FEDERAL COURT OF AUSTRALIA

SZKLG v Minister for Immigration & Citizenship [2007] FCAFC 198

MIGRATION – refusal of a Protection (Class XA) visa – appellant made two applications for a protection visa on different and inconsistent grounds – consideration of inconsistent applications by Tribunal – requirement to give notice pursuant to s 424A of the Migration Act 1958 (Cth) – whether compliance with s 424A must occur at a particular point in time – whether compliance with s 424A must be before the hearing

Migration Act 1958 (Cth)ss 424A, 425, 476

SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190considered

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009considered

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 considered

SZKLG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1799 OF 2007

DOWSETT, BENNETT AND EDMONDS JJ

19 DECEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  the appeal be dismissed; and

2.                  the appellant pay the first respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

THE APPELLANT’S CLAIM

1                     The appellant, claiming to be a citizen of the People’s Republic of China, arrived in Australia in February 2005 and, on 7 December 2006, applied for a protection visa pursuant to the Migration Act 1958 (Cth) (the “Migration Act”).  He was then in immigration detention.  A delegate of the first respondent (the “Minister”) declined the application.  The appellant then applied to the second respondent (the “Tribunal”) for review of that decision.  That application was unsuccessful.  Pursuant to s 476 of the Migration Act the appellant sought review of that decision in the Federal Magistrates Court and was, again, unsuccessful.  This is an appeal from the Federal Magistrate’s decision.

2                     The appellant has, at various times, used three different names for which we will substitute the letters “AB”, “CD” and “EF”.  The appellant now claims that his name is AB.  He says that he was born in China on 4 September 1964, lived at one address in Yanji city in Jilin Province from September 1964 until October 1994, and livedg7 at another address in the same city from December 1994 until February 2005.  He was educated in China, received a graduate certificate in accounting and was employed as an accountant from 1990 until October 1994.  He was divorced in 1997.  His mother and two sisters still live in China. 

3                     In 1994 he entered Australia on a business visa, intending to investigate import/export possibilities.  However he says that he subsequently worked as a tiler from 1994 until 2004.  After his arrival in 1994 he was told that if he lodged an application for a protection visa he could remain in Australia.  He said that he did not fear persecution at the time but lodged the application in order to have a better future here.  He paid money to somebody and gave them his passport.  He may have signed documents but does not remember doing so.  His application was refused.  There were further unsuccessful proceedings in connection with that application in the Tribunal and in this Court.  The appellant understood that his application had been refused, but friends told him that there might be other means by which he could stay in Australia.  He remained here until 2004.

4                     The appellant was diagnosed with diabetes in about 2000 and advised to be careful with his diet.  He experienced skin problems which failed to respond to Chinese and western medicine.  In 2001 or 2002 a friend suggested that he practise Falun Gong.  His mother had previously been a practitioner and had also suggested that he take it up for his health.  He went with a friend to a park in Burwood and another park in Campsie where he watched people doing Falun Gong exercises and learned how to do them.  He continued to practise Falun Gong until he left Australia in 2004, usually exercising at home.  He read books about Falun Gong and learned something of the philosophy of the group, including the importance of cultivating the mind and becoming a better person.  He was apprehended and placed in immigration detention in late 2004.  At that time he was using another person’s identity card bearing the name CD.  He told officials that he wished to return to China.  Travel documents in the name CD were arranged for him.  He claims that he used this false identity because he was warned by other Falun Gong practitioners in Australia that there were Chinese spies and informers in Falun Gong groups.  He thought that they may have reported his participation in Falun Gong to the Chinese authorities.   

5                     On arrival in China he experienced no problems at Shanghai airport.  He went to his mother’s house in Yanji.  Because she had moved to that house from her previous address, he thought that he would be safe.  His mother had been a Falun Gong practitioner prior to 1999 when the practice was banned in China.  She had thereafter practised at home, sometimes meeting other followers at their homes for discussion and practice.  She believed that she was under government surveillance because of her involvement with Falun Gong.  Several months prior to the appellant’s return to China, government officials had come to her home and questioned her.  She told them that she was not a practitioner of Falun Gong.  She had not experienced any other problems.  However she was watched. 

