Minister for Immigration and Border Protection v CLY15

Federal Court of Australia|2018-12-14|Before: McKerracher J

Grounds 1 and 2 of the appeal be dismissed.
Grounds 3 and 4 of the appeal be allowed.
The notice of contention be allowed.
There be no change to the orders of the primary judge.
The appellant pay the costs of the first respondent, to be assessed if not agreed, unless there is an application to the contrary filed within five days, in which case costs will be determined on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The Minister for Immigration and Border Protection appeals from a judgment of the Federal Circuit Court of Australia: CLY15 v Minister for Immigration and Anor [2017] FCCA 2504. The Federal Circuit Court found the decision of the Administrative Appeals Tribunal was affected by jurisdictional error. The Tribunal had affirmed the decision of a delegate of the Minister to refuse to grant the first respondent a temporary protection visa.

BEFORE THE FEDERAL CIRCUIT COURT 12 The Federal Circuit Court followed authority from this Court, concluding that the application should be allowed due to the non-disclosure of the existence and the content, respectively, of the certificate. 13 Before the primary judge the Minister submitted that the decisions in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 and Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 should be distinguished because the documents that were the subject of the certificate had been revealed to the first respondent as part of the freedom of information (FOI) release and, consequently, that no 'practical injustice' arose, relying on Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 per Gleeson CJ (at [37] and [38]). The primary judge noted that Singh concerned s 375A of the Act which, whilst analogous, is not identical to s 438. As his Honour observed, s 375A of the Act is in Pt 5 of the Act and deals with matters other than protection visas. Section 438 of the Act, the section the focus before the primary judge, is in Pt 7 and is concerned with applications for protection visas. 14 However, the primary judge considered that much of the reasoning of the Full Court (Kenny, Perram and Mortimer JJ) in Singh in respect of s 375A was applicable to s 438 and noted that the Full Court gave express consideration to that section. As the primary judge noted, in Singh a delegate of the Minister signed a certificate pursuant to s 375A that disclosure of information about a fraudulent employer reference scheme, including a witness statement and a summary of a taped record of interview, would be contrary to the public interest. The Tribunal provided particulars of the allegations about the fraudulent scheme to the applicant and sought his response but did not disclose to him the existence of the certificate itself. The Full Court held that the decision of Dowsett J in Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686, to the extent that it is authority for the proposition that the Tribunal does not ordinarily need to disclose a certificate to an applicant, should not be approved (at [59]). 15 As the primary judge noted, the Full Court held that the disclosure of the certificate, as distinct from the subject matter of the certificate, may be of importance where, for example, the certificate was invalid. Failure to disclose the certificate in those circumstances would deprive the visa applicant of a chance to challenge the validity of the certificate through judicial review. The disclosure of the certificate would often not undermine the confidentiality which s 375A (or s 438) was designed to protect because the disclosure of the existence of the certificate would not disclose the information in question. 16 His Honour also followed MZAFZ, noting it concerned an application for a protection visa and a certificate given under s 438(1)(a) of the Act. The certificate in MZAFZ had said that the disclosure of the information 'would be contrary to the public interest because it contains internal working documents'. The certificate in this case is in similar terms but, in addition, refers to 'and business affairs'. The primary judge noted that Beach J in MZAFZ held that s 438(1)(a) referred to public interest immunity and that the specified basis of the claim, 'contains internal working documents', has never been either a necessary or sufficient basis for public interest immunity whether at common law or under statute. The primary judge correctly, in my view, said the addition of the phrase 'business affairs' makes no difference. It is not a recognised category of public interest immunity. 17 His Honour said that an examination of the documents covered by the certificate did not indicate a basis for a claim of public interest immunity. The FCC Report was invalid on its face and, further, it was concluded the documents were in fact not subject to public interest immunity. 18 In MZAFZ, Beach J had said (at [41]) that the invalidity of the certificate permitted an inference that the Tribunal failed to consider whether to disclose the information which was the subject of the certificate to the applicant under s 424AA or s 424A. Beach J further said (at [44]) 'for the Tribunal to have proceeded or acted on an invalid certificate was not a process according to law and of itself constituted a jurisdictional error'. 