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[2006] FCAFC 2
Federal Court of Australia (Full Court)
2006-07-01
Allsop JJ
Original judgment source is linked above.
The application of s 424A(1) 200 There is a significant body of case law concerned with the operation of s 424A(1). Without intending to be exhaustive reference should be made to Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 and SAAP. 201 It would be a work of supererogation to attempt to restate exhaustively this body of case law. Nevertheless, for the purposes of these appeals a number of matters need to be addressed. 202 From the words of s 424A(1) it is necessary to identify: (a) information (b) that the Tribunal considers (c) would be the reason or a part of the reason for affirming the decision. 203 The Tribunal is required to give particulars of any such information and to ensure, as far as it is reasonably practicable, that the applicant understands why the information is relevant to the review. 204 The assessment whether the Tribunal has complied with s 424A(1) requires close attention to the reasons of the Tribunal, because it is the information that the Tribunal considers relevant that must be assessed in order to see whether, prior to the decision being made, it would be the reason or a part of the reason for affirming the decision. 205 Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: The Complete Oxford English Dictionary (2nd Ed 1991). In this context, the word has been taken as referring 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 at [3], approved in VAF at [24] or knowledge which has come to, or has been gained by, the Tribunal: Paul at [95]. 206 Information does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54], Paul at [95] and VAF at [24]. In this respect, it is relevant to recall the root of the word 'information': that of which one has been told or apprised, or informed. The distinction can become fine: Paul at [95]. It is a distinction, nevertheless, to be maintained. Also, the fact that appraisal, thought processes and determination are not information does not mean they are not relevant to the operation of s 424A. The thought processes of the Tribunal may reveal the relevance of information for s 424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s 424A(1)(a), (b) or (c). 207 The word 'information' has been said not to encompass or 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 [26]-[29], cited in VAF at [24]. It will be necessary in due course to explain the limits of this expression of view. 208 Whether or not information is the reason or part of the reason for affirming the decision was discussed in Paul at [99]-[100], [107]-[108] and [116] and by VAF at [29]-[41]. The approaches taken by the respective majorities in VAF and Paul were very similar. The majority in VAF did not disapprove of Paul and to a degree built upon the reasoning in it. Aspects common to the approaches in both Paul and VAF were as follows: (a) To identify the reason or part of the reason for the affirmation of the decision requires some "unbundling" of the reason for the affirmation of the decision which is ultimately the relevant lack of satisfaction of the existence of protection obligations. (b) In circumstances where (as is usually the case) the complaint is in the context of a decision of the Tribunal that has been made supported by a set of reasons generally this is to be undertaken by reference to the reasons of the Tribunal in the context in which one finds them. 209 (At this point, by way of interpolation, it should be noted that one issue that was touched upon in argument was the question whether there can be a contravention of s 424A at some point prior to the making of the decision. This question, arising from the use of the word "would" in the section, was said by counsel for the appellants to be unnecessary to decide for the purposes of these appeals. There was no debate before us about the legitimacy of approaching these appeals conformably with [208(b)] above.) 210 It is clear that in Paul the process of identification of what was the reason or a part of the reason for affirming the decision involved a consideration as to whether fairness required the engagement of the processes of s 424A. At [114] and [116] in Paul, I said: …one needs to see from the decision what was the reason or a part of the reason for affirmation and, in the light of the reasoning process which in fact drew the Tribunal to that conclusion, assess what, in fairness, the claimant … needed to be appraised of in order that he or she could deal with issues that were of a relevance to the review as determined by the phrase 'would be the reason or a part of the reason'. [emphasis in original] … The question as to whether information would be the reason or part of the reason for affirmation is ultimately decided, in my view, by whether it can be characterised as sufficiently important to the reasoning process in the rejection of the appellant's claims, for fairness to warrant that the applicant be told of it so that he or she can understand and be able to meet the integers or elements that make up the Tribunal's reasons or conclusion thus far reached (hence "would") for finding adversely to the applicant. 211 In VAF, after referring at [31] to what I said in Paul at [99] about the need to "unbundle" the ultimate "reason" as to a lack of satisfaction that the applicant was a person to whom Australia had protection obligations, Finn J and Stone J said the following at [33] about the process of analysing or interpreting the Tribunal's expressed reasons in order to ascertain the reason or part of the reason for the purposes of s 424A(1): 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. 212 After detailed and meticulous consideration of the approach of the Tribunal as illuminated by its reasons, Finn J and Stone J concluded at [41] that the information in question was not a part of the reason in the following terms: 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)). [emphasis added] 213 Thus, there can be seen in VAF, in how the majority decided the case, a reflection of what was said in Paul: that the process of interpretive or judgmental assessment of what was the reason or a part of the reason involved considering the place of the information in the whole context of the reasoning process of the Tribunal and making a judgment whether the importanceof that place required, as a matter of fairness, the engagement of s 424A. Consequent upon the decision in SAAP, it is necessary to say something more about this approach and the similar approach in Paul. 214 In SAAP, the majority (McHugh J, Kirby J and Hayne J) made clear that although s 424A had a statutory function of a like kind to the rules of procedural fairness, its content and operation were not controlled by those principles or their operation. Thus, the Full Courts in SAAP ([2002] FCAFC 411) and NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 214 were found to be in error to conclude that the lack of any unfairness in failing to comply with s 424A was of relevance in any conclusion as to the effect, in terms of jurisdictional error, of the failure to follow the terms of s 424A. Whilst Paul and VAF were not the subject of consideration in SAAP, it is clear that the majority of the High Court in SAAP was of the view that the words of s 424A should be applied without being controlled by any consideration of the operation of the principles of procedural fairness. Thus, it seems to me that to the extent that Paul and VAF include notions of fairness derived from the rules of procedural fairness as part of the analysis of whether something is part of the reason for affirming the decision, those decisions are in conflict with the approach of the majority in SAAP. 215 In my view, in the light of SAAP, in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s 424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one finds them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision. To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character, which would make it unfair not to invoke the procedures of s 424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason. 216 That said, it is necessary to recognise the guidance that one nevertheless receives from aspects of [33] in VAF. One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves "information" does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s 424A, without any additional requirement (for which Paul and VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s 424A. The above tasks of assessment or interpretation of the Tribunal's reasons, of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straightforward and may lead to conclusions about which minds may differ. 217 I turn to examine each of the appeals in the light of the above. Moore J has set out pertinent aspects of each appeal.
szbmi 218 There was no objection to the proposed amended notice of appeal that was the subject of debate before us. Leave should be given to file that document. 219 I agree with Moore J that the "flight information" was information for the purposes of s 424A(1). I also agree with his reasons therefor. 220 I do not agree with Moore J that the flight information was not a part of the reason for affirming the decision. Whilst it is true to say that the flight information was falsified by an answer to the Tribunal, I do not agree that it played no part in the relevant reasoning of the Tribunal. Though a concession was made at the hearing as to the fact of the dates of leaving, the fact of inconsistency of the prior statement in this respect was a part, even though a subsidiary and minor part of the reason for the decision. 221 I do not regard the operation of s 424A(1) as limited to circumstances where the information imports some positive factual finding. To the extent that cases such as MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [14] and SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 [19]-[23] say as much, in my respectful view, they limit too narrowly the operation of the section. That, of course, is one way that the information is a part of the reason. Another would be the inconsistency between the information and what was now being said. If the Tribunal considers that inconsistency relevant to the assessment of the claims, it may be that the information would be part of the reason. If a Tribunal says that it does not believe an applicant for reasons that can be seen to include the fact that one thing was said in the prior statement and another at the hearing, or the fact that if what is now being asserted at the hearing is true it would have been in the prior statement in that form, the information would be part of the reason. The information is the knowledge imparted to the Tribunal of a prior statement in a particular form. The significance given to it by considering it in the light of evidence is the product of mental processes. This significance and those mental processes are not information, but rather, are why the information is relevant for s 424A(1)(b). 222 In my view, it is necessary to exercise care in applying what was said in VAF by Finn J and Stone J at [24(iii)] that the word information does not: 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. 223 Their Honours referred to WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26]-[29] in support of that proposition. Reference to those paragraphs of WAGP makes clear what was being decided in that case. The argument that was rejected in WAGP was that "information" encompassed what was not mentioned to the Tribunal as a matter of evidence. This was a clear application of the distinction between information and mental processes. The argument sought to manufacture "information" out of the consideration and assessment by the Tribunal of the applicant's oral evidence to the Tribunal. I do not see Finn J and Stone J in VAF in [24(iii)] of their reasons as requiring a formalistic analysis of information such as prior statements depending upon whether its or their relevance is from the text or from the absence of text. Where there are things such as a prior statement or a visa application form, the information for the purposes of s 424A will be that a document in that form was provided. That information may have relevance to the Tribunal for all sorts of reasons. Such relevance is not limited to whether the information leads to a positive factual finding based on its terms. It may be relevant because it plays some part (as here) in the conclusion as to the truthfulness of the applicant. 224 I adhere to and adopt what I said in the above respects in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 to which I would only add that, as I read her Honour's reasons, Branson J concluded as her Honour did in NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 223 (discussed in WAGP and SZECF) because of her Honour's view that it was the unsatisfactory nature of the oral evidence before the Tribunal, alone, that was the reason for affirming the decision. 225 If the Tribunal finds as relevant to its reasoning some inconsistency or incompatibility between earlier information and evidence to it as relevant to its reasoning that may well engage s 424A if such inconsistency or incompatibility can be seen to have been a part of the reason for affirming the decision. 226 Notwithstanding the clear concession in argument made by counsel for the appellant, referred to at [209] above, counsel for the appellant in respect of the flight information referred to what McHugh J said in SAAP at [70]-[71] and his Honour's approval there of what Gray J said in VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 291 at [34] in support of a submission in effect that the information need not be material in any way to the outcome before the Tribunal and need only be a relevant consideration during the Tribunal's consideration of the material before it for the notion that it would be a part of the reason to be satisfied. It is sufficient to say that McHugh J and Gray J were directing themselves to the question whether a fair raising of a matter orally could act as a substitute for the operation of s 424A. SAAP answers that in the negative. SAAP does not say that s 424A is contravened by oral questioning on a matter which the Tribunal might think at the time of questioning is important if the information on which the questioning occurred can be seen to play no part in the reasoning leading to the affirmation of the decision. 227 The "similar claims information" was, in my view, information. The Tribunal had identically or substantially identically worded statements from others from the same adviser. That was knowledge communicated to the Tribunal concerning some particular fact, subject or event and was knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal. Whilst it does not appear to play a central or integral role in the reasoning process displayed in the reasons, I conclude that it did play a part in the disbelief of the appellant, which was the or a reason for the decision of the Tribunal. It was sufficiently important or relevant for the Tribunal (perfectly fairly I might say) to tax the appellant with the subject at the hearing. The Tribunal described the evidence about that exchange at p 11 of its reasons. There may, in any given case be a relevant distinction to be drawn between using information as part of the reason and the information simply being the context or platform for questioning, the answers to which questioning the Tribunal does not believe and such answers (and not the information) being a part of the reason. Here, however, the identically worded statements were of importance to the Tribunal - hence the questioning. That they remained a relevant operative consideration in the Tribunal's consideration of the claims can be seen from the following paragraphs in the reasons at pp 12 and 17 respectively: …The Tribunal was also concerned that the Applicant's original statement purporting to reflect his own personal experiences included the same details (for the most part in the same words) as the statements of other applicants with the same adviser, including the applicants in N02/41412 and N02/41414, for example in relation to having fled overseas after the 1996 elections and in relation to having led a Taslima Nasreen support group. … It follows from the findings in this case, that the Tribunal is satisfied that the essentially common statement submitted by applicants in several cases involving the same adviser (including N02/41412 and N02/41414) untruthfully represents a number of specific things as having befallen the Applicant which are not in fact his own experiences. 228 The introductory words to the last cited paragraph are not enough to dissuade me from the conclusion, based on all of the reasons read together, that the "similar claims information" was a part of the reason for affirming the decision. 229 I reject the assertion that there was a lack of procedural fairness. The Tribunal fairly taxed the appellant with these matters. That a statutory analogue for the rules of procedural fairness has not been complied with does not mean those rules have not been complied with. 230 Section 424A not having been complied with, the appellant is entitled to statutory writs under s 39B(1) of the Judiciary Act 1903 (Cth)unless a legitimate reason to withhold such relief can be identified. 231 In SAAP McHugh J referred to the discussion by Gaudron J and Gummow J of the issue and relevant cases in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [57]-[62]. From that I take the following to be in accordance with principle. First, subject to what follows, if s 424A is not complied with, the Court does not engage in an enquiry as to whether the breach was so trivial as not to warrant relief. The failure to comply with the statutorily mandated provisions leads to the conclusion that there was a lack of statutory authority to make the decision. In the operation of s 424A and the principles of procedural fairness, adherence to mandated process and procedure is vital. Secondly, as a matter of discretion, relief will be withheld for reasons going to the conduct of the applicant as discussed in Aala and SAAP. No such considerations apply here. Thirdly, if it can be shown that there is a basis, otherwise unimpeached, upon which the decision was reached, unaffected by the failure to accord procedural fairness or to comply with the required statutory procedure, relief can be withheld. 232 Mr Prince submitted that the discretionary reasons which could lead to writs not issuing did not include the existence of an entirely separate unimpeached basis for concluding that Australia did not have protection obligations. I do not agree. What the majority in SAAP stated was that one did not engage in an evaluative analysis of the triviality or seriousness of the failure to observe the statutory requirements. The same was said by Gaudron J and Gummow J in Aala. However, Aala and SAAP leave open (see especially [58] and [59] in Aala) the basis to refuse relief if it can be shown that grant of relief would lack utility. The examples given by Gaudron J and Gummow J in Aala at [58] were (a) where the decision-maker was bound by the governing statute to refuse, (b) where the submissions could only have been answered, as a matter of law, against the person denied the opportunity of making them and (c) if the decision under review has no legal effect. 233 If it can be shown that there was a basis for the Tribunal's decision which can be seen to be entirely independent of the failure to follow s 424A, in my view, that is sufficiently analogous to the first of the alternatives referred to in [58] of Aala to warrant withholding of relief. 234 The Federal Magistrate concluded that the Tribunal found that "even if the claims made by the applicant were true he was not a refugee". Unlike the Federal Magistrate, I am unable to discern such a clear basis upon which the failure to follow s 424A had no possible effect. The influence of credit appears to me to pervade the whole of the reasons of the Tribunal. The failure to comply with s 424A has not been shown to be entirely separate from an unimpeached basis for the decision. 235 In my view, the appeal should be allowed and the orders should be made pursuant to s 39B(1) of the Judiciary Act.
