Ms Meehan's letter
21 The appellant submitted that the fact that Ms Meehan failed to specify her qualifications constituted a part of the reason for the Tribunal's decision for affirming the delegate's decision and, thus, s 424A(1) of the Act applied. This submission gives rise to the question, first, whether the Tribunal's knowledge of the fact that Ms Meehan's letter did not contain a statement of her qualifications amounted to "information" for the purposes of s 424A(1). If it did, there is a further question as to whether this was information that the Tribunal considered "would be the reason, or a part of the reason" for affirming the decision under review.
22 Before going any further, I would reformulate the first question to identify the real item of information in question. I would not regard the omission of Ms Meehan's qualifications as the "information" that might attract a s 424A(1) obligation. Rather, the information was the letter in the form it took in the circumstances known to the Tribunal ("the letter").
23 This Court has discussed what is intended by the term "information" in s 424A on a number of occasions. As Finn and Stone JJ said inVAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477:
[T]here is now a considerable body of case law concerned with the compass of the term 'information' in its s 424A(1) setting. The following propositions emerge from it:
(i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 429-30 [104]; 64 ALD 289 at 318. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; BC200301782;
(ii) the word 'information' in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at 218 [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at 217-218 [19]-[22]; and
(iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679; BC200107472 at [25]; approved [2002] FCAFC 120; BC200203793; 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: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282-4 [26]-[29].
The Court substantially accepted this approach in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 ("SZEEU"): compare SZEEU at 226-228 per Moore J, at 252 and 254 per Weinberg J and at 259-260 per Allsop J.
24 Accordingly, I accept that, for present purposes, "information" does not encompass the Tribunal's appraisals or thought processes, although the Tribunal's appraisals and thought processes may show the relevance of the information in question and indicate what is required for compliance with s 424A(1). It follows that information is not constituted by what the Tribunal considers to be defects in evidence or a lack of evidentiary specificity. Secondly, information may have relevance for any number of reasons: compare SZEEU at 263 per Allsop J.
25 I accept that the Tribunal's knowledge of the letter was "information" for the purposes of s 424A(1). The contents of the letter included statements about the appellant and about the letter-writer. The information was, relevantly, the knowledge that the letter communicated to the Tribunal.
26 The Tribunal gave no weight to the statements in the letter about the appellant's psychological condition because the letter did not communicate enough about the letter-writer's qualifications. According to its reasons, the Tribunal's determination about the importance of the letter to its review was the product of its evaluation of the significance of this deficiency. As already noted, whilst the Tribunal's thought processes (including appraisals and evaluations) are not "information", they show why the information that they concern (here, the letter) was relevant for s 424A(1) purposes.
27 The appellant submitted that the letter was relevant to his protection visa application in two ways. First, if the Tribunal had accepted he suffered from the psychological symptoms to which Ms Meehan referred, then these symptoms would be corroborative of his claims to have been "the victim of violence, harassment and persecution in the past"; and, secondly, the Tribunal "may have been more willing to accept that any contradictions or differences in his story given at various stages of the review process were explicable because of his psychological difficulties".
28 The first respondent submitted that this was to approach the matter the wrong way. For the reasons stated below, I would agree.
29 The first respondent argued that the letter was not information that the Tribunal considered was the reason, or a part of the reason, for its decision. While the Tribunal referred to the letter in its reasons, the Tribunal did not, so the first respondent contended, rely on it. The first respondent argued that it was necessary to "unbundle" the Tribunal's reasons. The ultimate reason for the Tribunal's decision was its lack of satisfaction about the existence of any relevant protection obligation. The first respondent argued that the Tribunal's lack of satisfaction flowed from its rejection of the appellant's claims about his past persecution in Sri Lanka, which, in turn, flowed from its finding that the appellant had had no involvement with either the YWA or the UNP. This latter finding was the product of the Tribunal's adverse credibility finding that resulted from inconsistencies in the appellant's evidence. On a fair reading of the Tribunal's reasons as a whole, so the first respondent submitted, this adverse credibility finding did not, in any way, arise out of Ms Meehan's letter. The first respondent submitted that the Tribunal was not bound to regard any depression that the appellant might suffer as indicative of his having experienced persecution in the past in Sri Lanka for a Convention reason. The first respondent further submitted that it was clear that the Tribunal made a positive assessment of the appellant's ability to give evidence and rejected the possibility that any depression suffered by him adversely affected his ability to give evidence.
