'The evidence of Mr John Knight that his wife's brother died in 1986 and that the appellant's husband died before then was information. It was knowledge which came to the Tribunal. It had a relevance to the review because it assisted Mr John Knight to fix the date of death of the appellant's husband. It provided a reason for preferring one witness over others. It thereby provided a reason for the finding of a fact central and adverse to the appellant's claim.
In one sense, it is perfectly accurate to say that this information and its assessment was a reason for preferring one witness over others. But I think it can be also said, because of its importance in the reasoning process, that it was a part of the reason for finding the date of death of the appellant's husband to be before 1986 and not in 1995. Thus expressed, it was a part of the reason for rejecting her claims, because of the central importance of the assertion of the date of death.'
29 In VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 ('VAF') Finn and Stone JJ at [28] characterised the Refugee Review Tribunal's knowledge of certain behaviour of the appellant as 'information' within the meaning of s 424A. At [29]-[33] their Honours went on to observe:
'This conclusion brings into focus the second of the s 424A(1) requirements: "Was the information the reasonora part of the reason for its decision?" We cast the matter in this fashion because we agree with the majority view in Paul's case that, though the subsection addresses the matter prospectively (i.e. "the Tribunal considers would be the reason etc"), the question of compliance with s 424A(1)(a) is to be judged retrospectively in light of the Tribunal's actual decision: see Paul at [94]; and cf Beaton-Wells, "Disclosure of Adverse Information to Applicants under the Migration Act 1958" (2004) 11(2) AJ Admin L 61 at 64 - 65.
The information concerning the appellant's behaviour clearly was not "the reason" for the Tribunal's decision. But was it "a part of the reason"? As we have indicated, the Tribunal considered it to have some relevance to the determination to be made. And the Tribunal's treatment of that information (i.e. the "significance" attributed to it) equally had a place in its reasoning process. However, it is not necessarily the case that for either or both of these reasons, the circumstances attract the obligation of s 424A(1)(a). The subsection itself requires identification of the reason for affirming the decision under review.
The ultimate "reason" was that the Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations. However, as Allsop J indicated in Paul (at [99]), there needs to be "some unbundling" of that reason for s 424A purposes and that (at [100]):
"[i]n any given circumstance it may not be straightforward to identify from an expressed reasoning process whether information was the reason or a part of the reason for affirmation."
There were divided views in Paul's case as to whether the "reason" for s 424A(1) purposes was to be determined by reference to the requirements of s 430 of the Act which stipulates what is to be contained in a Tribunal's written reasons. The majority rejected that the two sections were so tied, while acknowledging that assistance in s 424A cases may be derived from s 430. As we are not satisfied that this view is clearly wrong we intend to follow it.
It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the Tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the Tribunal's decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a Tribunal's reasons are to be evaluated for s 424A(1) purposes, the Court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal's decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy - and made the more so by less than explicit indications in the reasons themselves as to what the Tribunal itself considered to be integral.'
30 Their Honours' conclusion on whether the information was 'the reason or a part of the reason for its decision' is expressed at [41] as follows:
'Considered in the context of the Tribunal's reasoning process and having regard to the aggregate of findings made that rejected both that the appellant had been persecuted for a Convention reason and that his situation was such as to give rise to a well founded fear of persecution, reference to the information as to his behaviour in Australia can only be categorised as being relatively minor and unimportant in the scheme of things. It was not so integral to the reasoning process rejecting the appellant's claim as to require as a matter of fairness that the appellant be told that information (cf s 424A(1)(a)) and why it was relevant to the review (cf s 424A(1)(b)).'
31 In VAF Merkel J at [50] agreed with Finn and Stone JJ that the issue for determination was whether the Tribunal considered that the information in question would be the reason or part of the reason for its decision, and that the question of compliance was to be judged retrospectively in light of the Tribunal's actual decision. However his Honour adopted a different approach from that adopted by Finn and Stone JJ to the determination of whether the information was the reason, or part of the reason, for the Tribunal's decision. At [57]-[60] Merkel J observed:
'Whether the Tribunal accepted the appellant's version of the past events on which his fear of persecution is based was critical to the outcome of his claim. In the present case the appellant's account of past events was not believed, and as a consequence the Tribunal concluded that the appellant does not have a well-founded fear of persecution. The adverse finding on credibility was the primary reason for the Tribunal's affirmation of the delegate's decision.
It must follow that the question arising on the present appeal is whether the information concerning the appellant's behaviour after his arrival in Australia was stated by the Tribunal to be a reason for the adverse general finding it made against him in relation to his credit. If the Tribunal did make such a statement it would follow that that information was considered by the Tribunal to be part of the reason for its decision. In such circumstances there would be no role for questioning whether the information was:
· a more, or a less, significant part of the reason for its decision;
· an integral or essential part of the reason for the decision; or
· "sufficiently important" to the reasoning process to warrant that s 424A apply.
