Cases rejecting information relevant only to credibility as information for the purposes of s 424A
26 The Minister submitted that "information" is only material that contains "in [its] terms a rejection, denial or undermining" of the appellant's claims to be a refugee: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17]. In SZBYR, the plurality rejected a submission that that the appellants' prior statutory declaration, which the Tribunal found to contain inconsistencies with other aspects of the appellants' evidence, was or contained information for the purposes of s 424A(1). At [17] and [18], the plurality said (emphasis added):
…the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
…if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information".
does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
27 In MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483 at [27], Heerey J explained SZBYR as follows:
SZBYR, and in particular [17] of the majority judgment, essentially says that a court must assess the "information" in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal. For example, let it be assumed an applicant claimed fear of persecution in a country because he was a Christian, and the Tribunal has a written statement from X that the applicant said to him he never was a Christian and had invented the claim in order to get a visa. If true, X's statement, being "evidentiary material or documentation", would be a reason for the Tribunal's affirming the refusal of a visa. It would "undermine" his claims to have well-founded fear of persecution by reason of religion. By contrast, a statement by Y that the applicant had worked in Australia under a false name would at best only go to the applicant's credibility. If the Tribunal in either of these hypothetical instances had not given a s 424A notice the reviewing court would have to characterise the statements of X and Y and determine whether or not they attracted the s 424A obligation as at the time they came to the Tribunal's attention. This assessment would not depend on the use the Tribunal subsequently made of the statements in its reasons.
28 At [29], Heerey J also said:
It can also be noted that the section speaks of information that "would" be the reason etc, not "could" or "might". This is another indication that information merely going to credibility is not within the section. An applicant may be disbelieved on some issues, but believed on others, or the application may be determined one way or the other by issues unrelated to credibility. Lack of credibility in itself does not necessarily involve rejection, denial or undermining of an applicant's claims.
29 SZBYR was followed by the High Court in Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 at [22] and [23]. At [24] and [25], the Court then continued:
As a Full Court of the Federal Court of Australia (Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration and Citizenship, s 424A depends on the RRT's "consideration", that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had "considered" or had any opinion about the file note.
As observed equally correctly by Heerey J in MZXBQ v Minister for Immigration and Citizenship, s 424A speaks of information which "would", not which "could" or "might", be the reason or part of the reason for affirming the decision under review.
30 Thus, at [25], the High Court endorsed the reasoning of Heerey J in the first sentence of [29] in MZXBQ, and did not cast any doubt upon his reasoning in the remainder of that paragraph.
31 In SZMDS v Minister for Immigration and Citizenship [2009] FCA 210; (2009) 107 ALD 361 Moore J followed MZXBQ. His Honour found at [14] that a passport, which indicated that the appellant had previously travelled to a number of countries before returning to Pakistan and the Australian visitor visa, was not in itself of "dispositive relevance to the Convention claims advanced by the applicant", and nor could such information be said to undermine the applicant's claim of having a well-founded fear of persecution. Moore J concluded that the information was neutral in character, merely evidencing the fact that, firstly, the applicant had previously travelled to a number of countries before returning to Pakistan and, secondly, that the applicant had been granted an Australian visitor visa.
32 In SZTNL v Minister for Immigration and Border Protection [2015] FCA 463; (2015) 231 FCR 204, Griffiths J applied SZBYR to conclude that neither a letter nor the appellant's evidence in relation to that letter given to the Minister's delegate in support of his application for a protection visa was information within the meaning of s 424A(1). Particularly, at [52] and [53], Griffiths J said:
[52] Neither of the two relevant pieces of information constituted "information" for the purposes of s 424A(1). Neither Mr X's letter nor the appellant's evidence in relation to it given to the delegate comprised a rejection, denial or undermining of the appellant's claim to be a person to whom Australia owed protection obligations. The relevant information was not, of itself, of "dispositive relevance" to the appellant's claims for protection, nor did that information, by itself, undermine his claims. Rather, the information, when viewed against other statements made by the appellant, cast doubt on the appellant's credibility. I accept the Minister's submission that information merely going to credibility does not fall within s 424A. As Heerey J observed in MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483 at [29]:
It can also be noted that the section speaks of information that "would" be the reason etc, not "could" or "might". This is another indication that information merely going to credibility is not within the section. An applicant may be disbelieved on some issues, but believed on others, or the application may be determined one way or the other by issues unrelated to credibility. Lack of credibility in itself does not necessarily involve rejection, denial or undermining of an applicant's claims.
[53] The relevant two pieces of information became material only because the Tribunal relied upon them in finding inconsistencies in the appellant's evidence, which lead to the conclusion that he was not a truthful witness. I accept the Minister's submission that it was these inconsistencies (or the process of comparison between the appellant's evidence and the factual statements with which the evidence was compared) that counted against him, however, neither inconsistency nor such a comparative process constitutes "information" for the purposes of s 424A(1) (see SZBYR at [18] and SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; (2009) 179 FCR 109 at [104] per Buchanan J, with whom Perram J agreed).
33 MZXBQ was also followed by Yates J in Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052; (2015) 149 ALD 552 at [31]. His Honour found that information about the first respondent's travel arrangements and travel to Australia and her living arrangements in Australia was not "not information which contains a rejection, denial or undermining of the first respondent's claims to protection… Put another way, the information was not of "dispositive relevance" to the Convention claims advanced by the first respondent". Rather, Yates J accepted that the information was "mere inconsistency" or "evidence that [came] to be relied upon to find inconsistency".
34 In SZUXO v Minister for Immigration and Citizenship [2016] FCA 1399 at [33], Katzmann J cited MZXBQ and SZTNL for the proposition that information merely going to credibility is not caught by s 424A. At [35], her Honour noted that the question whether material is in fact "information" of the kind affected by s 424A is not answered by what the Tribunal did. This reasoning is consistent with the observation of the Full Court in SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90 at [53] that the fact that the Tribunal apparently believed s 424A(1) to apply to the information is immaterial if, in fact, the information was exempted from the operation of that provision. See also SZTNL at [49] and Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052; (2015) 149 ALD 552 at [32].