SZEEU 236 For the reasons set out by Moore J, the conclusion that Al Shamry should be followed disposes of this appeal.
SZEEZ 237 Leave should be given to file the amended notice of appeal, but only on the conditions sought by the first respondent that leave be given to tender the appellant's passport in relation to ground 1(ii) and that ground 1(iv) be limited to the submissions in paragraph 20 of the appellant's submission filed on 19 October 2005. 238 I disagree with Moore J about the "manner of exit information". In my view, it was information for the purposes of s 424A(1) and it was a part of the reason for affirming the decision. True it is that the appellant affirmed the answers to these questions at the hearing, but the Tribunal used the information when it said at p 26 of its reasons: I prefer his answers made to Questions 47 and 48 of the Application for a Protection Visa where he stated that he left India legally and he did not have any difficulties in obtaining a travel document. 239 As I read the reasons, one of the reasons for the Tribunal concluding as it did about the manner of exit was the fact that these answers had been given in the application form. Thus, I think that this information was part of the basis for concluding that the appellant did not leave India through the assistance of a friend in the way he sought to explain at the hearing and so a part of the reason for affirming the decision. 240 I reject the argument that a letter conforming with the requirements of s 424A was sent in respect of this information. The letter in question was sent before the hearing. It identified different, though related, information. It stated the following: The information was as follows:
SZEOP 250 I do not see any prejudice in permitting the notice of appeal to be amended in the form handed up at the appeal. 251 I agree with Moore J as to the first ground of the appeal. No question of a duty to enquire could arise in the circumstances. It is therefore unnecessary to rehearse the various cases on the subject of an asserted duty to enquire. 252 I agree with Moore J as to the second ground of the appeal. As to the argument based on s 424A and the letter from the person, I would prefer to base my conclusion on the fact that the letter from the person was sent to the Tribunal attached to a submission from the appellant's adviser. Plainly s 424A(3)(b) applied to it. 253 As to the "date of the application information", this was knowledge gained by the Tribunal from the appellant's visa application. It was information for the purposes of s 424A(1). 254 I disagree with Moore J that it was not a part of the reason for affirming the decision. Whilst it is undoubted that the Tribunal had regard to what it considered the unsatisfactory explanation for the delay in seeking a protection visa, a reading of the Tribunal's reasons, and in particular p 14 thereof, reveals reliance on the fact that the visa was not applied until 2004 in its conclusion that he held no fear of persecution. That fact was a part of the reasoning of the Tribunal. 255 For this reason I conclude that s 424A was not complied with. No submission was put that notwithstanding any found failure to comply with s 424A, relief should be refused because of an independent and separate basis for the conclusion of the Tribunal. In these circumstances the appeal should be allowed and orders made pursuant to s 39B(1) of the Judiciary Act. 256 Given that the other asserted contraventions of s 424A were argued and have been dealt with by Moore J, I will express my views thereon. 257 I agree with Moore J's conclusions about the "bridging visa information". I would only add that I do not see how this information was any part whatever of the reason for affirming the decision. 258 I agree with Moore J's conclusions about the "detention information". 259 I agree with Moore J's conclusions about the "student rally information". 260 I agree with Moore J's conclusions about the results of the enquiries made by the Tribunal in relation to Alan. 261 The amended notice of appeal also dealt with results of inquiries made by the Tribunal on the internet. The appellant said that he had posted photographs of himself on the internet which revealed his homosexuality. The Tribunal examined these and concluded that they revealed no such thing. No written submissions were filed on this ground (ground 2(vi)) but brief oral submissions were made. In my view, the photographs were information. They were not covered by s 424A(3)(b). Unlike the results of the enquiries made by the Tribunal about Alan, the results of these enquiries formed part of the reasons (see p 15 of the decision). Although reflecting only a lack of corroborative evidence, that lack of evidence was a part of the reason for the decision. This would be another ground upholding the appeal. 262 Given my view as to the disposition of the appeal, it is not necessary to deal with the issue as to the effect, if any, of the guard being present during the hearing.
szdxa 263 Substantive objection was taken by the Minister to ground 1(iv) of the prepared amended notice of appeal dealing with the Haque information. This was opposed on the basis that if it had been squarely raised below the transcript of the Tribunal hearing would have been tendered. That would be a good objection if what was said at the hearing could in any way affect the relevant analysis, as it would to the extent to which the complaint is based on procedural fairness. Thus, to the extent that ground 1(iv) supports a complaint as to procedural fairness, I would not allow the notice of appeal to be amended. However, I would allow that ground to be amended for the purposes of supporting a complaint under s 424A. It was not in dispute that a letter satisfying s 424A was not sent in the required fashion in connection with this information. 264 I agree with Moore J's conclusions and reasons in relation to this appeal.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.
In SZBMI v Minister for Immigration and Multicultural Affairs (NSD 1353 OF 2005): Counsel for the Appellant S Prince with A Joseph
Counsel for the First Respondent Dr M Perry QC with R Pepper
Date of Hearing: 27, 28 October 2005
Date of last Submission: 22 November 2005
Date of Judgment: 24 February 2006
In SZEEZ v Minister for Immigration and Multicultural Affairs (NSD 556 OF 2005): Counsel for the Appellant S Prince with A Joseph
Counsel for the First Respondent Dr M Perry QC with R Pepper
Date of Hearing: 27, 28 October 2005
Date of last Submission: 22 November 2005
Date of Judgment: 24 February 2006
In SZEEU v Minister for Immigration and Multicultural Affairs (NSD 551 OF 2005): Counsel for the Appellant S Prince with A Joseph
Counsel for the First Respondent Dr M Perry QC with R Pepper
Solicitors for the First Respondent Blake Dawson Waldron Date of Hearing: 27, 28 October 2005
Date of last Submission: 22 November 2005
Date of Judgment: 24 February 2006
In SZDXA v Minister for Immigration and Multicultural Affairs (NSD 1067 OF 2005): Counsel for the Appellant S Prince with A Joseph
Counsel for the First Respondent Dr M Perry QC with R Pepper
Solicitors for the First Respondent Blake Dawson Waldron
Date of Hearing: 27, 28 October 2005
Date of last Submission: 22 November 2005
Date of Judgment: 24 February 2006
In SZEOP v Minister for Immigration and Multicultural Affairs (NSD 858 OF 2005): Counsel for the Appellant S Prince with A Joseph
Counsel for the First Respondent Dr M Perry QC with R Pepper
Solicitors for the First Respondent Blake Dawson Waldron
Date of Hearing: 27, 28 October 2005
Date of last Submission: 22 November 2005
Date of Judgment: 24 February 2006
SZEEU
Minister for Immigration and Multicultural and Indigenous Affairs
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 PRACTICE AND PROCEDURE - circumstances in which a later Full Court can depart from an earlier Full Court decision - stare decisis - determining ratio decidendi - application of Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 MIGRATION - the application of s 424A(1) of the Migration Act 1958 (Cth) - meaning of 'application', 'information', and 'reason, or part of the reason' in s 424A WORDS AND PHRASES- 'information … that the applicant gave for the purpose of the application', 'information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review', 'application', 'plainly wrong' Migration Act 1958 (Cth), s 424A(1)(a), 424A(3)(b) Judiciary Act 1903 (Cth), s 39B(1) Antoun v The Queen [2006] HCA 2 referred to Attorney-General for NSW v Perpetual Trustee Co (Ltd) (1952) 85 CLR 237 referred to Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485 referred to Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1 referred to Bennett & Wood v Orange City Council [1967] 1 NSWR 502 referred to Bridges v Bridges (1945) 45 SR (NSW) 64 referred to Chamberlain v The Queen (1983) 72 FLR 1 followed Dagli v Minister for Immigration and Multicultural Affairs (2003) 133 FCR 541 referred to Davis v Johnson [1979] AC 264 referred to John v Federal Commissioner of Taxation (1989) 166 CLR 417 cited Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 referred to Miliangos v George Frank (Textiles) Ltd [1976] AC 443 referred to Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 applied Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154 referred to MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 disapproved NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 223 discussed and explained NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 discussed Nguyen v Nguyen (1990) 169 CLR 245 referred to Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 discussed and not followed in part Pretoria City Council v Levison 1949 (3) SA 305 referred to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 referred to Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 referred to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 applied Stead v State Government Insurance Commission (1986) 161 CLR 141 referred to SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 discussed and applied SZEFM v Minister for Immigration and Multicultural Affairs [2006] FCA 78 referred to SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 disapproved Telstra Corporation Ltd v Treloar (2000) 102 FCR 595 referred to Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 referred to Transurban City Link v Allan (1999) 95 FCR 553 followed VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 discussed not followed in part Victoria v Commonwealth (1996) 187 CLR 416 referred to Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 referred to Young v Bristol Aeroplane Company, Limited [1944] 1 KB 718 referred to Zecevic v Direction of Public Prosecutions (Victoria) (1987) 162 CLR 645 referred to R Cross and JW Harris, Precedent in English Law (4th ed, 1991) AL Goodhardt "Precedent in English and Continental Law" (1934) Law Quarterly Review 40 G Williams, Learning the Law (1982, 11th ed) J Stone, Legal System and Lawyers' Reasonings (1964) Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 The Complete Oxford English Dictionary (2nd ed, 1991)
SZBMI 11 This is an appeal from a judgment of a Federal Magistrate of 19 July 2005 dismissing an application for judicial review of a decision of the Tribunal made on 30 July 2003 with reasons for decision handed down on 26 August 2003: see SZBMI v Minister for Immigration [2005] FMCA 1005. The Tribunal had affirmed a decision of a delegate of the Minister and refused to grant the appellant a protection visa. The following summary of the appellant's claims is drawn from the reasons of the Federal Magistrate (which, in turn, were based on the written submissions of counsel for the Minister). 12 The appellant claimed to fear persecution in Bangladesh by reason of his religion and political opinion. He claimed to have been an active member of the student wing of the Bangladesh National Party ("BNP"), that he had been threatened, that two attempts had been made to kill him, and that he had been the subject of false charges by members of the rival Awami League ("AL"). He also stated that he had been a supporter of Taslima Nasreen (a feminist author) and member of her supporter club. He claimed to have been present when a bomb blast occurred at a concert in 2001, and to have been bashed and threatened by AL members in 1996 and 1997. 13 The Tribunal found that the appellant was not credible, and had been untruthful. The Tribunal noted the reluctance of the appellant to respond, in specific terms, when questioned about particular matters during the hearing, contradictions between his original written claims in the statement attached to his protection visa application and those made to the Tribunal, internal contradictions in his evidence to the Tribunal, independent country information that appeared inconsistent with the appellant's claims, and the fact that the appellant's claims were identical in various respects to those made by other applicants for a protection visa using the same migration agent. The Tribunal was not satisfied that the appellant had any significant ongoing involvement with the BNP or that he had any significant role or profile in relation to Taslima Nasreen. Nor was the Tribunal satisfied that any attack on the appellant in 1996 or 1997 was politically motivated, that he was wanted by the police or that there were any substantive charges outstanding against him, or, alternatively, that if there were charges, that they would be for a Convention reason. While the Tribunal was prepared to accept that the appellant was present at a bombing of a concert in April 2001, it did not regard this, on its own, as giving rise to any well founded fear of persecution of the appellant. 14 While the Federal Magistrate was inclined to the view that the Tribunal had failed to comply with the obligation imposed by s 424A(1) (a matter which had been raised by counsel for the Minister), his Honour was satisfied that the Tribunal's decision did not ultimately depend on conclusions reached from the material, particulars of which the Tribunal might have been obliged to provide in writing to the appellant. His Honour, by reference to the judgment of North J in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965, especially at [33], concluded that the application should be dismissed even if there had been a failure to comply with s 424A. 15 In the appeal, counsel for the appellant identified two pieces of "information", particulars of which, it was argued, should have been provided to the appellant in writing and were not. The first concerned a statement by the appellant that he had fled overseas ("the flight information"), which was contained in his written statement in support of his protection visa application. What the appellant had said in the statement attached to his application for a protection visa lodged in 2001 was that he had decided to leave Bangladesh to save his life and had arranged for a student visa from the Australian High Commission. The appellant also said in that written statement that he had decided to go abroad after the AL had gained power. Having regard to the context in which this appeared in the statement, this would have been a reference to the AL gaining power after the 1996 elections. In its decision, the Tribunal drew on this written statement as well as what the appellant had said about when and in what circumstances he had left Bangladesh. It appears from the Tribunal's decision that these matters were drawn to the appellant's attention at the hearing before the Tribunal. However, no particulars were given in writing under s 424A. 16 The second piece of "information" identified by counsel for the appellant, was that the Tribunal had received essentially the same claims in the same words by several other applicants with the same migration agent ("the similar claims information"). The Tribunal noted this fact in its reasons and also that it had raised this matter with the appellant at the hearing. Later in its reasons, in the section headed "Findings and Reasons", the Tribunal said that it was concerned that the appellant's original statement included the same details as provided in the statements of other applicants with the same adviser. Ultimately, at the end of the "Findings and Reasons" section, the Tribunal said that it was satisfied that the essentially common statements submitted by applicants in several cases involving the same adviser untruthfully represented a number of specific incidents as being the appellant's experiences when in fact they were not. No particulars were provided to the appellant under s 424A. 17 As to the flight information, counsel for the Minister noted that the Tribunal recorded that the appellant had confirmed to the Tribunal that he had read his earlier statement before signing it and that he asserted that it was true and correct information relating to his own experiences. This founded a submission by counsel for the Minister that the information in the statement (including the flight information) had, by its adoption at the hearing before the Tribunal, been given by the appellant in his application for review. Thus, it was submitted, it was information comprehended by s 424A(3)(b). It was submitted that a decision to the contrary effect NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 (at [36] to [39]), which held that s 424A(3)(b) only comprehends information actively advanced by the applicant and not information adopted as a result of questions from the Tribunal, was wrongly decided. In addition, counsel for the Minister submitted that the flight information had not been the Tribunal's reason or part of the reason for affirming the decision of the delegate of the Minister. It was submitted that the Tribunal relied on the inconsistency between the statement made in the original visa application and later statements and not the statements themselves. So characterised, the content of the statement made in the original visa application was not information which underpinned the Tribunal's affirmation of the delegate's decision. 