THE FIRST GROUND
25 There were two parts to the appellants' first ground of appeal. The first, was that the RRT had failed to comply with s 424AA of the Act (the actual ground of appeal refers to s 424A, but the parties proceeded on the basis that it should have referred to s 424AA) when it did not disclose the contents of the final sentence of [34] of its reasons, supra, to the appellants, namely, the "detailed and accurate personal information relating to the applicant and her daughter." The second, was that there had been a failure to comply with s 424AA because the RRT did not tell the appellants that they could seek additional time to comment on an allegation that the mother had nominated a different residential address in Tripoli in the appellants' Visitor visa application.
26 As to the first part, the learned primary judge was of the view that the statement in question was not "information" for the purposes of s 424AA as it went solely to the credit worthiness of the mother. The appellants disagreed and relied upon a decision of Flick J in SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505. In that case, the RRT had disclosed the existence and contents of a letter, expressed in very similar terms to one relied upon by the applicant in that case, but which had surfaced in an unrelated application. It declined, however, to identify the author of the letter, or the organisation on whose behalf it had been sent. Flick J decided that these matters constituted "information" for the purposes of s 424A. His Honour said at [23]:
There may be circumstances in which the requirement to "give" information to which s 424A applies may not extend to a requirement to disclose the entirety of any document in which such "information" is contained. In those cases it may not matter for the purposes of making a decision affirming a refusal of a protection visa that the "information" in question is but part of a document or report touching other matters or containing diverse other matters. In those cases the disclosure of that specific part of a much lengthier document may be sufficient. But "information" for the purposes of s 424A cannot in all cases be clinically divorced from the context in which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case. In some cases it may be necessary to identify the "source" from which information has been obtained. Thus, in SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 Buchanan J concluded that extracts from a published book and the source of that material should have been disclosed. Indeed, the extent of disclosure may not necessarily be confined to the disclosure of material which ensures that a particular part is not rendered misleading; the touchstone is that ss 424A and 424AA require the disclosure of so much as to ensure that the opportunity to "comment... or respond..." is meaningful. In some cases the disclosure of the "substance" of information may be sufficient (NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]); in other cases "clear particulars" may require more.
27 Here, the appellants submitted that the "detailed and accurate personal information" should have been disclosed so that its accuracy could have been checked. In the appellants' submission, they were given no opportunity to check the correctness of this information in circumstances where, inferentially, it was relied upon by the RRT to bolster the credibility of the information which was disclosed. In that respect, it was argued that this material was bound up with that which was a rejection, denial or undermining of the appellants' claims, namely the statements which were disclosed pursuant to s 424AA concerning where the appellants were said to live in Tripoli. To use the language of Flick J, it formed part of the "surrounding context" which should have been disclosed.
28 The Minister disagreed. He put his case in different ways. He emphasised that ss 424A and 424AA imposed an obligation of disclosure that was narrower than the common law obligation of procedural fairness. Here, it was said, one should not assume that the contents of the last sentence of [34] were relied upon by the RRT to bolster the probative strength of what was otherwise said in the Adverse Letter about where the appellants lived. The contents, it was claimed, were merely descriptive of the letter. But even if that was not so, nonetheless, in isolation the contents of the last sentence did not constitute "information" in the required sense. For that purpose, the Minister relied upon [17] of SZBYR, where the plurality said:
Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
(My emphasis)
29 The Minister, in particular, emphasised the words "in their terms" in the foregoing passage as suggesting that the information must, unconnected to anything else, constitute a rejection, denial or undermining of a claim made. In that respect, I also note that the plurality had earlier said at [15]:
Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal's obligation is limited to the written provision of "particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review".
30 The Minister also placed reliance on a decision of the Full Court of this Court in SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109. In that case, the RRT did not disclose independent material published on the internet about the religion known as Falun Gong. This material was compared with the applicant's answers in that case about the history of this religion, to justify the conclusion that that applicant had fabricated her claims to be a follower of Falun Gong who feared persecution in China. The applicant contended that there had been a breach of s 424A. Buchanan J, with whom Spender and Perram JJ relevantly agreed, rejected that submission and said at [104]:
I feel obliged, therefore, to exclude from the concept of information under s 424A not only the intermediate findings of fact to which I earlier referred but also any process of comparison between the applicant's answers and the factual statements with which those answers were compared. That leaves only the factual statements themselves but, shorn of the analytical context in which they played their part, they have, as counsel for the Minister contended, no feature or attribute which makes them disclosable under s 424A. The primary facts about the Falun Gong movement and its founder are neutral. They do not tend for or against affirmation or rejection of the decision of the delegate as pieces of information in their own right. They only have that significance when matched with answers given by the applicant.
