Section 424A of the Migration Act
26 Section 424A of the Migration Act is intended to codify an aspect of the Tribunal's obligations, as a decision-maker exercising statutory power in relation to important matters affecting the rights of people who come before it, to afford to those people procedural fairness. The fact that the obligation is codified is emphasised by s 422B of the Migration Act. The codification is in specific terms. Those terms impose on the Tribunal obligations that would not necessarily have fallen on it in the absence of codification of the obligation to provide procedural fairness. In the absence of the codification, the provision to the person affected of all of the information that the Tribunal had might have been sufficient compliance. The codification requires a more detailed approach by the Tribunal. Not only does s 424A(1)(a) oblige the Tribunal to give "clear particulars" of the information, s 424A(1)(b) requires that the Tribunal give an explanation of its tentative reasoning processes in relation to the information, so as to ensure, as far as is reasonably practicable, that the person understands the relevance of the information. The federal magistrate failed to give sufficient attention to the specific requirements of s 424A(1). In taking the view that the Tribunal did all it had to do by providing to the appellant all of the information the Tribunal had from DFAT, his Honour overlooked the obligations to give particulars and to explain the relevance of that information.
27 To deal adequately with the first ground of the appellant's application to the Federal Magistrates Court, it was necessary for the federal magistrate to ask himself whether the Tribunal had given "clear particulars of any information" that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. It was necessary to examine all of the information the Tribunal had that answered that description and to examine the particulars given, to ascertain whether there had been compliance. The precise information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review is usually ascertained by reference to the Tribunal's reasons for decision. Any information on which the Tribunal has relied to come to a conclusion that is part of the reasoning of the Tribunal leading to its conclusion that the decision under review should be affirmed will be information that answers the description in s 424A(1)(a). Because the Tribunal has relied on information, there must have been a time at which that information came to be the reason, or part of the reason, for the Tribunal to affirm the decision under review. At that time, the Tribunal's obligation to provide particulars of that information, and an explanation of its relevance, came into being. It came into being whether or not the Tribunal had already complied with s 424A(1) in relation to other information.
28 Undertaking that kind of analysis in the present case leads to the crucial question in this appeal. That is the question whether the fact that the DFAT reports contained, as the Tribunal put it in [98] of its reasons for decision, "nothing...which confirms the [appellant's] claims that he was a member of the Freedom Party or that he was the Joint Secretary of the party in the Narsingdi district from 1994 to 1995." Was the absence of such material in the DFAT reports information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review? If so, did the Tribunal comply with s 424A(1)(b), by ensuring that the appellant understood the relevance of that information and the consequences of it being relied on in affirming the decision under review?
29 The issue dividing the appellant and the Minister in the present case is whether the absence of information in a document received by the Tribunal from a third party can amount to "information" for the purposes of s 424A(1)(a) of the Migration Act.
30 In NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174, the Full Court dealt with a case in which the Tribunal had before it a report of a medical practitioner, Dr Nair. The Tribunal had made inquiries of Dr Nair, including asking him to give opinions on specific questions. Dr Nair failed to respond to one particular question. The Tribunal relied on that failure to respond in arriving at a finding adverse to the applicant in that case. The Tribunal did not comply with s 424A(1) of the Migration Act in relation to that failure. The question for the Full Court was whether the Tribunal was bound to comply with s 424A(1). Weinberg and Allsop JJ held that the Tribunal was so bound. Tamberlin J dissented on this issue, although agreeing in the result of the case. At [26]-[27], Weinberg J said:
On the appeal to this Court, Allsop J is of the view that the absence of any statement in Dr Nair's report regarding the likely behaviour of the appellant in a confrontational situation was not treated by the Tribunal merely as a "gap", but as implicitly probative of the psychologist's view that there was no such danger. As his Honour observes, if the form of Dr Nair's report, including what it did not say, did not have this significance for the Tribunal there would have been no point in mentioning it.
Allsop J is of the opinion that the Tribunal's use of the omission in Dr Nair's report was "information" that should have been the subject of a letter in compliance with s 424A. His Honour considers that the Tribunal's failure to comply with the strict requirements of that section is fatal, and that jurisdictional error has therefore been established.