19 The primary judge noted that the Minister submitted that in this case no requirement of disclosure arose under s 424AA or s 424A because the information was information the first respondent gave and s 424A(3)(b) and s 424A(3)(ba) did not require disclosure of such information. 20 His Honour said (at [34]-[38]): 34. I accept that the [first respondent] gave information about his illegal entry into the UK, his criminal conviction, his sentence of imprisonment and his removal from the UK to Vietnam to the Tribunal. However, the context in which this information was given was that the Tribunal and, before it, the delegate had precise, detailed and official information about these matters which was not disclosed to the [first respondent]. His repeated denials to the delegate were presumably based on his ignorance of the exact nature of the information held by the delegate. While this may be a legitimate technique when used by the delegate it would not ordinarily be legitimate if used by the Tribunal. There is no evidence that the Tribunal proceeded in this way, and my remarks are not to be interpreted as criticism of the Tribunal, but the information given by the [first respondent] was not the actual information before the Tribunal, that is, the FCC Finger Print Match Report. If the Tribunal had regard to the information subject to the certificate it remained open for the Tribunal to measure the credibility of the [first respondent's] admissions against that precise and reliable information. Whether it was in fact used in that way by the Tribunal is not known. I do not accept that if the Tribunal had realised that the certificate was invalid it would have been relieved by section 424A(3)(b) or (ba) of the obligation to disclose the FCC Finger Print Match Report to the [first respondent]. 35. The Minister further submitted that the invalidity of the certificate had no practical consequence because the provision of the FCC Finger Print Match Report was included in the FOI release and was in the possession of the [first respondent] or his migration agent so as to permit submissions to the Tribunal on the information. In support of this submission, counsel referred to Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]. 36. The facts of this case are similar to those in SZMTA v Minister for Immigration [2017] FCA 1055, a decision of White J. It was argued by the Minister in that case that the defect in the certificate had no practical consequence because the documents which were the subject of the certificate had been given to the [first respondent] before the hearing in an FOI release. After concluding, like Beach J in MZAFZ, that he was entitled to infer that the Tribunal acted in some unspecified way on the invalid certificate and that constituted jurisdictional error, White J said at [57] and [58]: Counsel for the Minister contended, however, that the defect in the certificate had had no practical consequence. Counsel submitted that the appellant's possession of the documents by reason of the FOI request meant that he and his representatives had been able to make all the submissions they wished in relation to the documents in the belief that they would be before the Tribunal. That being so, it was said that there had not been a denial of procedural fairness to the appellant in any practical sense. In support of this submission, counsel referred to Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]. There is some force in the submission but ultimately I have decided that it ought not to be accepted. That is because the presence of the invalid certificate may have affected in other ways the process by which the Tribunal reached its decision. There is no indication that the Tribunal member was aware that the identified documents were in the appellant's possession in any event. It seems more likely that the member would have assumed that they were not. That would have been a natural inference from the delegate's advice that the documents should not be disclosed to the appellant. 37. I also accept that there is force in the submission but like White J I am concerned that the invalid certificate may have affected in other ways the process by which the Tribunal reached its decision. There is no evidence that the Tribunal was aware that the FCC Finger Print Match Report was in the possession of the [first respondent]. It is conceivable, for example, that the Tribunal used any discrepancy between the admissions of the [first respondent] and the report in assessing the [first respondent's] credibility. 38. The Minister also submitted that relief should be withheld on discretionary grounds because the [first respondent's] knowledge of the certificate could not have made any difference to the outcome of the review. Stated so narrowly with reference to the [first respondent's] knowledge the submission has force. However, my concern relates to the fact that the Tribunal did not know the report was in the possession of the [first respondent] and whether the Tribunal may have acted in some unspecified way on the report. While it might be thought likely, absent the jurisdictional error, the Tribunal would have reached the same result and the same result will be reached on a new hearing I am not satisfied it is "inevitable": Stead v SGIC (1986) 161 CLR 141, [145]. (Emphasis added.)

