal a statutory declaration dated 19 August 2016 (the August 2016 Statutory Declaration) in which he made clarifications or corrections to certain information that he had provided earlier. He also provided additional information in relation to his visa application. The clarifications or corrections included the following: (a) The appellant stated that his correct name was not the name he had provided during his entry interview. The appellant explained that the name he had originally provided was a family caste name. (b) He stated that his entry interview record stated that he departed Pakistan in approximately March 2014. He stated that he had since corrected this mistake and informed the Department of Immigration and Border Protection (the Department) and the Tribunal that he departed Pakistan for Malaysia in 2012. He explained that he was scared and confused during his entry interview. (c) He stated that his entry interview recorded that an assassination attempt against him occurred at the end of 2012. He stated that that was incorrect and the incident in fact happened in 2011. He explained that the error was caused by his stress in the interview. (d) He stated that his protection visa application (submitted in August 2014) had been completed while he was in immigration detention. He stated that he was assisted by a registered migration agent and the application did not accurately represent his claims. (e) He stated that: while in immigration detention he became friendly with a Punjabi Indian man; after he obtained his visa and was released from immigration detention, he called the appellant and provided details of the registered migration agent he had used; the appellant contacted that agent and asked him to represent the appellant; the appellant obtained a loan from Pakistan to pay an upfront fee to the agent; despite contacting the agent repeatedly (by telephone and email), the agent did not come to meet with the appellant and he received no paperwork; the appellant obtained an extension of time from the Department to lodge a protection visa application; the next day, the agent sent the appellant pre-filled papers to sign; and although the appellant had told the agent his story and his claims, the written information was incorrect. The appellant stated that, in particular, the agent made reference to an incident in February 2012 when many Shia pilgrims were killed, but that incident was not connected with the appellant's claims. The appellant stated that: he told the agent that the information about his reasons for applying for a protection visa was incorrect; and the agent said that is "no problem" and he should sign it and correct it at a later date. The appellant stated that he did not read the whole of the form before he signed it. (f) The appellant explained that he was under time pressure to submit the application and believed the agent's advice that it was important to submit the form on time and that he would have the opportunity to state his true claims later. 16 On 23 August 2016, a hearing took place before the Tribunal. 17 On 14 October 2016, the Tribunal decided the application for review. In substance, the Tribunal affirmed the decision of the delegate to refuse the appellant a protection visa. Again, in light of the fact that the delegate had expressed the decision by reference to a Protection (Class XA) visa, rather than a Temporary Protection (Class XD) visa, the decision of the Tribunal was to set aside the decision to refuse to grant the appellant a Protection (Class XA) visa and to substitute a decision to refuse to grant a Temporary Protection (Class XD) visa. I will refer to the Tribunal that made this decision as the Second Tribunal and its statement of decision and reasons as the Second Tribunal Reasons. 18 The Second Tribunal Reasons are structured under the following main headings: (a) Application for Review; (b) Relevant Law; (c) Consideration of Claims and Evidence; (d) Findings and Reasons; and (e) Decision. 19 In the section headed "Consideration of Claims and Evidence", the Second Tribunal stated at [21] that it had "reviewed the submissions provided to the Department and the Tribunal previously constituted" and that the Tribunal considered "the following summary of the applicant's claims as presented by the applicant and provided in the previous Tribunal decision to be an accurate reflection of his claims to that point". The Second Tribunal then quoted [18]-[26] and [28]-[45] from the First Tribunal Reasons, with the addition of footnotes indicating the source of certain statements from documents on the Tribunal's file. 20 At [22] of the Second Tribunal Reasons, the Second Tribunal stated that the First Tribunal had noted that the appellant provided further evidence at the hearing before that Tribunal. The Second Tribunal stated that it had listened to the hearing recording and considered [50], [53]-[60], [63]-[66] and [73]-[76] from the First Tribunal Reasons to be an accurate reflection of the discussion at the hearing before the First Tribunal. The Second Tribunal then quoted those paragraphs in full. 21 At [23] of the Second Tribunal Reasons, the Second Tribunal stated that the appellant had provided a new statement to the Tribunal. The Tribunal then set out in full the August 2016 Statutory Declaration. 