6                     The appellant claims that he practised Falun Gong at his mother’s home.  About a week after his arrival, whilst he was shopping with her, she was stopped in the street by men.  The men questioned her about her involvement with Falun Gong.  She denied being a follower.  They asked her about the appellant.  She said that he was her son.  They asked to see his identification documents.  He did not have them with him.  They identified themselves as government officials and said that they wished to come back to his mother’s house to see his identification.  As they had not produced their own identification documents the appellant refused.  He said that he had just returned from overseas.  They accused him of being a Falun Gong follower.  He said that he did not think that practising Falun Gong was a bad thing.  They again accused him of being a Falun Gong follower.  He said that in that case, it must be true.  They asked if he had been involved with Falun Gong in Australia.  He refused to answer.  He was arrested and taken to a detention centre where he was held for about a month. 

7                     Whilst in custody he was questioned about his involvement with Falun Gong.  He said that it was beneficial to his health but did not confirm or deny being a follower.  On several occasions he became ill and fainted.  As a result he was released on medical grounds.  He was told to report to the police every two weeks.  He did so but made arrangements to return to Australia, obtaining a passport in a false name.  He claims to have travelled to Australia with a people smuggler who arranged his passport.  After the appellant arrived in Australia, the people smuggler took his passport and left Australia.  The appellant claims that in Australia he continued to practise Falun Gong at home.  He was too busy to practise elsewhere.  He did not apply for a protection visa because he did not intend to remain in Australia for long.  He was waiting for the situation in China to improve.  He expected that this would occur in a year or two.  In June 2006 he was again detained and placed in immigration detention.  He has continued to practise Falun Gong whilst in detention.  He now fears that if he returns to China he will be detained and face other serious problems.  He also fears that he will be denied the right to practise Falun Gong, which practice he believes to be vital to his health and well-being.  Falun Gong is regarded as a religious cult in China.  He fears that in China he would be harmed for reason of his religion. 

OTHER INFORMATION

8                     Information available to the Tribunal indicated that the appellant first arrived in Australia on 22 October 1994, holding a sub-class 672 business (short-stay) visa.  On 30 November 1994 he applied for a protection visa, claiming to be an ethnic Korean who feared persecution by the Han people of China.  On 4 September 1996 a delegate of the Minister refused that application.  On 23 September 1996 the appellant applied to the Tribunal for review of that decision.  At that time he claimed to fear persecution for his alleged political activity in support of the establishment of a democratic and free Korean Autonomous Area.  On 2 December 1997 the Tribunal affirmed the delegate’s decision.  On 22 April 1998 this Court upheld the Tribunal’s decision.  On 22 October 1998 the appellant sought Ministerial intervention under s 417 of the Act, but no such intervention was forthcoming.  He remained at large in Australia until 15 June 2004 when he was placed in immigration detention.  At that time he claimed that his name was EF.  At a later stage, whilst in detention, he disclosed that his name was AB.  At some stage he also claimed to be CD.  He was interviewed whilst in detention and stated that he was prepared to return to China.  His only reason for remaining in Australia was his health.  He made no claim to be a Falun Gong follower and made no reference to fearing harm in China.  He was subsequently removed from Australia. 

9                     As previously mentioned, he claims to have re-entered Australia in February 2005.  On 7 June 2006 he was again apprehended and placed in immigration detention.  At that time he claimed that he had entered Australia using a false Korean passport in a name which he could not remember or on a false Chinese passport in the name CD.  He gave varying explanations as to how he had disposed of such passport. 

10                  On 16 February 2007 he appeared in the Tribunal.  He indicated that he was aware of the contents of his application for a protection visa dated 7 December 2006.  He prepared it with help from other detainees in the Villawood Detention Centre.  He followed the same procedure in preparing his application to the Tribunal and his submissions dated 12 February 2007.  He said that he was aware of everything contained in those documents and that everything in them was true. 

11                  The Tribunal questioned him about his reasons for seeking asylum.  He said that he could not practise Falun Gong in China, that his health was poor and that if he did not practise it his health would deteriorate further.  He feared that if he returned to China, the government would not permit him to practise Falun Gong.  In 2004 he had been in conflict with the government over his involvement with Falun Gong and was persecuted for this.  He was released on bail and made to report fortnightly.  He reported only once and then came to Australia.  He is known to the Chinese security service.  If he returns, he will be detained.  Asked why he would be detained, he said that he had said bad things about the government when he was previously in prison.  Asked if he feared harm for any other reason, he repeated that his health was poor and would suffer if he could not practise Falun Gong. 