As I later explain, those questions might be relevant to the exercise of the Court's discretion to decline to grant relief if a breach of s 424A has occurred.
There is an additional difficulty with the Court, in ascertaining whether information is a part of the reason for a decision, engaging in an evaluation of the relative importance of the information to the reasoning process. Information that has been stated to be part of the reason for the decision might appear to be only a minor part of the reasoning, but had it been put to the applicant that information might have elicited a response which may have had an impact on the Tribunal's decision. Thus, there is an inherent problem in assessing the importance of the information in question without having the response the applicant would have given to it had he or she been apprised of the information and of its significance. As was observed by Megarry J in John v Rees at [1970] 1 Ch 345 at 402 "the path of the law is strewn with examples. of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change."'
32 The applicants contend that the letter sent to Ms Ling dated 1 December 2003 (see [16] above) did not fairly inform the applicants of the alleged inconsistencies in the explanations previously provided for the presence of female clothing in Mr Zhang's residence. They contend that they were entitled to be informed of the information as to the alleged inconsistencies notwithstanding that their solicitors had obtained a copy of the site report. They further contend that:
'The error is not subject to the exception in s 359A(3)(b). It was the report, provided by a migration officer that alleged inconsistencies and upon which the Tribunal relied. It did not rely on information given by the applicant.'
33 In considering the applicants' contentions it is necessary first to determine whether the alleged inconsistencies in the explanations previously provided for the presence of female clothing in Mr Zhang's residence were information within the meaning of subs 359A(1). The information of which subs 359A(1) requires particulars to be given is information that has come to or been gained by the Tribunal; it is not the subjective appraisal or thought processes of the Tribunal (Paul Allsop J at [95] agreeing with Sackville J in Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109).
34 The site report records that Mr Zhang initially said that the women's clothing in his residence belonged to an old girlfriend who lived with him for one month and later stated that the clothes belonged to his sisters who left them behind last time they visited him. The site report also records the opinion of the author of the site report that Mr Zhang's responses concerning the ownership of the women's clothing were evasive and inconsistent. The Tribunal was thus relevantly informed by the report of three matters, namely:
(i) Mr Zhang had stated that the clothing belonged to an old girlfriend;
(ii) Mr Zhang had also stated that the clothing belonged to his sisters who had left it behind last time they visited him; and
(iii) The author of the report found Mr Zhang's responses concerning the ownership of the women's clothing evasive and inconsistent.
35 In my view, each of the above three matters was information within the meaning of subs 359A(1). However, the fact that the Tribunal considered the statements that Mr Zhang was reported to have made to be inconsistent was not itself information but rather the outcome of the Tribunal's appraisal of the information contained in the site report.
36 If the information identified above, or any of it, was information 'that the applicant gave for the purpose of the application' within the meaning of par 359A(4)(b) of the Act, s 359A would not apply to it (see [26] above). In Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 the Full Court (Ryan, Merkel and Conti JJ) expressed the view that the term 'application' in par 424A(3)(b) means the application to the Tribunal for review of the primary decision and not the application for a protection visa. Their Honours' view was strictly obiter dicta and some doubt has been expressed concerning its correctness (see, for example, VAF at [17] and [22]). However, their Honours' view has now been followed in a number of cases and I consider that I should do likewise. Therefore, by analogy with par 424A(3)(b), the reference in par 359A(4)(b) to 'the application' must be seen as a reference to the application to the Tribunal and not the application for a visa. For this reason the respondent's submission that par 359A(4)(b) has the effect that s 359A does not apply to the information must be rejected. The date of the site report is earlier than the decision of the respondent's delegate and some months earlier than the date of the application for review to the Tribunal. The information given by Mr Zhang that is recorded in the site report is plainly not information given by him for the purpose of the application for review to the Tribunal.
37 It is therefore necessary to determine whether the information, or any of it, was information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that was under review (par 359A(1)(a)). The authorities reveal that before this determination can be made it is necessary to identify the Tribunal's reasons for affirming the decision under review.
38 The Tribunal's reason for affirming the decision under review was that Mr Zhang did not meet the requirements of clause 115.211 of Schedule 2 to the Regulations. However, as Allsop J observed in Paul at [99] 'some unbundling of the immediate reason for the affirmation is required'. The Tribunal concluded that Mr Zhang had not discharged the evidentiary burden of satisfying the Tribunal that he and his former spouse were not in a spousal relationship at the date of the visa application. The reasons for decision of the Tribunal reveal that the Tribunal reached this conclusion because:
(a) the evidence in support of the claim was scant; and
(b) the oral evidence on the topic was unconvincing because evidence of Mr Zhang and his sister, who also gave evidence at the hearing, was lacking in credibility.