GROUNDS OF APPEAL 21 The Minister appeals on the following grounds: 1. The Court below erred by relying upon the mere possibility that the second respondent Tribunal (Tribunal) may have adversely relied upon any alleged discrepancies between the documents the subject of a certificate issued under s 438(1)(a) of the Migration Act 1958 (Cth) (Act) and the evidence of the first respondent CLY15 about the same information to find that the Tribunal had denied [the first respondent] procedural fairness. 2. The Court below erred by failing to hold that [the first respondent] was not denied procedural fairness in circumstances where every document the subject of a certificate issued under s 438(1)(a) of the Act was in his possession prior to the Tribunal hearing. 3. The Court below erred in holding that the Tribunal failed to comply with s 424A(1) of the Act by not disclosing the "FCC Finger Print Match Report" (Report) to [the first respondent]. 4. The Court below erred by failing to hold that the adverse information in the Report was not required to be disclosed to [the first respondent] under section 424A(1) of the Act because it was information he had given for the purpose of the application for review or during the process leading to the decision under review within the meaning of s 424A(3)(b) and/or (ba) of the Act.

Ground 1 and ground 2 - procedural fairness 22 These grounds were argued together. 23 The Minister says that neither MZAFZ nor Singh are apposite in circumstances such as this where the documents the subject of the notification had been provided to the first respondent. Thus, the unfairness referred to in MZAFZ and Singh is avoided because the first respondent already had all the documents that were before the Tribunal. On this basis the Minister seeks to distinguish MZAFZ and Singh. 24 As to SZMTA v Minister for Immigration and Border Protection (2017) 255 FCR 215, the Minister contends it is plainly wrong and has so argued before the High Court of Australia. At the time of argument in this appeal, the High Court had yet to hear argument. That decision is now reserved. 25 Dealing with the argument concerning MZAFZ and Singh, in each case a certificate of the same nature was issued. In MZAFZ, Beach J found that the certificate was invalid (at [38]). He stated that the Court was entitled to assume that the Tribunal 'acted in some unspecified way' on the invalid certificate in the absence of evidence to the contrary (at [40]). His Honour considered and gave reasons for refusing to allow the Minister to produce evidence about the documents the subject of the certificate (at [54]-[55]). Beach J held that it was procedurally unfair for the Tribunal to proceed, irrespective of whether the certificate was valid or invalid, without identifying to the visa applicant the certificate's existence and allowing the making of submissions. 26 The Full Court in Singh accepted that Beach J had correctly concluded that common law notions of procedural fairness might require disclosure of a certificate or notification. The Full Court explained that where a certificate was valid it required the Tribunal to conduct the review without disclosing the documents or information the subject of the certificate to an applicant (at [42]). This was sufficient to enliven an obligation of procedural fairness requiring disclosure of the existence of the certificate because that certificate, prima facie, diminished an applicant's entitlement to participate fully in the review process. The Minister notes that the Full Court did not discuss the question of whether the Court was entitled to make assumptions or speculate as to whether the Tribunal may have 'acted in some unspecified way' upon the certificate: cf MZAFZ (at [40]). In any event, in this instance, all the documents the subject of the certificate had been the subject of notification to the first respondent after their release under the FOI request. Indeed, the information and the subject of the documents had already been revealed by the first respondent in the course of his application process. 27 The first respondent rejects the Minister's contention that it was not open for the Court to speculate, without an evidential basis, about the manner in which the Tribunal may have dealt with the documents the subject of the notification. The first respondent also responds to the legal proposition relied upon by the Minister to the effect that if a Court is to conclude that jurisdictional error has been established, it must be based on evidence or an inference based on evidence. 28 The first respondent says that to the extent that the Minister contends that 'speculation' itself is incompatible with a finding of jurisdictional error, this Court, when asked to issue a constitutional writ on an allegation of apprehended bias is required to perform precisely the kind of exercise the Minister impugns. Hence, in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (at [7]), Gleeson CJ, McHugh, Gummow, Hayne JJ said: The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined … Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question … is [a question] of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. (Emphasis added.) 29 The first respondent argues it was not the case that there was no evidentiary foundation for the primary judge's reasoning, agreeing with Beach J in MZAFZ, that 'it is conceivable, for example, that the Tribunal used any discrepancy between the admissions of the [first respondent] and the report in assessing the [first respondent's] credibility' (at [37]). 