12                  He was asked if he had used any other names whilst in Australia.  He said that in 2004 he had returned to China from Australia, using the name CD.  He said that he had done this because he had been practising Falun Gong and had heard that the Chinese government monitored Falun Gong groups in Australia.  He denied having used any other name but admitted returning to Australia in 2005 using a South Korean passport in another name.  It was suggested to him that there was information on the file suggesting that he had used the name EF.  He said that this was a friend’s name.  He had been unable to gain employment at a work site and had used the name only once.  It was put to him that at the time of his detention in 2004, he had represented to an officer of the Migration Department that his name was EF.  He said that he had subsequently told them that his name was AB.  Asked why he had used a false name, he said that it was because he was unlawfully in Australia and had no visa. 

13                  He said that he had been introduced to Falun Gong in 2002 by people with whom he worked.  He also said that a friend had introduced him to it.  He had no telephone number for him but provided a name.  He said that they had lost contact after 2004 when he was detained.  He did not know the friend’s location.  He said that he had been introduced to Falun Gong after contracting diabetes.  His mother had advised him to practise it, and a friend had introduced him to somebody who taught him the practice.  He had attended at Falun Gong practice sites on five or six occasions but otherwise had practiced at home.  This was in late 2002.

14                  He was asked why, when detained in 2004, he had not claimed to fear returning to China because of his involvement with Falun Gong.  He said that at that time he did not have much evidence of such involvement.  He was frightened of being sent to a detention centre in South Australia and so was happy to return to China.  He was asked questions about the circumstances in which he entered Australia in 1994.  He did not know the grounds upon which he had sought a protection visa during that visit.  He said that he had paid money to a person but did not know the content of his application.  He appears to have accepted that it contained untrue claims.  He was also questioned concerning proceedings in the Tribunal and in this Court associated with that earlier application.

NOTICE PURSUANT TO S 424A

15                  Following the hearing in the Tribunal on 16 February 2007, the Tribunal wrote to the appellant on 19 February 2007, inviting him to comment on various matters appearing from his departmental file, including matters relating to his earlier entry into Australia and application for a protection visa.  Reference was also made to numerous aspects of his evidence before the Tribunal.  This letter was apparently designed to effect compliance with s 424A of the Act.  On 26 September 2007 the appellant replied, making certain submissions. 

FINDINGS

16                  The Tribunal reluctantly accepted the appellant’s evidence as to his identity and that he was a Chinese citizen.  It considered that his dishonesty in connection with his first application for a protection visa raised doubts as to the truth of other information which he had provided.  One cannot quibble with that conclusion.  His tendency to use false names was also of concern.  The Tribunal was not satisfied as to the truth of his claims concerning the extent of his practice of Falun Gong in Australia.  It concluded that in any event, almost all of such activity, on his own evidence, had occurred in private.  We understand the Tribunal to have meant by this that it was unlikely that the Chinese authorities or their agents would be aware of these activities.  The Tribunal also noted that in 2004 the appellant had indicated that he was prepared to return to China and had not then claimed to fear persecution by reason of his practice of Falun Gong.  It also was not satisfied as to the accuracy of his claim to have been arrested in China in late 2004 or early 2005.  Upon the basis of its general dissatisfaction with his evidence the Tribunal concluded that it was not satisfied that he was ‘a genuine Falun Gong follower’, or that he would seek to practise Falun Gong or associate himself with the ‘Falun Gong faith’ if he were returned to China.  In those circumstances it was not satisfied that he was a person to whom Australia owed protection obligations. 

THE REVIEW PROCEEDINGS

17                  The initial grounds upon which the appellant sought relief in the Magistrates Court were:

‘1.        I am a citizen of China.  If I go back to my country I will be at risk of suffering persecution within the meaning of the 1951 Convention Relating to the Status of the Refugees.

2.         Member of the Refugee Review Tribunal failed to understand my claims and failed to consider relevant matters.  Further particulars to be provided.

3.         I seek relief under s 39B of the Judiciary Act 1903 (Cth) on the grounds that the Tribunal:

a          Exceeded Jurisdiction in arriving at the decision to affirm the Respondent’s decision not to grant me a protection visa in that it:

i)          I was not accorded natural justice.  Further particulars to be provided.