31 At [73], Allsop J referred to the proposition, stated by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 (2004) 206 ALR 471 at [24] that a gap or lack of evidence was not "information" for the purposes of s 424A(1). At [74], Allsop J said:
As part of its reasons for not being satisfied that the appellant might react in a confrontational way upon his return to Iran, the Tribunal cited the fact that Dr Nair's report did not state that he might. This was not in answer to a proposition that Dr Nair's report did say that. Rather, it was a statement that the form of Dr Nair's report and its failure to say that the appellant would behave in this way was of assistance in concluding that he would not. That is, the absence of such a statement in Dr Nair's report was taken by the Tribunal as supportive of the conclusion that he would not behave in that way, implicitly a relevant proposition as to how the appellant would behave upon return to Iran was being extracted from the form of Dr Nair's report.
32 His Honour went on to say that care needs to be exercised in applying the proposition from VAF, to which his Honour had referred in [73]. His Honour then said:
Here, the absence of something in Dr Nair's report was not merely taken as a gap, but was implicitly probative of Dr Nair's view that there was no such danger.
33 The facts of NBKS are relevantly indistinguishable from those of the present case. What the Tribunal relied on in [98] of its reasons for decision was not merely a gap in the reports from DFAT. The Tribunal's statement that nothing in the DFAT reports confirmed the appellant's claims that he was a member of the Freedom Party or its joint secretary in the Narsingdi district from 1994 to 1995 is a conclusion drawn from a reasoning process that relies on a number of implicit positive propositions. The first of those propositions is that the DFAT informant had the requisite knowledge to supply evidence about the appellant's claims as to membership and office-holding in the Freedom Party. The second is that, in response to DFAT's inquiries, the informant would have been likely to pass on this knowledge to DFAT when he was interviewed by a DFAT representative (which may involve the assumption that the DFAT representative would have asked the informant the right questions). Third, the informant did not pass on such knowledge to the DFAT representative. Fourth, the reason for the failure to pass on that knowledge was that the facts did not exist as the appellant asserted them, and therefore the informant did not know them. As was the case in NBKS, the absence of evidence from someone who would have been expected to be able to provide such evidence, and to provide it, was treated as an implicit positive statement, not merely as a gap.
34 Much of the argument in the present appeal focused on the question whether NBKS had been overruled by the subsequent judgment of the High Court of Australia in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26. That case was concerned with reliance by the Tribunal on a prior statutory declaration of the two applicants in that case. The argument was that inconsistencies between the statutory declaration and the oral evidence of the applicants to the Tribunal was "information", for the purposes of s 424A(1) of the Migration Act. At [16]-[20], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ expressed several reasons for rejecting this argument. At [17], their Honours pointed out that it had not been demonstrated that the statutory declaration would be the reason, or a part of the reason, for affirming the decision under review in that case. At [18], their Honours said that it was difficult to see how the Tribunal's disbelief of the oral evidence, as a result of inconsistencies with the statutory declaration, could be characterised as constituting "information" within the meaning of s 424A(1)(a). Their Honours referred to the proposition of Finn and Stone JJ in VAF with approval. After quoting that proposition, their Honours said:
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
35 At [19]-[20], their Honours pointed to the practical difficulty of regarding inconsistencies as information for the purposes of applying s 424A. In particular, at [20], their Honours referred to the ongoing need to comply with s 424A in respect of each new round of inconsistencies, arising from the last compliance with s 424A. Their Honours characterised this as a "circulus inextricabilis". At [21], their Honours concluded that the relevant parts of the statutory declaration were not information falling within s 424A(1)(a) of the Migration Act.
36 It is apparent from an examination of the reasoning of the majority in SZBYR that the Court was not dealing with the sort of implicit positive that was the subject of NBKS and is present in this case. The approval of the proposition from VAF is not inconsistent with the view of Allsop J in NBKS that care needs to be taken in applying that proposition. Most significantly, despite the fact that the majority in the High Court was citing authority of the Full Court of this Court (other cases were cited besides VAF) there is no express statement to the effect that NBKS should be overruled.
