Was s 424A engaged?
22 The appellant submitted that it was "quite clear" that the Tribunal considered that both the Delofski and the Barneston decisions "or more precisely what was not in them and in the applications leading up to them, undermined the appellant's claims and thus was a part of the reason for affirming the decision under review". He maintained that this was evident both from the transcript of the hearing and the reasons for decision and that the primary judge erred in deciding otherwise.
23 As the primary judge recognised, s 424A does not require that notice be given of every matter the Tribunal might consider relevant to the decision under review (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [15]). In considering what constitutes "information" for the purposes of s 424A the High Court observed in that case (at [17]) that:
The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention.
24 In SZBYR at [18] the plurality held that "information" does not include "the tribunal's subjective appraisals, thought processes or determinations", "identified gaps, defects, or lack of detail or specificity in evidence", conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc", approving the observations of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 at [24].
25 In SZBYR at [17] the plurality said that it was difficult to see why the information in question in that case (certain passages in the appellant's statutory declaration) would itself be "information" for the purposes of s 424A when they "did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations".
26 The plurality also held in SZBYR at [18] that, no matter how broadly "information " was to be defined, its meaning in the present context "related to the existence of evidentiary material or documentation, and not to the existence of doubts, inconsistencies or the absence of evidence".
27 The appellant accepted all these matters of principle. Furthermore, the appellant acknowledged that in SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90 ("SZGTV") a Full Court held (in similar circumstances to the present) that s 424A was not engaged.
28 SZTGV involved two appeals and an application for leave to appeal. In the leave application, SZUBU (also, as it happens a lower caste man from the Punjab who arrived in Australia on a student visa) claimed to have a well-founded fear of persecution in India because, amongst other things, the family of a higher caste Sikh woman with whom he had had a relationship before he had left India made threats against him, and also because he was bisexual. Sometime after his student visa expired, he was apprehended and taken into immigration detention where he was interviewed by a compliance officer. He later applied for a protection visa but a delegate of the Minister decided not to grant his application and the Tribunal affirmed the delegate's decision. He applied for judicial review in the Federal Circuit Court but he was unrepresented and, as he was unable to identify a jurisdictional error, the judge summarily dismissed his application. On his application for leave to appeal, in which he had legal representation, he argued that "the Tribunal infringed s 424A because it did not notify him that it was intending to use the contents of (or, in fact, the absences from) his compliance interview as part of its process of reasoning in affirming the delegate's decision". The compliance interview was recorded. The record of the interview indicated that the appellant failed to mention either the Sikh woman or what the Full Court referred to as her "furious family" or his bisexuality as reasons for not wanting to return home or to leave Australia or as an explanation for why he came here in the first place. The Tribunal reasoned that these omissions provided a good reason to disbelieve the appellant. In its decision record it said, relevantly, at [51]:
The Tribunal noted that the applicant was interviewed by compliance shortly after being detained for being an unlawful noncitizen in Australia. He was asked pursuant to s 424AA of the Act, to explain the responses he provided when interviewed by compliance if he feared returning to India for any reason and it was noted that no mention was made by the applicant of his relationship with the Jat Sikh girl, his caste, or his sexuality. He was advised that the information contained in the compliance interview, subject to his response could form the reason or part of the reason for the Tribunal affirming the Department's decision as information could impact adversely on his credibility …
29 The Full Court said at [102]-[103]:
102 It is apparent therefore that the Tribunal's process of reasoning involved (a) a consideration of what had not been said at the compliance interview; (b) the assertion of a forensic principle that if the applicants version were true, then he would have mentioned it at that time; and (c) a deduction that because it was not mentioned at that time the account was false. The absence of any reference to the Jat Sikh woman or his bisexuality was to be seen as a matter from which one good reason to the falsity of his account.
103 The applicant's argument was that this matter was "information" which was required to be disclosed to the applicant within the meaning of s 424A. However, for the reasons we have already given, an absence of evidence is not information within s 424A: SZBYR at [18].
30 On the face of things, the present case is relevantly indistinguishable. The appellant's counsel, Mr Karp, however, made two valiant attempts to distinguish it,
31 The first attempt was in his written submissions. It was based on the judgment of Perry J in Kaur v Minister for Immigration and Border Protection [2016] FCA 132. Mr Karp contended that there is a difference between an absence of evidence (as in STGV) and "evidence to prove a negative" (Kaur). But Kaur was a very different case.