4.         The Respondent refused to grant my protection visa application without any proper grounds and proper investigation.’

18                  In an amended application the grounds were:

‘That the decision of the Refugee Review Tribunal [“the Tribunal”] was affected by jurisdictional error in that the Tribunal failed to comply with the requirements of s 424A(1) & (2) Migration Act 1958:

1.         In relation to the following information:

a.         Information on the [appellant’s] Departmental file being a record of an interview with the [appellant] in June 2004 in which the [appellant] indicated he was prepared to return to China and the only reason he did not leave Australia was that he had health problems.

b.         Information on the [appellant’s] Departmental and Tribunal files indicating that the [appellant] first applied for a protection visa in November 1994 claiming fear of persecution in China as the leader of a political organization fighting for freedom and independence of the Korean Autonomous Area.  The claims were repeated at different levels in considerable detail.

c.         Information on the [appellant’s] Departmental file indicating that the [appellant] used the names of “CD” and “EF” as aliases in Australia.

2.         The information in 1 a. above was used by the Tribunal as part of the reason for affirming the decision under review.

Particulars

·          The information was used by the Tribunal in its finding that it was not satisfied that the [appellant] was a genuine Falun Gong practitioner who was concerned over the possibility that his activities had been monitored by informers. 

3.         The information in 1 b. and c. above was used by the Tribunal as part of the reason for affirming the decision under review. 

Particulars

·          The Tribunal found that the information raised doubts about the credibility of the [appellant’s] claims and the truth of other information he provided to the Tribunal.

4.         The information in 1 a.-c. above was not given by the [appellant] for the purposes of his application for review and therefore s 424A(3)(b) does not apply.

5.         The Tribunal did not given written notice to the hearing of its intention to use the said information as part of its reasons for its findings against the [appellant].’

19                  The sole ground in the amended application was the alleged failure of the Tribunal to observe the requirements of s 424A.  As far as we can see, all matters to which s 424A might apply were relevantly addressed in the letter of 19 February 2007.  We understand the appellant’s argument before the Federal Magistrate to have been that compliance with that section must occur at a particular point in time, and that the letter of 19 February 2007 did not satisfy that requirement.  The Minister asserted to the contrary, but also submitted that s 424A had no application to the material before the Tribunal in this case.  The Federal Magistrate disposed of the matter upon that latter basis.  Hence it was not necessary for him to consider whether notice pursuant to s 424A must be given at any particular time.  His Honour noted a submission made by counsel for the appellant that the decisions of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 dealt inconsistently with that subject.

THE APPEAL

20                  At the commencement of the hearing of the appeal the appellant was given leave to file and rely upon an amended notice of appeal.  The amended grounds were as follows:

‘1.        His Honour erred in concluding that the Tribunal’s decision was not affected by jurisdictional error because the following material was not “information” within the meaning of s 424A Migration Act 1958such [as] to enliven the obligations provided by that section:

a.         (abandoned)

b.         Information on the applicant’s Departmental and Tribunal files indicating that the applicant first applied for a protection visa in November 1994 claiming fear of persecution in China as the leader of a political organization fighting for freedom and independence of the Korean Autonomous Area.  The claims were repeated at different levels in considerable detail.

Particulars

·          At the review stage the appellant relied on a new statement detailing his claims as the leader of the political organization;

·          The appellant was assisted by a migration agent;

·          The appellant appealed to the Federal Court;

·          The appellant applied for Ministerial intervention under s 417 of the Act;

·          The claims made in the new statement formed the basis of the Federal Court appeal and the s 417 application.

c.         (abandoned)

d.         (abandoned)

2.         In relation to the material at para. 1(b), his Honour misapplied s 424A in not considering whether that material itself was “information” under 424A (“information”)

Particulars

·          His Honour only considered whether the Tribunal’s subjective appraisal of the material was “information” and did not consider whether the material itself was “information”;

·          His Honour limited himself to considering whether the Tribunal’s disbelief arising from inconsistencies between the material and the appellant’s current claims was “information”;

·          His Honour treated all material which the Tribunal saw as ultimately relevant to the credibility of the appellant’s claims as not capable of being “information”.

