FEDERAL COURT OF AUSTRALIA

ATP15 v Minister for Immigration and Border Protection [2016] FCAFC 53

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted for the first respondent to file and rely on the notice of contention dated 25 February 2016.

2.    The appeal be dismissed.

3.    The appellants pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

TRACEY & GRIFFITHS JJ:

1    This is an appeal from a judgment and orders dated 24 August 2015 of the Federal Circuit Court of Australia (“the FCCA”). The primary judge rejected the appellants’ judicial review application, in which they challenged a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision that the appellants not be granted Protection visas.

2    For the reasons given below, the appeal should be dismissed, with costs.

Background matters

3    The appellants are husband and wife and are both citizens of Pakistan. In May 2013, they obtained visitor visas to come to Australia. On 6 July 2013, the appellant-wife travelled to Australia from Karachi. Her husband arrived some four days later. As will shortly emerge, the circumstances surrounding the appellant-wife’s travel to Australia were central to the Tribunal’s decision to affirm the delegate’s decision.

4    The appellants’ applications for Protection visas were lodged on 20 August 2013. The appellant-wife was the primary applicant. Her husband’s application was based on his membership of her family unit.

5    In brief, the appellant-wife (hereafter referred to as the appellant) claimed that, while she was in Pakistan, she had purchased western style women’s clothing online and then sold it to women in Karachi. She said that her business activities came to the attention of the local Taliban and that two of her employees had been beaten by a group of Muslim men and detained by police for having sold western clothing to Muslim girls. The employees were later released. The appellant claimed that she continued to sell western clothes at the request of her customers and that, in July 2013, police officers arrived at her home and took away various unopened packages. She said that she was taken to the police station for interrogation. She said that she was shocked when the same two employees were brought before her and she saw that they had been badly beaten up. When she demanded that her husband and her father be told of her detention, she said the police officers insisted that she had to meet the local Mullah and local Muslim leaders.

6    The appellant said that she was kept in remand until an hour or so later when a Mullah and four community leaders came to see her. She claimed that the Mullah told her that she had sold western clothes and accessories to Muslim school girls and young women and had tarnished Islamic culture. She claimed she had to agree to attend a Sharia Court hearing. When she protested that she had done nothing wrong, she claimed that she was shouted at and threats were made that her head should be shaved and she should be whipped in public. She added that the Mullah told her that if she did not agree to attend a Sharia Court, she would be falsely charged for importing arms and drugs. She claimed that she was kept in prison for nearly two weeks and no visits were permitted from either her husband or her father. She said she was “shocked” when she was then released. She claimed her husband and father had agreed to pay a huge amount of money to the Mosque. She said that her husband told her she had to leave the country immediately in order to escape from the Muslim community because she would be publicly punished. She claimed that she could not return to Pakistan because she would be tried under Sharia law.

7    As noted above, the delegate refused the appellants’ applications for Protection visas. They subsequently sought a review in the Tribunal. Both appellants appeared before the Tribunal on 9 March 2015 to give evidence. During the course of her interview, the appellant was asked various questions relating to the circumstances surrounding her trip to Australia. In particular, she was asked a series of questions relating to a third person (Mrs B). These questions were raised after the appellant said at her interview that she had come by herself to Australia. The appellant was asked about information before the Tribunal which indicated that she was living at the same address as Mrs B. Mrs B was also an applicant before the Tribunal who had used the same migration agent and had travelled and entered Australia at the same time as the appellant. It was put to the appellant that a statement made by Mrs B in support of her protection visa application was in a very similar format as that made by the appellant and that they both had made “similar claims”. When the appellant was shown a photograph of Mrs B, she said that she recognised her as “aunty”. She explained that although she was not her real aunty, Mrs B was called “aunty” by people in her community. She explained that Mrs B was the mother of the husband of her sister-in-law. Her sister-in-law was her husband’s sister. The appellant claimed that it was simply a coincidence that she and Mrs B travelled together on the same plane to Australia and that they both gave the same address in Sydney. She said that Mrs B told her on the plane that she was only coming to Australia to see her son. She claimed that she had no knowledge that Mrs B intended to seek protection.

8    On 19 March 2015, the Tribunal wrote to the appellants and invited their comments on various information. It is evident that the letter was written having regard to s 424A of the Migration Act 1958 (Cth) (“the Act”). The relevant parts of the letter were as follows (errors in original):

The particulars of the information are:

•    You arrived in Australia on 6 July 2013 and you entered Australia at 06.49.25.

•    You gave a residential address and a postal address of [street address] on your Protection visa application.

•    Your Protection visa application was lodged with the assistance of your migration agent, Mr Sivalohan Lohitharajah, on 20 August 2013.

•    When you attended a hearing at the Refugee Review Tribunal on 9 March 2013 you told the Tribunal that you travelled to Australia alone.

•    At the Tribunal hearing you were asked who lived at the residential address at [street address] you named your sister in law, brother in law, their four children and yourself, your husband and son.

•    Evidence before the Tribunal indicates that [Mrs B], who has also given the address of [same street address], also entered Australia on 6 July 2013 at 06.49.25. [Mrs B] has also lodged an application for a Protection visa with the assistance of Mr Sivalohan Lohitharajah on 20 August 2013.

•    The statement provided with the application for a Protection visa made by [Mrs B] is in a very similar format to your statement provided with your application and you have both made similar claims to fear harm from the Taliban in Pakistan.

