BJP15 v Minister for Immigration and Border Protection

1. The appeal be allowed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 This is an appeal from the judgment and orders of the Federal Circuit Court of Australia made on 29 November 2016 dismissing an application for judicial review of a decision of the Refugee Review Tribunal in which the Tribunal upheld a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a Protection (Class XA) visa. 2 The appellant is a Sri Lankan national who applied for a protection visa on 8 January 2013. A delegate of the Minister for Immigration and Border Protection refused to grant the visa on 26 March 2014. An application to the Refugee Review Tribunal for review of the delegate's decision was heard on 30 March 2014 but the Tribunal affirmed the decision not to grant the appellant a protection visa. The appellant's subsequent application for review of the decision of the Tribunal was heard by the Federal Circuit Court on 29 November 2016 and was dismissed on the basis that there was no jurisdictional error in the Tribunal's decision. 3 The appellant relies upon two grounds in the appeal. The first is that the Federal Circuit Court erred in its application of ss 424AA and 424A of the Migration Act 1953 (Cth). The second is that the Court erred in its application of the test of irrationality in relation to the Tribunal's findings as to the purpose of an affidavit which had been made by the appellant's mother and which the Tribunal considered to be significant in reaching its decision. 4 It may be convenient to deal first with the second ground of appeal concerning the Tribunal's finding in relation to the affidavit sworn by the appellant's mother on 15 March 2015. The issues before the Tribunal had included claims by the appellant of having been detained by the Sri Lankan Criminal Investigation Division ("the CID") in 2009 and 2010. The delegate had not accepted the appellant's claims in respect of either 2009 or 2010 but the Tribunal on review accepted the appellant's claims in respect of 2009 but not in respect of 2010. The Tribunal gave significant weight in rejecting his claims in respect of 2010 to the absence in the affidavit by the appellant's mother of any reference to him having been detained by the CID in 2010, and the Tribunal rejected his submission that the affidavit had been produced solely to explain the different spelling of his name in documents which he had previously provided to the department about his detention in 2009. The appellant submitted before the Federal Circuit Court, and on appeal from her Honour's decision to this Court, that the Tribunal had made irrational decisions in relation to the affidavit. 5 The affidavit referred specifically to a document relating to a detention and subsequent release in 2009 upon which the appellant had relied in support of his application for protection but which the delegate considered to be of poor quality and as containing no clear evidence to support his identity or his claim in respect of 2009. The specific document in question was a court discharge dated 23 December 2009 which the appellant had relied upon to support his claim of having been detained by the CID in 2009. A problem with the document, however, was that it referred to the person by a name that appeared to be different from that of the appellant. The delegate's decision record dated 26 March 2014 had referred to the photocopy of the court discharge papers dated 23 December 2009 provided by the appellant and said (omitting a footnote): When considering the applicant's arrest and imprisonment by the CID from approximately September to December 2009, the applicant provided a copy of Court discharge papers dated 23 December 2009. I note the document is photocopied, of poor quality and contains no clear evidence to support the applicant's identity or claim. Considering the poor quality of the document provided and the prevalence of fraudulent documents within Sri Lanka I give this document no weight in relation to supporting the applicant's claim of imprisonment. A footnote in this paragraph after the words "Sri Lanka" referred to the material relied upon by the delegate supporting the view justifying the conclusion that no weight was given to the document. The significance of this paragraph in the delegate's reasons lay in the complete rejection of a document which had been relied upon by the appellant to support his claim in respect of 2009 and in the fact that the basis of that rejection was, in part, the inability to establish that the appellant was the person referred to in the document. 