3.         His Honour erred in failing to find that the Tribunal’s decision was affected by jurisdictional error in that the Tribunal failed to comply with the requirements of s 424A(1) & (2) of the Act in relation to the information at 1(b).

Particulars

·          The Tribunal did not give written particulars to the appellant at the prehearing stage of the information at 1 (b) nor any account of its relevance to the review.’

SECTION 424A

21                  The grounds of appeal address the application of s 424A of the Migration Act to the conduct of the appellant’s case in the Tribunal and the extent of the obligations imposed upon the Tribunal by that section.  The section provides:

‘(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.’

22                  The effect of the section is that if the Tribunal concludes that particular information:

·                    would be the reason, or part of the reason, for affirming the decision under review; and

·                    the information is not within the exempting provisions of subs 424A(3),

it must:

·                    give to the applicant particulars of the information;

·                    explain its relevance; and

·                    invite the applicant to comment,

such particulars, explanation and invitation to be given in accordance with subs 424A(2). 

THE APPELLANT’S SUBMISSIONS

23                  The amended notice of appeal seems to address the application of s 424A in three different ways, corresponding to the three identified “grounds”.  Each is concerned with the information concerning the appellant’s 1994 application for a protection visa and circumstances attending that application (the “1994 application material”).  The first ground is that the Tribunal erred in finding that the 1994 application material was not information for the purposes of s 424A.  The second ground is that the Tribunal only addressed the question of whether its assessment of the material and resulting disbelief of the appellant’s current claims comprised information for those purposes, and did not consider whether the 1994 application material was, itself, information for those purposes.  The third ground is that, assuming that such material, or some of it, was information for the purposes of s 424A, the Tribunal failed to observe the obligations imposed upon it by that section.  As the appellant relies primarily upon the decisions of the High Court in SAAP and SZBYR, it will be helpful if we discuss both decisions briefly.

SAAP

24                  SAAP concerned an application for a protection visa made on behalf of a mother and daughter, the claim being based upon the mother’s alleged fear of persecution for a Convention reason.  The daughter had no independent claim to refugee status.  The Tribunal affirmed a decision to refuse the visas.  In so doing it relied upon information given by the daughter in the course of the hearing, which information was provided in the absence of her mother, but in the presence of the mother’s migration agent.  The primary question for the Court’s consideration arose out of the structure of Pt 7 Div 4 of the Migration Act.  The minority (Gleeson CJ and Gummow J) considered that the structure of the Division indicated that the obligation imposed by s 424A prescribed the requirements of procedural fairness prior to any hearing pursuant to s 425, but not at such a hearing or thereafter.  However the majority (McHugh, Kirby and Hayne JJ) concluded that s 424A might be engaged at any point at which the Tribunal formed the prescribed view as to the significance of information before it, up until the time of its ultimate decision.  

SZBYR

25                  In SZBYR the Tribunal considered that there were inconsistencies between one applicant’s oral evidence and the content of his earlier statutory declaration in support of the visa application on behalf of all applicants.  The Tribunal put such inconsistencies to the applicant in question but did not give the written particulars required by s 424A.  It subsequently rejected the visa application.  The majority in the High Court considered that neither the prior declaration nor the Tribunal’s disbelief of the applicant constituted “information” for the purposes of s 424A.  At [13]-[15], their Honours observed:

‘[13]   A majority of this Court in SAAP determined two points about the operation of s 424A:  first, that its effect was mandatory, in that a breach of the section constituted jurisdictional error; …  second, that its temporal effect was not limited to the pre-hearing stage … .  However, these propositions do not determine the outcome of this case, and attention must be given to the particular terms of para (a) of s 424A(1) and its operation upon the present facts. 

[14]    Had the second point in SAAP been decided differently, the present case would have been simpler to resolve:  the scope for the operation of s 424A would have been exhausted once the appellants were invited to appear before the tribunal pursuant to s 425 of the Act.  Certainly, there was nothing in the conduct of that hearing which was of itself procedurally unfair and, given the presence of s 422B, it might be surprising if s 424A were interpreted to have an operation that went well beyond the requirements of the hearing rule at common law.  Unlike SAAP, where the relevant “information” was testimony of the appellants’ daughter which had been given in their absence, the “information” in this case consisted of the appellants’ own prior statutory declaration, to which the tribunal explicitly drew their attention during the course of the hearing.  If the common law rules of procedural fairness applied, one would certainly not criticize the tribunal’s approach in this regard.  However, it follows from SAAP that the Parliament has determined that, if s 424A is engaged, only written notice will suffice. 