•    When you were asked about [Mrs B] during the Tribunal hearing you indicated that she was someone in your community who you call “aunty”, but you later stated that [Mrs B] is your sister in law’s mother in law. You stated that she does not live with you all the time and lives in Canberra sometimes.

•    [Mrs B] told the Tribunal that she lives in Canberra and that you telephoned her after the hearing and told her that she had applied for protection in Australia and she was very upset by this.

•    When [Mrs B] was asked, at the Tribunal hearing that she attended on 16 March 2015, for the name of the person in Canberra who she stays with and the suburb in Canberra where that person lives, [Mrs B] was only able to say her first name and stated that she does not know her second name and she does not know the name of the suburb in Canberra.

The above information is relevant because the Tribunal may find that you had not previously mentioned that you travelled to Australia with [Mrs B] who has also sought protection in Australia; you have both used the same migration agent; and [Mrs B] lives in the same house as you in Australia. The Tribunal may find that your evidence that you did not know until you saw [Mrs B] by chance at Karachi airport that [Mrs B] was travelling to her son’s house in Australia, where you and your husband were also going, is not truthful. The Tribunal may find that your evidence that you did not know she was seeking protection in Australia until you were told by the Tribunal is not truthful. The Tribunal may find that it is not coincidental that you and [Mrs B] both travelled to Australia and then sought protection using the same agent.

The Tribunal may find that [Mrs B] was unable to provide a full name of the person or suburb of where she and you have claimed she stays in Canberra is due to the fact that she has not been truthful about this and that you and [Mrs B] live together at [the same street address]. The Tribunal may find that you have attempted to engage in deception in relation to this issue. The Tribunal may find that you have done so because it was planned and organised in Pakistan that you and [Mrs B] would travel to Australia together to live at her son’s house and make claims for protection. The Tribunal may find that your willingness to provide untruthful evidence about this issue is because, combined with other issues raised with you during the hearing, is due to the fact that you are not a truthful witness and you have fabricated the entirety of your claims regarding your experiences in Pakistan. The Tribunal may find, therefore, that your claims to have been sought by the Taliban and detained by the police have been fabricated.

If the Tribunal finds that you have manufactured the entirety of your claims for protection and there is no other basis on which there is a real chance you would suffer serious harm or a real risk that you would suffer significant harm in Pakistan, the Tribunal will find that you are not owed Australia’s protection obligations, either under the Refugees Convention or the Complementary Protection provisions. The Tribunal will find, therefore, that neither you nor your husband meets the criteria for the grant of Protection visas.

9    The appellant gave a written response dated 1 April 2015. It is desirable to set out the body of that response (errors in original):

•    I arrived in Australia on 6 July 2013.

•    I gave the residential address and postal address as [street address] on my Protection visa application.

•    My Protection visa application was lodged with the assistance of my migration agent Mr Sivalohan Lohitharajah.

•    I told the Refugee Review Tribunal on 9 March 2015 that I traveled alone which I meant that I traveled alone without my husband.

•    At the Tribunal hearing I said that my sister in law, brother in law, their children, me and my husband and son live at residential address [same street address].

•    [Mrs B] (Aunty) entered Australia on 6 July 2013. Firstly I did not know whether she was planning to stay in Australia permanently but knew she was only visiting her son again. I do not know what address she gave in her application. I did not know that aunty lodged for Protection visa with assistance of Mr Sivalohan Lohitharajah until at my hearing with the RRT Member who told me.

•    The statement given with the application for my Protection visa was prepared with the help of Sivalohan Lohitharajah I know the format he used to make my claims. I do not know whether aunty also did a similar format. I knew about this through RRT Member who told me about it. Now I know that aunty made a protection visa application through the tribunal, I think the migration agent is the same he could have used the same format. But my claims cannot be similar to aunty as my problems cannot be the same as aunty’s. I have mentioned in my claims from page 5. I donot know about aunty’s claims.

•    At the Tribunal hearing RRT Member showed me aunty’s picture and asked me do you know her. I said yes she is an aunty. She asked aunty who. I said my husband’s brother in law’s mother. She said why you said aunty before. I said because we call everyone aunty. With respect we call every elder who is not our blood relative aunty and uncle. I said that aunty doesnot live with us, she lives in Canberra and she comes and goes.

•    I telephoned aunty as I was shocked to hear at my hearing from RRT Member that aunty has applied for protection in Australia.

•    I donot know what aunty said at the Tribunal hearing and why she does not know the name of suburb in Canberra or the second names of those who live over there. You should ask her.

•    As I said at my hearing I met aunty at the Karachi airport and she came from Lahore. I didnot know her personally except that she is my husband’s sister’s mother in law. She was on wheelchair and I helped her and we did our boarding together. It is the truth that I didnot know about her applying for protection visa and about the agent. Till I got to know from RRT Member I did not know she was applying for protection visa. Aunty told me she is going to visit her son and I had no reason to think anything else.

•    Due to all this there has been problems and tension between aunty and us. My brother in law is very upset as her mother is not well. My brother in law has told us to find a place somewhere else to live. We would never want to cause any problem for my husband’s sister. We are looking for a place to live. I didnot know it will lead to all this but we are very much tensed.