6 The appellant produced an affidavit by his mother in the subsequent hearing in the Tribunal seeking to review the delegate's decision. The affidavit by the appellant's mother contained six paragraphs and dealt specifically with the matters raised by the delegate in relation to 2009 in the passage from the reasons quoted in the previous paragraph. The affidavit identified the person making the affidavit by reference to a National identity card and was sworn before a Commissioner for Oaths who also practiced as an attorney at law and public notary in Vavuniya. Its contents stated on oath: (1) I am declarant the above-named. (2) Mr [name of appellant] is my elder son he was arrested by Sri Lanka Police in Vavuniya town on 31.10.2009. (3) Mr [name of appellant] was detained at Vavuniya Police Station under the detention order, which was made by the Additional Secretary, Minister of Defence on 01.11.2009. (4) In the copy of the detention order his name was entered as [given name of person in the document], but his correct name is [given name of the appellant]. (5) Mr [name of appellant] was produced before the Magistrate of Vavuniya on 21.12.2009 in [proceeding number] and he was discharged on the same day [sic] his name was entered correctly in case record as [name of applicant]. (6) The name [given name in the document] and the name [given name of the appellant] do refer to one and the same person and same pronunciation. Attached to the affidavit was a copy of the detention order which the appellant had relied upon and which the delegate had referred to as being of poor quality and as containing no clear evidence to support the appellant's identity or claims in relation to 2009. 7 The appellant submitted in the proceeding before the Tribunal, unsurprisingly, that his mother's affidavit had been produced to support his claim about the detention order in respect of 2009 by making the necessary link between him and the person referred to in the detention order. The affidavit, on its face, contained clear and specific details dealing directly with the concerns expressed by the delegate that the court discharge did not sufficiently identify the appellant as the person who had been arrested and discharged. The affidavit confirmed that the appellant had been detained in 2009, and that the appellant's name in the detention order had been entered incorrectly. It went only to explain the facts and circumstances of his release in 2009 and gave an explanation for the appellant's name having been entered incorrectly. 8 The Tribunal, however, did not accept that the affidavit "was produced solely in order to explain the different spelling of the applicant's names in some of the documents he provided" in respect of his claim about 2009, and proceeded to give significant weight to the absence of references in the affidavit to the appellant having been detained by the CID in 2010. At [43] the Tribunal said: However, I do not accept the applicant's claim that he was taken again by the CID in 2010. As put to the applicant at the hearing, I give significant weight to the fact that there is no reference in the affidavit from his mother made in March 2015 (see [18 b)) to the applicant having been detained by the CID in 2010. I find that if the applicant had been detained and tortured by the CID his mother would have referred to this in the affidavit. I do not accept the applicant's claim that this affidavit was produced solely in order to explain the different spelling of the applicant's names in some of the documents he provided about his detention in 2009. I find it highly implausible that if the applicant had been detained and tortured by the CID in 2010 his mother would have chosen not to refer to it in an affidavit prepared for the purposes of the assessment in Australia of the applicant's claims to be owed protection. The appellant submitted in the Federal Circuit Court, and on appeal to this Court, that the Tribunal's decision to reject his claims in respect of 2010 was irrational in light of the way that it had considered his mother's affidavit in reaching its decision to reject his claims about 2010. 9 The Federal Circuit Court rejected the appellant's claim that it was irrational for the Tribunal to have treated the affidavit as it did. Her Honour said at [29]-[32]: 29. The Tribunal accepted the Applicant's claim to have been detained and tortured in 2009. The Applicant argues that it was irrational for the Tribunal to find that the mother's affidavit ought to have been taken as an opportunity to corroborate the Applicant's claims to have been detained in 2010, when the absence of any mention of conditions of detention, torture, or any other mistreatment in 2009 was not criticised. It was put by the Applicant that it was irrational for the Tribunal to rely on omissions from the affidavit to find that the Applicant's claims about 2010 could not be believed, while simultaneously accepting his claims about 2009. 30. In Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] Nicholson J, Kiefel and Downes JJ agreeing, found "the weight to be accorded to factors to be considered by the Tribunal was a matter for it. It was for the Tribunal to identify such material as it found relevant to its reasoning and to give it appropriate weight." 