18 A convenient starting point in considering the arguments in relation to the flight information is the judgment of the Full Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 ("VAF"). In that matter, Finn and Stone JJ helpfully digested the cases concerning what constitutes "information" for present purposes. Their Honours said (at [24]): … there 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 [104]. 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; (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 [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 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at [19] - [22]; and (iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tinat [54]; Paulat [95]; Singh v Minister for Immigration and Multicultural Affairs[2001] FCA 1679 at [25]; approved [2002] FCAFC 120; 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 [26] - [29]. 19 The application of these principles in that matter is illuminating. In its reasons for decision, the Tribunal had referred to aspects of the appellant's conduct in Australia which, seemingly, did not reflect the conduct of a person who had a well founded fear of persecution. One aspect of the conduct was the appellant's tardiness in applying for a protection visa. All members of the Full Court concluded that these matters constituted information, though Finn and Stone JJ (Merkel J dissenting) concluded that it was not information that formed part of the reasons for affirming the decision of the delegate. 20 In my opinion, the flight information was "information" for the purposes of s 424A(1). What the Tribunal did was to note what the appellant said in the written statement made at the time he applied for a protection visa. The Tribunal thereby gained knowledge of what the appellant had said at that time about his experiences in Bangladesh. It was knowledge used by the Tribunal in assessing the credibility of the appellant and assessing the veracity of the account given by the appellant to the Tribunal. 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 [2005] FCA 744 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. However, it cannot be said, in this case, that the Tribunal acted in such a way. 21 The next question is whether the information formed the reason or part of the reason for the Tribunal affirming the delegate's decision. The passage in the Tribunal's decision pointed to by counsel for the appellant as evidencing the Tribunal's reliance on the information, was one in which the Tribunal rejected the appellant's claim that charges had been laid against him and were still outstanding. The Tribunal understood the written statement of the appellant to contain a claim that charges were laid against him when he returned to Bangladesh, having left shortly after the elections in 1996. The Tribunal noted that it became clear at the hearing that the appellant's only travel overseas was in early 2001. It appears that the Tribunal considered the veracity of the appellant's claim that the charges were laid shortly after he returned from overseas to have been compromised by what appears to have been a concession by the appellant made at the hearing that he had not travelled overseas by the time he claimed the charges had been laid. 22 However, that matter was only one of a number of matters pointed to by the Tribunal for disbelieving the appellant's account that there were outstanding substantive charges against him. The other matters relied upon were inconsistent accounts he gave at the hearing about when the charges were brought, the fact that the appellant had had no problems obtaining travel documentation and departing Bangladesh legally, and that his evidence about how he avoided arrest following the laying of the charges was inconsistent with other evidence he gave about his activities and profile. In my opinion, the reliance placed by the Tribunal on the information gleaned from the written statement, was a subsidiary and peripheral reason for rejecting the appellant's claim that charges were outstanding against him. What appears to have been of greater significance to the Tribunal was the cumulative effect of the appellant's conflicting evidence at the hearing about the year in which the charges were laid, the fact that he was able to travel and depart Bangladesh notwithstanding his claim there was an arrest warrant against him, and the fact that he was not arrested in the years following the issue of the arrest warrant. It cannot be said, in my opinion, that the flight information was of sufficient significanceto warrant a conclusion that it formed part of the Tribunal's reasons for affirming the decision of the delegate. 23 In dealing with the flight information in this way, I am following the approach of Finn and Stone JJ in VAF. In that matter it was necessary for the Full Court to determine whether the relevant information (referred to at [15] above) formed the reason or part of the reason for the Tribunal affirming the delegate's decision. Finn and Stone JJ adopted an approach which resulted in their Honours concluding the information did not form part of the reason. A different approach, with a different result, was adopted by Merkel J who concluded that the information did form part of the reason. The difference in approach can be of significance, as it was in that matter. In the course of considering this issue, Finn and Stone JJ noted (at [33]): 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. Their Honours then analysed the reasons of the Tribunal and the significance of the information in they process of reasoning. Their ultimate conclusion was (at [41]): 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)). On the approach adopted by Finn and Stone JJ it is necessary, in an appropriate case, to consider the significance of the information to the reasoning process adopted by the Tribunal and evaluate whether the information can properly be characterised as forming part of the reason for affirming the delegate's decision. 24 The approach of Merkel J was to reject the notion that the comparative significance of the information could inform an assessment of whether s 424A had been complied with, although his Honour accepted that the comparative significance of the information may be relevant to the exercise of any discretion to grant relief. His Honour said (at [59]-[60]): 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." 25 VAF is a recent Full Court judgment in which the majority determined the approach to be adopted in ascertaining whether information on which s 424A might operate was part of the reason for the Tribunal affirming a delegate's decision. In my opinion, the approach determined in that case must be applied (for the same reasons given at [8] and [9] above for following Al Shamry) unless the reasoning of the High Court in the later case of SAAP indicates a different approach should be followed. 26 The majority of the High Court decided in SAAP that the duty under s 424A to provide particulars of information continued until the Tribunal made its decision. Consistent with the language of the section (".... information that the Tribunal considers would be the reason, or part of the reason....."), the majority of the Court focused on the circumstances in which the duty arises, whether before or after any hearing, whenever the Tribunal is considering or assessing information which it then considers may be the reason or part of the reason for affirming the decision. It did not directly address the mechanism by which a Court would assess, after the event, whether there had been compliance with the section. In particular, the majority did not directly address how a Court determines whether any particular piece of information has the attributes of being "information that the Tribunal considers would be the reason, or a part of the reason" for affirming the delegate's decision. As noted by McHugh J at [69], the Minister did not challenge in the High Court the finding made by Mansfield J (the primary Judge) that the Tribunal failed to comply with the obligation to give the first appellant particulars in writing of the adverse information obtained from her daughter's evidence. Thus there was no issue raised in the Hight Court about whether the information (gained from the daughter's evidence) would have been the reason or part of the reason for the Tribunal affirming the delegate's decision. In my opinion, the reasons of the members of the High Court do not provide a basis for departing from the approach determined by Finn and Stone JJ. 27 I return to consider the facts of this appeal. In relation to the similar claims information, counsel for the Minister submitted that it did not form part of the reason for affirming the delegate's decision. That was because the Tribunal analysed and rejected the central claims of the appellant and only noted, after rejecting them, that those claims were also embodied in essentially common statements submitted by applicants in several other cases involving the same adviser. 28 The submission of the Minister in the preceding paragraph correctly characterises the use made by the Tribunal and the view it took of the similarity between the appellant's claims and those made by other applicants using the same advisor. Assuming, for present purposes, that the observed similarities (or the fact that there were similarities) constituted "information" for the purposes of s 424A, the fact that there were similarities was not relied on by the Tribunal to reject the appellant's claims and thereby affirm the delegate's decision. Rather, by a process of reasoning not dependent on the observed similarities, the Tribunal rejected the central claims of the appellant. Accordingly, no obligation arose under s 424A(1) to provide particulars in writing in relation to this information. 29 Having regard to the conclusion earlier reached about the scope of s 424A based of the judgment in Al Shamry, it is unnecessary to deal with the submissions made by the parties concerning the appellant's contention that there had been a denial of procedural fairness. That contention would only have been relevant if the Minister's submissions concerning Al Shamry had been accepted. As I understand the submissions made on behalf of the appellant in this appeal (and the other appeals), any denial of procedural fairness is coextensive with the alleged failure to comply with the obligation created by s 424A. As I further understand those submissions, a conclusion in relation to any piece of information that there has not been non-compliance with s 424A, is a conclusion which also disposes of the allegation of denial of procedural fairness. Where relevant, these comments apply to the other appeals. 30 The appellant has not established that the Federal Magistrate erred in dismissing the application for judicial review. The appeal should be dismissed with costs.
SZEEU 31 This is an appeal from a judgment of a Federal Magistrate of 16 March 2005 dismissing an application for judicial review of a decision of the Tribunal made on 25 June 2004 and reasons for decision handed down on 20 July 2004: see SZEEU v Minister for Immigration [2005] FMCA 360. The Tribunal had affirmed a decision of a delegate of the Minister refusing to grant the appellant a protection visa. The following summary of the appellant's claims is drawn from the reasons for judgment of the Federal Magistrate. 32 The appellant arrived in Australia on a student visa in November 2003. He was then 20 years old. He is a national of Bangladesh. His application for a protection visa, lodged in December 2003, appeared to be founded on two matters. The first was his association with the AL which had led to harassment and intimidation by "BNP thugs". The second was his homosexuality. As to that matter, he claimed he had not been able to continue his normal life in Bangladesh and had not had any freedoms. He claimed he had been abused regularly, discriminated against in everyday life and employment, and even by the political party of which he had been a worker. 33 The Tribunal did not accept that the appellant had ever been a member of the AL, nor that he had participated in any of the AL's activities, been mistreated by the political opposition, the BNP, and by the police, as a result. The Tribunal also did not accept that the applicant was homosexual. In the proceedings before the Federal Magistrate, the appellant did not specifically raise any issue concerning the operation of s 424A. Indeed the grounds advanced by the appellant appeared to have been generally framed, and the Federal Magistrate dealt with them with corresponding generality and concluded that no jurisdictional error had been demonstrated. 34 In this appeal, counsel for the appellant identified four pieces of information which were said not to have been dealt with as required by s 424A. The first concerned the way in which the appellant had answered question 36 in his original application for a protection visa ("the education information"). That question required him to "give full details of all the education [he had] undertaken (in any country)". The answer provided by the appellant in the original application was to the effect that he had undertaken 12 years of education, between January 1989 and December 1998, at Khilgaon Government High school, and between January 1999 and December 2000, at BAF Shaheen College. The Tribunal relied on this answer (in substance, that he had attended two educational institutions) in order to contrast it with evidence later given by the appellant about being expelled from educational institutions and having attended a third educational institution (a university college). In the Tribunal's view, the fact that he had been expelled from educational institutions on a number of occasions and had attended a third, previously undisclosed, educational institution supported a conclusion that the appellant's claims should be rejected. 35 The second piece of information was the fact that the appellant had entered Australia on a student visa ("the student visa information"). The Tribunal made passing reference to that fact (and the appellant's claim that he had been admitted to the Central Queensland University in Australia) in its consideration of his evidence more generally about having attended university in Bangladesh. 36 The third piece of information concerned a witness, Mr Islam, who gave evidence on behalf of the appellant ("the Islam witness information"). His evidence was to the effect that he had a homosexual relationship with the appellant. This evidence was characterised by the Tribunal as vague and generalised and, in effect, rejected by the Tribunal as corroborative of the appellant's account that he was a homosexual. 37 The fourth piece of information was said to be the absence of any details of his claims as they had been advanced on his behalf since arriving in Australia. 38 It is unnecessary to analyse in detail the parties' submissions about whether each of these matters constituted "information" for the purposes of s 424A and, if so, whether that information was the reason or part of the reason for the Tribunal affirming the delegate's decision. The Minister conceded that the "education information" was information which formed part of the reason for the Tribunal's decision and, accordingly, since the Minister has failed to persuade us not to follow Al Shamry, this appeal should be allowed with costs.