[15]    This then requires close attention to the circumstances in which s 424A is engaged.  …’

26                  Their Honours then observed that it was necessary to identify the relevant “information” of which particulars should have been provided by the Tribunal.  The relevant decision which the Tribunal was to affirm or disaffirm was the decision to refuse a visa.  The relevant information was therefore information being the reason, or part of the reason, for that decision.  At [17] the majority observed that:

‘The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place.  The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act.  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.’

27                  Their Honours considered that the content of the statutory declaration did not reject, deny or undermine the applicants’ claim to be persons to whom Australia owed protection obligation, but rather, if believed, reinforced that claim.  Therefore it could not be part of the reason for affirming the decision to refuse to grant a visa.  The Tribunal’s disbelief of the appellants’ evidence, based upon inconsistencies between that evidence and the statutory declaration also could not, itself, be so characterized.  Their Honours expressly endorsed the views of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477 as follows:

‘(T)he 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.’

28                  In SZBYR the majority continued:

‘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. …’

29                  At [19] their Honours continued:

‘… the appellant’s argument suggested that s 424A was engaged by any material that contained or tended to reveal inconsistencies in an applicant’s evidence.  Such an argument gives s 424A an anomalous temporal operation.  While the Act provides for procedures to be followed regarding the issue of a notice pursuant to s 424A before a hearing, …, no such procedure exists for the invocation of that section after a hearing.  However, if the appellants be correct, it was only after the hearing that the tribunal could have provided any written notice of the relevant passages in the statutory declaration from which the inconsistencies were said to arise, as those inconsistencies could not have arisen unless and until the appellants gave oral evidence.  If the purpose of s 424A was to secure a fair hearing of the appellants’ case, it seems odd that its effect would be to preclude the tribunal from dealing with such matters during the hearing itself.’

30                  In the present case the appellant seems to submit that in the above passage, the High Court recognized a temporal anomaly in the section.  Clearly, that is incorrect.  It was the appellants’ argument in SZBYR which had that effect.  That argument was rejected.  At [20]-[21] their Honours continued:

‘[20]   Moreover, supposing the appellants had responded to a written notice provided by the tribunal after the hearing, if inconsistencies remained in their evidence, would s 424A then oblige the tribunal to issue a fresh invitation to the appellants to comment on the inconsistencies revealed by – or remaining despite – the original response to the invitation to comment?  If so, was the tribunal obliged to issue new notices for so long as the appellants’ testimony lacked credibility?  If the appellants’ desired construction of s 24A leads to such a circulus inextricabilis it is a likely indication that such a construction is in error.

[21]    The short answer to all these points is that, on the facts of this case, s 424A was not engaged at all:  the relevant parts of the appellants’ statutory declaration were not “information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.  Section 424A has a more limited operation than the appellants assumed:  its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the tribunal.  That being so, this case does not require this Court to address the differences in opinion in the Federal Court concerning the “unbundling” of tribunal reasoning … .’

SAAP AND SZBYR – ALLEGED INCONSISTENCY

31                  The appellant’s argument commences with the assumption that the decision in SZBYR ‘effected a basic shift in the way that s 424A cases are approached.’  (See Appeal TS p 7 ll 9-10.)  However the reasons of the majority demonstrate an intention to avoid such an outcome.  Their Honours expressly noted that the correctness of the decision in SAAP had not been challenged in the course of the appeal.  Further, at [16], their Honours declined to consider the correctness of a line of decisions of this Court concerning s 424A.  The appellant seems simply to have assumed a substantial change in approach to the section and, not being able to find any new approach in the majority’s reasons, adopted an approach favourable to his case.