31. The relevant test was set out by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [132] to [133]:- "the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion ... the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it." 32. There is nothing irrational in accepting that the Applicant was detained in 2009 but not in 2010. The Applicant has not demonstrated any unreasonableness or illogicality in the Tribunal's reasoning. The Tribunal found that it was "highly implausible" that his mother would not have mentioned the Applicant's detention in 2010 had it occurred. That is especially so given that the affidavit was to be used to support the Applicant's claim for protection. This was a finding open to the Tribunal on the material before it. The Tribunal made this finding as one of a number of findings including the Applicant's inconsistent evidence, and concluded the Applicant was not detained in 2010. The appellant maintained on appeal to this Court that whatever finding the Tribunal might have made about the purpose in making the affidavit, the scope of the affidavit was self-evident on its face and could not rationally support the conclusions drawn by the Tribunal. 10 In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ considered the test for illogicality or irrationality and said at [131]-[135]: 131 What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. Was the Tribunal's fact finding "illogical" or "irrational"? 132 Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal's conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. It is clear, from the extracts from the Federal Court decision set out above, that the Federal Court emphatically disagreed with the Tribunal's finding that the first respondent's return to Pakistan and failure to seek asylum in the United Kingdom was conduct which was inconsistent with the claimed fear of persecution arising as a result of homosexuality. It also seems clear that the Federal Court, acting on the same material or evidence on which the decision was based, would have been satisfied that the first respondent feared persecution as alleged. 133 However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. There was evidence that the first respondent was married with four children and that he regularly visited Pakistan to see his family after the time at which he said he commenced, as he put it, "the practice of homosexuality" in the UAE. In particular, he visited his family for three weeks before coming to Australia. During the time when he said he engaged in the "practice of homosexuality" in the UAE, and when he visited the United Kingdom, the evidence was that under both civil law and Shari'a in the UAE homosexual activity was criminalised (128). The first respondent also gave comprehensive evidence of homosexual activity in the UAE which was uncorroborated. The Tribunal saw the first respondent give evidence and sought answers and explanations from him. Such was the evidentiary context in which the Tribunal determined that the first respondent's conduct, first in returning to Pakistan and secondly in failing to seek asylum in the United Kingdom, was conduct which was inconsistent with his claimed fears of persecution as a result of homosexuality. 134 The process of reasoning followed by the Tribunal, which needs to be considered in the light of all of the evidence set out above, was as follows: the Tribunal appeared to accept that homosexuals as a social group in Pakistan were the subject of persecution. It also appeared to assume that a person with a genuine fear of persecution as a homosexual in Pakistan would not go back to Pakistan and that a person with such a fear would seek asylum at the first available opportunity. The Tribunal then examined the first respondent's conduct in the United Kingdom in 2006 and in returning to Pakistan for three weeks in 2007. The Tribunal asked whether that conduct was consistent with a fear of persecution based on the practice of homosexuality said to have occurred in the UAE. The Tribunal then concluded that the conduct was not consistent with the claims of homosexual conduct said to form the basis for the fear of persecution. The Tribunal essentially found that it was improbable that the first respondent feared persecution because of homosexuality as claimed. It is that conclusion which the Federal Court found illogical and irrational; it would have come to a different conclusion which appears to be largely based on the view that no-one in Pakistan would necessarily discover that the first respondent had, as claimed, engaged in the practice of homosexuality. The Federal Court differed from the Tribunal in finding that the first respondent's fear of persecution as a result of homosexuality was plausible whereas the Tribunal had found it improbable. 135 On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the "practice of homosexuality" in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan. The Tribunal's findings in relation to the affidavit sworn by the appellant's mother were an irrational basis, in the sense considered in SZMDS, for discounting the credibility of the appellant's claim of mistreatment in 2010. The Tribunal made a finding at [45] that the appellant's claim about 2010 lacked credibility and based that finding, in part, upon its view that "the absence of any reference to the appellant's detention in 2010 in his mother's affidavit" was "so substantial" that his claim about 2010 lacked credibility. The scope of the affidavit, however, appears clearly from its terms and was directed only to support the contention that the appellant was the person mentioned in the detention order in respect of an arrest and imprisonment by the CID in 2009 which the delegate had specifically