As regard to aunty all I will say is that she is the mother in law of my husband’s sister, yes we met at the airport, did our boarding together and we took our seats together. It is a coincident that she also hired the same lawyer as ours, we were not aware that she will also apply for protection visa. If we had planned to do this before reaching Australia we would have never stayed together and would have taken all measures to stay away from them. I thought that aunty would return back to Pakistan after her long holidays with her relatives and son. If I knew she was planning to make a protection visa like me, I would not gone to the same lawyer and I would not have stayed with my husband’s sister’s and I would have never travelled together with aunty. Through my husband’s sister I came to know that aunty would not stay with them as they have misunderstanding between them. My sister in law asked her brother to stay with her. As we are new to Australia she wanted to help her brother and me to stay with them till we found a place later on. As I was pregnant she insisted that we stayed together till the child birth.

We had everything in Pakistan good life, good job but we had to leave everything as this is the only way to escape from these extremist Mullah, and the police who are scared of Taliban.

Me and my husband are going through great fear for our lives including my son’s who was born here in Australia and another baby who is on the way. The fear that I still have after all the years makes me very scared. The harm they gave me, those two weeks are still fresh in me. These people they do not listen to anyone, all they want is to create their own Sharia system and rules.

10    Although no express reference is made to it in the Tribunal’s reasons for decision, on 20 March 2015 the Tribunal sent a similar s 424A letter to Mrs B seeking her response, in the context of her separate proceeding for review in the Tribunal. The letter reflected Mrs B’s particular circumstances and her association with the appellant. Mrs B’s review was conducted by the same Tribunal member who reviewed the appellants’ cases.

11    Mrs B provided a written response dated 3 April 2015 to the Tribunal. She confirmed that she had arrived in Australia on the same day as the appellant, that she had given her son’s address as her residential address, that she had used the migration agent Mr Sivalohan Lohitharajah (the same as the appellant in this matter) and lodged an application for a protection visa through him on 20 August 2013 (the same day on which the appellants lodged their applications). She maintained that she had “no idea” about the appellant having applied for a protection visa until she was telephoned by the appellant after the appellant’s interview with the Tribunal. Mrs B said that she was “completely shocked and terrified” when the appellant told her that she knew that Mrs B had applied for protection. She said that she did not want anyone to know that she had sought protection.

12    As to the questions regarding the similar format of the supporting statements to the relevant protection visa applications and to them both having made “similar claims to fear harm from the Taliban in Pakistan”, Mrs B said that, because she and the appellant had the same migration agent, he may have used the same “layout”. She stated that her claims “should be entirely different” from those of the appellant, but she added that she had no idea what those other claims by the appellant were. Mrs B also said that she did not live in Sydney all of the time and that she “mostly” lived in Canberra. She explained that this was because she and her daughter-in-law were not on good terms and her daughter-in-law wanted her son to ask her to pay rent for living with them in Sydney.

13    Mrs B confirmed in her response that at her own Tribunal hearing (which took place on 16 March 2015), she could not remember the full name of the person she was staying with in Canberra or the suburb where that person lived. Mrs B said that she had not remembered the second name of her cousin’s daughter (the person she was staying with in Canberra) during the hearing but she now knew her full name and the suburb in Canberra where she lived. She asked the Tribunal to take into account her age and that she was not able to remember the full names of the persons and relatives with whom she dealt and that Australian names were still new and foreign to her.

The Tribunal’s reasons

14    On 21 April 2015, the Tribunal affirmed the delegate’s decision not to grant the appellants Protection visas. The Tribunal summarised what the appellant had said at the hearing and in her response on 1 April 2015 concerning the circumstances surrounding her travel to Australia. Relevantly, the Tribunal stated at [24]:

The Tribunal does not accept any other aspect of the applicant's explanation for why she travelled to Australia with [Mrs B] on the same plane and sat next to her on that plane in circumstances where they were both going to the same address in Sydney where the applicant’s brother-in-law ([Mrs B's] son) resides with his wife (the applicant's husband's sister). The Tribunal does not accept that this was “coincidental” and also does not accept that it is “coincidental” that they then both made applications for protection using the same migration agent who prepared applications for them in a similar format relying on claims in each application that they both feared harm from the Taliban. In the Tribunal’s view, the notion that this would occur and the applicant would not know that [Mrs B] was travelling to Australia to see her son, who lives at the same address declared by the applicant as her address in Sydney, and they would coincidentally lodge applications for protection relying on the same agent and making similar claims, yet none of this would be known to the applicant until she was told by the Tribunal at a hearing more than 18 months after she and [Mrs B] arrived in Australia, is not believable.

15    The Tribunal concluded at [26] that the appellant had planned to travel to Australia and she had fabricated her claims for protection. It found that her travel to Australia with Mrs B and their subsequent Protection visa applications were “planned and orchestrated and her denials in relation to this is indicative of the fact that she is an untruthful and unreliable witness”. The Tribunal also concluded at [35] that the appellant’s evidence concerning the actions taken as a response to her business of selling western clothing was not credible and was “indicative of the fact that it has been manufactured for the purposes of her and her family obtaining residence in Australia”.

16    Accordingly, having found that the totality of the appellant’s claims had been fabricated, the Tribunal concluded that it was not satisfied that there was a real chance that she would suffer serious harm or a real risk that she would suffer significant harm on returning to Pakistan. Her application for protection on both refugee and complementary protection grounds was rejected, which necessarily doomed her husband’s dependent application.