32 Kaur concerned an application for some eight subclasses of student visa. A delegate of the Minister was not satisfied that Ms Kaur met the criteria for the grant of any of the visas. One of the primary criteria was that the appellant be enrolled, or have been offered a place, in a principal course of study specified at the time of application as a type of course for the relevant subclasses. The MRT found that Ms Kaur did not satisfy this criterion because there was no evidence of enrolment or of any offer of enrolment. In so doing, it took into account the records held on the computer database known by the acronym "PRISMS" (Provider Registration and International Student Management System), which indicated that she had no current enrolment. Ms Kaur argued that the MRT failed to comply with s 359A, the analogue of s 424A, in that it failed to provide clear particulars and an opportunity to comment on the PRISMS records. After referring to what the High Court said in SZBYR at [18] about s 424A, and in particular the observation that "information" relates to "the existence of evidentiary material or documentation", her Honour said at [43]-[44]:
43 In short, in my view it is clear from these passages that mere deficiencies in a visa applicant's evidence, such as a lack of evidence on a statutory criterion, do not constitute "information" for the purposes of s 359A. Rather, as their Honours explain in SZBYR, section 359A is concerned with the existence of evidentiary material or documentation on a statutory criterion.
44 So understood it is apparent that the PRISMS record was not a mere absence of evidence on an essential statutory criterion. It was evidentiary material showing that there was no record of any current enrolment by the appellant in that database, contrary to the statutory criterion requiring that there be enrolment. That evidentiary material in turn formed part of the reason for the decision that the appellant had failed to satisfy that statutory criterion and therefore for affirming the decision on review. The fact that the evidentiary material was used by the Tribunal as, in effect, "proof of a negative", that is in support of its finding that there was an absence of evidence in the appellants' favour, did not exempt the Tribunal from complying with s 359A and affording the appellants an opportunity to comment on the adverse evidentiary material.
(Original emphasis.)
33 In the present case, neither MRT decision record contained a rejection or denial of the appellants' protection claims nor, in its terms, did it undermine them. The absence of any reference in the MRT decision records to the appellant's relationship with his in-laws, the alleged attempt on his life, or any apprehension that he might come to harm in India because of antipathy on the part of his wife's family (or at all) only related to the appellant's credibility. In contrast to the position in Kaur, the decision records do not constitute evidentiary material showing that the appellant failed to satisfy a statutory criterion, which would provide a reason for the Tribunal to affirm the decision under review. Stripped of the context in which the Tribunal deployed them, no feature or attribute of the decision records required their disclosure because of themselves they did not "tend for or against affirmation or rejection of the decision of the delegate as pieces of information in their own right": SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109 at [104] (Buchanan J), [107] (Perram J). Unlike the PRISMS record in Kaurs, they did not and could not tend to prove that the criterion for the grant of a protection visa in s 36(2) was or was not satisfied. In these respects they were no different in nature from what was disclosed by the record of the compliance interview in SZTGV and the use to which that material was put. They were only relevant to the appellant's credibility. The conspicuous omissions in the appellant's consecutive accounts to the MRT contributed to the Tribunal's conclusion that the appellant was not a truthful witness. Information merely going to credibility is not caught by s 424A: MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483 at [29] (Heerey J); SZTNL v Minister for Immigration and Border Protection (2015) 231 FCR 204 at [52]-[53] (Griffiths J). In MZXBQ Heerey J observed:
It can also be noted that the section speaks of information that "would" be the reason etc, not "could" or "might". This is another indication that information merely going to credibility is not within the section. An applicant may be disbelieved on some issues, but believed on others, or the application may be determined one way or the other by issues unrelated to credibility. Lack of credibility in itself does not necessarily involve rejection, denial or undermining of an applicant's claims.
34 The second attempt to distinguish SZTGV was made during oral submissions. Mr Karp argued that, unlike SZTGV, in the present case the Tribunal was concerned with reports on previous visa applications. That is true but the distinction is immaterial. In Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052; 149 ALD 552, Yates J held that certain information put to the applicant by the Tribunal which was apparently "very different" from other evidence before the Tribunal, derived from her earlier tourist visa application, was not "information" within s 424A. Thus, even if SZTGV were distinguishable, SZTJF is not.
35 Mr Karp also submitted that the Tribunal considered that the two decision records were "information" and that this was important because s 424A depends on the Tribunal's consideration that certain information would be the reason or part of the reason for affirming the decision under review: Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at [24]. Certainly, the Tribunal described them as "information" during its interrogation of the appellant and told the appellant that they would or could be the reason or part of the reason for affirming the decision under review. But the question here is whether they were in fact information within the meaning of s 424A. That question is not answered by what the Tribunal did. At best, the Tribunal's conduct proves that it considered that the information would be the reason or part of the reason for affirming the delegate's decision. Yet, the Tribunal may well have taken the course that it did for more abundant caution or out of a concern for fairness although the section had no operation: SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30]. At all events, if the Tribunal believed that the decision records and/or what they revealed amounted to "information" for the purposes of s 424A, then it was mistaken.
36 It follows that the primary judge was correct. Despite what the Tribunal itself may have thought, s 424A was not engaged.
37 The appeal should be dismissed with costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.