SZEEZ 39 This is an appeal from a judgment of a Federal Magistrate of 23 March 2005 dismissing an application for judicial review of a decision of the Tribunal made on 28 June 2004 with reasons for decision handed down on 22 July 2004: see SZEEZ v Minister for Immigration [2005] FMCA 400. The Tribunal had affirmed a decision of a delegate of the Minister refusing to grant the appellant a protection visa. The following summary of the appellant's claims is drawn from the reasons of the Federal Magistrate (which, in turn, were based on the Tribunal's summary of the appellant's claims.) 40 The appellant is a national of India. The appellant had been falsely implicated, through a friend, as being involved with the activities of the Liberation Tigers of Tamil Eelam ("LTTE"). He was gaoled by the police and subsequently released on bail. The appellant informed on the friend, who was arrested but later escaped. The friend sent two LTTE operatives who hanged the appellant's mother as revenge. The appellant joined the Tamil Nadu Muslim Munnetra Kazhagam ("TMMK"). Later and as a further act of revenge, the appellant's son was also murdered. The police came to investigate his son's murder. The appellant then fled to Ooty. A year later, he attempted to leave for Malaysia but was detained by the Central Bureau of Investigation and placed in remand for one month. He was released after a bribe was paid and then travelled to Malaysia. He later returned to India and was required to report to the police every week. He was unable to conduct his business. Ultimately, he arranged to travel to Australia on a temporary business visa. He understood the police were searching for him. 41 The Tribunal did not accept most of what the appellant said about his experiences in India. In his application for judicial review in the Federal Magistrates Court, the appellant identified ten grounds of review. The Federal Magistrate dealt in detail with four of those grounds which were thought possibly to raise issues of substance. Section 424A was relied on in relation to country information, which the appellant contended had not been provided as required by that section. The Federal Magistrate was satisfied that no grounds were made out and dismissed the application. 42 Counsel for the appellant identified five, possibly six, pieces of information which, it was submitted, should have been dealt with in conformity with s 424A but were not. The first piece of information concerned the appellant's answers to questions 47 and 48 of his application for a protection visa ("the manner of exit information"). In his answers he indicated he had left India legally and did not have difficulties obtaining a travel document (such as a passport) in India. He claimed before the Tribunal that when leaving India he went to the airport with the help of a friend who was familiar with an officer and because of that help, he was able to come to Australia. The Tribunal indicated that it preferred the appellant's answers in questions 47 and 48 and rejected as not credible his evidence to the Tribunal as to how he left India. In its decision, the Tribunal recorded that at the hearing, the appellant had been referred to his answers to the two questions. The answers were read to the appellant and he accepted them. 43 The second piece of information concerned the appellant's application for a temporary business visa ("the business visa information"). The Tribunal asked the appellant about the application and whether he had signed it. The Tribunal raised with him the apparent inconsistency between him applying for a temporary business visa and his evidence that he had decided to come to Australia for refugee purposes. Moreover, the Tribunal relied on what was admitted to be a lie of the appellant in that application and concluded that the applicant was willing to tell lies "to obtain a migration outcome". That was one of several matters relied on by the Tribunal to conclude that the applicant was not a credible witness. 44 The third piece of information ("the PRC visa information") was the Tribunal's knowledge that the appellant had a valid visa to enter the People's Republic of China ("PRC"). The existence of that valid visa had been alluded to by the appellant's migration agent in the appellant's original application for a protection visa. It appears that at the hearing the appellant told the Tribunal that he had a visa for China and had thought of going there but had not done so because he did not know the language. The Tribunal indicated it had seen the visa on the appellant's passport at the beginning of the hearing. The Tribunal indicated in its reasons that it did not accept the appellant's explanation for not travelling to and residing in the PRC. 45 The fourth and fifth pieces of information concerned the death of the appellant's mother. The Tribunal requested the appellant to provide evidence of the mother's murder by hanging. The appellant produced a death certificate ("the death certificate information") and a letter from an advocate and notary ("the advocate's statement information") to the effect that the mother had been hanged to make it look like suicide and that the perpetrator was to be tried (in which the advocate was to have acted) but had got off "scot free" because of police complicity. The Tribunal noted in its reasons that it had raised the death certificate with the appellant and in particular that it did not mention the cause of death by "the LTTE people" and that "for all [the Tribunal] knew she could have died from old age". As to the first comment, the appellant agreed. As to the second, he apparently disagreed but accepted that the document did not fully support his claims. As to the advocate's statement, the Tribunal indicated that it attached no weight to the document. In its reasons, the Tribunal noted that the appellant accepted that its author had not provided any basis for his comments. 46 What is possibly a sixth piece of information concerned the appellant's original statement in support of his application for a protection visa, in which he claimed to have left his wife and children to live in Tamil Nadu ("the abandonment information"). The submissions of counsel for the appellant did not make clear the relevance of the abandonment information. In written submissions in reply, it was suggested that the way in which the Tribunal used this information constituted a denial of procedural fairness at common law. However, this is not articulated and, for my part, this submission can be put to one side. 47 In relation to the manner of exit information, counsel for the Minister submitted that the information had been given by the appellant in the application for review, because he had told the Tribunal that the information in the original application for a protection visa was correct and had accepted the answers to questions 47 and 48 after they had been read to him by the Tribunal. Moreover, the appellant's migration agent specifically drew the Tribunal's attention to the appellant's protection visa application in a written submission to the Tribunal. In addition, a letter dated 6 April 2004 was sent to the appellant informing him that the Tribunal had information that might be the reason or part of the reason for affirming the delegate's decision. Relevantly, the information was described as "Indian Immigration Officials have access to airport computer systems that enable the checking of any charges or criminal records against departing Indian nationals". The relevance of this information was said in the letter to be: "The applicant was able to leave India [on] several occasions without problems, thus indicating that he was of no interest to the authorities. This would indicate that the applicant's credibility is in issue". Counsel for the Minister submitted that if particulars of the manner of exit information had to be provided under s 424A, that was achieved by the letter of 6 April 2004. 48 I accept that the better view is that the Tribunal acted on the appellant's affirmation, given at the Tribunal hearing, of the answers to questions 47 and 48 in the application for a protection visa, rather than the fact that the application contained those answers. What the Tribunal was assessing was whether it should accept one version of the appellant's account which involved the intervention of a friend at the airport to facilitate his departure or another version to the effect that he left legally and had had no difficulties obtaining a travel document. In its reasons, The Tribunal ultimately concluded that the account involving the friend was not credible. When the Tribunal first referred, while undertaking this assessment, to the answers to questions 47 and 48, it noted that the appellant agreed with those answers at the hearing before the Tribunal. The Tribunal appears to have been weighing one account (based on the answers to questions 47 and 48 as affirmed to it) with another account and determining where, in its view, the truth lay. Accordingly, the manner of exit information was information given by the appellant to the Tribunal and caught by s 424A(3)(b). The Tribunal was under no obligation to provide written particulars of that information. 49 Counsel for the Minister submitted, in relation to the business visa information, what the Tribunal took into account as relevantly emerging from the fact that the appellant had earlier applied for a business visa, was the admission made at the Tribunal hearing by the appellant that he had lied in his business visa application. It was submitted that this information was comprehended by s 424A(3)(b). 50 In my opinion this is correct. It is true that the Tribunal discussed with the appellant his application for the temporary business visa and tested the appellant, in its questions, about what he had said. However, it was the appellant's ultimate concession that he had lied that was relied on by the Tribunal to reach the conclusion that the appellant was prepared to lie to obtain "a migration outcome" and to partly found its ultimate conclusion that the appellant was not a credible witness. Accordingly, the relevant information, namely the admission of having lied, was information given by the appellant for the purposes of the application for review and caught by s 424A(3)(b). 51 The submission of the Minister in relation to PRC visa information was partly dependent on the tender, in this appeal, of a copy of a page of the appellant's passport. Ultimately, the tender was not opposed and leave should be given to tender a copy of the relevant page of the passport into evidence. The Minister submitted that it can be inferred that the appellant was asked by the Tribunal to bring his passport to the hearing (having regard to a letter sent to the appellant on 25 May 2004 making that request) and the appellant did so (because the Tribunal mentions in its reasons having seen the passport at the beginning of the hearing). Accordingly, it was submitted, the information (that the appellant had a visa to enter the PRC) was not information derived by the Tribunal from the original application for a protection visa but rather information known to the Tribunal because it sighted the passport at the hearing. 52 The submission of the Minister should be accepted. While no analogue of the best evidence rule operates in the Tribunal, plainly the primary source of its knowledge that the appellant had a visa to enter the PRC arose because it saw the visa in the appellant's passport. Accordingly, it constituted information provided by the appellant for the purpose of the application for review and is thus caught by s 424A(3)(b). 53 In relation to the death certificate and advocate statement information, the Minister submitted that they were both provided by the appellant in response to a request in a letter dated 5 April 2004. Accordingly, they were comprehended by s 424A(3)(b). This submission of the Minister should be accepted. 54 The appeal should be dismissed with costs.
SZEOP 55 This is an appeal from a judgment of a Federal Magistrate of 29 April 2005 dismissing an application for judicial review of a decision of the Tribunal of 24 September 2004: see SZEOP v Minister for Immigration [2005] FMCA 443. The Tribunal had affirmed a decision of a delegate of the Minister refusing to grant the appellant a protection visa. The following summary of the appellant's claims is drawn from the reasons of the Federal Magistrate. 56 The appellant is a national of Bangladesh. He attended the University of Dhaka from 1992 to 1995. Halfway through his four-year engineering course he became involved in politics, more specifically, with the AL. In October 1995 he addressed a student gathering. Amongst other things, he spoke out in favour of religious tolerance and practices such as prostitution and gay marriages. His pro gay comments made people furious. The appellant had begun to realise his attraction for other men. He had a sexual encounter on one occasion with a foreign student. After that he had some casual relationships with men. This led to confusion in his mind and the realisation that he could never marry a woman. He spoke in favour of gay rights and other human rights and sought a political or social organisation to sponsor him. No one would support him. He received death threats from Muslim fundamentalists. He then interrupted his studies and left secretly for his home city. He was in hiding for a year. He then worked in a marine electronics company. In 2000, fundamentalist Muslims found the appellant in his home city. They threatened his family and gave him an ultimatum to leave the country within three months. The appellant then decided to leave Bangladesh and was accepted into Charles Sturt University. 57 The Tribunal did not accept the appellant's account of his experiences in Bangladesh. Its reasons (or at least some of them) for doing so were summarised by the Federal Magistrate (at [8]): (a) The internet page to which the applicant made reference at the Tribunal hearing did not contain pictures which would suggest the applicant was homosexual. (b) The inconsistency between the applicant's claim to have been concerned about fellow Bangladeshi students at his University discovering his homosexuality and his claim to have posted photographs of himself on the internet which illustrate his homosexuality. (c) The "brief (almost dismissive) account" of Bandu, a social welfare society which runs a major HIV/AIDS program for MSM (men who have sex with men) in Bangladesh. (d) The lack of detail of media coverage provided by the applicant in respect of having spoken out in favour of human rights, prostitution and gay marriage at the Bangladesh University freshman's day in 1995. (e) The applicant's delay in applying for a protection visa and claiming he feared persecution, notwithstanding his ability to speak English. 58 The grounds for review relied on in the proceedings before the Federal Magistrate were substantially the same as the grounds in this appeal. In his lengthy and the detailed reasons, the Federal Magistrate rejected each ground. 59 The first ground in the appeal was that the Federal Magistrate erred in rejecting a contention to the effect that the Tribunal conducted its inquiry in a way that created a legitimate expectation in the appellant that it would make inquiries concerning the appellant's claim that he had led a homosexual lifestyle in Australia. In particular, it was contended that the Tribunal failed to inquire into evidence that could have been given by Mr X, who, on the appellant's account, would have been able to give evidence supportive of his claim of being homosexual. 60 Counsel for the Minister submitted that the Tribunal was under no general duty to inquire and had not created an expectation that it would seek to contact Mr X. To the extent that it had indicated it would contact anyone - a person described as Alan - it had endeavoured to do so but had not succeeded. This was not a case of the type considered by Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, where the information was readily available to the Tribunal and was centrally important to the decision to be made. 61 The Federal Magistrate was correct in rejecting the contention that the Tribunal had fallen into jurisdictional error by failing to make inquiries and, specifically, to seek to contact Mr X. The Tribunal was not under a duty to inquire and it had not created an expectation that it would contact Mr X. It is true that the appellant gave some details about Mr X in response to questions from the Tribunal which might have enabled the Tribunal to contact him (though some of the information was vague or inconclusive). However, nothing was said which would have reasonably created an expectation that it would do so: cf Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1. 62 The second ground in the appeal concerned the rejection by the Tribunal of evidence given by a Mr W in a letter. The letter was sent to the Tribunal shortly after the hearing before the Tribunal. The letter was from a man who said he had met the appellant at a hotel in Erskineville and they used to meet up in North Sydney where the appellant lived. In the letter, he said he could clarify that the appellant was a homosexual and if the recipient of the letter wanted more information they could contact him. Two telephone numbers were given. The Tribunal said that the contents of the letter did not appear to be congruous with the appellant's other evidence. 63 Counsel for the appellant submitted that the Tribunal did not give the appellant an opportunity to respond to its concerns about any perceived inconsistencies. At the very least, it was submitted, the Tribunal should have contacted the author of the letter to seek clarification from him of the evidence in the letter. A further submission was made that the Tribunal was bound to provide the appellant with particulars of perceived inconsistencies (being information) under s 424A. 64 Counsel for the Minister submitted that the Tribunal had not been under a duty to contact the author and the perceived inconsistencies were not information for the purposes of s 424A. 65 The Federal Magistrate was correct in rejecting the submissions concerning the letter. The Tribunal was entitled to form the view that the evidence in the letter was not congruous with the appellant's evidence (particularly having regard to the fact that the evidence of the appellant had not included a reference to meeting the author of the letter at an Erskineville Hotel) and was under no obligation to contact the author to make further inquiries. Nor was the Tribunal under any obligation to act under s 424A. Its view about the contents of the letter resulted from its thought processes and evaluation of the evidence. This was not, relevantly, information. 