FEDERAL COURT OF AUSTRALIA

SZUXO v Minister for Immigration and Border Protection [2016] FCA 1399

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This appeal is largely concerned with the scope of s 424A of the Migration Act 1958 (Cth). Section 424A is part of a suite of provisions which exhaustively state the requirements of the natural justice hearing rule before the Refugee Review Tribunal (and now the Administrative Review Tribunal) in cases involving review of protection visa decisions (see s 422B). Compliance with s 424A is mandatory; a breach of the section will be a jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [78], [173], [208].

2    The appellant is a Sikh who applied for a protection visa in 2013, claiming to fear persecution for religious reasons in India, his country of nationality. The power to grant a protection visa is vested in the Minister. As with any visa, the Minister is obliged to grant the visa if he is satisfied that the applicant satisfies the criteria set out in the Act and Regulations; otherwise he is obliged not to grant it: Migration Act, s 65(1).

3    The principal criteria for the grant of a protection visa appear in s 36 of the Act. In the present case, the criterion in s 36(2)(a) required that the Minister (or his delegate) or the Tribunal on review be satisfied that the appellant was a person in respect of whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (together “the Convention”), in that he had a well-founded fear of persecution by reason of his religion and was “unable or, owing to such fear … unwilling to avail himself of [India’s] protection …” (s 36(2)(a)). However, this criterion was not met, unless, amongst other things, the persecution involved “serious harm” and “systematic and discriminatory conduct” (s 91R). Alternatively, the Minister (or his delegate) or the Tribunal on review had to be satisfied that there were “substantial grounds” for believing that, “as a necessary and foreseeable consequence of the [appellant’s] removal from Australia to [India]”, there was “a real risk” that he would suffer “significant harm” as defined in s 36(2A) (s 36(2)(aa)). Neither the delegate nor the Tribunal was satisfied that the appellant met either criterion. The appellant then sought judicial review based on an alleged breach by the Tribunal of s 424A. The primary judge considered that the section was not engaged and dismiss the application. For the following reasons the appeal should also be dismissed.

The terms of s 424A

4    At the time of the Tribunal’s decision, s 424A provided as follows:

424A Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear 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; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

    (3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non‑disclosable information.

5    In substance, s 441A requires that the information be given to an applicant in a document, whether by handing it to him or her, to someone apparently living at his or her last residential or business address, by prepaid post, or electronic transmission.

6    Having regard to the exception in subs (2), it is necessary to refer to s 424AA as well. It stated:

424AA Information and invitation given orally by Tribunal while applicant appearing

If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)    the Tribunal may orally give to the applicant clear 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; and

(b)    if the Tribunal does so—the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

Background

7    The appellant is an Indian national from the Punjab who arrived in Australia on 5 April 2009 on a Student (Temporary) (Class TU–572) Vocational Education and Training Sector Visa (“student visa”). He returned to India on 5 December 2009 and married some eight days later. On 17 April 2010 he re-entered Australia, without his wife, again on his student visa.

The appellant’s student visa is cancelled

8    On 27 August 2010 the appellant was notified that consideration was being given to deciding whether to cancel his visa. The Minister was obliged to cancel a student visa if he was satisfied that the visa holder had not complied with condition 8202 (which required satisfactory course attendance) and that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control. On 17 January 2011 a delegate of the Minister decided to cancel the appellant’s visa because his attendance record had not been satisfactory, notwithstanding the appellant’s advice to the Department that his grandmother had passed away in April 2010 and that he was unable to attend college because he was suffering from depression. The delegate’s decision was affirmed on review by the Migration Review Tribunal (“MRT”) (Member Delofski). An application for judicial review was dismissed, as was the subsequent appeal.

9    In his reasons for decision the delegate informed the appellant that the cancellation of his visa limited the classes of visa for which he was eligible to apply. He provided the appellant with a list of the prescribed classes open to him. The first one listed was a Protection (Class XA) visa (“protection visa”), the second, a Medical Treatment (Visitor) Class UB visa (“medical treatment visa”).