THE PRESENT CASE

32                  The appellant asserts that the Tribunal ought to have disclosed to him, pursuant to s 424A, the material to which it had access which demonstrated that he had previously applied for a protection visa, falsely claiming fear of persecution in China, and the repetition of this claim at various stages in the review process.  There is a degree of complexity about this material and the way in which the Tribunal used it.  It might be said that, as in SZBYR, the material did not, itself, undermine the appellant’s claim.  On its face, it may have been true, notwithstanding the appellant’s failure to establish refugee status on that basis.  If so, then s 424A was not engaged.  An alternative view might be that it was so unlikely that one person would have two different grounds for seeking refugee status that the very existence of the first application, including the various surrounding circumstances, cast doubt on the second.  That approach is strengthened by the fact that when interviewed prior to removal from Australia in 2004, the appellant did not seek to rely on his earlier unsuccessful claim.  Of course he could not have successfully done so, but one might have expected him to try.  Had the Tribunal considered that this material, of itself, demonstrated that his 1994 claim was patently false, it may have been information which would be the reason, or part of the reason, for affirming the decision. 

33                  Neither approach is necessarily preferable to the other.  Whilst one decision-maker might have considered that the existence of the earlier application, on different grounds, and apparently abandoned in 2004, demonstrated, of itself, that the appellant’s current application could not be accepted, another decision-maker might have considered that he or she could not evaluate the material at all until the appellant had been heard.  The test for the purposes of s 4242A is not based upon whether the material in question suggests a particular decision.  The test depends upon the Tribunal’s “consideration”.  The verb to “consider” has many shades of meaning.  One strand of meaning, according to the Shorter Oxford English Dictionary is to ‘Look at attentively, survey, scrutinize …’.  That is not its meaning in s 424A.  An alternative strand of meaning appearing in the same reference work is ‘Be of the opinion that’.  Clearly, it is that meaning which is intended in s 424A.  The obligation to proceed pursuant to s 424A arises only if the Tribunal forms the opinion that particular information would be the reason, or part of the reason, for affirming the relevant decision.  The conditional nature of the obligation reflects the fact that the Tribunal must consider the question in advance of its decision, considering the information upon which it would act, should it decide to affirm the relevant decision.  Although the appellant asserts that the Tribunal formed the requisite opinion prior to the s 425 hearing, we see no evidence to that effect.  It may have done so, but it may also have proceeded on the basis that the importance of the information could only be assessed after the appellant had given evidence.  It is also possible that prior to the hearing, the Tribunal had not fully appreciated the potential significance of the information.  It is not apparent that the Tribunal took the course contended for by the appellant.

34                  If the Tribunal had formed the requisite opinion, then the question is whether it complied with the requirements of s 424A when it sent the letter of 19 February 2007.  The appellant’s only challenge to the adequacy of that letter for the purposes of s 424A is the assertion that it should have been sent prior to the s 425 hearing, for reason that the Tribunal had, prior to the hearing, formed the view that it would be part of its reasons for affirming the decision under review, a view which we do not accept.  In any event there is no express statutory basis for imposing such a temporal requirement.  That approach focuses on the s 425 hearing as the crux of the Tribunal’s decision-making process and assumes that the purpose of s 424A is to ensure that such a hearing is “fair”.  Had the minority view in SAAP prevailed, there may have been some justification for that approach.  However, once it is accepted that s 424A has the wider operation identified by the majority, it seems more probable that its purpose is to ensure that the overall decision-making process, of which the s 425 hearing is only part, is “fair”. That this is so appears from SZBYR at [17] where the majority held that the s 424A process must occur in advance of, and independently of, the Tribunal’s reasoning process, not prior to the s 425 hearing.

35                  We do not read the last sentence of [19] in SZBYR as endorsing the view that the purpose of s 424A is to ensure a “fair” s 425 hearing.  It may be that the majority was there referring to a submission made by the appellants.  Alternatively, it may have been using the word “hearing” in a wider sense, to describe the whole process leading up to the decision or to the “reasoning” referred to at [17].

36                  Other policy considerations militate against an interpretation of s 424A which requires the Tribunal, upon forming the requisite view as to the significance of particular information, to inform the applicant in accordance with s 424A prior to the hearing.  It would encourage pre-judgment and the public disclosure of such pre-judgment.  It would also invite ex post facto enquiries into the Tribunal’s reasoning process which might lead to cross-examination of decision-makers.  Further, it would lead, on occasions, to the needless multiplication of notices pursuant to the section.  Nothing in s 424A or elsewhere in Pt 7 Div 4 compels such a piecemeal approach.  The apparent purpose of the section is better served by leaving the timing of a s 424A notice to the discretion of the Tribunal. 

ORDERS

37                  The appeal must be dismissed with costs.

Associate:

Dated:         18 December 2007