66 The next issue raised in the appeal concerned the presence of a detention centre guard at the hearing when the appellant gave evidence. The notice of the appeal (and the submissions of counsel for the appellant) did not raise an issue concerning the operation of s 429: see Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154. Rather the notice of appeal particularised as a denial of procedural fairness, the fact that the Tribunal interviewed the appellant in what was alleged to be "an environment which was not conducive to his being able to fully and freely discuss the details of his homosexuality". In the written submissions of counsel for the appellant, the complaint was that the hearing was conducted without the appellant's adviser but in the presence of a detention centre guard (not being an employee of the Department of Immigration and Multicultural and Indigenous Affairs ("the Department")). As this appeal will be allowed by Weinberg and Allsop JJ, it is probably unnecessary to address this issue although it appears to me that, arguably, there was non-compliance with s 429. 67 Counsel for the appellant identified five further pieces of information for which, it was contended, particulars should have been, but were not, provided under s 424A. The first piece of information was that the appellant had not made any claims for refugee status before making the application for a protection visa in August 2004 ("the date of application information"). The applicant arrived in Australia on 14 January 2001, and lodged his application for a protection visa on 9 August 2004. The Tribunal questioned the appellant about this matter and ultimately concluded that the appellant had not raised fears of persecution because, in fact, he had had no past experience, or fear, of persecution in Bangladesh. It concluded that his current claims arose out of discussions while in detention. 68 Counsel for the Minister submitted that the date of application information was not, relevantly, information for the purpose of the section. In any event it had not formed the reason or part of the reason for affirming the decision under review or alternatively, fell within s 424A(3)(b). 69 To dispose of this ground, it is sufficient to observe that the Tribunal did not found its decision, even in part, on the fact that the appellant had applied for a protection visa more than three years after entering Australia. Rather, its decision was founded, in part, on the failure of the appellant to provide the Tribunal with an explanation for the delay in making the application for the protection visa which was reasonable, rational and consistent with the existence of a fear of persecution. The Tribunal was under no obligation to provide particulars of the date of application information. 70 The second piece of information concerned the fact that the appellant had spent two months in immigration detention in 2002 and had successfully challenged a Departmental decision not to grant him a bridging visa ("the bridging visa information"). The submissions by counsel for the appellant do not identify with any precision how this information might be comprehended by s 424A. What the Tribunal did say was that the appellant spent two months in detention at the end of 2002. It then noted that for a number of reasons, including the appellant's experience with immigration matters, it was implausible that he would not have known of the availability of refugee protection in Australia. However, the Tribunal did ask the appellant questions about the fact he had spent time in detention. It is likely, and the contrary has not been established, that the Tribunal acted on knowledge derived from the answers given by the appellant. No contravention of s 424A has been established in relation to this "information". 71 The third piece of information was that the appellant's claims to refugee status arose from exchanges with other persons while in detention ("the detention information"). Towards the end of its reasons for decision, the Tribunal expressed the view that the appellant's claim for a protection visa originated from his exchanges whilst in detention. It is unnecessary to analyse the arguments in detail. Plainly, this is not information on which the section might operate. It is simply a conclusion of the Tribunal on the material before it which included evidence from the appellant about discussions he had while in detention about seeking asylum. 72 The fourth piece of information concerned the appellant's claim in the statement supporting his application for a protection visa that he addressed the student rally in relation to homosexual rights in October 1995 ("the student rally information"). In his original application for a protection visa, the appellant referred to the rally. In its decision the Tribunal indicated it was not satisfied that this speech took place. Again, this is a matter that does not require detailed consideration of the submissions. The fact that the speech was given was a matter about which the Tribunal asked the appellant questions. There is no reason to believe that the conclusion reached by the Tribunal was based on anything other than the evidence the appellant gave rather than anything that may have appeared in the original application for the protection visa. Again, s 424A was not enlivened. 73 The last piece of information concerned the Tribunal's inquiries of the hotel in Erskineville. As a result of answers given by the appellant at the hearing before the Tribunal, the Tribunal member rang the hotel with a view to speaking to a person the appellant had identified as contactable there and who would corroborate his evidence about being a homosexual. The short and correct answer given by counsel for the Minister to this contention, was that the fact that the person did not appear to have been an employee of the hotel, contrary to the appellant's evidence, was not a matter relied upon by the Tribunal in reaching its decision. In the result, the Tribunal failed to secure evidence potentially supportive of the appellant's claims. The Tribunal did not refer to the fact that the appellant contended that this person was contactable but that it had been unable to make contact (and had been told categorically that no one by that name ever worked there) in reaching any adverse view about the credibility of the appellant.
SZDXA 74 This is an appeal from a judgment of a Federal Magistrate of 9 June 2005 dismissing an application for judicial review of a decision of the Tribunal made on 5 May 2004 with reasons for decision handed down on 27 May 2004: see SZDXA v Minister for Immigration [2005] FMCA 842. The Tribunal had affirmed a decision of a delegate of the Minister refusing to grant the appellant a protection visa. The following summary of the appellant's claims is drawn from the reasons of the Federal Magistrate. 75 The appellant is a national of Bangladesh. He arrived in Australia on a temporary business visa in December 2003 and applied for a protection visa on 9 January 2004. He was assisted by migration agent, Mr Haque. The appellant claimed to have been a member of the AL for many years and to have held positions in the party. He led demonstrations and worked on behalf of the party in elections held in 1991 and subsequently. He had been attacked in the course of the elections by activists for from rival parties and after the election in October 2001, in which the rival party BNP led coalition won a landslide victory, the appellant's house had been ransacked and his wife had been told they would kill him. For a number of months he did not return home. In June 2003 he led a procession against the atrocities of the government. The procession was attacked and the participants beaten. The attackers were backed by the police. The appellant was admitted to a local clinic and released after six days. There was further political protest in which the appellant was involved and again he was assaulted and admitted to a clinic. False charges were laid against him. He then left Bangladesh for Australia. 76 The Tribunal concluded that the appellant's evidence was inherently unreliable and the appellant was not a credible witness. It found his claims were false. 77 The appellant appeared before the Federal Magistrate in person. The appellant did not raise the operation of s 424A, but it was nonetheless considered by the Federal Magistrate. His Honour's conclusion was that to the extent that the Tribunal relied on the contents of the original application for a protection visa (the Tribunal formed the view that the appellant had omitted information or given incorrect answers to mislead the Department and the Tribunal), its reliance arose not from the content of the original application but rather the appellant's response to requests from the Tribunal (in a letter dated 4 February 2004) and the appellant's responses to the Tribunal's questioning. His Honour indicated that to the extent that the Tribunal referred to the appellant's original visa application, it was not to take information from it, but to perform an appraisal of its defects. 78 In this appeal, counsel for the appellant identified four pieces of information, particulars of which should have been provided under s 424A but were not. The first piece of information was the fact that additional pages of the appellant's passport had been provided by his migration agent which included a visa to South Korea issued on 26 June 2003 ("the additional passport information"). A related, if not integral, piece of information identified was the incomplete answer about whether the appellant had travelled overseas before coming to Australia which was given by the appellant in his application for a protection visa ("the protection visa travel information"). In his original application for a protection visa, the appellant indicated that he had not travelled outside Bangladesh before coming to Australia. In a letter dated 4 February 2004, the Tribunal noted that the appellant had only provided eight pages of his passport and requested that he provide a certified copy of each page. The additional pages were provided and revealed that he had travelled outside Bangladesh on business to South Korea. The Tribunal viewed this as discrediting aspects of the appellant's claims. One such claim identified by the Tribunal was that the appellant had been attacked twice and hospitalised and had taken a period to recover. These events commenced on 27 June 2003. The Tribunal calculated that the period from the first injury to final recovery was 30 days, and considered that this was inconsistent with the appellant travelling to South Korea on 14 July 2003. The Tribunal also noted that while the appellant originally said the trip to South Korea was a business trip, which had been planned, he later said that he planned to go there after the assaults and with the intention of not returning. The Tribunal noted the visa was issued on 26 June 2003, the day before the alleged assaults occurred. The Tribunal concluded that the South Korean trip and the other events were not a result of the alleged attacks. A little later in its reasons, the Tribunal said that "[t]here were many aspects of [the appellant's] original application and later evidence which were not answered or which were answered incompletely or incorrectly (such as his never having travelled overseas prior to [the] trip to Australia)…". 79 Counsel for the appellant submitted that the additional passport information was critical to various adverse findings made by the Tribunal about appellant's claims. It was submitted that though many of the perceived inconsistencies were put to the appellant orally, they were not put in writing as required by s 424A. Counsel for the appellant accepted that the protection visa travel information was incorporated into the application for review to the Tribunal, but the content of the statement in the original protection visa application form had not been, and it remained information that should have been particularised in writing in conformity with the section. 80 Counsel for the Minister submitted that, contrary to the information the appellant gave in his protection visa application, the information that he had travelled outside Bangladesh to, at the very least, South Korea was information given to the Tribunal for the purpose of the application. So much emerged, it was submitted, from a letter to the Tribunal from the appellant's adviser dated 25 February 2004. Accordingly, it was comprehended by s 424A(3)(b). The same result flowed from the fact that the appellant had expressly adopted in his application for review, the statement he had made in support of the application for a protection visa. Moreover, objection was taken to the appellant raising a factual matter in the appeal (whether the application form for the protection visa was incorporated in the application for review). 81 It is tolerably clear that the knowledge the Tribunal had about the way in which the appellant had completed the original application for a protection visa (signifying that he had not travelled outside Bangladesh before travelling to Australia) played a material part in the Tribunal's negative assessment of the appellant's credibility. If, as a matter of fact, the original application (that is, the form) had not been furnished by the appellant then a real issue would arise about non-compliance with s 424A. In the material before this Court, there is a copy of the application for review. In the section in which the appellant set out the reasons for making his application he said, amongst other things: "DIMIA'S DECISION AND MY STATEMENT ENCLOSED". His original application for the protection visa is also in the material and it took the form of the completed form as well as a three-page typed statement and a photocopy of four pages of his passport. 82 In written submissions in reply, counsel for the appellant submitted that this reference to "statement" in the application for review should be taken to be a reference to the three-page typed statement only. It is possible that this is correct. However, the appellant bore the burden, before the Federal Magistrate, of establishing the factual foundation of his application for constitutional writs and he continues to do so in this appeal. It is not implausible that the appellant enclosed not only a copy of the three-page statement but also a copy of the original form applying for the protection visa. I am not affirmatively satisfied that all that was provided to the Tribunal was the three-page typed statement. Accordingly, a fact necessary to demonstrate breach of s 424A has not been established by the appellant. 83 A further submission was made by counsel for the appellant that the relevant information in the present case was the fact that when the protection visa application was submitted, only four pages of the passport were submitted together with it. However, again, it is conceivable that the appellant enclosed that annexure (the photocopy of the four pages of the passport) with the material accompanying his application for review. If so it would have been information (that is, knowledge of what was contained in the original application for visa) comprehended by s 424A(3)(b). 84 The next piece of information identified by counsel for the appellant concerned whether Mr Haque, the appellant's migration adviser, was known to the Tribunal to play a prominent role in the Awami League Association in Australia and the Tribunal's concern that this made the appellant's non involvement in AL activities in Australia strange ("the Haque information"). It is desirable, at this point, to explain in a little detail, what is raised by this submission. As noted above, a central part of the appellant's claims was his membership of AL and political activities in Bangladesh and the harm he had suffered as a result. The Tribunal did not accept that the appellant had been a member of that political party. It also did not accept that he experienced problems as claimed and had manufactured evidence and exaggerated his claims for the purposes of advancing his claims for a protection visa. After expressing this conclusion, the Tribunal then set out, in ten dot points, matters that seemingly led to those conclusions. Many of them were matters concerning inconsistencies in the appellant's evidence, though not directly concerning his evidence about having been a member of the AL. However, the last dot point did directly address this evidence. The Tribunal said: The claims of political association and involvement are vague and unconvincing. Whilst he knows of political party members and people who stood for election and who won I do not accept that his level of explanation of what he did for the party displayed an actual involvement. Apart from this he states that he has made no contact with the Awami League in Australia though had heard about them. This is somewhat strange in itself as it is known to the Tribunal that the applicant's adviser - Mr. Sirajul Haque - plays a prominent role in the Awami League association in Australia. I consider it reasonable to assume that if the applicant had wanted to make contact with his claimed political party he could easily have done so. The fact that he has not further indicates that he was not involved. 85 It can be seen that there were two reasons for the Tribunal's direct rejection of the appellant's account of his involvement with the AL in Bangladesh (apart from several other matters identified by the Tribunal concerning the appellant's credit more generally). The first was that his evidence about the party was vague and unconvincing. The other was his failure to make contact with the AL in Australia. Plainly, the Tribunal thought that his failure to make contact was all the more significant because of Mr Haque's role with that party in Australia. 86 Counsel for the Minister submitted that this information was not the reason or part of the reason for the Tribunal's decision. Alternatively, it was submitted that the reason for the Tribunal rejecting his claimed political association and involvement with AL was the inconsistency between, on the one hand, the claims made by the appellant in his protection visa application (as adopted for the purpose of the review application) and his response to the letter of 4 February 2004, and, on the other hand, the highly generalised nature of the evidence he gave to the Tribunal in relation to this claim. 87 I should set out the way the Federal Magistrate dealt with this issue. His Honour said (at [14]): The only other aspect of the hearing which I should note is the following paragraph in the Tribunal's description of the hearing: The applicant was asked about his involvement with the Awami League in Australia and said that though he had heard there is an association here he had not visited them. He said that up until 15 days ago his health was okay but it is again deteriorating. He has nearly used up the money he bought (sic) with him and in Bangladesh his family live off the investments he has left there. He has been working for a week only though has been sick for three days. His Honour later said (at [34] after setting out the contents of the dot point reproduced at [84] above): In my view, nothing arises out of this paragraph which the applicant did not have a reasonable opportunity to address. The point made by the Tribunal arose from the applicant's own evidence to the Tribunal, which I have referred to above at [14], where he said that he was aware of a local Awami League Association and that he had not visited them. The Tribunal's reference to Mr Haque's involvement in the Association was, in my view, a side comment only, and was not used adversely to the applicant in a manner requiring special attention. In any event, I am not satisfied that Mr Haque himself did not make reference to his involvement in the course of his submissions to the Tribunal. 