30 For the reasons I am about to state, I would not accept the first respondent's analysis either.
31 I first note that, in its reasons, the Tribunal referred to the letter three times. First, it mentioned the letter in its summary of "Claims and Evidence". Secondly, under the heading "Hearing", it recorded:
The Tribunal discussed with the applicant the letter dated 28 July 2005 from Counsellor/Advocate…provided in support of his application for Asylum Seeker Assistance Scheme (ASAS). The Tribunal put to the applicant that the Counsellor/Advocate does not outline her skills or qualifications and as such the Tribunal is not satisfied that she is qualified to provide the clinical opinions she had expressed in that letter. The Tribunal indicated that the Tribunal is satisfied that the applicant was capable of putting his case in full before the Tribunal. The applicant said he suffers from depression. The Tribunal indicated that on the basis of the available information, the Tribunal does not accept that he suffers from any clinical conditions which the Tribunal should take into account. (Emphasis added)
Finally, under the heading "Findings and Reasons", the Tribunal concluded:
In reaching the adverse credibility finding, the Tribunal has given regard to the letter dated 28 July 2005 from Counsellor/Advocate…provided in support of the application for Asylum Seeker Assistance Scheme (ASAS). As put to the applicant at the hearing, given the fact that the Counsellor/Advocate does not outline her skills and or qualifications, the Tribunal is not satisfied that she is qualified to provide the clinical opinions she had expressed in that letter. Accordingly, the Tribunal does not give that letter any weight. The applicant claimed that he was depressed but provided no clinical evidence in support. The Tribunal accepts as being plausible that the applicant gets depressed, however, the Tribunal is satisfied that the applicant was capable of putting his case in full before the Tribunal. In essence, the Tribunal is satisfied that any depression suffered by the applicant did not adversely affect his ability to present his case in full before the Tribunal.
32 I would conclude that, on a fair reading of the Tribunal's reasons, its knowledge of the letter, particularly in the form it took, was information that the Tribunal considered was a part of the reason for affirming the decision under review. The fact is that the Tribunal in this case regarded the letter as sufficiently important to mention it specifically on three separate occasions; to state why it was that it had determined to give it no weight; and to state that, in the absence of clinical evidence of depression (which the letter, if written by a clinician, might have provided) the Tribunal was satisfied that the appellant was capable of putting his case. The fact that the Tribunal merely put the letter out of account and, in that way, bolstered a conclusion about the appellant's credibility arrived at by reference to other matters does not mean that the letter did not play a part in its reasons for affirming the delegate's decision.
33 Obligations arise under s 424A(1) in respect of information that the Tribunal considers would be a part of the reason for affirming the decision under review. In the present case, for the reasons already noted, the letter played a part in the Tribunal's reasons for its decision, even if only a subsidiary part. Notwithstanding that a piece of information constitutes only a minor or subsidiary part of the Tribunal's reasons, s 424A is attracted: see SZEEU at 252 per Weinberg J and at 262 per Allsop J; and NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ("NBKT") at [31] per Young J, with whom Gyles and Stone JJ agreed. The Tribunal considered the letter in the form it took, and put the statements about the appellant's psychological condition, which it contained, out of reckoning because the letter did not state the letter-writer's clinical qualifications. The adverse credibility finding, made after the Tribunal had put this letter out of account, was central to the Tribunal's decision. The fact that the Tribunal's reasoning did not proceed in a straight-line way is immaterial. Weinberg J explained in SZEEU at 253 that:
The actual process by which a decision is reached is, of course, a complex matter. It is not always as neat as the reasons themselves may suggest. The reasoning may not proceed in a linear fashion, and the Tribunal's reasons must, of course, be read as a whole.
34 The Tribunal's knowledge of the letter was information which was a part of the Tribunal's reasons for affirming the delegate's decision (and therefore presumably information that the Tribunal considered would be a part of its reasons). The Tribunal was required to comply with s 424A(1) in relation to Ms Meehan's letter, and it failed to do so. The letter did not fall within an exception in s 424A(3) of the Act.