Proceedings in the FCCA

17    The appellants pressed two grounds of judicial review in the FCCA. The first related to their claim that the Tribunal had refused to consider Mrs B’s response dated 3 April 2015 in the appellants’ cases. They claimed that it was obliged to do so either because the Tribunal had “gotten” that information for the purposes of s 424(1) of the Act or by reason of the corroborative value of the information in that response.

18    The second ground of judicial review related to an alleged failure to comply with s 424A because the appellants were not provided with “clear particulars” of Mrs B’s response and they were simply told that Mrs B’s application was “in a very similar format” and contained “similar claims to fear harm from the Taliban in Pakistan”.

19    The primary judge dismissed the judicial review application. As to the first ground, his Honour said that he did not accept that there was any basis for drawing an inference that the Tribunal had had regard to Mrs B’s response in conducting its review of the appellants’ cases. He added that there was no basis to infer that the Tribunal had obtained information within the meaning of s 424 so as to enliven an obligation to have regard to that information. He also said that while it was arguable that Mrs B’s response was corroborative of evidence in the appellant’s case, that possibility did not of itself give rise to an inference that the Tribunal should have considered the response to be relevant in other proceedings involving a different visa applicant.

20    The second ground of judicial review was rejected by the primary judge on the basis that he considered that, when the Tribunal’s 19 March 2015 letter was read as a whole, adequate particulars had been provided in accordance with s 424A.

Resolution of the appeal

21    The first ground of appeal relates to the primary judge’s rejection of the appellants’ first ground of judicial review. That ground related to s 424 of the Act. In our view, the appellants have failed to establish any appealable error in this regard.

22    It is desirable to first set out s 424 of the Act:

Tribunal may seek information

(1)    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)    Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

(3)    A written invitation under subsection (2) must be given to the person:

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

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

23    It is important to note the opening words of the provision. They make clear that the provision, including the obligation it imposes, applies to the Tribunal “[I]n conducting the review”. In this case, this is a reference to the Tribunal’s review of the delegate’s decision refusing the appellants Protection visas. We do not consider that this provision applies to evidence which is sought and obtained by the Tribunal in the context of it conducting a review of an application made by someone else. The information which the Tribunal obtained from Mrs B in her response to the Tribunal’s s 424A letter to her is not information which the Tribunal had sought nor had “gotten” in conducting its review of the appellants’ cases. Rather, that information is information which the Tribunal had sought and had “gotten” in conducting its review of Mrs B’s case. The position might be different if the Tribunal had relied on Mrs B’s response in rejecting the appellants’ cases. But it did not do so.

24    It is evident from the terms of the Tribunal’s letter dated 19 March 2015 that the Tribunal was in possession of information relating to Mrs B in addition to information which it had obtained from the appellant. Some of that information was apparently provided by Mrs B herself in support of her Protection visa application. Other information was apparently obtained from Mrs B at her Tribunal interview on 16 March 2015, which was conducted by the same Tribunal member who was reviewing the appellants’ cases. That information included Mrs B’s answer to a question from the Tribunal as to the identity of the person whom she stayed with in Canberra and the name of the suburb. The Tribunal recorded in its letter dated 19 March 2015 that Mrs B could only remember the person’s first name and she could not remember the name of the suburb. The Tribunal explained in its letter that the information was relevant in its review of the appellants’ cases because the Tribunal might find that Mrs B was unable to provide a full name and identify the suburb where she stayed in Canberra and this was due to the fact that Mrs B had not been truthful and that the appellant and Mrs B lived together at the same address in Sydney, an address which they both provided in their respective Protection visa applications.

25    The Tribunal’s reasons for decision confirm that it had regard to this information and the appellant’s response to it in affirming the delegate’s decision (see in particular [20]-[26] of the Tribunal’s reasons for decision). Significantly, there was no reference to Mrs B’s s 424A response letter in the Tribunal’s reasons for decision concerning the appellants’ review. There is no basis for inferring that the Tribunal had regard to that response in affirming the delegate’s decision concerning the appellants. In circumstances where the information contained in that response was not sought and obtained by the Tribunal for the purpose of conducting a review of the appellants’ cases, s 424 was not enlivened in respect of Mrs B’s response.

26    We accept the Minister’s submission that, if the appellants had wished the Tribunal to take evidence from Mrs B in their review proceeding, they could have made a request under s 426 of the Act. Alternatively, the appellant could have asked the Tribunal to take Mrs B’s evidence into account in her response on 1 April 2015, but she did not do so.

27    We consider that the appellants’ reliance upon case law which deals with the Tribunal overlooking evidence (including, for example, Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [54]) is misplaced. This is because Mrs B’s response letter was never in evidence before the Tribunal in its review of the appellants’ cases, thus it was not overlooked.

28    The appellants submitted that another reason why the Tribunal was obliged to take into account Mrs B’s response in their review proceeding is because it was corroborative evidence which, if considered, would have been of significance to the course of reasoning that the Tribunal actually took. They relied upon the Full Court’s decision in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 (VAAD) at [77], as well as other Full Court decisions dealing with the circumstances where the Tribunal is obliged to consider evidence. In their written submissions, the appellants made the following contention (emphasis added):

The Tribunal chose to find that the appellant had “manufactured the totality of her claims” and was an “untruthful and unreliable witness” based upon what B had said in support of her own protection visa application and similarities between the two applications.