22 In the section of the Second Tribunal Reasons headed "Findings and Reasons", the Tribunal dealt with the appellant's credibility at [28]-[61]. At [33], the Tribunal stated that it had a number of credibility concerns with the evidence of the appellant, including regarding the documentary evidence that he had provided in support of his application, and that it had raised these concerns directly with the appellant at the hearing. The Tribunal then stated, at [34]: The applicant has shown himself not to be an honest man. He arrived in Australia on a fraudulently altered Malaysian passport. He lodged his protection application with an 'annexure', which the applicant has subsequently denounced, telling the Tribunal that a person he was put in touch with through people he met at the detention centre had written out the form, and that it contained incorrect information, in particular the information about the applicant's involvement in an incident in Kohistan in February 2012. The applicant stated that he was in fear of his life when he arrived so provided incorrect information. The applicant has claimed that subsequently he has provided correct information. However as determined below, the Tribunal does not accept that the applicant has provided a truthful account, and has continued to [provide] incorrect information and bogus documents to support his claims for protection. (Footnote omitted.) The words "as determined below" in the last sentence of the above passage evidently refer to the subsequent paragraphs of the Second Tribunal Reasons. 23 In the balance of the Tribunal's discussion of the appellant's credibility, the Tribunal discussed his evidence in detail and explained why it had concerns regarding his credibility. At [54], the Tribunal referred to the appellant's claim that: in January or February 2011 he was speaking with a childhood friend who was a leader of a local mosque; the friend started talking in a manner that the appellant described as extremely religious, making comments about people described as non-Muslim and having what the appellant stated were radical views, including killing members of the army and those who were not Sunni Muslim; and the appellant argued with his friend and told him that he could read other religious books, and when challenged on this he told his friend he had already left the religion. The Tribunal then stated, at [55]-[56]: 55. The Tribunal noted that this account of the applicant had been questioned by the delegate and the previous Tribunal, and that the present Tribunal had concerns about the plausibility of the applicant disclosing information to this person in the manner as described. The Tribunal questioned why the applicant, after an argument about religion, after extremist religious views were put to him by his friend, would reveal information about himself that he had not revealed to anyone else but his mother and fiancé for almost a year, information that was likely to place him at risk of harm, should it be true. The applicant stated that he got emotional during the discussion, he was not a machine, he did not like the things his friend was saying so told him he had left Sunni Islam, that he had spoken emotionally and loudly that 'you guys do not accept the real Islam, that is why I left you guys'. 56. The applicant has been asked about this a number of times, and the Tribunal has considered his responses as provided, in particular his responses at the present hearing. The Tribunal has considered the plausibility of the applicant, in the heat of the moment, declaring to a man who he knows to have what the applicant has described as radical views, was a local religious leader and who had stated that he supported the killing of 'non-Muslims', that he had left this religion and joined the real Islam. The Tribunal does not consider it plausible that the applicant would express himself in this manner to this person. The applicant had claimed to have been leading a reserved life, he had stated that he had not been a significant part of the Shia community since his conversion in March 2010, going to a few ceremonies but not taking part in events like Muharram. That he would be provoked in an argument with this particular friend to disclose this information is so completely outside the applicant's stated practices that the Tribunal does not consider that the applicant would be so provoked in these circumstances. The Tribunal does not accept that the applicant would provide information about his conversion from Sunni to Shia Islam to this person as he has claimed. The Tribunal does not accept that this conversation occurred or that the applicant ever disclosed that he had converted to people outside of his family. 24 At [62], the Second Tribunal accepted that the appellant had converted to Shia Islam from his previous Sunni Islam background. The Tribunal then considered and made findings in relation to the appellant's conversion and other aspects of his claims. This included a consideration of country information. Ultimately, the Tribunal found, at [91] that the appellant did not have a real chance of serious harm arising from his being a Shia convert, or a Shia, then or in the reasonably foreseeable future. The Tribunal also found, at [92], that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Pakistan, there was a real risk that he would suffer significant harm arising from the appellant's Shia faith, the practice of his faith, because of his conversion from Sunni Islam to Shia Islam, or a combination of these factors.