88 I do not accept that the Haque information (at least that Mr Haque played a prominent role with the AL Association in Australia) was not part of the reason for the Tribunal affirming the delegate's decision. It is true that the Tribunal demonstrated in its reasons that there were grave doubts about whether the appellant could be believed. However, that does not deny the significance of the Haque information in the Tribunal's ultimate rejection of the appellant's claims. With respect to the learned Federal Magistrate, the reference to Mr Haque's involvement was not a side comment. What the Tribunal was saying was that not only did the appellant not engage in activities associated with AL in Australia, but also that he had an immediate and direct opportunity of doing so because of his association with Mr Haque. The Tribunal said that had the appellant wanted to make contact with the AL it could easily have done so. The reason why it spoke of the ease with which the appellant could have made contact, was its knowledge about Mr Haque. In my opinion, that was information that the Tribunal should have provided particulars of under s 424A. Its failure to do so resulted in jurisdictional error and, for that reason, the appeal should be allowed. 89 Briefly dealing with the remainder of the issues in this appeal, the last piece of information identified by counsel for the appellant was the fact that the appellant had applied for and was granted a temporary business visa to Australia. In the letter dated 4 February 2004, the Tribunal asked the appellant for additional information in numbered paragraphs. Paragraph eight said: You obtained a business visa to travel to Australia. Provide full detail, of how it was obtained and what background was given in it such that a visa could be granted to you. In its reasons for decision, the Tribunal recorded that it asked the appellant questions about his visa and travel to Australia. It also recorded that the appellant had said that he was coming on business for Iris Inter Prize, and confirmed that in fact the company did have business interests in Australia. However, on arrival, business matters were attended to by his boss who had also travelled with him. Later in its reasons, in one of the ten dot points referred to above, the Tribunal records that the appellant applied for and was granted a temporary business visa to travel to Australia. After noting other business travel, the Tribunal said that it appeared that the applicant was in fact a businessman who had travelled for his work interests. 90 Counsel for the Minister submitted that the information given by the appellant in response to the letter of 4 February 2004, had been referred to in his application for review and was given by the appellant in his evidence of the hearing before the Tribunal. It was submitted that while this information fell within s 424A(3)(b), it did not form part of the reason for the Tribunal's decision to affirm the delegate's decision. 91 While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal's reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source. 92 Other grounds were raised by the appellant but were only relevant, as I understand the submissions, if the appellant failed to establish contravention of s 424A. However, for above reasons, the Tribunal fell into jurisdictional error in the way it dealt with the Haque information. 93 The appeal should be allowed with costs. I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.
weinberg j 94 I have had the advantage of reading, in draft, the reasons for judgment prepared by both Moore J and Allsop J. I agree with Allsop J that each of these appeals should be allowed. Their Honours have covered most of the matters that I regard as relevant. However, I wish to add a few remarks of my own. 95 The primary question raised in each appeal concerns the meaning to be given to the expression "information … that the applicant gave for the purpose of the application" in s 424A(3)(b) of the Migration Act 1958 (Cth) ("the Act"). On one view, that expression is to be construed narrowly, such that the word "application" in s 424A(3)(b) means "the proceeding before the Tribunal which is the vehicle for such a claim for review". On that view, the section applies only to information that the applicant gave for the purpose of the application to the Refugee Review Tribunal for review of the Minister's decision refusing him or her a protection visa. On another view, the section also extends to information given by the applicant at an earlier stage of the process, provided that the information was given for the purpose of applying to the Minister for a protection visa. 96 The distinction between these two competing formulations has now assumed considerable significance. Section 424A obliges the Refugee Review Tribunal ("The Tribunal") to provide the applicant with particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. This ensures that the applicant is given the opportunity to comment upon the matters so raised. However, the section does not apply to certain types of information. Relevantly, for present purposes, it does not apply to information that falls within s 424A(3)(b), namely information "that the applicant gave for the purpose of the application". 97 If s 424A(3)(b) is interpreted narrowly, and the term "application" is construed as meaning the application for review by the Tribunal only, the procedural requirements set out in s 424A will have significantly greater scope. If, however, the section is given a broader interpretation, and the term "application" is understood to include all information provided by the applicant in support of the visa, s 424A will have correspondingly less scope to operate. 98 As Moore J has noted, this very question of construction has been considered, and determined, by the Full Court in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27. In that case, an applicant for a protection visa, who had been interviewed by an officer of the Minister for Immigration and Multicultural Affairs upon his arrival at Sydney Airport, later filed an application for a protection visa. That application was refused by a delegate of the Minister. The applicant then sought review of that decision by the Tribunal. 99 In its reasons for affirming the delegate's decision, the Tribunal made certain findings that were adverse to the applicant's credibility. It relied, in particular, upon a series of discrepancies between the statements made by the applicant during the airport interview, and his statements in his written application for a protection visa. However, the Tribunal at no stage raised these discrepancies with the applicant. Nor did it give him notice of its intention to rely upon them when determining his case. 100 The applicant then sought judicial review of the Tribunal's decision. He relied upon the fact that the Tribunal had failed to comply with its obligations under s 424A of the Act. 101 At first instance, Madgwick J posited the question to be determined as being whether what the applicant said during the course of his airport interview constituted "information … that the applicant gave for the purpose of the application": Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679. His Honour held that the applicant's words were not "information", at least in the relevant sense. He reasoned that the terms "applicant" and "application", in s 424A(3)(b), when properly construed, were confined to the application for review to the Tribunal. As his Honour noted, at the time of the airport interview, the applicant had not yet applied for a protection visa, still less had he contemplated applying to the Tribunal for review of a refusal to grant such a visa. The interview had been conducted simply as a matter of departmental policy to detect illegal immigrants. It was hardly likely, in his Honour's view, that the applicant would recall what he had said at the time of the interview by the time he finally made his visa application. It was scarcely conceivable that he would recall the details of that interview by the time he finally sought review by the Tribunal of the delegate's decision. 102 The Full Court dismissed the appeal from the judgment of Madgwick J. In a joint judgment, Ryan and Conti JJ rejected the Minister's submission that the "information" constituted by what the applicant had said during the course of the airport interview came within the exception created by s 424A(3)(b). In the course of rejecting that submission, their Honours specifically rejected, at [17], the argument that the term "application" in that section meant: "all information given by the applicant to officials in the Department (including that provided to the Tribunal) for the purpose of determining whether to grant a protection visa to the applicant". 103 In an important passage, their Honours said, also at [17]: "In our view, "applicant" wherever appearing in s 424A means "applicant for review by the Tribunal of a Ministerial decision" and "application" correspondingly means the proceedings before the Tribunal which is the vehicle for such a claim for review." 104 In substance, therefore, their Honours' reasoning was relatively straightforward. They noted that s 424A(3)(b) found its place in Div 4 of Pt 7 of the Act. That Division was concerned solely with the conduct of a review before the Tribunal. They reasoned that the term "applicant", and the corresponding term "application", had a particular meaning in the context of that Division. 105 Their Honours observed that in s 423, for example, which also appears within Div 4 of Pt 7, and deals with documents to be given to the Tribunal, there is reference to an "applicant". However, the term "applicant" in that section is confined to "[a]n applicant for review by the Tribunal". Their Honours reasoned that if "applicant" in s 423(1) means "[a]n applicant for review by the Tribunal", ordinary principles of construction would suggest that the same meaning should be given to that term, and the corresponding term "application" in s 424A(3)(b). 106 Their Honours went on to add that, in any event, given that s 424A(3)(b) operated to relieve the Tribunal from affirmative obligations imposed by s 424A for the benefit of an applicant, a construction should be adopted which preserved, rather than diminished that benefit. They added that a purposive approach to s 424A would lead to the same conclusion. 107 Merkel J, the third member of the Full Court in Al Shamry, agreed with the reasoning of the majority but went further. His Honour considered that s 424A enacted a basic principle of the common law rules of natural justice. He said that it was understandable that the legislature would require that, in fairness, any adverse information provided by the applicant "prior to review" (to use his Honour's language), the significance of which the applicant might be unaware, should be disclosed to the applicant to enable him or her to respond to it. It was the beneficial purpose underlying s 424A of affording an applicant with the opportunity to respond to the gravamen of any adverse information upon which the Tribunal proposed to act that justified a narrow rather than a broad view being taken of the exception. 108 Al Shamry would hardly have assumed the importance that it now seems to have done had it not been for the recent decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. Though Al Shamry had narrowed the scope of the exception in s 424A(3)(b), and correspondingly broadened the scope of ss 424A(1) and 424A(2), it maintained a significant degree of flexibility in applying those provisions. The Full Court made it clear that any failure on the part of the Tribunal to comply strictly with the requirements of s 424A would not, of itself, give rise to reviewable error. Rather, each case would have to be considered in the light of its own particular facts. 109 The judgment in Al Shamry proceeded on the basis that the grant of relief by the court was discretionary, and that it would be a proper exercise of that discretion to refuse relief if the Tribunal's findings of fact led inevitably to the conclusion that the application for review was destined to fail. In other words, it was a critical aspect of the reasoning in Al Shamry that the court should consider whether the procedural breach involved in failing to comply with s 424A had led to some actual unfairness. 110 It seems clear that the judgment of the High Court in SAAP has radically altered the position. By a three to two majority (McHugh, Kirby and Hayne JJ, Gleeson CJ and Gummow J dissenting), it was held that s 424A required the Tribunal, at the hearing stage, to give the applicant written notice of any information that would be the reason, or a part of the reason, for affirming the decision under review. Having regard to the mandatory language of the section, and irrespective of the merits of the case, nothing less than written notice of such information specified would suffice. Any breach of the requirements of the section (as for example by giving oral notice rather than written notice) would constitute jurisdictional error. Accordingly, non-compliance would render the Tribunal's decision invalid. 111 It is important to note that the majority went on to reject the contention that, in the absence of any actual unfairness being demonstrated, the court should refuse to grant relief in the exercise of its discretion. According to the majority, in the absence of factors such as delay, waiver, acquiescence or unclean hands (which their Honours acknowledged might be relevant to the exercise of judicial discretion), a breach of s 424A, whether it led to actual unfairness or not, would normally result in the Tribunal's decision being set aside. 112 It should be acknowledged that the issues raised in SAAP differ from those raised in the present appeal. It was common ground before the High Court that the "information" in question (which concerned certain evidence given by the first appellant's daughter) was of a nature and significance that triggered the operation of s 424A(1). 113 Mansfield J, at first instance in SAAP, held that there had been no failure to accord procedural fairness because the first appellant was made fully aware of the potential importance of her daughter's evidence, and given a fair opportunity to comment upon that evidence, both during the hearing, and afterwards, had she desired to do so: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 577. The failure to comply with s 424A was of a technical nature only. It was brought about simply because the Tribunal had not given the first appellant written particulars of the information obtained from the daughter, as distinct from oral particulars. In that context, and not surprisingly, Mansfield J held that this breach of s 424A had not resulted in any unfairness. His Honour, therefore, in the exercise of his discretion, declined to grant relief. 114 The Full Court (Heerey, Moore and Kiefel JJ) dismissed an appeal against his Honour's judgment: SAAP of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 411. Their Honours saw no error in the manner in which Mansfield J had exercised his discretion. 115 In the High Court, McHugh J delivered what was perhaps the leading judgment of the majority. His Honour concluded that there had been a failure to comply with s 424A. He held that the section continued to apply at the stage when, under s 425, the applicant was invited to appear before the Tribunal to give evidence and to present arguments. Once it became clear that the Tribunal had not provided written notification, as s 424A required, it was no answer, in his Honour's view, to say that oral notification had been given. Jurisdictional error could arise where a decision-maker failed to discharge "imperative duties", or to observe "inviolable limitations or restraints". Nothing in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 suggested that a failure to comply with the requirements of s 424A, even in the absence of actual unfairness, should result in anything other than invalidity. In addition, his Honour held that there had been no basis for withholding discretionary relief. 116 Both Kirby J and Hayne J arrived at essentially the same conclusions, albeit by subtly different routes. Gleeson CJ and Gummow J each delivered powerful and, with respect, highly persuasive, dissents. 117 It is interesting to note that of the five members of the Court in SAAP, only McHugh and Gummow JJ made any reference to Al Shamry. McHugh J cited Al Shamry several times, though not in the body of his judgment, but only in the footnotes to paragraphs [50], [65], [66] and [68]. It is also interesting to note that his Honour did not comment upon the correctness or otherwise of the reasoning in that case, though this is perhaps explicable on the basis that the particular issue that arose for determination in Al Shamry was not before the Court in SAAP. 118 Gummow J discussed Al Shamry at some length at [116] and [118]. His Honour said, at [116]: "Paragraph (b) of s 424A(3) relieves the RRT from what otherwise might be an obligation to give particulars of information already supplied by the applicant for the purpose of the application. In Minister for Immigration and Multicultural Affairs v Al Shamry, the Full Court indicated that the subject-matter of the exception is information provided by the applicant for review by statutory declaration under par (a) of s 423(1) and in response to an invitation by the RRT under s 424(2). That construction was not challenged on this appeal and should be accepted." (emphasis added and footnote removed) 119 He added at [118]: What can be stated is that the evident object of s 424A is that, with the qualifications and exceptions just mentioned, fairness to the applicant is to be provided by alerting the applicant to adverse material and affording an opportunity to comment upon it. In Al Shamry, Merkel J correctly observed: "Section 424A does not require the RRT to provide to an applicant all of the information upon which it proposes to act, other than information provided by an applicant for the purpose of the review. Rather, the section requires the RRT to provide the applicant with "particulars of any information" that the RRT considers would form part of its reason for refusing the application for review, to explain to the applicant why that information is relevant to the review and to invite a response to it." (footnote removed) 120 What seems to emerge from these passages in Gummow J's judgment is that his Honour did not harbour any doubts as to the correctness of Al Shamry. Indeed, he seemed to regard Al Shamry as having been correctly decided. If McHugh J had any doubts regarding the reasoning in that case, it can at least be said that he did not express them. 121 It is the unanticipated but potent combination of Al Shamry and SAAP that has given rise to the difficulties raised in these appeals. Had Al Shamry stood alone, any breach of s 424A would simply have been dealt with on its merits. If no actual unfairness could be demonstrated, or, alternatively, if it could be shown that there had been no such unfairness (Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346), relief would simply be denied in the exercise of judicial discretion. 