29    For the following reasons, these contentions should be rejected. First, as to the appellants’ reliance on VAAD, it may be accepted that whether or not the Tribunal is obliged to consider a document or documents depends upon the circumstances of the case and the nature of the document. The circumstances in VAAD, however, are distinguishable from those here. In VAAD, the document which the Tribunal failed to consider was one which was not only particular to the first appellant in those proceedings but, as the Full Court observed at [77], it was “arguably of critical importance to the claims of all the appellants”. That is not the case here. The appellants failed to demonstrate that Mrs B’s response was critical or significant to the appellants’ claims.

30    As to the claim that Mrs B’s response was corroborative of the appellants’ claims and the Tribunal had to have regard to those matters, Mr Chia (who appeared for the appellants) said in oral address that such corroboration related to matters such as Mrs B’s confirmation that her meeting the appellant at Karachi airport (and travelling alongside her to Australia) was completely coincidental; her explanation as to why she gave her son’s address; her subsequent ability to provide the full name of the person she stayed with in Canberra and the suburb where she stayed and how she came to be told by the appellant that the appellant knew that Mrs B had also lodged a Protection visa application.

31    The Tribunal was under no legal obligation to have regard to these matters or to put them to the appellant for comment. The relevant information is far removed from the critical piece of corroborative evidence which was not taken into account in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99. Moreover, the matters relied upon by the Tribunal in coming to its ultimate conclusion that the appellant was an untruthful and unreliable witness were based upon a range of matters which extended well beyond what Mrs B had said in her response. This is evident from [26] of the Tribunal’s reasons for decision:

The Tribunal considers that the evidence, in conjunction with the Tribunal’s findings above, establish that the applicant had made plans to leave Pakistan and travel to Australia and to fabricate claims for protection upon her arrival in an attempt to remain in Australia. The Tribunal does not accept the applicant’s claim that it was “coincidental” that she had a visa to travel to Australia, granted shortly before she claims to have been detained and arrested by the police on the instruction of the Mullah. The applicant had not previously travelled to Australia and the Tribunal does not accept that it was fortunate or coincidental that she had obtained a visa to travel to Australia and had intended to do so shortly before she was detained by the police in Pakistan. The Tribunal has also not accepted that it was a “coincidence” that the applicant and [Mrs B] travelled together, lived at the same address and lodged applications for protection using the same migration agent. In the Tribunal’s view, the applicant’s travel to Australia with [Mrs B] and their lodgement of Protection visas was planned and orchestrated and her denials in relation to this is indicative of the fact that she is an untruthful and unreliable witness. The Tribunal also does not accept that the applicant’s husband’s evidence in relation to this issue is truthful.

32    The appellants’ contention that the Tribunal’s finding that the appellant was an “untruthful and unreliable witness” was based upon what Mrs B had said is not supported by the Tribunal’s reasons for decision. The Tribunal’s adverse credibility finding in respect of the appellant was based not on what Mrs B had said but rather upon its rejection of the appellant’s account of the circumstances surrounding her association with Mrs B and them travelling together to Australia and the other events which then occurred.

33    For these reasons, we consider that the appellants have failed to establish any appealable error on the part of the primary judge in rejecting their first ground of judicial review.

34    We consider that the appellants have also failed to make good their second ground of appeal which, as noted above, is to the effect that the Tribunal’s s 424A letter did not give “clear particulars” of information which the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision.

35    It is desirable to set out s 424A of the Act:

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.

(4)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

36    The relevant contents of the 19 March 2015 s 424A letter are set out at [8] above. On a fair reading of that document, it is evident that the Tribunal was concerned that the appellant had not given truthful evidence at the Tribunal hearing regarding her association with Mrs B and the circumstances of them travelling to Australia together, that they gave the same residential and contact address and then both made Protection visa applications using the same migration agent. The appellant had claimed that these were matters of coincidence and that she did not know that Mrs B had also sought protection.

37    The obligation to give “clear particulars” did not oblige the Tribunal to provide the appellants with a full copy of Mrs B’s written response. The chronology of events was as follows. The Tribunal wrote its s 424A letter to the appellants on 19 March 2015. By that time, the same Tribunal member had conducted a hearing in respect of Mrs B’s separate review application. It is evident from the terms of the Tribunal’s s 424A letter dated 20 March 2015 to Mrs B that the Tribunal held serious doubts about Mrs B’s credibility. Evidently, however, the Tribunal did not consider, as at 19 March 2015 or subsequently, that its concerns regarding Mrs B’s credibility would form part of the reason for affirming the delegate’s decision to refuse the appellants Protection visas. In our view, the primary judge correctly concluded that the particulars as set out in the Tribunal’s letter dated 19 March 2015 complied with the requirements of s 424A(1)(a). The position did not change when the Tribunal received Mrs B’s response to her s 424A letter. It is notable that the Tribunal’s reasons for decision in respect of the appellants’ review proceeding make no reference to that response being relied upon in any way by the Tribunal in coming to the decision which it did in respect of the appellants.

38    The appellants’ claim that they had not been provided with “clear particulars” as required by s 424A(1) of the Act was primarily directed to that part of the 19 March 2015 letter which referred to:

The statement provided with the application for a Protection visa made by [Mrs B] is in a very similar format to your statement provided with your application and you have both made similar claims to fear harm from the Taliban in Pakistan.