The appellant applies for a medical treatment visa

10    Two weeks after the publication of the judgment in the appeal relating to the cancellation of his student visa, the appellant applied for a medical treatment visa. His application was refused and, on 17 July 2013, the MRT (Member Barnetson) affirmed the original decision, finding, in the absence of any medical evidence, that the appellant did not have a medical condition and did not need to remain in Australia for the purposes of medical treatment or for a related purpose. According to the decision record in that matter the appellant told the MRT that he was stressed by the death of his grandmother in June 2010 (sic), his father’s subsequent illness, and the fact that he was alone in Australia and unable to work.

The appellant applies for a protection visa

11    On 6 August 2013, the appellant applied for a protection visa, claiming to fear harm from his wife’s family on religious grounds, stating:

I am Sikh and my wife is Hindu. We have a love marriage. Now I have a severe threat from my inlaws that if I go back, they can seriously harm me … Police and government authorities in India, do not provide any sort of protection for religious clashes.

12    At an interview with a delegate of the Minister the appellant produced a “Certificate of Scheduled Caste” indicating that he was a member of the Mazbi Sikh caste, which, he said, was a lower Sikh caste. He told the delegate that, once his wife’s family found out that he was a Sikh from this caste, it wanted nothing to do with him. He said that after he married he had wanted to stay in India but that he fled in April 2010, fearing harm from his brother-in-law who, he claimed, would find and kill him. He said that on 11 April 2010, when he was at a road crossing in the city where he was staying in India, he was followed by his brother-in-law and six or seven others and that they tried to kill him, although no harm ensued because numerous members of the public were around to prevent it. He gave no other details and, although he said that there had been a previous confrontation with the brother-in-law, he offered no details of that and later said that the episode on 11 April 2010 was the only occasion when his brother-in-law’s family had confronted him since his marriage.

13    The delegate did not believe that the appellant’s claim that his life would be in danger if he returned to India and refused to grant his application. The appellant applied for review of the delegate’s decision and he was invited to appear before the Refugee Review Tribunal (“RRT”) “to give evidence and present arguments relating to the issues arising in relation to the [delegate’s decision]” (see Migration Act, s 425).

14    At the hearing the appellant repeated the claims he had made to the delegate, with some additions and clarifications. Having received the appellant’s evidence, however, and after questioning him with the assistance of a Punjabi interpreter, the Tribunal was not satisfied that the primary criterion for the grant of a protection visa (contained in s 36 of the Act) had been met and so affirmed the decision under review.

15    At the hearing the Tribunal member, Mr Keher, asked the appellant why, if what he was saying were true, he had not mentioned it before:

Q157    If, if what you’re saying is true about people wanting to harm you or your brother-in-law wanting to harm you in India and this being the cause for you to come back to Australia and causing you so much stress, why didn’t you mention it to anyone until you lodged your protection visa application?

16    The following exchange then took place:

A(I)    If I already have the visa and I’m not going back to India then why I should tell, why I do need to tell?

Ql59    It’s just that you were interviewed at least twice, including twice by Tribunal Members, once in 2011 and again in July 2013, concerning your situation and you had hearings with both of those Tribunal Members and you never mentioned anything about this.

A(I)    Nobody ever asked me any question like that, they just asked me questions about my study and related to that, they didn't ask about, any questions about my personal life. If they would have asked I would have answered.

Q160    But they asked you why you hadn’t continued studying and surely your coming back to Australia when you didn’t want to, you actually wanted to stay in India and you want me to believe that you came back to Australia because of these threats on your life.

A    Yes.

Q161    Now, all that you’ve mentioned to those two Tribunal Members in hearings was that your grandmother had died and you were stressed.

A(I)    My grandmother, she passed away and there was no one here who can console me and also it was four to five years that I’m away from my wife and that’s why there was stress from everywhere.