The proceeding in the Federal Circuit Court 25 The appellant applied to the Federal Circuit Court for judicial review of the decision of the Second Tribunal. 26 At the hearing of the appeal, the appellant (who was represented by counsel) relied on the grounds set out in a further amended application. It is only necessary, for present purposes, to refer to the first two grounds, which were as follows: 1. The Tribunal miscarried in its statutory task of forming for itself, on the material before it, the requisite state of satisfaction under s.65 of the Migration Act 1958 (Cth) in relation to the Applicant's claim, by failing to have regard to and/or misconstruing the Applicant's evidence that his migration agent's bad advice, the poor representation he received, and the time pressure he was under to submit the application caused wrong answers to be included in his protection visa application. 2. The Tribunal breached s.424A of the Migration Act 1958 (Cth) by not giving the Applicant particulars of information that the Tribunal considered would be a part of the reason for affirming the decision under review. Particulars a. The information was that another Tribunal had not accepted the Applicant's account about disclosing his conversion from Sunni to Shi'a to a childhood friend who was a leader of a local mosque; see [55] of the Tribunal's decision and the transcript of the Tribunal's hearing at page 16. 27 The primary judge delivered reasons for judgment on 9 March 2018 (the Reasons). His Honour dismissed each of the grounds in the further amended application. 28 The primary judge provided an overview of the Second Tribunal Reasons at [30]-[41] of the Reasons. At [42]-[58], the primary judge discussed the principles applicable to a review by the Tribunal. The primary judge stated, at [46], that, in order to review a decision, the Tribunal must consider for itself the material before it and make its own findings based on that material, citing Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [32]; MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 at [58]; and ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [71]. The primary judge also discussed the principles applicable where the Tribunal is called upon to conduct a review in circumstances where there has been an earlier Tribunal decision. In this context, the primary judge referred to s 416 of the Migration Act and to the decision of the Full Court of this Court in MZZZW. 29 In relation to ground 1, the primary judge summarised the appellant's submissions at [62]. The primary judge stated that: the appellant submitted that the Second Tribunal erred in its consideration of how false information had been included in his protection visa application; in support of this submission, attention was drawn to the Second Tribunal's description of the appellant's explanation on this issue; it was said that the Second Tribunal's explanation did not match the appellant's actual explanation and that the difference in description was so material as to constitute jurisdictional error; and it was also said that the Second Tribunal's negative credibility finding seriously affected the overall findings made by the Tribunal. The primary judge noted that the focus of the submissions was the statements made at [34] of the Second Tribunal Reasons. 30 After setting out relevant principles at [69], the primary judge reasoned as follows at [70]-[71] and [74]: 70. With those principles in mind I have examined the 2nd Reasons, the Transcript of the hearing before the 2nd Tribunal and court book. Upon examination of that material I am satisfied that the Tribunal brought its own perspectives, approach and reasoning to the applicant's claims. If I am wrong in that conclusion, I do not consider the manner in which the Tribunal framed its observations in the 2nd Reasons at [34] exposes any error of such seriousness as to constitute jurisdictional error. 71. I agree in the Minister's submission that the statements at para [34] of the 2nd Reasons should be read as a prefatory observation of that which followed in the remainder of this section of the reasons at [35]-[61]. It was entirely permissible for the Tribunal to provide a statement by way of summary of its view that the applicant had been admittedly untruthful in the information which he provided on arrival and its conclusion that he had continued to be so in relation to a number of issues that had been advanced in support of the application. The analysis which followed demonstrates that the Tribunal had regard to a number of matters in assessing the claim that the applicant had been the intended target of an attack outside a mosque in August 2011. … 74. The 2nd Reasons confirm that the Tribunal did not proceed upon a misapprehension of the applicant's evidence. The applicant had arrived in Australia using a forged Malaysian passport which he had purchased for that purpose. The applicant's separate explanation for providing false information had been that his protection visa application had been completed by a person who he had met at the detention centre. Yet the statutory declaration had sought to assign responsibility for the incorrect information to a migration agent. 31 At [76], the primary judge held that the impugned finding at [34] of the Second Tribunal Reasons was open on the evidence. 