39    These particulars were sufficient for the purposes of s 424A. The appellant was told in the s 424A letter that both she and Mrs B had used the same migration agent to lodge their claims for Protection visas. It is evident from the terms of the appellant’s response letter of 1 April 2015 that she acknowledged that she had used the same migration agent and that, although she said that she did not know whether the format for Mrs B’s application was similar, she reasoned that because they had used the same migration agent “he could have used the same format”. The appellant needed no further particulars in order to provide a meaningful response on this issue.

40    As to the clarity of the particular information that the appellant and Mrs B had both made “similar claims to fear harm from the Taliban in Pakistan”, we reject the appellants’ contention that this meant that the details of their respective claims to fear persecution were the same. The Tribunal was highlighting that both the appellant and Mrs B had claimed to fear harm from the Taliban in Pakistan. That was an accurate statement and no greater particularisation was required under s 424A(1)(a).

41    In any event, even if this be wrong, we would accept the Minister’s submission, raised by his notice of contention, that s 424A(1) was not engaged at all by the information provided by Mrs B. Time should be extended under r 1.39 of the Federal Court Rules 2011 (Cth) to enable the Minister to rely upon his notice of contention in circumstances where the appellants pointed to no prejudice and the point raised by the notice of contention was plainly arguable. An acceptable explanation was provided by Mr Reilly (who appeared for the Minister) for the late raising of the proposed notice of contention. That was because the Minister’s legal representatives had, until recently, considered that no notice of contention was required because the relevant point was simply another way of coming to the same conclusion that s 424A had not been contravened. This was a reasonable view, even if it was wrong.

42    It is well settled that, for s 424A(1)(a) of the Act to be engaged, the material in question must in its terms contain a “rejection, denial or undermining” of the review applicant’s claims (see SZBYR & Anor v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 96 ALD 1 at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 at [22] per French CJ, Heydon, Crennan, Kiefel and Bell JJ). The information provided in Mrs B’s response was largely information about her travel arrangements, travel to Australia and living arrangements in Australia and was not of a character which was caught by s 424A(1) (see, in not dissimilar circumstances, the observations of Yates J in Minister for Immigration and Border Projection v SZTJF [2015] FCA 1052 at [31]-[32]).

Conclusion

43    For these reasons, leave should be granted to the Minister to file and rely on the notice of contention dated 25 February 2016, the appeal should be dismissed and the appellants ordered to pay the Minister’s costs, as agreed or assessed. If it had been necessary to do so, we would have upheld the notice of contention.

Associate:

Dated:    5 April 2016

REASONS FOR JUDGMENT

FLICK J:

44    The facts relevant to the present appeal have been fully set forth in the joint reasons for decision of Tracey and Griffiths JJ. They need not be repeated.

45    Concurrence, regrettably, cannot be expressed with the joint reasons for decision of their Honours or with the orders proposed. The conclusion reached by their Honours (with great respect) does considerable disservice to the language of s 424(1) of the Migration Act 1958 (Cth) (the “Migration Act”) and unduly restricts the procedural rights which it affords to claimants in the position of the present Appellants.

46    Since the reasons for disagreement with their Honours can have no effect on the orders to be made, the reasons for disagreement can be shortly stated. Those reasons, it is acknowledged, give a far wider interpretation and operation to the terms of s 424(1) than that which their Honours contemplate is appropriate. The difference in approach focusses upon the opening words to s 424(1).

SECTION 424(1)

47    Section 424(1) provides as follows:

Tribunal may seek information

(1)    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

The subsection, it is respectfully considered, is a troublesome one. It is a provision which, perhaps, is informed in part by reference to s 424A(1) which provides as follows:

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.

48    Section 424(1), it should be noted at the outset, is but one of the means by which the Tribunal may become the recipient of information. In addition to s 424(1):

    section 423(1) provides that an applicant for review may give the Registrar of the Tribunal “a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider”;

    section 425(1) provides that the Tribunal “must invite” an applicant to appear “to give evidence and present arguments relating to the issues arising in relation to the decision under review”;

    section 426(2) provides that an applicant may notify the Tribunal that the applicant “wants the Tribunal to obtain oral evidence from a person or persons named in the notice”;

    section 427(1)(d) provides that the Tribunal may require the Secretary “to arrange for the making of any investigation … that the Tribunal thinks necessary”; and

    section 427(3) provides that the Tribunal may summon a person to appear to give evidence and to produce documents.

Unlike the position prevailing before the former Refugee Review Tribunal, s 362A(1) provided that an applicant in proceedings before the Migration Review Tribunal was “entitled to have access to any written material … given or produced to the Tribunal…”. In the present appeal there were but limited submissions directed to the interrelationship between these provisions. The counterpart provision to s 424(1) in respect to proceedings before the former Migration Review Tribunal is s 359(1).

49    If attention is nevertheless confined to the terms of s 424(1), the manifest object and purpose of the statutory provision is both:

    to confer a power upon the Tribunal when conducting a review to “get any information that it considers relevant”; and

    to impose upon the Tribunal a mandatory obligation to “have regard to that information in making the decision on the review”. The requirement to “have regard” to that information has been described as a “limitation on [the] power” conferred by s 424(1): Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 at [37], (2009) 238 CLR 489 at 501 per French CJ, Heydon, Crennan, Kiefel and Bell JJ.