Q162    But that’s what — I understand that you want me to believe that there’s stress from everywhere, but if — let’s look at the one in 2011, this is when your student visa was being cancelled.

A     Yep.

Q163    And you appealed that to the Tribunal and you appeared before a Tribunal Member, Mr Delofski.

A     Yeah.

Q164     And part of the information before the Tribunal was that you’d been issued with a notice of cancellation of your student visa and the delegate then considered whether or not it should be cancelled and you wrote a letter to the Department seeking to explain why it shouldn’t be. So you wrote a letter to the Department and in that letter you don’t mention anything about problems with your wife or your marriage or her family or them threatening to kill you or wanting to kill you, you mention none of that, even though it was only a few months beforehand, but you say my grandmother died and I’ve been stressed and I can’t study.

A(I)    I was stressed because of my grandmother’s death and that because that was my first priority at that time and they didn't ask me anything about my personal life that I’m having problem in my personal life and whatever the situation was at that time with my studies and all those things, that’s why I just provide information regarding that, about my student visa und things like that, that, how it all happened, it’s just like according to the situation .....

Q165     And then again when you appeared before the Tribunal in 2013 when you had applied for a medical treatment visit a long may visa, even though you didn’t meet any of the criterion (sic), you appeared before Member Diane Barnetson. And this was in a situation where you were claiming that you were depressed. And the Tribunal Member specifically asked you to explain your situation and you said that your grandmother had died and your father had had a heart attack, though the documentation you put forward actually said that he’d actually had depression, he didn't have a heart attack. So that was an opportunity for you to say my situation is my grandmother has died, my father has got depression, I’m depressed because my parents-in-law want to kill me, my marriage hasn’t worked out because my wife is having problems with her family. You never said any of that. Why not?

A(I)    They didn’t ask me anything like that, they just asked me about related to study and I answered .....

Q166    But this is all related to study, this is all related to your reasons for being depressed and stressed. So why, if any, if any of this story you say is true you’ve had years of opportunity to say it and you never did until you lodged a protection visa application.

…

Q181    If you look at your, you've come to Australia on a student visa, you did virtually no study. Your visa, just listen.

A     Yes.

Q182     Your visa was cancelled.

A     Yeah.

Q183    And then you appealed that and lost. You weren’t doing any study while you were undertaking those appeals, even though you could have. You then are faced with having to leave Australia and you lodge a medical treatment visa, even though you don’t meet any of the criteria for it, and then it’s years after you arrive in Australia, so nearly four years after you arrive in Australia you lodge a protection visa application. And this is despite several opportunities to actually mention the things that you put in that protection visa application, you had several opportunities both before the Department and in any submissions or letters that you put in and also before the Tribunals that heard your matters, and you never mentioned anything about problems with your in-laws.

…

O.K. Now, some of the information I've put to you I need to put to you again in a particular manner. I know we’ve already discussed it and I know you’ve already given me information in relation to it, but there’s a legislative requirement that I actually put it to you in a particular way. So I know it’s repetitive and I know we’ve already discussed it. So I’m going to put to you information that would be, depending on how I assess your case, the reason or part of the reason for affirming the delegate’s decision not to grant you a protection visa. The fact that I’m putting that information to you does not mean that I have made up my mind about it and doesn’t mean I’ve made an adverse finding about it. So the information is the decision record of Member Delofski of the 4th of July, 2011, also the decision record of Member Diane Barnetson of the 17th of July, 2013, also some records of the Department relating to your initial Student Visa application and the fake financial documents, also the PRISMS records, PRISMS is a database, it’s organised by providers to record all of your studies in Australia. Now, do you understand what the information is?

A(I)    Yes.

Q186    The information is relevant because in relation to the decisions of Mr Delofski and Ms Barnetson, they … sorry.

INTERPRETER

Sorry.