37 Subsequently, a number of judges of this Court have discussed the question whether NBKS has been overruled impliedly by SZBYR. So far as the researches of counsel in this case show, no judge has concluded that NBKS is no longer good law. A number of judges have expressed the view that NBKS has not been overruled. The question was raised in the judgment of the Full Court in Minister for Immigration & Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 (2007) 163 FCR 285 at [71]-[75] but the Full Court left it unresolved. In SZGSI v Minister for Immigration & Citizenship [2007] FCAFC 110 (2007) 160 FCR 506, the Full Court held that the Tribunal had not failed to comply with s 424A(1) of the Migration Act in respect of the result of its inquiries of a clergyman at a church attended by the appellants in that case. The clergyman had said that he was unable to comment about certain matters. The Full Court held that this inability was not "information" for the purposes of s 424A(1)(a), but merely a gap in the evidence. At [43], Marshall J expressed agreement with the view of Weinberg J in NBKS. At [1], Moore J expressed agreement with the reasons for judgment of Marshall J on the relevant point. At [6], Finn J expressed agreement with Marshall J, except that his Honour refrained from expressing a view on whether, if at all, an omission could constitute "information" under s 424A. His Honour referred to SZBYR in this context. In SZKCQ v Minister for Immigration & Citizenship [2008] FCAFC 119 (2008) 170 FCR 236, the Full Court held that the Tribunal had failed to comply with s 424A(1)(b) of the Migration Act in respect of the results of investigations by the Tribunal through the Australian High Commission in Islamabad to officials of a political party in Pakistan. One member of the Full Court, Buchanan J, also held that there had been a failure to comply with s 424A(1)(a). In the course of his judgment at [85]-[93], Buchanan J discussed at some length the question whether NBKS had been impliedly overruled by SZBYR and expressed the view that no such overruling had occurred. The other two members of the Full Court, Stone and Tracey JJ at [1] declined to express any opinion on that point. To the extent to which opinions have been expressed, they favour the proposition that NBKS remains good law. I share that view, on the basis of my own reading of NBKS and SZBYR.
38 There can be no doubt that the Tribunal did form the view that the failure of the informant in Bangladesh to confirm the appellant's claims as to membership and office-holding in the Freedom Party would be part of the reason for affirming the decision under review. The Tribunal expressed precisely this reasoning in the first sentence of [98] of its reasons for decision. At [100], for reasons that included that failure, the Tribunal did not accept that the appellant was ever a member of the Freedom Party in Bangladesh, or that he was the joint secretary of the party in the Narsingdi District from 1994 to 1995. The implicit assertion arising from the absence of material in the DFAT reports was used by the Tribunal to undermine the appellant's case.
39 The result is that, because the Tribunal relied on the failure of the informant in Bangladesh to confirm the appellant's membership or office-holding in the Freedom Party as an implicit assertion that the appellant was not a member or office-holder in that party, the Tribunal was obliged to comply with s 424A(1) of the Migration Act in respect of that information. It was obliged to give him particulars of the implied assertion of the informant. It was obliged to ensure, so far as was practicable, that the appellant understood why the information was relevant to the review and the consequences of it being relied on in affirming the decision under review. It was obliged to give the appellant an opportunity to comment on or respond to the information. The Tribunal did none of these things. It did not mention the information at all in its letter of 6 February 2009. Merely to pass on to the appellant the full text of the reports from DFAT did not operate to convey to him the implicit assertion on which the Tribunal relied or the way in which that assertion might be used to damage the appellant's case. The way in which the appellant responded to the letter of 6 February 2009 in his statutory declaration demonstrates that the significance of the implicit assertion did not occur to him. The terms of paras 3 and 4 of the statutory declaration show that the appellant was unaware that he had to deal with the proposition that he was not the joint secretary of the Freedom Party in the Narsingdi District, as a result of the material supplied by DFAT. Paragraphs 5 and 6 show that the appellant actually regarded the DFAT reports as corroborating his claim to membership of the Freedom Party.
40 There is obviously no substance in the argument of counsel for the Minister that this conclusion would give rise to a circulus inextricabilis of the kind referred to in SZBYR. An implied assertion is no different from any other item of information in the way in which s 424A(1) of the Migration Act impacts on it. In no sense does the requirement that the Tribunal comply with s 424A(1) in relation to such an item of information require the Tribunal to continue to notify an applicant of its reasoning processes, in the way in which applying s 424A(1) to every gap in the evidence identified by the Tribunal would do.
41 The Tribunal's decision in the present case was therefore tainted by jurisdictional error. Section 424A(1) imposed duties on the Tribunal. The Tribunal could not exercise its jurisdiction validly without performing those duties. It did not perform them. Its failure to do so was of importance in the outcome of the case, because of the reliance the Tribunal placed on the fact that the DFAT reports did not confirm crucial elements of the appellant's case. The federal magistrate was in error in failing to find that this jurisdictional error existed. His Honour should have held that the Tribunal failed to comply with s 424A(1) in respect of each of its paras (a), (b) and (c), in relation to this aspect of the DFAT reports. The Tribunal did not remedy this deficiency by complying with s 424AA in relation to the information.