It is to be noted that the power is not constrained otherwise than by reference to the need for the Tribunal to conduct a review and to “get” information “it considers relevant”. Subject only to those two constraints, there is otherwise no limitation upon:

    the character of the information it seeks to obtain;

    the means by which it “gets” such information; or

    the source from which it seeks to obtain that information.

There is no reason to confine, and no submission was advanced seeking to confine, the natural and ordinary meaning of the word “get”. One of the meanings of that term is to “obtain as the result of effort or contrivance; procure, acquire for oneself or another; seek out and take…”: Shorter Oxford English Dictionary (5th ed, Oxford University Press, 1993).

50    It is nevertheless clear that “the fact that the Tribunal obtains information in exercise of the s 424(1) power does not require a conclusion that the Tribunal then considers that that information would be the reason or part of the reason for affirming the decision under review”: SZLPO v Minister for Immigration and Citizenship (No 2) [2009] FCAFC 60 at [22], (2009) 177 FCR 29 at 33. Lindgren, Stone and Bennett JJ there continued on to observe that the “information received might prove to be irrelevant or the Tribunal might think that it does not deserve to be accorded any weight”. The fact that the Tribunal exercises the power conferred by s 424(1) to “get” information “that it considers relevant” does not, in other words, preclude a conclusion that the information – once obtained – may prove to be irrelevant or less than persuasive. And it is sufficient for the Tribunal to “have regard” to the information obtained if the information “receives … ‘genuine’ consideration…”: SZRLO v Minister for Immigration and Citizenship [2013] FCA 825 at [49] to [52] per Barker J; DZADQ v Minister for Immigration and Border Protection [2014] FCA 754 at [42] to [69], (2014) 143 ALD 659 at 669 to 675 per Mansfield J.

51    Notwithstanding such principles as have been established with respect to the operation of s 424(1), the simplicity with which the subsection is drafted nevertheless conceals a number of potential difficulties.

52    One of those difficulties may arise where the Tribunal “gets” information pursuant to s 424(1) and forms a view that the information once obtained is irrelevant or lacking in probative value. If that were the case, there would be no requirement imposed by s 424A(1) to inform an applicant, because such information would not be information that the Tribunal considers “would be the reason, or a part of the reason, for affirming the decision that is under review”.

53    But an applicant has a very real interest in whether the power conferred by s 424(1) is exercised at all, and an interest in the information once obtained. It may well be the case that there is no requirement to consult an applicant regarding whether the power should be exercised. Indeed, in SZSYG v Minister for Immigration and Border Protection [2015] FCA 1319, Markovic J concluded:

[24]    Given the permissive or discretionary nature of the power, in my view there is no obligation on the Tribunal to consult the appellant on whether it should exercise its powers under s 424(1). It is a matter for the Tribunal. The fact that the Tribunal considered itself, without any request from the appellant to do so, the possibility of contacting the author of the letter does not lead to the result that the Tribunal was then bound to consult the appellant about whether it should in fact proceed to exercise its powers. The decision as to whether to exercise powers under s 424(1) of the Act is one for the Tribunal alone.

Some reservation is expressed with the proposition that the exercise of the power conferred by s 424(1) is “for the Tribunal alone”. But that reservation may presently be left to one side. Once the power to “get” information has been exercised different considerations may arise. An applicant may wish to be heard in respect to the relevance or persuasive value of the information obtained, and may well wish to make a submission that the information obtained is more persuasive than the Tribunal may at first think appropriate. If so, an applicant may well wish to make a submission that the information indeed supports – or “corroborates” – claims being made. One difficulty confronting such an applicant is an absence of knowledge of what information has been obtained. Indeed, considerable reservation may also be expressed with any conclusion that leaves to the unexaminable discretion of the Tribunal the power to select from the overall information obtained such parts as it may wish to disclose. As is the case with s 424A, “information … cannot in all cases be clinically divorced from the context in which it appears”: cf. SZNKO v Minister for Immigration and Citizenship [2010] FCA 297 at [23], (2010) 184 FCR 505 at 512 per Flick J (approved: SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 at [27] to [32], (2015) 229 FCR 90 at 102 to 103 per Perram, Jagot and Griffiths JJ). In proceedings before the Refugee Review Tribunal there was no counterpart provision to that found in s 362A(1).

54    A conclusion that the statutory power is conferred to obtain information and to make a decision with respect to its probative value, without input from the person most affected by the exercise of that power, is not self-evidently correct.

55    But all such troublesome matters may also presently be left to one side.

56    As Tracey and Griffiths JJ have outlined, on the facts of the present case, the Tribunal:

    obtained information from Mrs B – some of that information apparently being provided by her in support of her own visa application; some of that information being provided in response to a letter forwarded to her by the Tribunal pursuant to s 424A; and some apparently obtained during an interview between Mrs B and the Tribunal, conducted for the purpose of reviewing Mrs B’s own application (at para [24]).

Relevantly, however, on the facts of the present case and again as noted by Tracey and Griffiths JJ:

    some of the information obtained by the Tribunal from that variety of sources was employed by the Tribunal in conducting the Appellants’ own application for review.

Moreover, no question arises in the present case as to the Tribunal’s assessment of the potential relevance of the information obtained from Mrs B or the Tribunal’s assessment that such information may be probative. The Tribunal considered it of potential relevance and weight and, accordingly, included at least some of the information obtained from Mrs B in the s 424A letter forwarded to the Appellants.