35 The failure to comply with s 424A(1) of the Act constituted jurisdictional error. Further, this is not a case where the Tribunal's decision is supportable on some independent basis. It will be recalled that the Tribunal relied on evidentiary inconsistencies, as well as lack of relevant knowledge, to support its adverse credibility findings. The Tribunal's reasons record that the appellant attributed some of these inconsistencies to the "tension [he] was having". Having found that the appellant's capacity to present evidence was not adversely affected by his psychological condition, the Tribunal had no reason to have regard to any explanation for evidentiary deficiencies that relied on the appellant's psychological condition. It is apparent that the Tribunal's findings on the appellant's capacity were intertwined with its assessment of evidentiary inconsistencies and deficiencies and, ultimately, the appellant's credibility.
36 I would allow the appeal on the first ground argued by the appellant.
YWA
37 Strictly speaking, it is unnecessary to consider the second limb of the first ground. I do so as briefly as I can. I have already noted that, in making its adverse credibility finding, the Tribunal relied on perceived inconsistencies in the appellant's evidence about the position to which he was elected in the YWA in 2003. The Tribunal concluded that his claim at the hearing that, in 2003, he was elected Deputy President and then elevated to President was inconsistent with his claim in his initial statement that he was elected President in that year.
38 It was common ground that the reference in his initial statement to his role in the YWA (see [3] above) was information within s 424A(1)(a) and that the Tribunal did not comply with s 424A(1)(b) or (c) in respect of it. The first respondent submitted that there was no requirement for the Tribunal to do so, because the information fell within the exception in s 424A(3)(b) of the Act.
39 The first respondent submitted, and the appellant denied, that the appellant had "adopted" or "invited reference to" the contents of his initial statement for the purpose of the Tribunal's review by: (1) giving oral evidence at the Tribunal hearing confirming the accuracy of his previous written statements; and (2) by referring to his initial statement in his subsequent 2005 statutory declaration, which was lodged with the Tribunal. The first respondent submitted that the appellant's conduct enlivened s 424A(3)(b). The first respondent further submitted that a fair reading of the Tribunal's reasons demonstrated that it relied on the appellant's adoption in his 2005 statutory declaration of the information previously provided to the Department in his initial statement.
40 The appellant contended that the information in his initial statement was provided to the Department and not to the Tribunal. He argued that, whilst he had referred to his initial statement in his 2005 statutory declaration, which was submitted to the Tribunal, he had not "adopted" his initial statement for the purpose of the Tribunal's review. He argued that "adoption" in this context meant "conscious and meaningful, substantive adoption, rather than just a rote formula of words in a document prepared by somebody else". Accordingly, the appellant contended that his reference to the initial statement during the review process was not sufficient to bring that document within the exception in s 424A(3)(b).
41 The issue is whether the appellant has given the information, which was in his initial statement, to the Tribunal for the purposes of his review application, with the consequence that s 424A(3)(b) applies to the information he gave about holding office in the YWA.
42 The parties referred to numerous decisions in which an issue of this kind arose. In some of these cases, the applicant expressly advanced information that had been initially given to the Department as part of the case on review to the Tribunal: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] per Gray J; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [11] per Merkel J; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 ("SZGGT") at [24] and [50] per Rares J; SZCKD v Minster for Immigration and Multicultural and Indigenous Affairs [2006] FCA 451 at [37] per Graham J; VBWF v Minister for Immigration and Indigenous Affairs (2006) 154 FCR 302 at 312 per Heerey J; and SZCBQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1538 at [12] per Bennett J. In these cases, s 424A(3)(b) was held to apply.
43 In other cases, the Tribunal has asked the applicant about such information, which it has generally found in the Department's file in the Tribunal's possession. In cases of this kind, the Court has adopted no fixed view about the application of the exception. On some occasions, it has found that s 424A(3)(b) does not apply, because the applicant was not to be taken as having given the information to the Tribunal for the purposes of the review application: see, for example, NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 at [39]-[42] per Jacobson J. In SZBMI, which appeal is reported with SZEEU, the applicant confirmed with the Tribunal that an earlier statement as to flight information was true and correct. This led the respondent to argue that the appellant in that case had adopted the flight information and given it to the Tribunal for the purposes of its review. Moore J, at 225, specifically rejected this submission, commenting:
I do not accept that, by adopting the statement at the hearing before the Tribunal, that information was transformed into information provided by the appellant in his application for review. In my opinion, the approach of Jacobson J in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs was correct. If the Tribunal comes to know of what was said by an applicant at a point before any application for review was made, and views what was said at that time as material to its assessment of what was later said by an applicant, then the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly information in the present appeal) being comprehended by s 424A(3)(b). Different considerations could arise if it was clear the Tribunal treated only the adoption of the earlier statement as the fact relevant to its consideration of the application in the review. In those circumstances the fact of adoption would almost certainly constitute information provided by the applicant in the application on which the exclusion would operate.
