20 The information set out in the letter about the appellant could not be dismissed from further consideration by the Tribunal as not credible, or not relevant, or of little or no significance to the decision. The author of the letter purported to record what the appellant had told him; the author alleged that the appellant was working for the present government of Eritrea. What the appellant was alleged to have admitted, and whether the appellant was working for the present government of his country of origin, were matters that bore upon whether he had a well-founded fear of persecution for a Convention reason. Both what he was alleged to have done, and the fact that the allegation had been made, could be seen as a reason not to wish to return to Eritrea. His alleged support of the current government of Eritrea reflected upon whether he had a well-founded fear of persecution in that country. Neither the alleged admission nor the allegation of support for the current government could be dismissed as a matter of no relevance or of little or no significance to the decision. Further, neither the alleged admission, nor the allegation about where the appellant's political sympathies lay, could be dismissed from consideration as material to which the Tribunal could not give credence.
21 It follows that procedural fairness required that the Tribunal draw the appellant's attention to the information. But how should that have been done? The appellant contended that he should have been shown the letter.
67 The High Court went on to hold that, in the case before it, the Tribunal had to inform the applicant of the substance of the allegations made before reaching its decision but was not required to provide a copy of the letter or to disclose any information that might have identified the author.
68 At [27] (p 99), the High Court said:
The information which was contained in the letter was relevant to that inquiry and it could not be ignored by the Tribunal. The Tribunal was able to put the information aside from consideration in its reasons only because it reached the conclusion, on other bases, that the appellant was not entitled to a visa. But that step, of putting the information in the letter aside from consideration, could not be taken before reaching the conclusion that the application should be refused. It follows that to conduct the review with procedural fairness, the appellant had at least to know the substance of what was said against him in the letter. Only then could he attempt to answer the suggestions made by the author of the letter that the appellant had reasons other than Convention reasons to absent himself from Eritrea and that he did not have a well-founded fear of persecution for a Convention reason.
69 In VEAL 225 CLR 88, both the Tribunal and the High Court were able to read the letter in question - it had been tendered in evidence in the judicial review proceedings and had been sent to the Tribunal. The High Court was in a position to judge whether the information set out in the letter could be dismissed by the Tribunal as not credible, or not relevant, or of little or no significance to the decision. The High Court was also able to assess the real impact or value of the Tribunal's statement that it gave the letter no weight.
70 In the present case, even if the reasoning in VEAL 225 CLR 88 were applicable in principle, we think that appropriate disclosure of the substance of the relevant material was made insofar as the material referred to in [19] and [37] of the Tribunal's reasons is concerned.
71 The appellant obviously was present at the interview. He also had an opportunity to obtain the tape recording made of that interview, had he desired to do so. The delegate had made clear in his reasons the difficulties which he had with the explanations of the central events offered by the appellant during the interview. Further, the appellant was apprised of the substance of what the delegate had taken from the other information and other cases to which he had regard in coming to the decision which he made.
72 In our judgment, the appellant, with the assistance of his migration agent, was well able to grasp that the delegate had used the interview and other documents and information to which he referred in his reasons adversely to the appellant. The substance of what it was that was used in this way and how it impacted upon the delegate's decision was revealed in the reasons for that decision. Those reasons referred to the substance of the OSCO reports. The appellant was well aware of the contents of the delegate's decision and the reasons for that decision and must be taken to have appreciated that the delegate's decision and the reasons for it would be placed before the Tribunal and that it was a matter for him whether he chose to set about attempting to deal with the adverse findings reflected in those reasons. At [19] of its reasons, the Tribunal specifically referred to the delegate's decision and expressly stated that it had had regard to material referred to in that decision. The present case is not a case where, without fair notice, the Tribunal travelled beyond the issues raised by the delegate's decision, as was the case in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
73 Given the terms of [19] and [37] of its reasons, we think that the Tribunal did not intend to refer to the delegate's reasons in the remarks which it made at [37] of its reasons. In our view, the Tribunal did have regard to the delegate's reasons (as it noted at [19] of its reasons) and was plainly entitled to do so. A sensible interpretation of [19] and [37] of the Tribunal's reasons is that, in making its decision:
(a) The Tribunal had regard to the delegate's reasons;
(b) The Tribunal did not use the OSCO reports in a way which was adverse to the appellant; and
(c) The Tribunal did not use the information obtained at the interview in a way which was adverse to the appellant.
74 It is apparent that the Tribunal conducted its own hearing on 4 April 2008 and that the appellant was given an opportunity to give evidence and present arguments at that hearing. The appellant availed himself of that opportunity. The Tribunal's adverse findings as to the credibility of the appellant were based upon its own impressions formed at the hearing before it but paying due regard to the other material before it. The Tribunal did not rely upon the views expressed by the delegate in his reasons nor did it rely upon the interview.