57    Notwithstanding considerable deference to the contrary view of Tracey and Griffiths JJ, it is respectfully considered not a persuasive answer to say that the Tribunal “got” such information solely in respect to its conduct of the review of Mrs B’s application and not when conducting the review of the Appellants’ application (at para [23]).

58    It may readily be accepted that the Tribunal initially came into possession of information from Mrs B while conducting its review of Mrs B’s application – and, accordingly “got” such information in conducting that review. But that fact is, with respect, wholly consistent with a further conclusion that the Tribunal, once having that information in its possession, also employed that same information (or at least some of it) for the purposes of conducting its review of the Appellants’ own application for review. Whatever may have been the means whereby the Tribunal initially “got” Mrs B’s information, the Tribunal brought some of that same information within the scope of its consideration of the Appellants’ case.

59    In bringing that same information within the scope of the Appellants’ review, the Tribunal obtained – or “got” – information from Mrs B. It was certainly not information provided by the Appellants to the Tribunal. The Tribunal “got” that information from some other source. The fact that the Tribunal may initially “get” information for the purposes of conducting one review does not preclude a conclusion that it may thereafter “get” the same information for the purposes of conducting a separate review. For the purposes of conducting that separate review, the Tribunal may come into possession of information either by being provided with information by a claimant, or by invoking one or other of a number of statutory sources of obtaining information. The information initially obtained in conducting Mrs B’s application for review was not information which properly could be regarded as being part of the accumulated expertise or knowledge of the individual Tribunal member.

60    By one means or another, the Tribunal in conducting its review of the Appellants’ application set forth and used information it had initially obtained when reviewing Mrs B’s application. By obtaining and using that information it “got” information it considered relevant to the conduct of the Appellants’ review.

61    Any other conclusion, with respect, gives too narrow a meaning to the statutory phrase “the Tribunal may get information…”.

62    The introductory words to s 424(1), namely “[i]n conducting the review”, cannot be used as a licence to conclude that information can only be obtained once and that the Tribunal is then clothed with authority to use that same information (in whole or in part) in such manner as it sees fit – and to do so in whatever other review application that may come before it. Nor can the prospect of the Appellants making a request pursuant to s 426 that the Tribunal should “obtain oral evidence” from Mrs B be a reason for giving to s 424(1) any meaning other than that conveyed by the natural and ordinary meaning of the words employed.

63    Having departed from the conclusion of Tracey and Griffiths JJ as to the construction to be given to the opening words of s 424(1), there nevertheless remains a difficult question of the manner in which the concluding words of that subsection should operate.

64    Once it is concluded that the Tribunal “got” information from Mrs B which the Tribunal considered relevant to the review of the Appellants’ application, s 424(1) goes on to provide that the “Tribunal must have regard to that information in making the decision on the review”.

65    On one view of the facts of present relevance, the Tribunal did “have regard to that information” by informing the Appellants of its concerns in the letter forwarded to the Appellants pursuant to s 424A(1). Difficult questions may arise over the ambit of the phrase “that information”. Having obtained – or “got” – information, in the absence of a provision such as s 362A(1), there may be no necessity for the Tribunal to disclose the entirety of the information it has obtained. Difficult questions may also arise as to the means by which the Tribunal forms a view on whether any of the information is either relevant or of probative weight and the extent to which it may have to involve a claimant in resolving such questions.

66    On the facts of the present case, again such difficulties may presently be left to one side. It is sufficient to conclude that it is a course not open to the Tribunal to “cherry-pick” its way through Mrs B’s response to the s 424A letter forwarded to her and to select such “parts” of the information which it was prepared to disclose to the Appellants. Indeed, it is not necessary even to conclude that the entirety of Mrs B’s response to the s 424A letter need be disclosed to the Appellants. Questions may arise over the need to preserve confidentiality in some parts of Mrs B’s response to the s 424A letter. But the mere fact that information “may contain personal – and in some cases intensely personal – information is but part of the circumstances to be taken into account”: Minister for Immigration and Citizenship v Maman [2012] FCAFC 13 at [39], (2012) 200 FCR 30 at 43 per Flick and Foster JJ.

67    It is sufficient for present purposes to conclude that there has been a failure on the part of the Tribunal to comply with s 424(1). Whatever may be the outer reaches of the “information” to which the Tribunal “must have regard”, on the facts of the present case the Tribunal did not have regard to the entirety of Mrs B’s response. Having “got” that information, no matter what other information it may also have obtained, the Tribunal was obliged to have regard to the entirety of that response and not merely to that part which it considered may be a reason for “affirming the decision … under review…”.

CONCLUSION

68    Contrary to the conclusion of Tracey and Griffiths JJ, it is respectfully concluded that there has been a breach by the Tribunal of s 424(1) of the Migration Act.

69    The appeal, it is respectfully concluded, should be allowed and the matter remitted to a differently constituted Tribunal to be heard according to law. Even had there been compliance with s 424(1), it must nevertheless be recognised that the Tribunal may well have reached the same conclusion given the variety of “coincidences” and the Tribunal’s otherwise adverse assessment of the credibility of the Appellants. But there has been a breach and it remains a matter for the Tribunal to make findings of fact based upon the totality of the evidence and information to which it “must have regard”.

Associate:

Dated:    5 April 2016