FEDERAL COURT OF AUSTRALIA

BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of primary judge made on 26 May 2017 be set aside.

3.    A writ of certiorari issue, directed at the second respondent quashing its decision made on 21 August 2015.

4.    The appellant’s application for review of the first respondent’s decision be remitted to the second respondent to be determined according to law.

5.    The first respondent pay the appellant’s costs of the appeal and of the proceedings before the primary judge.

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

REASONS FOR JUDGMENT

NORTH AND CHARLESWORTH JJ:

1    We have had the benefit of reading the reasons for judgment of Logan J in draft.

2    We agree with the reasons given by his Honour for rejecting the first and third grounds of appeal. Our concurrence is subject to the qualification that we prefer not to express any view as to whether the decision of the Full Court in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 was plainly right. It is sufficient to conclude that the decision is not plainly wrong and so should be followed by this Court.

3    For the reasons that follow, we would reject the submissions raised on the Minister’s notice of contention, uphold the second ground of appeal and order that the appeal be allowed.

ISSUES

4    Two questions arise on the notice of contention and the second ground of appeal.

5    The first is whether the Tribunal failed to consider the corroborative evidence contained in the two witness statements.

6    As expressed in the notice of contention, the second question is whether any corroborative evidence not considered by the Tribunal was sufficiently important to justify the conclusion that the Tribunal had failed to conduct a review as required by s 415 of the Migration Act 1958 (Cth). To similar effect, the second ground of appeal alleges that the learned judge ought to have found that there was a possibility of a different outcome had the Tribunal considered the corroborative evidence. In each case, the underlying issue is whether any failure by the Tribunal to consider the corroborative evidence constituted jurisdictional error.

CONSIDERATION

7    In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, McHugh and Gummow JJ said (at ALR [49]):

In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.

8    Nothing in Applicant S20/2002 relieves the Tribunal from its obligation to give consideration to corroborative evidence: the decision concerns only the timing of that consideration; Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at [37] – [39] (North and Lander JJ).

9    As in Applicant S20/2002, the Tribunal, in this case, made significant adverse credibility findings against the appellant before it turned, at [32] of its reasons, to consider corroborative material. As the primary judge correctly observed, the Tribunal did not commit jurisdictional error merely by first making adverse findings about the appellant’s credibility in isolation of corroborative evidence: Applicant S20/2002; Chen v Minister for Immigration and Citizenship [2011] FCAFC 56. The sequence in which the Tribunal should approach the evidence was a matter for the Tribunal to decide.

10    The primary judge concluded (at [44]) that the Tribunal’s “general reference” at [32] of its reasons to “a number of documents to substantiate” the appellant’s claims, together with its use of the word “including”, were not sufficient to support a conclusion that the Tribunal had considered the two notarised witness statements. The primary judge continued (at [44]):

… It seems to me that the particular documents referred to as being included in this general statement, ‘FIRs, receipts for FIRs, death certificates, hospital documents and newspaper articles’ are of an entirely different character to evidence given in the form of notarised witness statements by two individuals. …

11    The principles against which the reasons of an administrative decision-maker are to be interpreted are well established. They are conveniently summarised by Logan J at [48] – [52] and need not be repeated here. The principles themselves are not subject to challenge. Rather, the appeal turns on the application of the principles to the circumstances of the case.

12    We have concluded that the approach of the primary judge to the Tribunal’s reasons was the correct one. The relevant passage of the Tribunal’s reasons is to be read having regard to its position in the reasons, read as a whole. Read naturally and in its proper context, the language in the passage should not be understood as recording any findings in respect of the weight to be given to the two witness accounts.

13    The passage in question is one in which the Tribunal records the effect of the country information it put to the appellant during the course of the hearing. That information concerned the prevalence of document fraud in India affecting the kinds of documents expressly identified in the Tribunal’s reasons: police incident reports, death certificates, hospital records and newspaper articles.

14    The corroborative witness statements were of a different nature. The rejection of that evidence would involve some consideration of the likelihood that the statements were themselves forged by the applicant or some other person at his request, or that the witnesses themselves exaggerated or fabricated their evidence, presumably for the purpose of lending evidentiary support to the appellant’s claim to have a well-founded fear of persecution. There may be other reasons for rejecting the evidence. The prevalence of document fraud in India is a reason for rejecting the more official species of records, but the question of whether the witness statements ought to be rejected involved a different kind of inquiry.

15    The reasons simply do not disclose whether or how the Tribunal grappled with and assessed the evidentiary value of the witness statements. Read in its proper context, the word “including” ought not be interpreted so broadly as to capture unmentioned documents of a different nature, particularly documents that (if given weight) may have more evidentiary value than those classes of documents that were expressly mentioned by the Tribunal. Accordingly, the primary judge did not err in concluding that there was no express or implied reference in the Tribunal’s reasons to the corroborative witness statements.