75 It is not necessary for us to decide whether the Tribunal was obliged to disclose to the appellant precisely what it had in mind when, at [37] of its reasons, it referred to "… material on file …" and the interview conducted by the delegate with the appellant. In our judgment, the substance of the contentions made in the OSCO reports and the adverse material taken from the interview were both fairly disclosed to the appellant before the Tribunal made its decision. In any event, the Tribunal did not make use of them. The disclosure was contained in the delegate's decision which the appellant had a fair opportunity to consider and to address, had he chosen to do so. It does not matter that the source of the information disclosed in this way may not have been specifically identified.
76 The remarks made by the Tribunal at [79] of its reasons are in a different category. At [79] of its reasons, the Tribunal made only the most general reference to the other case which it had in mind. The Tribunal did not provide any details about this other case. This other case may have been one of the cases referred to by the delegate or one of the cases covered by the reports in the Department's file in relation to the appellant or simply another case before the Tribunal.
77 The Tribunal stated that it did not use information from the other case in a manner adverse to the appellant. It is not clear to us whether the Tribunal intended to convey by that remark that it had not had recourse to the other case at all or simply that it had not had recourse to the other case in a manner adverse to the appellant.
78 The Tribunal did make clear that the applicant in the other case had made different claims. There is no reason to conclude that the existence or circumstances of the other case had or might have had a subconscious influence upon the Tribunal.
79 In our view, the present case is very different from VEAL 225 CLR 88. The Federal Magistrate was not in a position to assess the material which the Tribunal had in mind at [79] of its reasons in the way in which the High Court assessed the letter in VEAL 225 CLR 88. This Court is in no better position than was the Federal Magistrate. Because we have no idea what the Tribunal had in mind, we are unable to determine whether the subject matter of [79] of the Tribunal's reasons was credible, relevant and significant to the decision to be made and thus whether the Tribunal was obliged to give to the appellant an opportunity to deal with whatever it was that the Tribunal had in mind when it made the remarks which it did. Nor are we in a position to form a view as to what it was that might have been disclosed had the information been of that character. The present case may be contrasted with the circumstances dealt with by Allsop J in NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561: See, in particular, [83]-[94] (pp 583-586).
80 For these reasons, we are not persuaded that the appellant was denied procedural fairness in the present case in respect of the subject matter of [19], [37] and [79] of the Tribunal's reasons.
81 There is a related matter to which we should make brief reference. In effect, the appellant submitted that the Tribunal's reasons for not accepting his version of events were so flimsy and artificially constructed as to demonstrate bias against him or, at the very least, the taking into account of the very matters which the Tribunal expressly stated it was not taking into account.
82 We have noted at [29] and [30] above that there were real, substantial and justifiable reasons for the Tribunal doubting the appellant's credibility and ultimately not accepting his version of events. His lack of frankness about his use of the Taiwanese passport and his escape from the PRC were both significant matters which the Tribunal was entitled to take into account in assessing the appellant's credibility. His implausible statements that he did not know where he was going when he left the PRC and that it was a matter of indifference to him where he was going when he left the PRC are in the same category.
83 In our judgment, the Tribunal's reasons are not so obviously lacking logic and evidentiary support as to bespeak bias or the subconscious influence of other undisclosed adverse material.
84 The appellant's allegation of bias based upon the Tribunal's reasons therefore fails. There was no evidence before the Federal Magistrate or before this Court which would support the appellant's allegations of bias on any other basis.
85 The remaining contentions embedded in Grounds 1, 2 and 3 of the appellant's Notice of Appeal are all dependent upon findings of fact and matters going to the appellant's credibility. These matters cannot be challenged in this fashion by way of judicial review. For these reasons, Grounds 1, 2 and 3 must fail.
86 Ground 4 raises the question of whether or not the Tribunal complied with s 425 of the Act. There was tendered before the Tribunal and the Federal Magistrate a letter from the Tribunal to the appellant's migration agent, Ms Yu, dated 25 February 2008. In our view, that letter constitutes adequate compliance by the Tribunal with its obligations under s 425 of the Act.
87 The appellant also contended that the Tribunal had failed to allow him an adjournment of the hearing when, he said, justice and fairness demanded that an adjournment be granted. It is evident from [53] and [54] of the Tribunal's reasons that, when the Tribunal was questioning the appellant about the events of 16 July 2007, the appellant informed the Tribunal that he was confused and wanted an adjournment of the hearing. A short break was allowed to the appellant after which the appellant chose to continue with the hearing. The appellant did not place before the Federal Magistrate additional evidentiary material to support this Ground of Appeal. The Tribunal's record of what occurred does not establish that the appellant was denied a meaningful opportunity to participate in the hearing before the Tribunal.
88 For these reasons, Ground 4 is not made out.
89 There is no substance in either Ground 5 or Ground 6. It is clear from all of the material before us that the appellant well understood which PRC companies were being referred to in the questions asked by the Tribunal.
90 Ground 7, which is an omnibus catch-all, also fails.
91 Accordingly, the appeal fails and must be dismissed with costs.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Bennett and Foster.