39 The reasons for decision of the Tribunal disclose that it took into account a number of factors in determining that the evidence of Mr Zhang and his sister lacked credibility. These factors were:
(a) that on the first site visit Mr Zhang initially stated that the female attire found at his residence belonged to a girlfriend and then said that they belonged to his sisters;
(b) in a written submission dated 2 January 2004 Mr Zhang said that the clothes belonged to his mother, sisters and a tenant/prostitute;
(c) in a statement made on 2 December 2002 Mr Zhang said that his home is mostly rented out but the evidence set out in a submission dated 19 March 2004 appeared inconsistent with Mr Zhang's home being mostly rented out;
(d) no travel tickets or other documentary evidence shows that Ms Ling or any of her daughters have travelled to the city where Mr Zhang resides;
(e) Mr Zhang claimed that he did not know who owned any single item that was found at his residence, which was inconsistent with other explanations which refer to specific persons as being the owners of the clothes;
(f) Neither Ms Ling nor her daughter identified a single item of clothing, including shoes, that they claimed to have left at Mr Zheng's residence.
40 Nothing in the reasons for decision of the Tribunal suggest that it placed any weight on the information that the author of the site report found Mr Zhang's responses concerning the ownership of the women's clothing evasive and inconsistent. The Tribunal made its own assessment of the significance of what the site report recorded as having been said by Mr Zhang. I conclude that the information that the author of the site report found Mr Zhang's responses evasive and inconsistent was not information that fell within the terms of par 359A(1)(a).
41 The information that during the first site visit Mr Zhang had stated first that the women's clothing belonged to an old girlfriend and then that the clothing belonged to his sisters who had left it behind last time that they visited him was information upon which the Tribunal placed weight in affirming the decision under review. The test that I consider should be applied in these circumstances is that applied by Finn and Stone JJ in VAF and approved in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [54]. I must therefore interpret the reasons of the Tribunal to isolate the integral parts of its reasons; information that is to be categorised as being 'relatively minor and unimportant in the scheme of things' (see [30] above) is not to be regarded as the reason or part of the reason for affirming the decision under review.
42 In my view the present is a borderline case having regard to the above test. The information was taken into account by the Tribunal, along with considerable other material, in reaching a credibility finding that itself provided one of two bases for the Tribunal's critical conclusion that Mr Zhang had not discharged the evidentiary burden of satisfying the Tribunal that he and his former wife were not in a spousal relationship at the date of the visa application. However, to so state the matter probably understates the significance of the information. The Tribunal's whole attitude to Mr Zhang's credibility may have been different had it not had the information concerning the statements reportedly made by Mr Zhang during the first site visit as to the ownership of the women's clothing. Further, as Merkel J (in dissent on this opinion) pointed out in VAF at [60] it can be difficult to assess the importance of information without knowing the response that an applicant would have made had he or she been apprised of the information and of the significance that the Tribunal attached to it.
43 With some hesitation I conclude that the information about what Mr Zhang said during the first site visit as to the ownership of the women's clothing was information of which the Tribunal was required by subs 359A(1) to give particulars to Mr Zhang. I therefore conclude that the Tribunal failed to comply with the requirements of par 359A(1)(a).
44 In Minister for Immigration & Multicultural & Indigenous Affairs v Awan (2003) 75 ALD 386 the Full Court held that a failure to comply with subs 359A(1) constitutes jurisdictional error by the Refugee Review Tribunal (per Gray J at [12]; Marshall at [61] and Merkel J at [101]). If a decision is affected by jurisdictional error, in the sense that the Tribunal has acted outside its statutory power, it not a privative clause decision and thus not a decision that s 474 of the Act protects from judicial review (Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476). Nonetheless, if I reach an affirmative conclusion that this is one of the rare cases in which compliance by the Tribunal with subs 359A(1) could make no difference to the result reached by the Tribunal, I should withhold relief (VAF at [45]).
45 In contending that any breach of subs 359A(1) in this case resulted in no practical injustice and could not have affected the Tribunal's decision, the respondent relied on, amongst other things, the following uncontested facts:
(a) the record of the decision of the delegate of the Minister makes reference to the site report;
(b) the applicants, by their solicitor, obtained a copy of the site report under the Freedom of Information Act 1982 (Cth) before the Tribunal hearing;
(c) the information concerned statements made by Mr Zhang himself; and
(d) the transcript of the Tribunal hearing reveals that the Tribunal raised with Mr Zhang that he had given different explanations for the presence of the women's clothing and subsequently gave the applicants a period of more than two weeks to provide further evidence to the Tribunal.