30 The first respondent invites attention to the following: (a) the Department's Procedures Advice Manual - Asylum Claims - Five Country Conference match information guidelines required the Tribunal to at least consider an FCC Report: ' … a match report that is inconsistent with an asylum seeker's account is still capable of an innocent explanation and so it needs to be considered along with other available information'; (b) the Tribunal assumed the correctness of first respondent's identity, notwithstanding the false identities admittedly provided by the first respondent, which were recognised by the Tribunal (at [11]): [The first respondent] claimed in his statutory declaration that he had given a false name to the Department at the time of his arrival in Australia … Essentially, he initially gave Australian authorities a false family name and a false middle name. He said he later gave his real name to DIBP at his entry interview. He later claimed … that the false name was a name by which he was commonly known in Vietnam. Nevertheless, the Tribunal does not question the most recently claimed identity. Unless the Tribunal was relying on the FCC Report to identify the first respondent, it is not easy to see why the Tribunal would otherwise accept the first respondent's identity; (c) the Tribunal (at [113]) states, in disbelieving the first respondent's claim that he was denied the ability to travel to the USA, that: The USA, like the UK and Australia, is a member of the Five Countries Conference which shares information about visa applicants. It is highly likely that an application by [the first respondent] to visit the USA after having been removed from the UK over a conviction relating to illicit drugs would have failed for reasons that have failed [sic] due to his criminal record. I note that [the first respondent] told the delegate that he concealed information about his criminal record from Australian authorities for fear of failing to secure a protection visa here. However, he went further … to refer to his desire to travel to the USA … I find this adds to my impression that he is, overall, an unreliable witness in the present matter. Without the FCC Report, that was a non sequitur; (d) the primary judge's implicit finding that the Secretary had referred the FCC Report to the Tribunal on 24 June 2015 (the date of the certificate), pursuant to s 418(3) of the Act, demonstrated that the Secretary considered the FCC Report relevant. That is said to be also why, in MZAFZ , Beach J referred to the absence of any 'evidence to the contrary'; (e) as far as the Tribunal was concerned, the first respondent did not have the FCC Report; and (f) if the Tribunal considered the notifications valid (or did not consider whether or not they were valid) it would have considered itself as not bound to disclose either the notification or the substance to the first respondent by operation of s 438(3). In such a case, one would not expect to see a reference in the Tribunal's reasons. Indeed, the Tribunal gave its reasons at a time before MZAFZ and Singh, but after Davis in which Dowsett J analogously held under s 375A that the existence of the notification itself was not disclosable. 31 The first respondent says that if the primary judge fell into error in reasoning that 'the invalid notification may have affected in other ways the process by which the Tribunal reached its decision' (at [37]), this Court should positively infer on appeal (as his Honour did) that 'the Tribunal used any discrepancy between the admissions of the [first respondent] and the report in assessing the applicant's credibility' (at [37]). 32 The first respondent argues that the Minister's complaints as to the reasoning of White J in SZMTA do not demonstrate error. A fortiori they do not reach the considerably higher threshold of demonstrating that another Court was 'plainly wrong'. 33 The first respondent points out that a decision made in possession of undisclosed extraneous material is a recognised category of apprehended bias, specifically consisting of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias as was recognised be Deane J in Webb v The Queen (1994) 181 CLR 41, where his Honour said (at 74): The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information. It will commonly overlap the third and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias. (Emphasis added, citations omitted.) 34 The Tribunal was in possession of the FCC Report. This fact was not disclosed to the first respondent. The FCC Report contained information which the first respondent submits was, if read and understood, 'catastrophically destructive' (without explanation) to his credibility because it contradicted most if not all of his claims in respect of his marital status. 35 In such circumstances, the first respondent submits that a fair-minded and informed hypothetical observer might conclude that the decision-maker might not have been impartial or have approached the issues with an open mind. That is because of the potential to consciously or unconsciously discount any of the claims inconsistent with the withheld information. Possession of the extraneous material, undisclosed, would be understood as corrosive or potentially corrosive of an impartial approach to the balance of the material before the decision-maker. 36 Such a hypothetical observer would, moreover, be imputed with an understanding of the true legal position that the information was not required to be withheld or was at least capable of discretionary disclosure under s 438(3) of the Act. 37 The first respondent says that the Minister's contention in respect of ground 2 is wrong: a denial of procedural fairness is not foreclosed simply because the first respondent was in possession of the FCC Report. The first respondent says the denial of procedural fairness consists of the first respondent not knowing that the Tribunal had received the FCC Report and the Tribunal believing that it was constrained by s 418(3) of the Act not to disclose or refer to the FCC Report, including being foreclosed from raising with the first respondent any concerns that it may have, subject to a discretion exercisable by reference to any advice of the Secretary under s 438(3)(b) to make the disclosures. Plainly, by issuing the certificate, the Secretary had conveyed a preference that the FCC Report should not be disclosed. 38 Self-evidently, the first respondent says, the FCC Report contained material which was destructive of the first respondent's credibility. It also contained information, overlooked by the Minister, suggesting prima facie that the first respondent was not in fact married as he claimed. If that was taken as correct, and in the absence of an explanation requested or understood to be required, it is said to be 'catastrophically destructive' of the first respondent's claims and credibility.