32 The primary judge then considered a contention that had been advanced orally in connection with ground 1, namely that the Second Tribunal had copied material from the First Tribunal Reasons and that to do so was impermissible. The appellant contended that the Second Tribunal had failed to perform for itself the task of conducting a review on the material before it. The primary judge did not accept this submission: see the Reasons, at [79]-[80]. 33 The primary judge also considered, in the context of ground 1, a contention to the effect that the Second Tribunal had failed to consider an integer of a claim. The focus of this contention was again [34] of the Second Tribunal Reasons. The primary judge held, at [90], that: neither the appellant's credibility nor his statutory declaration constituted a claim or an integer of a claim; and the Second Tribunal had correctly identified and addressed the appellant's claims. The primary judge also stated, at [91], that more generally both the appellant's credibility and the August 2016 Statutory Declaration were considered by the Second Tribunal. 34 In relation to ground 2, the primary judge noted, at [99], that the information of which the Second Tribunal was said to have failed to provide particulars was that another Tribunal had not accepted the appellant's account about his having disclosed his conversion to Shia Islam to his childhood friend (who had been appointed as religious leader of the local mosque). The primary judge noted that it was accepted that the appellant was on notice that his credibility was in issue; so much was apparent from the delegate's decision and the First Tribunal Reasons, both of which were in the appellant's possession. The primary judge noted, at [100], that the appellant relied on page 16 of the transcript of the hearing before the Second Tribunal. As recorded on that page, the Tribunal member said to the appellant during the hearing that "two intelligent decision-makers" had determined that the appellant's evidence regarding the conversation with his childhood friend was not plausible. The primary judge noted, at [101], the appellant's submission that the Second Tribunal's use of the First Tribunal Reasons on this issue formed part of the Second Tribunal's reasons for affirming the delegate's decision, relying on page 16 of the transcript and [55] of the Second Tribunal Reasons. 35 The primary judge concluded, at [115], that the adverse credibility findings of the First Tribunal did not constitute "information" within the meaning of s 424A. The primary judge stated at [116] that, even adopting a more expansive meaning of the term "information", the Second Tribunal Reasons did not indicate that it regarded the relevant views of the First Tribunal as being either the sole or part of the reason for affirming the delegate's decision to refuse the application for a protection visa. After setting out part of [55] of the Second Tribunal Reasons, the primary judge stated that those reasons recorded no more than that the appellant's account had been questioned by the delegate and the First Tribunal and the Second Tribunal also had concerns about the plausibility of the claim. The primary judge stated, at [118]-[121]: 118. The 2nd Reasons do not suggest that the views of the 1st Tribunal informed the ultimate decision on the issue of whether the applicant had in fact disclosed the fact of his Shi'a conversion to his childhood friend, now a Sunni Mufti. The 2nd Reasons at [23], [53]-[56] confirm that the Tribunal gave detailed consideration to the applicant's evidence on this issue and its evaluation of that evidence in light of all the material which was before it. 119. The Transcript records the Tribunal's exchange with the applicant on this issue at pp. 14-16. In particular, it demonstrates that the Tribunal was concerned to test the plausibility of the applicant's claim that, as a Shi'a convert, would disclose the fact of his conversion to a Sunni Mufti, irrespective of whether the person had been a childhood friend or would have done so in circumstances where he had only made such disclosure to his mother and fiancé, he wished to keep the fact of his conversion private and he held the view that persons who had converted to Shi'a were regarded as 'the worst kind of traitor'. 120. The decisions of the delegate and the 1st Tribunal were before the 2nd Tribunal and were materials that the applicant had in his possession. It was because the applicant recognised the relevance of his credibility to the application that he made and lodged his statutory declaration. The declaration dealt at [29]-[34] with the disclosure of his conversion to the Sunni Mufti and that declaration was set out in the 2nd Reasons. 121. Reading [55] in isolation, or in the context of the 2nd Reasons as a whole, I conclude that the obligations imposed by s 424A were not engaged in relation to the observation of the 1st Tribunal. The information concerned the applicant's credibility. The applicant already had this information and had addressed it. He had sought review of the delegate's decision. He sought review of the Tribunal's decision. He obtained an order for the 1st Tribunal's decision to be set aside and for the remitter of the application for review of the delegate's decision. Finally, the reasons of the 1st Tribunal on this issue were not dispositive of the application for review. 36 The primary judge also dismissed ground 3 in the further amended application. It is unnecessary for present purposes to refer to this ground.