considered to be of poor quality and to contain no clear evidence in support of his identity or claim of imprisonment in 2009. The affidavit by the mother only came into existence after the decision of the delegate and on its face dealt clearly, specifically and directly with a specific matter in the delegate's reasons for rejecting a claim. There is nothing in the affidavit which permitted a conclusion that the mother's evidence was being provided for any wider purpose than the specific purpose which the affidavit, when read with the delegate's decision, disclosed on its face. The Tribunal did not reject the affidavit as false and the only conclusion open on the material before the Tribunal was that the affidavit by the appellant's mother was produced solely to identify the appellant as the person referred to in the court discharge of 2009 by explaining the difference in the appellant's names in the documents concerning his detention in 2009. No broader purpose could be drawn from the document on its face or from the other evidence before the Tribunal. 11 It is unnecessary to consider an alternative submission made by the appellant to establish irrationality in the legal sense from the inconsistent uses made by the Tribunal from the inferences it drew from what was said to be omissions from the affidavit. The appellant contended in the alternative that the findings made by the Tribunal, based on the omissions in respect of his claims concerning 2010, ought logically also to have been made in respect of his claims of detention in 2009, but that the Tribunal had accepted his claim in respect of 2009 notwithstanding the weight it had placed upon the affidavit for rejecting his claims about 2010. For present purposes it is sufficient to note of this argument that there was other material in respect of the 2009 claims to permit a different finding by the Tribunal in respect of 2009 from the finding it made in respect of his claims in relation to 2010. The Tribunal's reasoning had been that the absence of reference to the 2010 claims in the affidavit warranted an inference that his claims about 2010 were fabricated but that reasoning was not logically also required in respect of 2009 because in respect of that year there was no omission from the affidavit. The reasoning of the Tribunal in respect of an omission in the affidavit to refer to 2010, therefore, is not necessarily inconsistent with a conclusion that accepted his claims in respect of 2009. His mother's affidavit also gave support for the 2009 claim but did not give support for the 2010 claims. 12 The first ground of appeal was, in substance, that the Tribunal had failed to comply with the requirements of procedural fairness as required by the relevant provisions of the Migration Act 1958 (Cth). The relevant failure of procedural fairness was submitted to lie in the Tribunal relying also upon what it considered to be an inconsistency in the claims made by the appellant "about what happened to him in 2010". That belief, together with the "absence of any reference to the applicant's detention in 2010 in his mother's affidavit", was considered by the Tribunal to be "so substantial" that his claim of being detained and tortured in 2010 lacked credibility. At [45] the Tribunal said: No medical evidence has been provided of the applicant suffering any mental health, memory problems or other psychological difficulties. However, as I have accepted that he was physically assaulted, tortured and beaten in the ways that he claims in 2009, I am willing to accept that the applicant has suffered some form of trauma that may affect his ability to recall past harm. Even taking that into account, however, I find that find [sic] the inconsistency in the applicant's claims about what happened to him in 2010 and the absence of any reference to the applicant's detention in 2010 in his mother's affidavit to be so substantial that I find the applicant's claim he was detained and tortured in 2010 to lack credibility. The Federal Circuit Court rejected his claim of being denied procedural fairness and held that the Tribunal's doubts about the appellant's material or perception of inconsistencies did not constitute "information" for the purposes of s 424AA and s 424A. 13 It is clear that the Tribunal proceeded upon a mistaken view of the evidence concerning the claims which the appellant had made in respect of being in detention and mistreated in 2010. The Tribunal member appears mistakenly to have believed that the appellant had given inconsistent accounts about having been taken by the CID in 2010. The Tribunal member raised with the appellant the Tribunal's belief that the appellant had changed his account of how he had been treated in 2010 but the evidence did not support the belief held by the Tribunal member that the appellant had changed his account of how he had been treated in 2010. The transcript recorded the following discussion between the Tribunal and the appellant: I have some doubts about your claim that you were taken by the military again in 2010 and that's partly because, as was put to you by the department and were set out in the department decision, at one point you initially - when you initially arrived