122 SAAP seemingly precludes this approach from being adopted. Henceforth, any Tribunal decision based on "information" adverse to the applicant, and where such information does not fall within any of the exceptions contained within s 424A(3), is likely to be set aside, irrespective of whether there has been any actual unfairness to the applicant. The rigidity of this approach makes the construction of s 424A(3)(b) of particular importance. 123 In the appeals presently before this Court, the Minister initially contended that Al Shamry could be largely disregarded because the reasoning on the question of construction of s 424A(3)(b) was merely dicta. It was submitted that the principle set out in [17] of the joint judgment of Ryan and Conti JJ (extracted above at [103] of these reasons for judgment), went beyond anything that was strictly necessary to decide the case. In accordance with orthodox theories of precedent, that meant that their Honours' observations formed no part of the ratio of the case. 124 Ultimately, and under some pressure from the Court, counsel for the Minister appeared to resile somewhat from that submission. After being given time to consider carefully the Minister's position, she acknowledged, correctly in my view, that the passage in question had to be regarded as ratio. 125 This is not the occasion for a lengthy excursus into theories of precedent. It is sufficient simply to observe that it is not always easy to distinguish between the ratioof a case, and statements of principle that are mere dicta. Indeed, there is no consensus among jurists as to the test to be applied in order to determine whether a statement of legal principle is ratio or dicta. 126 In Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1 at 24, Devlin J (as his Lordship then was) suggested the following test: "This is a matter which the judge himself is alone capable of deciding, and any judge who comes after him must ascertain which course has been adopted from the language used and not by consulting his own preference." 127 In other words, his Lordship ascribed to the judge deciding a case almost total freedom to determine which of that judge's observations should be regarded as ratio, and which dicta. 128 The degree of autonomy that this gave the judge was criticised by the learned authors in R Cross and JW Harris, Precedent in English Law (4th ed, 1991) ("Cross and Harris") at 42: "If a judge has this amount of freedom to determine which of his observations is ratio decidendi and which obiter dictum, is there not a grave danger that he will exercise an undue influence on the future development of the law? He only has to state twenty propositions and say that he bases his decision on each of them to have created twenty new legal rules." 129 Irrespective of the cogency of Devlin J's approach, there are several factors that will always tend to redress the balance in favour of those judges who come afterwards. By emphasising the need to have regard to the facts of the previous case, and the language of prior or subsequent judgments, orthodox rules of judicial practice considerably curtail the influence that can be exercised in legal development by means of the reasons which a particular judge sees fit to give for his or her decision. 130 It goes without saying that any judgment must be read in the light of its own particular facts. In addition, every judgment must be read in the light of other judgments on similar points. 131 Professor Goodhart, in AL Goodhart "Precedent in English and Continental Law" (1934) Law Quarterly Review 40, wrote that the ratio decidendi of a case was to be determined by ascertaining the facts treated as material by the judge. In his view, the ratio was the principle to be derived from the judge's decision on the basis of those facts. Any court bound by the earlier case would have to come to a similar conclusion unless there was a further fact in the case before it which it was prepared to treat as material, or unless some fact treated as material in the previous case was absent. In other words, in Goodhart's view, the ratio of a case was not found in the reasons given in the opinion, but only in the facts treated by the judge as material, and the decision based on those facts. And this was as much a matter for a later court to determine as it was for the judge whose decision was being subsequently considered. 132 Professor Glanville Williams (Learning the Law (1982, 11th ed)), cited in Cross and Harris at 73, agreed with Goodhart that "[c]ourts do not accord to their predecessors an unlimited power of laying down wide rules". It is a fact that broad statements of principle by even ultimate appellate courts are sometimes interpreted restrictively by lower courts. That is because the later court considers that the formulation of the rule adopted went beyond the particular facts of the case, and was not a necessary part of the reasoning leading to the conclusion. 133 In Cross and Harris, the learned authors proffer the following description of the ratioof a case at 75: "… any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion". 134 They also cite the following passage from the South African case of Pretoria City Council v Levison 1949 (3) SA 305 at 317 per Schreiner JA as a helpful statement of principle: "As I understand the ordinary usage in this connection, where a single judgment is in question, the reasons given in the judgment, properly interpreted, do constitute the ratio decidendi, originating or following a legal rule, provided (a) that they do not appear from the judgment itself to have been merely subsidiary reasons for following the main principle or principles, (b) that they were not merely a course of reasoning on the facts (cf. Tidy v. Battman (1934, L.J.K.B. 158 at p. 162)) and (c) (which may cover (a)) that they were necessary for the decision, not in the sense that it could not have been reached along other lines, but in the sense that along the lines actually followed in the judgment the result would have been different but for the reasons." 135 I have no doubt that the passage at [17] in the joint judgment of Ryan and Conti JJ in Al Shamry was intended to explain the reason for their Honours' decision. I am equally in no doubt that, viewed objectively, that passage was a necessary aspect of the decision. It was no mere passing observation, nor was it merely a link in the chain of reasoning that led their Honours to their conclusion. 136 It is perhaps a minor point, but I am supported in my view that their Honours intended the passage to be ratio on the basis that it is incorporated in the headnote to the authorised report of the judgment. Not only does that headnote pick up the passage almost verbatim, but it treats it as ratio. That is of some significance in the context of this case. Headnotes in authorised reports are routinely submitted to the judges concerned for their comment, and approval. 137 There are those who regard the quest for ratio as an exercise in formalism that is ultimately sterile. I need not canvass the views of the extreme rule sceptics. Professor Julius Stone, a less trenchant critic, regarded the concept of ratio as being, in his terms, nothing more than a "category of illusory reference": see J Stone, Legal System and Lawyers' Reasonings (1964) at 278-80. As is well known, Stone contended that there was no single binding ratio in any case, and that there were always leeways of choice available to later courts in determining how widely, or narrowly, an earlier statement of legal principle should be read. 138 However cogent these criticisms of legal formalism may be, the courts, in England and Australia, have always proceeded upon the basis that a ratio can be distilled from most cases. A good example is Attorney-General for NSW v Perpetual Trustee Co (Ltd) (1952) 85 CLR 237, where Dixon J (as his Honour then was), explained why he regarded himself as bound to follow an earlier decision in Commonwealth v Quince (1944) 68 CLR 227, even though he regarded the reasoning in that case as being erroneous. At the time, an appeal from a decision of the High Court lay to the Privy Council. That fact plainly influenced the outcome. See also John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438-40. 139 The House of Lords traditionally regarded itself as bound by its own previous decisions. In 1966, as a result of a Practice Statement issued by their Lordships, that practice was modified: Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. Lord Gardiner LC, speaking for their Lordships, said at 1234: "Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House." 140 In Miliangos v George Frank (Textiles) Ltd [1976] AC 443, the House of Lords held that the instability which had overtaken the pound sterling and other major currencies since the decision of their Lordships in In re United Railways of Havana and Regla Warehouses Ltd [1961] AC 1007, as well as other developments, justified departure from that decision in terms of the Practice Statement since a new and more satisfactory rule could be stated to enable the courts to keep step with commercial needs. 141 The English Court of Appeal has traditionally regarded itself as bound by its own previous decisions. The rigidity of that doctrine is ameliorated by three exceptions, the third of which is in some respects relevant to this appeal. The Court does not regard itself as bound by its own previous decision pronounced per incuriam (Young v Bristol Aeroplane Company, Limited [1944] 1 KB 718 ("Bristol Aeroplane")). An example of such a decision is where a statute (or a rule having statutory effect) that would have affected the decision was not brought to the attention of the earlier court. 142 Following Bristol Aeroplane, Lord Denning MR nonetheless stated on a number of occasions that the Court of Appeal was not bound by its previous decisions. In Davis v Johnson [1979] AC 264, a majority of three out of five members of the Court of Appeal, including Lord Denning, found that Bristol Aeroplane could at least be expanded to allow new exceptions. This finding was unanimously rejected by the House of Lords: Davis v Johnson [1979] AC 264. At 325, Lord Diplock described Lord Denning's efforts as: "a one-man crusade with the object of freeing the Court of Appeal from the shackles which the doctrine of stare decisis imposed upon its liberty of decision by the application of the rule laid down in the Bristol Aeroplane case to its own previous decisions". 143 Accordingly, it is now beyond doubt that the Court of Appeal is only free to depart from its previous decisions in the three narrow exceptions outlined in Bristol Aeroplane. 144 In Australia, the High Court used to regard itself as bound by its own previous decisions. Of course, it no longer holds that view. For example, in Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645, the Court declined to follow its earlier decision in Viro v The Queen (1978) 141 CLR 88. That does not mean that the Court will routinely reconsider its own previous decision merely because it is arguable that the decision is erroneous. In addition to the normal requirements that govern the grant of special leave, it is generally the case that leave is required to reargue a point that has been authoritatively determined by the Court. 145 In Australia, the position regarding intermediate appellate courts is somewhat different. In general, these courts do not regard themselves as strictly bound by their own previous decisions. However, they will depart from those decisions only in quite limited circumstances. 146 In relation to the Federal Court, a Full Court will follow a decision of an earlier Full Court unless satisfied that the earlier decision was "plainly wrong". Indeed, the same principle applies in relation to decisions of other intermediate appellate courts on questions of interpretation involving uniform national legislation. The High Court has held, in such cases, that unless convinced that an interpretation involving such legislation is "plainly wrong", an intermediate appellate court should follow a decision of another intermediate appellate court, even outside the hierarchy of courts within which it lies: Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485 at 492; cf the somewhat different approach to judicial statements regarding the construction of statutes taken by the Privy Council in Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32 at 39. 147 It follows from all this that the Minister faces a considerable hurdle in these appeals in so far as it is submitted that Al Shamry should not be followed. It is not sufficient merely to persuade this Court that there is an alternative, and preferable, construction of s 424A(3)(b) available. The Minister must go further and demonstrate that the decision in Al Shamry was "plainly wrong". 148 The word "plainly" does more than simply add emphasis. It suggests that the error must be manifest or, if it does not rise to that level, at least capable of being easily demonstrated. In a sense, the error must be so clear as to enable a later court to say that the point is not reasonably arguable. 149 An example of plain error would be that discussed in Bristol Aeroplane, namely that the earlier judgment was given "per incuriam". However, an earlier decision may be "plainly wrong", within the meaning of that expression, for other reasons as well. It goes without saying that such a finding will not be lightly made. As Allsop J correctly observes, there is a need to be "convinced or persuaded" of the earlier Full Court's error, and that can not be achieved in a case in which minds might reasonably differ as to the proper construction of a particular statutory provision. 150 Undeterred by the difficult hurdle that had to be overcome, and in an endeavour to satisfy the "plainly wrong" test, counsel for the Minister sensibly abandoned the argument that had been advanced in Al Shamry on behalf of her predecessor, and put forward a more cautious and modified submission. She acknowledged that the term "application" in s 424A(3)(b) could not, as a matter of construction, extend to an airport interview, prior to the making of any application for a protection visa. To that extent, she accepted that Al Shamry had been correctly decided, at least on the facts of that particular case. She submitted, however, that the passage in [17] of the joint judgment was too widely expressed, because the term "application" in s 424A(3)(b) should, as a matter of construction, be regarded as encompassing all information provided by an applicant in any application for a protection visa, and not simply such information as had been provided for the purpose of an application for review. Such information, counsel for the Minister submitted, fell properly within the expression "that the applicant gave for the purpose of the application". In other words, that expression only excluded information provided by the applicant at a stage prior to any visa application having been made, together with any information that was not provided "for the purpose" of seeking a protection visa. It did not exclude information of the kind provided in these appeals. 151 The Minister supported this modified contention by noting that an application for review of a decision refusing a protection visa is a hearing de novo. The Tribunal in effect "stands in the shoes" of the original decision-maker, the Minister's delegate. This was said to be significant because, as counsel noted, s 424A is couched in terms similar to those contained in s 57 of the Act. That section imposes upon the Minister an obligation to give relevant information to an applicant, and is expressed in language that is virtually identical to that which imposes upon the Tribunal the obligation to give to the applicant particulars under s 424A(1) and to afford an opportunity to comment upon it. In other words, the application process should be viewed as one continuous exercise, and not as two separate and unconnected steps. 152 Put in this modified way, the Minister's submission is considerably more cogent than that considered, and rejected, by the Full Court in Al Shamry. A problem with the earlier submission was that it lacked any significant textual support. The modified submission can at least be reconciled with the language of the statute, though it still requires the terms "applicant" and "application" in s 424A(3)(b) to be read more broadly than the term "applicant" in s 423. The counter argument, of course, is that the legislature has chosen expressly to refer to "an applicant for review" in s 423, but has used the term "applicant", without qualification, in s 424A(3)(b). That could support an argument that these terms were intended to have different meanings. 153 Notwithstanding the helpful and persuasive manner in which the Minister's counsel put her submission to this Court, I find it difficult to see how it can be plausibly contended that the reasoning in Al Shamry is "plainly wrong". In argument, counsel could not point to any statutory provision, or significant precedent that had not been addressed by Ryan and Conti JJ in their joint judgment. It was not submitted that the reasoning that commended itself to their Honours was in any way logically flawed. 154 All that counsel for the Minister could realistically say was that there was another interpretation of s 424(3)(b) available, and that, on one view, that interpretation was preferable. As previously indicated, that submission falls well short of providing any basis for departing from Al Shamry. Accordingly, the contention that Al Shamry should not be followed must be rejected. 155 That leaves for consideration the question of how each of these individual appeals should be determined. It also leaves for consideration the question whether, as a result of SAAP, any modification of the earlier pronouncements of this Court regarding the construction of s 424A(3)(b) is necessary. On this latter point, I agree with the observations of Allsop J regarding the impact of SAAP upon the reasoning of the Full Court in both Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471. 156 It is now necessary to consider just how the combination of Al Shamry and SAAP apply to the facts in each of these five appeals.