Ground 1 and ground 2 - consideration 39 I am bound by each of MZAFZ, Singh and SZMTA, unless I consider any of them to be plainly wrong. It is not sufficient that on balance I might have reached a different conclusion one way or another. In the absence at this point of the High Court appeal in SZMTA being allowed, I will follow it. Therefore, as ground 1 and ground 2 depend upon the argument that SMZTA was plainly wrong, I cannot accept that contention and would reject those grounds.

Ground 3 and ground 4 - s 424A of the Act 40 These grounds were also argued together. 41 Section 424A of the Act provides: 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). 42 As the Minister notes, the primary judge also considered it to be possible that the Tribunal may have measured the first respondent's answers against the 'precise and reliable information' in the FCC Report (at [34]). The Minister suggests this apparently led to his Honour's conclusion that the FCC Report was required to be disclosed under s 424A(1) of the Act. 43 Section 424A was also considered by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 (at [17]), where the High Court (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) said: Second, 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. (Emphasis added.) 44 The Minister contends that (as the High Court said), if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the applicant's evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting 'information' within the meaning of s 424A(1)(a). The Minister relies on SZBYR where the majority said (at [18]): Third and conversely, 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 para (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 [(2004) 206 ALR 471 at 476-477] 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. (Emphasis added, citations omitted.) 45 The Minister contends that the relevant information here, which may have objectively undermined the first respondent's claims (and without regard to the Tribunal's reasons), was the information the first respondent gave himself of his previous travel overseas to find work and his delay in claiming asylum. Section 424A(1) of the Act does not apply to such information by virtue of s 424A(3)(b) and s 424A(3)(ba). Indeed, if the FCC Report had been used in the manner speculated by the primary judge, then s 424A(1) would also not apply for the reasons stated in SZBYR by the High Court (at [18]). 46 The first respondent contends that the Minister's ground 3 and ground 4 are not sustained simply by an observation that 'information' is not to be equated with 'the reasoning process of the Tribunal'. 47 The first respondent says that the Minister's criticism of the primary judge is unfairly selective. The point of his Honour's reasoning (at [34]) was that 'the information given by the applicant was not the actual information before the Tribunal'. 48 The first respondent points out that SZBYR, on which the Minister relies, is authority to the effect that there is no obligation on the Tribunal to positively disclose to an applicant its 'prospective reasoning process' by declaring any doubts it may have arising from inconsistencies. It does not speak to different information. 49 The criticism of the primary judge is also said to be inappropriate where the problem is that, if it may be inferred that the Tribunal considered the certificate valid, it cannot be said with confidence what 'information' the Tribunal considered (determined in advance of the particular reasoning on the facts of the case: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481 per Gageler, Keane and Nettle JJ (at [9])) was the reason, or part of the reason, for reaching its decision.

Ground 3 and ground 4 - consideration 50 I do not agree with the first respondent's submissions on these grounds. In my view, information and state of mind 'reasoning process' in this context are distinguishable. Very often the state of mind is only reached after deliberation and assimilating all the information. In my view, the Minister's submissions are correct.