44 Weinberg J agreed with Moore J that the adoption of the earlier statement by the appellant during the hearing before the Tribunal did not render it information provided by him in his application for review: see SZEEU at 252. Allsop J did not consider the operation of the exception in s 424A(3)(b) in this context.
45 As Young J noted in NBKT at [55], the Full Court's approach in SZEEU to issues of this kind must also take into account its treatment of a similar question in the appeal in SZDXA, also reported with SZEEU. The relevant information in SZDXA was the fact that the appellant had a temporary business visa to Australia. Moore J concluded that, although the Tribunal had acquired this information from sources other than the appellant, the Tribunal had discussed the fact with the appellant at the hearing and the appellant had affirmed that he had entered Australia on a business visa. In this circumstance, Moore J concluded, at 242, that the information fell within 424A(3)(b) and Weinberg J agreed, at 254, observing, at 255, that the adoption of an earlier statement at the hearing can bring that statement within the exception. Allsop J agreed, at 268, with Moore J in relation to SZDXA. The Full Court in NBKT reached a similar conclusion in relation to the information in question in that case: see NBKT at [60]-[63] per Young J. See also SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [43] per Heerey J; and SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] per Kenny J.
46 The question whether an applicant gave an item of information for the purposes of his or her review application must be answered by reference to the particular facts of the case. As Rares J said in SZGGT at [36] and [50], these facts must be considered objectively. The nature of the information is also relevant to this inquiry: see NBKT at [59] per Young J. For example, if the Tribunal puts a specific piece of factual information to the applicant in the course of the hearing and the applicant affirms that it is true, then the conclusion may readily be reached that the applicant has given this information to the Tribunal for the purposes of the review.
47 Having regard to the facts of the present case, as well as the information in question, is this in substance what the applicant has done? Viewed objectively, I would answer in the negative. This case is closer to SZBMI than many of the other cases to which I have referred. The Tribunal purported to rely on information in the initial statement in assessing the appellant's credibility, although the appellant did not invite reference to his initial statement in the course of the Tribunal hearing. I would reject the contention that the appellant "gave" the whole of his initial statement to the Tribunal when, in answer to the Tribunal's question, he confirmed with the Tribunal that he did not wish to amend it or his 2005 statutory declaration. As the appellant's counsel noted, the reference in the fax cover sheet accompanying the 2005 statutory declaration to "Further Statement" (emphasis added) is equivocal. I would not attach any significance to it. I would also reject the contention that, because of the terms of his 2005 statutory declaration, he "gave" the information in his initial statement to the Tribunal for the purposes of its review. His affirmation that, whilst his initial statement was "correct and true", he sought to provide the Tribunal with "extra details" in the 2005 statutory declaration did two things. It affirmed that his claims had not altered over time and that there were more particulars he could give in relation to them. In and of itself this did not republish the initial statement to the Tribunal. There is, moreover, nothing else in the 2005 statutory declaration or in the circumstances of the case that would give rise to the implication that the initial statement had been republished to the Tribunal. On the contrary, the terms of the 2005 statutory declaration indicate that it was intended to take the place of the initial statement as a fuller embodiment of the applicant's claims than the initial statement. Despite reference to the initial statement, the statutory declaration plainly stood by itself. It did not require the reader to refer to the earlier document in order to understand its contents.
48 Objectively speaking, in all the circumstances, the references to his initial statement in the 2005 statutory declaration served only to deny any suspicion of "recent invention" that might have arisen upon the filing of the later document. It was insufficient to transform the initial statement into information given for the purposes of the review application. The exception in s 424A(3)(b) was therefore inapplicable. It was, of course, open to the Tribunal to examine the appellant's initial statement (for example, to consider whether the appellant's assertions about it and the 2005 statutory declaration were correct). If, however, the Tribunal considered that it might rely on information in the initial statement (for example, as showing that there were inconsistencies between his accounts in it and the 2005 statutory declaration, as it did) then the Tribunal was bound to comply with s 424A(1). This meant that it was bound to provide the requisite particulars and invitation in relation to the information in his initial statement about his office in the YWA. The Tribunal's failure to comply with s 424A(1) constituted another instance of jurisdictional error.