The appeal to this Court 37 The appellant appeals to this Court from the judgment of the Federal Circuit Court. The grounds in the amended notice of appeal are set out at [2] above. Each will be considered in turn.

Ground 1 38 By this ground, the appellant contends that the primary judge erred in failing to find that the Second Tribunal engaged in irrational or illogical reasoning, or constructively failed to exercise its jurisdiction, or failed to carry out its statutory task, by failing to consider relevant information. 39 The appellant submits that the Second Tribunal erred in its consideration of the appellant's explanation about how wrong information was included in his protection visa application. It is submitted that his explanation for the wrong information was: his migration agent's bad advice; the poor representation he received; and the time pressure he was under to submit the application. The appellant submits that the Second Tribunal's description of the appellant's explanation of how he came to provide incorrect information in his protection visa application (see [34] of the Second Tribunal Reasons) did not match the appellant's actual explanation (see the August 2016 Statutory Declaration). It is submitted that the differences between the appellant's explanation and the Second Tribunal's description of the explanation are so material as to amount to jurisdictional error. Moreover, it is submitted, the Second Tribunal's errors in this regard led it to a negative credibility finding that affected the overall findings made by the Second Tribunal. The appellant refers to SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]-[45] and AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 at [48]. 40 I do not accept that the Second Tribunal fell into error as contended by the appellant. At [34] of the Second Tribunal Reasons (set out above) the Second Tribunal stated that the appellant "lodged his protection visa application with an 'annexure', which the applicant has subsequently denounced". That was an accurate statement of the fact that, in the August 2016 Statutory Declaration, the appellant had retracted a number of the matters set out in the annexure. The Second Tribunal stated that the appellant had told the Second Tribunal "that a person he was put in touch with through people he met at the detention centre had written out the form", and that it contained incorrect information. This was an accurate statement about the clarifications and corrections contained in the August 2016 Statutory Declaration (summarised above). The reference to the "person he was put in touch with" was to the migration agent. The Second Tribunal stated that the appellant had stated that "he was in fear of his life when he arrived so he provided incorrect information". This reflects a submission made by the appellant's representative to the First Tribunal. The submission is recorded at [42] of the First Tribunal Reasons, which is quoted in [21] of the Second Tribunal Reasons. Thus, [34] of the Second Tribunal Reasons accurately recorded the appellant's explanations for providing false information. 41 Further and in any event, the Second Tribunal set out the full text of the August 2016 Statutory Declaration at [23] of the Second Tribunal Reasons. It is thus clear that it considered it. 42 For these reasons, I do not accept that the Second Tribunal erred in the way it dealt with the appellant's explanation of how and why wrong information was contained in his protection visa application. 43 I note for completeness that the appellant submits that [74] of the Reasons contains an incorrect statement. That paragraph includes the statement: "The applicant's separate explanation for providing false information had been that his protection visa application had been completed by a person who he had met at the detention centre". It does not appear that the appellant provided such an explanation. However, nothing turns on this. For the reasons given above, no error is shown in the primary judge's conclusion in the first sentence of [74] of the Reasons that the Second Tribunal Reasons "confirm that the [Second] Tribunal did not proceed upon a misapprehension of the applicant's evidence". 44 It follows that ground 1 is not made out.