in Australia you said that you were held overnight, but then later you said that you were held for a couple of weeks. Just today you told me that you were - the time when you were held in 2010 was when you were held upside down, but in your statement to the department you said that that's what happened when you were held in 2009. It happened on both occasions. TRIBUNAL MEMBER: I asked you if that was the only time that it happened to you but you didn't answer that question. You talked about something else. INTERPRETER: Well, I did not relate to the previous. I thought you were asking specific to the 2010 incident. The evidence, however, did not support what the Tribunal member had put to the appellant and the Tribunal did not put to the appellant any information to that effect. The entry interview had dealt with detentions in 2009 and 2010 but contained no claims by the applicant that in 2010 he had been held overnight. The relevant part of the entry interview recorded the following questions and answers: Q: What happened to you that made you decide to leave Sri Lanka? A: I had been captured and detained by the Sri Lankan army, not army the CID. I had been detained on suspicion that I was LTTE. I had been kept in prison for 3 months. I was subjected to extreme forms of torture there, I was then taken to the court, I was released by the court after I had proved that I had no involvement, I was only a student studying. After this, whenever I was back in my village again taken in, detained for a week and tortured. I was having problems continuously and because of these problems I had to leave. Q: When is the first time that you were put in prison for three months? A: October 2009. Q: Where were you detained? A: Vavuniya. Q: What is the name of the prison you were detained at? A: For one week I was kept in a house and for 3 months I had been kept in the Vavuniya police station. Q: What happened to you while you were detained? A: Initially when I was kept in the house for a week, I was questioned if I was LTTE and about my movements. I protested, saying that I was not with the LTTE, I said I was with my brother, I also said that, as I told them that I was a student studying in Mullaitivu, living with my father. They did not believe this, I was hung upside down and tortured. Q: How were you tortured? A: I was hung from the legs and beneath my head, they placed a pot with fire burning in it and dropped chillies into the burning fire. I was kept in this hanging position for a full day and beaten with pipes. Plastic pipes. Q: After you were released and you were detained the second time, when was that? A: It was in 2010 when I was back in Mullaitivu. I was back in Oddusuddan in Mullaitivu. Q: Which month was it in 2010? A: June 2010. Q: Who detained you that time? A: The CID. Q: Why did the CID detain you that time? A: Normally they investigate or interrogate everyone in the area and I was one of them. The reason why I was detained was because of the same suspicion that I was LTTE, another reason was they wanted me to identify other LTTE. Q: What happened to you while you were detained that time? A: My arms and legs were bound from behind, they kept beating me for a day, pressuring me to identify other LTTE people. Q: How did they beat you? A: They slash at my fingers with the knife. I kept repeating that I was not LTTE and that I did not know anyone from that name. My mother and father had to prove that I was a student studying and I was living with them. My parents had to seek help from the local officials to prove this. It was only after this that I was let out but fearing continuous problems from there, I decided to leave the country. Q: What happened to you that made you decide to leave Malaysia? A: Apart from the registration with the UNHCR as a refugee in Malaysia, I had nothing else. The UN, the United Nations, just gave me a piece of paper confirming my registration with them, but no ID was given to me. In Malaysia if I got caught with the UN paper on me, I would immediately be taken to a prison or else I would have to bribe the police. The onshore protection record interview in October 2013 made reference to having been detained in 2010 for one to two weeks but there was no reference in the earlier interview of having been detained for only one day. The only conceivable explanation of a reference to an overnight detention was the reference to having been beaten "for a day" but there was no reference to having been detained only overnight. 14 The Tribunal was required to give to the appellant particulars of any information the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The appellant had been invited pursuant to s 425 to appear before it to give evidence and to present arguments relating to the issues arising in relation to the decision under review. Sections 424AA and 424A impose a requirement upon the Tribunal to provide information: 424AA Information and invitation given orally by Tribunal while applicant appearing (1) If an applicant is appearing before the Tribunal because of an invitation under section 425: (a) the Tribunal may orally give to the applicant 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) if the Tribunal does so - the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. (2) 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). 