TRIBUNAL MEMBER

You go. They indicate that you had opportunities to actually tell about any problems that you had in India and apart from the death of your grandmother you didn’t mention anything. The information relating to the faked financial documents is relevant because it indicates that you actually didn’t have the financial resources to undertake study in Australia. You’ve provided false documentation to the Department in support of your Student Visa application and it raises questions as to whether or not any other documentation that you might provide could also be false. Do you understand why the information is relevant?

A(I)    Yes.

Q187    The consequences of my relying on the information is that if I were to rely on it I might not accept that there’s a real chance that you would be persecuted for one or more of the five Convention reasons if you were to return to India. The Tribunal might likewise not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of your being removed from Australia to India there is a real risk that you will suffer significant harm. If I were to rely on that information it may form the reason or part of the reason for me concluding that you are not a person to whom Australia has protection obligations and that you are therefore not entitled to be granted a protection visa. Do you understand the possible consequences of my relying on this information?

A(I)    Yes.

Q188    Now, if you want to you can comment or respond further in relation to the matter. Do you wish to comment or respond further?

A(I)    What .....

Q189    Well, I know we’ve already talked about these things and you’ve already given me some information and you’ve commented or responded previously, but do you want to say anything more?

A(I)    Just want to say that because of this they attack me and it’s my request that please search on the Google for this ..... they beat me and I’m having the problems.

Q190    O.K. That’s not what I’m asking. I’m asking in relation to this specific information what I’ve just said to you, is there anything more that you want to say?

A(I)     No, that’s fine.

…

17    The Tribunal did not inform the appellant that he could seek additional time to respond (see s 424AA(b)(iii)).

The RRT decision

18    The Tribunal did not accept that the appellant’s claims were true. To the contrary, the Tribunal considered that the application was “opportunistic and made so as to prolong his stay in Australia”. Consequently, it found that there was not a real chance that the appellant would “suffer serious harm amounting to persecution for a Convention reason” (s 36(2)(a) and 91R) or a real risk that he would suffer “significant harm” within the meaning of s 36(2A) as a necessary and foreseeable consequence of his removal to India (s 36(2)(aa)).

19    In its reasons for decision the Tribunal referred to its interrogation of the appellant about his visa history (at [19]) and mentioned the two MRT decisions. At [24] the Tribunal said:

I have carefully considered the claims and evidence of the applicant and do not accept them as true. I have particularly given weight to the sequence and history of his visa applications and what he said and claimed in matters previously before the Department and the MRT. The applicant had several opportunities prior to lodging a protection visa application to detail why he was depressed and what his concerns were, in particular why those matters affected his performance in relation to his student visa cancellation and the medical treatment visa. I place significant weight on the fact that in those applications no mention is made of any other issue or problem about India other than depression caused by the death of his grandmother. I do not accept his explanation that the Tribunal Members concerned didn’t ask him about such matters or they were not relevant. They were relevant, and the fact that no mention is made indicates to me that his later claims of fearing harm are not true[,] are opportunistic and are made so as to advance his claims for a protection visa.

The judgment of the Federal Circuit Court

20    The primary judge held that, notwithstanding what the Tribunal had put to the appellant during the hearing, the decision records were not “information” for the purposes of s 424A because “information” for those purposes “must constitute in their terms a rejection, denial or undermining of an applicant’s claim to protection (see Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052 (“SZTJF”) at [30]–[32])” and “material that goes to an applicant’s credit is not of itself ‘information’ that constitutes a rejection, denial or undermining of an applicant’s claims …”, nor is an absence of evidence. The primary judge also held that “given the absence of any reference to the matter of false documents in [the] analysis by the Tribunal [at [24]–[35]], it [could] not be said that the decision records ‘would be’ the reason or a part of the reason for a affirming the delegate’s decision”.

21    In these circumstances, the primary judge concluded that s 424A was not engaged.

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.

Associate:

Dated:    23 November 2016