Ground 2 45 By this ground, the appellant contends that the primary judge erred by failing to find that the Second Tribunal breached s 424A of the Migration Act. 46 Section 424A(1) provides that, subject to certain exceptions, the Tribunal must: (a) give to the appellant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review; (b) ensure, as far as is reasonably practicable, that the appellant 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 appellant to comment on or respond to it. 47 The appellant submits that the Second Tribunal breached s 424A by not providing clear particulars of information as required by that section. It is submitted that the "information" was that another Tribunal (the First Tribunal) had not accepted the appellant's account about disclosing his conversion to a childhood friend who was a leader of a local mosque. The appellant relies on an exchange that took place during the hearing before the Second Tribunal (recorded at page 16 of the transcript) and [55] of the Second Tribunal Reasons. At page 16 of the transcript, the following exchange is recorded: INTERPRETER: I didn't tell him intentionally, but when he talking about religion and people that - I was - I was emotionally - I just slip of tongue. I said, so that's the reason you guys are (indistinct) the real Islam. You guys believe in the extremism and radical views so that's why I'm (indistinct) government. I didn't tell him intentionally that I'm (indistinct) I said, brother, I converted to Shia. I'm not stupid, sir. I just tell him … [TRIBUNAL MEMBER]: Well, two intelligent decision-makers have determined that this is not plausible, that you would tell a person of this type - after an argument of this nature that you would tell this person of your conversion and then, "Oh, by the way, then all these bad things happen to me." It's not plausible and that's what two decision-makers prior to me have determined. 48 The appellant submits that the negative credibility finding of the First Tribunal undermined the appellant's claims and so was "information" within the meaning of s 424A: SZTNL v Minister for Immigration and Border Protection (2015) 231 FCR 204 at [52]. 49 In my view, the Second Tribunal did not breach or fail to comply with s 424A as contended by the appellant. Specifically, the Second Tribunal was not under an obligation to give the appellant clear particulars of the fact that the First Tribunal had found the appellant's evidence in respect of telling a childhood friend about his conversion to be implausible. Even assuming that the fact that the First Tribunal made this finding constituted "information" for the purposes of s 424A, it was not information that "would be the reason, or part of the reason, for affirming the decision that is under review". The Second Tribunal was not proposing to, and did not, rely on the finding of the First Tribunal that the appellant's evidence in respect of telling a childhood friend about his conversion was implausible. Rather, the Second Tribunal was proposing to, and did, form its own view on the plausibility or otherwise of this evidence. 50 In my view, the exchange recorded at page 16 of the transcript does not demonstrate that the Second Tribunal was proposing to rely on the finding of the First Tribunal; it was merely a way of raising with the appellant, and giving him an opportunity to respond to, issues concerning the plausibility of his account. (The passage at pages 12-13 of the transcript, to which I was taken at the hearing, does not take the matter any further.) I also do not consider [55] of the Second Tribunal Reasons (set out above) to demonstrate that the Second Tribunal relied on the findings of the First Tribunal. In the first sentence of [55], the Second Tribunal stated that it "noted" that the appellant's account "had been questioned by the delegate and the previous Tribunal, and that the present Tribunal had concerns about the plausibility" of the appellant's account. As I read this sentence, the Tribunal was describing the matters it had raised with the appellant during the hearing. 51 More generally, I do not consider that the Second Tribunal impermissibly had regard to the First Tribunal Reasons. 52 For these reasons, ground 2 is not made out.

Conclusion 53 It follows that the appeal is to be dismissed. At the hearing, both sides accepted that costs should follow the event. Accordingly, I will also make an order that the appellant pay the Minister's costs of the appeal, to be fixed by way of a lump sum. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.