31 Gageler, Keane and Nettle JJ recently approved this passage in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [9].
32 In my view:
(1) I do not accept the Minister's submission that the last sentence of [34] of the reasons given by the RRT is simply descriptive of the contents of the Adverse Letter. I agree with the appellants that the last sentence is part of the explanation for why the RRT considered that it was appropriate to "lend weight to the anonymous information". It was appropriate precisely because the personal information was both "detailed" and "accurate".
(2) However, being an explanation for why the anonymous information was creditable, it did not otherwise, in its terms, constitute a rejection, denial or undermining of the appellants' claims. In SZBYR, the plurality also said at [18]:
Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [(2004) 236 FCR 549] that the word "information":
…does not encompass the tribunal's subjective appraisals, thought processes or determinations ... 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…
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. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
(Footnotes omitted)
(3) I consider the contents of the last sentence of [34] to form part of the RRT's "subjective appraisals, thought processes or determinations" to use the language of VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549, supra, as approved in the foregoing passage by the plurality in SZBYR. The sentence constituted a revelation about why the RRT had assessed the information about where the appellants lived from the Adverse Letter to be a matter to "lend weight" to.
(4) This conclusion does not involve any conflict with the decision of Flick J in SZNKO. His Honour was well aware of, and applied, the reasoning of the plurality in SZBYR. The conclusion reached by the Court in that case turns upon its particular facts.
33 This leaves for consideration the second part of this first ground. The appellants agreed that the RRT had disclosed to them the fact that the mother had used a different residential address in the appellants' Visitor visa application. They contended, however, that the RRT had failed to advise the appellants "that [they might] seek additional time to comment on or respond to" that information for the purposes of s 424AA(1)(b)(iii).
34 The transcript records that the RRT member below understood his obligations under s 424AA. Having made the disclosure set out at [13] hereof, the member then said:
Now, you may have additional time to respond to that, but I would ask for you to comment on that information.
35 Then, the member disclosed the information concerning the Visitor visa application. He said:
Also, under section 424AA, I have a copy of your visa application to come to Australia, and, first of all, it says that you had previously been refused a visa twice in 1998.
….
Okay. Now, the other issue is - sorry - the other issue is, on this visa application, you gave your residential address as Arandat Street, Obai, whereas you said that you needed to give them an address just for the postal - just for the information that they sent by post. But there's a - - -
…
Which is my point, because there's a separate section for your postal address where they send you correspondence. So my concern is that Arandat Street, Obai may be your permanent address because this is what you put in your protection - in your visitors visa application. And if you have lived somewhere but just want the mail sent to that address, you would have written your residential address, and Arandat Street as your postal address. So that's a - there's inconsistency between what you said before about the reason why you put this address and what you have actually put on this visitors visa application. This inconsistency may call into question your credibility about your residential location and you residential circumstances back in Lebanon.
36 There was then no expression by the member of the appellants' right to seek additional time to comment upon this particular information.
37 The Minister submitted that the RRT was wrong to consider that it was ever obliged under s 424AA to disclose to the appellants the address given by them in their Visitor visa application. Accordingly, it was said, there was no need to inform the appellants that they could seek additional time to comment.
38 With respect, the Minister's submission should be accepted. Examining the information "by its terms", there is nothing about the nomination of the particular address in the visa application which constituted a rejection, denial, or undermining of the appellants' claims. It is only when that address is compared with the residential address which now formed part of the appellants' case, that the address assumes importance. To use the language of Buchanan J in SZJBD, supra, the visa application address only has "significance when matched with" the address now contended for by the appellants, but otherwise "shorn of the analytical context" it is a "neutral" fact. Accordingly, it did not constitute "information" for the purposes of s 424AA, and the obligation to invite the appellants to have more time to consider it never arose.