424A 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). The obligation upon the Tribunal under these provisions includes a duty to ensure, as far as is reasonably practicable, that an applicant understands why the information is relevant to the review and the consequence of the information being relied upon or in affirming the decision that is under review. 15 The appellant correctly conceded that inconsistencies do not constitute "information" within the meaning of either section: see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1990 at 1196, [18]; Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at 514, [23]; SZVLY v Minister for Immigration and Border Protection [2016] FCA 490, [23]; SZNQS v Minister for Immigration and Border Protection [2016] FCA 637, [8]. Accordingly, the Tribunal was not obliged, and the primary judge was correct to hold that the Tribunal was not obliged, to give particulars of inconsistencies for the appellant to comment upon. The Tribunal was, however, obliged to provide information which contained in its terms a rejection, denial or undermining of the appellant's claim: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1990; Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at 513, [22]; ATP15 v Minister for Immigration and Border Protection (2016) 241 FCR 92 at 105, [42]. The Tribunal would not have been obliged to give the appellant the information if it had been given by the appellant (see s 424A(3)) but the facts relied upon had not been given by the appellant. 16 In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 Allsop J (as the Chief Justice then was) considered that the information which the Tribunal was required to provide might include facts from which any inconsistency in a claim might be drawn. His Honour said at 263, [221]: I do not regard the operation of s 424A(1) as limited to circumstances where the information imports some positive factual finding. To the extent that cases such as MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [14] and SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 at [19]-[23] say as much, in my respectful view, they limit too narrowly the operation of the section. That, of course, is one way that the information is a part of the reason. Another would be the inconsistency between the information and what was now being said. If the Tribunal considers that inconsistency relevant to the assessment of the claims, it may be that the information would be part of the reason. If a Tribunal says that it does not believe an applicant for reasons that can be seen to include the fact that one thing was said in the prior statement and another at the hearing, or the fact that if what is now being asserted at the hearing is true it would have been in the prior statement in that form, the information would be part of the reason. The information is the knowledge imparted to the Tribunal of a prior statement in a particular form. The significance given to it by considering it in the light of evidence is the product of mental processes. This significance and those mental processes are not information, but rather, are why the information is relevant for s 424A(1)(b). The information taken into account by the Tribunal in this case which led the Tribunal to reject, deny or undermine the appellant's claim in respect of 2010 were those facts upon which the Tribunal concluded in [45] that he had made inconsistent claims "about what happened to him in 2010". The facts upon which that "finding" was made were the Tribunal's mistaken belief that the appellant had said that in 2010 he had been held overnight and had said that he had been held for a couple of weeks. The Minister's delegate had made no such findings and the appellant had not said that he had been held overnight in 2010. 17 There is, of course, a conceptual difficulty in requiring information to be provided which does not exist. The obligation to provide information, however, extends to that information which may lead to the rejection, denial or undermining of the appellant's claims whether or not the information otherwise has an independent existence. The test to determine whether the information is to be provided is not whether it exists but whether it may result in the rejection, denial or undermining of the appellant's claim unless otherwise excluded from the definition of information or otherwise excluded from the requirement of its provision to the appellant. The Tribunal would not have been obliged to provide the information to the appellant if it had been given by him for the purpose of the application or if it had been given by him during the process that led to the decision under review (see s 424A(3)). But the information taken into account by the Tribunal had not been given by him and was taken into account by the Tribunal in rejecting, denying or undermining his claim. The information existed to that extent and the Tribunal was obliged to have given the appellant particulars of that information. 18 Accordingly, the appeal will be allowed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.