NOTICE OF CONTENTION 51 The first respondent also relies upon a notice of contention, the essence of which is that the primary judge's conclusion could also be supported by the fact that the Tribunal's decision was vitiated by jurisdictional error in that the Tribunal was in possession of undisclosed extraneous information which was capable of seriously undermining the first respondent's claims, the possession of which might cause a fair minded and properly informed observer to conclude that the Tribunal might not be able to be impartial or to approach the first respondent's claim with an open mind. 52 Essentially, while the first respondent claimed he was married, the FCC Report stated that he was divorced. 53 Leave was required to file the notice of contention out of time. Leave was opposed on the basis it was unarguable, not raised below and there was a delay in its filing. I disagree on the first point and as to the other two, the points are raised by recently engaged pro bono counsel who has looked at the issue with fresh and experienced eyes. Leave will be granted. 54 As to the specifics of this contention, the first respondent claimed that he was married in 2006 and remained so. However, the FCC Report records that the first respondent's marital status was 'divorced'. This, the first respondent says, directly contradicted much of the first respondent's claims, and was otherwise destructive to his credibility in the absence of a satisfactory explanation. This was because the role of the first respondent's wife in the context of the first respondent's claims was not insignificant to the Tribunal's reasoning. 55 In respect of the Christianity persecution claims the Tribunal's decision records: 29. [The first respondent] said his wife is not a Christian, although he had insisted she study Christianity. … 55. I asked [the first respondent] about his family: his wife, children, siblings and mother and he described them as all living arguably unremarkable lives in Vietnam … He did not suggest that any family members in Vietnam are being directly harassed … … 57. I asked [the first respondent] how he lived as a Christian in Vietnam and he said he took a Bible and documents back there. He confirmed that his wife and children had remained uncoverted … 56 The first respondent says these observations were part of the evidence which failed to satisfy the Tribunal that the first respondent was genuinely interested in proselytizing and hence faced no real risk of harm nor would have to modify his behaviour. 57 This informed the Tribunal's finding (at [111]) that the first respondent 'did not really put much attention into this [religious] endeavour anyway, as he did not pursue this very far even with his own family'. 58 Additionally, the first respondent says his wife was also relevant to the Tribunal's adverse findings that the 'summonses' by Vietnamese authorities were fabrications inter alia due to the circumstances in which it was claimed they came to his attention via his wife in Vietnam. The Tribunal's decision records (at [76]-[77]): 76. Drawing attention to the different dates on the summonses, I asked [the first respondent] if his wife received the summonses on different days and had to ask him this question twice again. Eventually he said she did. 77. [The first respondent] said he first found out about all the summonses in April 2014, after the date of the third one. He had told me he had spoken with his wife on a monthly basis since arriving in Australia, so I asked why the July 2013 and February 2014 summonses had not come up in conversation, and he said he had not paid attention to anything that might have been said about summonses. I expressed surprise at this. He said his wife did not send any of the summonses until July or August 2014 because she did not have enough money. He said she sent all three together. 59 The Minister says the marital status in the FCC Report (that is, that at some point in the UK it was recorded that the first respondent was divorced) was information looked at in advance of the Tribunal hearing that had absolutely no objective basis for anyone thinking it would be a part of the reasons for affirming the decision and the way in which the Tribunal refers to the first respondent's wife seems to just assume they are married. Other than being a person to whom he is married, she is said not to feature in the claims for protection. She is not a Christian and her conduct does not give rise to anything. The Minister submits 'one can be divorced, one can get back'. The Tribunal just assumes they are married and no one has ever thought at any point in time objectively that the answer 'divorced' in any way impugned the first respondent's credibility on an objective review of what occurred before the delegate and the Tribunal.

Consideration - notice of contention 60 Leave having been granted to rely on the late notice, I consider that it does raise a similar point to that raised in SZMTA and for that reason I would follow SZMTA until the High Court says, otherwise, if it does. The visa applicant's marital status being stated as 'divorced' by an official record, despite his repeatedly claiming to be married and referring to his wife in the context of his evidence might well be capable of substantively going to the applicant's credibility. I would uphold the notice of contention.

CONCLUSION 61 It follows grounds 1-2 would be dismissed. Grounds 3-4 succeed, but the notice of contention also succeeds. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Migration Act 1958(Cth)ss 375A, 424A, 424A(1), 424A(3)(b), 424A(3)(ba), 424AA, 438, 438(1)(a)

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