SZBMI 157 This appeal concerned two distinct categories of "information". The first was what Moore J has characterised as "the flight information". His Honour has concluded that this was "information" for the purposes of s 424A(1) because it conveyed knowledge of what the applicant had said in his written statement, upon his arrival in Australia, about his experiences in Bangladesh. The Tribunal used this knowledge in assessing the appellant's credibility, and in considering the veracity of his overall account. 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. 158 However, that is not the end of the matter. The question to be determined is whether the flight information was "a part of the reason" for affirming the delegate's decision. Moore J has concluded that it was not of sufficient significance to warrant such a finding. Allsop J disagrees. His Honour considers that the fact of inconsistency of the prior statement was "a part of the reason" for affirming the decision, albeit a "subsidiary and minor part" only. In my view, the analysis of Allsop J is correct. 159 In arriving at this conclusion, I have in mind the quite rigorous approach that has been taken by the High Court when considering the consequences of a breach of natural justice. 160 In Stead v State Government Insurance Commission (1986) 161 CLR 141, the High Court observed that not every departure from the rules of natural justice at a trial entitles the aggrieved party to a new trial. However, where there had been a denial of natural justice affecting the entitlement of a party to make submissions on an issue of fact, especially when the issue was whether the evidence of a particular witness should be accepted, it was difficult for an appellate court to conclude that compliance with those requirements could have made no difference to the outcome. All that the appellant needed to show is that the denial of natural justice deprived him of the possibility of a successful outcome. To negate that possibility, it was necessary for the appellate court to find that a properly conducted trial could not possibly have produced a different result. 161 In some respects, albeit in the context of the criminal law, the recent decision of the High Court in Antoun v The Queen [2006] HCA 2 reflects a similarly stringent approach to this issue. 162 The Full Court has applied the reasoning in Stead in relation to a denial of procedural fairness in Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541 (Lee, Goldberg and Weinberg JJ). A similar approach was taken by the Full Court in Lu (Black CJ, Sackville and Sundberg JJ). 163 The cases cited above concern the consequences of a denial of procedural fairness at common law. The appeals before this Court involve that same issue, albeit based not upon principles of fairness per se, but rather upon questions of statutory construction. The strict view that the courts have taken in relation to breaches of the rules of natural justice can, in my view, inform the application of the expression "a part of the reason" in s 424A. The cases suggest that this expression should be read benevolently, in favour of an applicant for review. If there is any doubt as to whether information that is adverse to an applicant did form a part of the reason for decision, that doubt should generally be resolved in favour of the applicant. 164 With regard to the second category of "information", which Moore J has aptly characterised as "the similar claims information", I am satisfied that this constituted information for the purposes of s 424A. I agree with Allsop J's conclusion that it played a part (albeit in conjunction with the other factors that Moore J has identified) in the Tribunal's conclusion that the appellant's evidence should not be accepted. It makes no difference, in my view, that the Tribunal's comments regarding the similar claims information appeared in its reasons after it had already indicated that it rejected the appellant's evidence. The fact is that the Tribunal regarded the similar claims information as a significant matter, sufficiently important to warrant specific mention. Although the Tribunal dealt with the matter as though it simply bolstered a conclusion that it had already arrived at, rather than as an element in the decision-making process, it does not follow that it did not play "a part" in its reasons for decision. It would be both artificial, and dangerous, to determine whether there is a causal link between a piece of information that is seriously adverse to a claimant, and a decision rejecting that person's claim, by focussing largely upon where, in the reasons for decision, the information is discussed. 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. 165 The possibility that the similar claims information contributed to the Tribunal's rejection of the appellant's claim cannot realistically be excluded. The appellant's credibility was of critical importance to his claim. Any "information" that the Tribunal considered as casting serious doubt upon his credibility, whether referred to in the early stages of its reasons, or as fortifying its earlier conclusions, seems to me likely to have played "a part" in the decision. For that reason, the Tribunal's failure to provide the appellant with notice, in writing, of its intention to rely upon that "information" gave rise to a breach of s 424A, and in accordance with SAAP, to jurisdictional error. 166 I also agree with Allsop J's observation that there was nothing procedurally unfair about what the Tribunal actually did. The appellant is entitled to succeed because the requirements of s 424A have not been met, and not for any other reason. 167 This appeal should be allowed, with costs.
concluding observations 174 There are several other comments that I wish to make about these appeals generally. They seem to me to illustrate, and not for the first time, the problems that can arise when the legislature embarks upon the course of establishing a highly prescriptive code of procedure for dealing with visa applications, and with subsequent applications for review, instead of simply allowing for such matters to be dealt with in accordance with the well-developed principles of the common law. 175 One of the reasons for the difficulty is that the legislature has chosen to use the term "information" when searching for a global expression designed to trigger the obligations imposed under s 424A. The term "information" is not defined in the Act, and if it were, it would not necessarily conduce to clarity. "Information" is inapt, as a word, to encompass at least some of the circumstances that would normally give rise to a duty, as a matter of natural justice, to invite comment from an applicant. Its use in s 424A can lead to unsatisfactory results. 176 For example, there may be an obligation under s 424A(1) for the Tribunal to invite an applicant for review to comment upon an adverse inference that might otherwise be drawn based upon a discrepancy between what the applicant said in an interview for the purpose of a visa application, and what he or she later said at the hearing. Under Al Shamry, that discrepancy would not fall within the s 424A(3)(b) exception, because the interview was not information given for the purpose of the Tribunal application. 177 There are variants of this position that give rise to difficulty. If the applicant has never at any stage said anything about the particular subject, and mentioned it for the first time at the Tribunal hearing, an inference might be drawn that his or her account was a recent invention. It is questionable whether there would be an obligation under s 424A(1) to invite comment upon the applicant's previous silence since this may not relevantly constitute "information" within the meaning of s 424A(3)(b). Yet if the position is slightly different, and the applicant has given a detailed account of the matter on a previous occasion, omitting mention of a detail now raised for the first time in the hearing, there is some support for the proposition that this may constitute "information", and give rise to the s 424A(1) duty. 178 There is little difference, in reality, between disbelieving an applicant because of a discrepancy between the account given at a hearing, and an earlier account, and disbelieving that applicant because a fact was mentioned for the first time at a hearing, nothing ever having been said about the matter before. The process of reasoning that the Tribunal might adopt in the two cases is essentially the same. Yet the statute, which provides "an exhaustive statement of the requirements of the natural justice hearing rule", seems to distinguish between these two cases, simply because of the unfortunate use of the term "information" in s 424A. 179 In the same way, the present position can lead to odd results. As can be seen from the appeal in SZEEZ, if an applicant makes a statement during the course of an airport interview that is inconsistent with later evidence given at a hearing, s 424A(1) requires that written notice be given of the possible use of that statement to draw inferences against the applicant. If, however, the applicant repeats the earlier statement at some stage during the course of the hearing, and adopts it as true, and then subsequently resiles from that statement, the Tribunal is not obliged to afford the applicant an opportunity to comment upon the discrepancy: see generally SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 per Bennett J. This is because the adoption of the earlier statement brings it within the scope of the s 424A(3)(b) exception. If, however, the Tribunal proposes to use the earlier statement as the "reason", or "a part of the reason" for affirming the decision under review, rather than the later adoption, it must comply with s 424A(1). 180 Distinctions of this type, which are highly refined, and which require the Tribunal to engage in extraordinarily sophisticated reasoning, do not seem to me to serve any worthwhile purpose. 181 Were it not for SAAP, it would matter little whether any notice, in compliance with a duty to act fairly, was given orally or in writing. Indeed, in some cases it might not matter whether such notice was given at all. The Tribunal's duty would be simply to ensure that it acted fairly. If it failed to give the applicant the requisite notice, but it could be convincingly shown that this had made not the slightest difference, the decision would be allowed to stand. That would accord with the reasoning in Stead, Dagli and Lu. 182 However, since SAAP, fairness is no longer the touchstone. Indeed, it may be regarded as being only marginally relevant. The requirements of the section have been construed as being imperative, and accordingly, must be met, whatever the circumstances may be. The only limiting requirement is that the information in question be "a part of the reason" for affirming the decision. The causal connection must be real, but need not be great. It is not necessary to show that "but for" the information in question the result would have been different. It is sufficient simply to show that the "information" contributed in some way, which renders it an operative causal link, to the decision itself. 183 With great respect, I doubt that the legislature ever contemplated that s 424A would give rise to the difficulties that it has, or lead to the results that it does. The problems that have arisen stem directly from the attempt to codify, and prescribe exhaustively, the requirements of natural justice, without having given adequate attention to the need to maintain some flexibility in this area. This desire to set out by way of a highly prescriptive code those requirements was no doubt well-intentioned, and perhaps motivated by a concern to promote consistency. However, the achievement of consistency (assuming that this goal can be attained) comes at a price. As is demonstrated by the outcome of at least some of these appeals, codification in this area can lead to complexity, and a degree of confusion, resulting in unnecessary and unwarranted delay and expense. To put the matter colloquially, and to paraphrase, "the cake may not be worth the candle". I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.
(2001) 110 FCR 27
(1952) 85 CLR 237
(1993) 177 CLR 485
(1983) 72 FLR 1
(2003) 133 FCR 541
(1989) 166 CLR 417
(2004) 141 FCR 346
(2002) 124 FCR 223
(1990) 169 CLR 245
(2001) 113 FCR 396
(1998) 194 CLR 355
(2000) 204 CLR 82
(2005) 215 ALR 162
(1986) 161 CLR 141
(2000) 102 FCR 595
(1999) 95 FCR 553
(2004) 206 ALR 471
(1996) 187 CLR 416
(2000) 105 FCR 39
(1987) 162 CLR 645
(2000) 101 FCR 352
(1998) 94 FCR 28
(2001) 105 FCR 212
(2002) 124 FCR 276
(1985) 6 FCR 155
(2003) 214 CLR 1
(1944) 68 CLR 227
(1978) 141 CLR 88
(1968) 118 CLR 32
(2003) 129 FCR 214
(2003) 132 FCR 291