MZYIA v Minister for Immigration and Citizenship

The application of s 424A of the Migration Act 24 What was said by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR at [17] is not easy to understand. The paragraph reads: Secondly, 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. 25 The foundation for the obligations cast on the Tribunal by s 424A(1) is the formation by the Tribunal of a state of mind, namely that "the Tribunal considers" that some information would be the reason, or a part of the reason, for affirming the decision under review. What was said in SZBYR at [17] cannot have been intended to substitute for this subjective (to the Tribunal) test an objective test that the information contain in its terms "a rejection, denial or undermining of" the claims of the applicant in question. The subjective effect of information in relation to an applicant's claims may not always be apparent from the terms of that information. The essential question is how the Tribunal proposes to use the information in its reasoning process. For instance, it is possible for the Tribunal to misunderstand information, and to consider that the information would be the reason, or part of the reason, for affirming the decision to refuse a protection visa, when in fact the information has the opposite effect. Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 was such a case. There, the Tribunal mistakenly thought that an item of news refuted the applicant's claim that he had been campaigning for a candidate in a by-election. Read in its entirety and properly, the news item supported the applicant's claim. Nonetheless, the Tribunal having reached the requisite state of mind, it was held that it was obliged to comply with s 424A(1) in relation to the news item. See [29]-[34]. It is possible that the Tribunal might propose to make use of information in a particular way to refute the claims of an applicant, whereas others might regard the same information as neutral, or as capable of assisting the claims of that applicant. The important question is not the objective effect of information but the state of mind of the Tribunal, as to whether it "considers" that it would use the information against the applicant. 26 In this respect, the question of the use of the Tribunal's reasons for decision is important. It is true that the time at which the Tribunal reaches the requisite state of mind about an item of information will precede the finalisation of its reasons for decision in any particular case. In most cases, the applicant will not have any means of access to the thought processes of the Tribunal in relation to information as the Tribunal proceeds to make its decision. The only possible source of evidence that the Tribunal has formed the requisite state of mind will be the Tribunal's reasons for decision. Only by examining the Tribunal's disclosed process of reasoning, to see how it has made use of the particular information, can it be determined that, at some antecedent time, the Tribunal must have reached the state of mind that it considered that the information would be the reason, or part of the reason, for affirming the decision under review. This is why, since SZBYR, it has been recognised that, although the reasons are not the starting point, it may be appropriate to refer to them to determine whether the Tribunal had the requisite state of mind. See SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [16]-[18] and SZMNP v Minister for Immigration and Citizenship [2009] FCA 596 at [38].