16    Whether the Tribunal failed to have regard at all to the witness statements is a question to be determined in all of the circumstances, including the nature of the appellant’s claims, the materiality of the evidence in question and the conduct of the Tribunal’s proceedings. The manner in which the Tribunal expressed its reasons informs that inquiry, but is not determinative of it. However, as the Full Court said in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 (at ALR [34]):

... where a particular matter, or particular evidence, is not referred to in the tribunal’s reasons, the findings and evidence that the tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].

17    In our view it could not be said that the Tribunal made no mention of the witness statements because the Tribunal considered them to be immaterial. If accepted, the statements were capable of supporting the factual allegations made by the appellant in support of his claim to have a well-founded fear of persecution should he be returned to India. The statements did not go to a peripheral issue. They could not be ignored on the basis that they were irrelevant to the appellant’s claims, nor on the basis that the matters dealt with in the statements were subsumed in findings of greater generality and so rendered unnecessary to consider or decide.

18    The primary judge was correct to conclude that the Tribunal “overlooked, failed to consider or disregarded” the two corroborative witness statements. The first ground advanced on the notice of contention should be rejected.

JURISDICTIONAL ERROR

19    An administrative decision-maker will commit jurisdictional error if it ignores relevant material in such a way as to affect the exercise of its powers: Craig v South Australia (1995) 184 CLR 163 at 179.

20    The primary judge concluded that the Tribunal did not commit jurisdictional error by its failure to have regard to the witness statements because there was no possibility that the outcome of its review would have been different had the evidence contained in the statements been considered. The primary judge concluded (at [48] – [49]) that the inconsistencies or gaps in the appellant’s accounts went to issues that the witness statements did not address and so the “overwhelming” adverse credibility findings could not have been avoided in any event. In addition, the primary judge said (at [51]):

Moreover, the Tribunal’s views, based on country information, regarding the authenticity of documents, were made very clear. It said, based on the Department of Foreign Affairs and Trade … Country Information Report on India ... that, ‘[a]ccording to this report, there are no classes of documents which are not open to fraud’ … Given this view of the Tribunal, it is likely the Tribunal would have regarded the witness statements with the same scepticism.

21    The primary judge was correct to observe that the Tribunal identified multiple inconsistencies and deficiencies in the appellant’s accounts, both in relation to the factual matters dealt with in the witness statements and in respect of other factual matters to which the statements did not refer. The primary judge was also correct in his assessment of the likelihood that the Tribunal would view the witness statements with some scepticism.

22    There were multiple factors bearing adversely on the appellant’s credibility. As Logan J has identified, the Tribunal gave detailed reasons for its adverse credibility findings, a summary of which appears at [41] of his Honour’s reasons. Many of the factors bearing adversely on the appellant’s credit could not have been affected by the content of the witness statements. That is particularly so in respect of matters such as the appellant’s delay in making his application for protection, his return to his village in 2011 despite his claimed fear of persecution at the hands of authorities there, and inconsistencies between evidence given by the appellant at the hearing and on his visa application about who had threatened his father. However, other findings affecting the appellant’s credibility did indeed concern factual matters in respect of which the two statements were corroborative. Read as a whole, the Tribunal’s reasons indicate that its conclusion that the appellant was not a credible witness was founded on an accumulation of factors, many of which but not all of which could not have been affected by the content of the statements.

23    In our view, the critical question is not whether the Tribunal was likely to view the statements with scepticism. Nor is it correct to ask whether the two witness statements could possibly overcome the significant adverse credibility findings recorded in the Tribunal’s reasons. To approach the appeal in that way is to ignore the circumstance that the Tribunal’s reasons are a record of a reasoning process based on an incomplete assessment of the relevant evidence. The critical question is whether the Tribunal could possibly have assessed the appellant’s credibility (and hence the substantive issues) differently had it been conscious of the content of the statements at the time that it engaged in its own reasoning process.

24    The order in which the Tribunal decided to deal with the evidence is also significant.

25    Whilst it may have been open to the Tribunal to first consider the appellant’s evidence in isolation from the corroborative evidence, it cannot be said with certainty that the Tribunal would have adopted that method of decision-making had it been conscious of the content of the statements from the outset. Had it been conscious of the existence of the statements, it may instead have adopted what McHugh and Gummow JJ described as the “preferable method of going about the task presented by s 430 of the Act”: Applicant S20/2002 at [49]. Accordingly, it is no answer to the appellant’s arguments on this ground of appeal to say that his credibility was irreparably damaged by the time that the corroborative evidence came to be considered. It is possible that the appellant’s credibility may not have been irreparably damaged at all. There is, accordingly, jurisdictional error.

26    We propose the following orders:

(1)    The appeal be allowed.

(2)    The orders of primary judge made on 26 May 2017 be set aside.

(3)    A writ of certiorari issue, directed at the second respondent quashing its decision made on 21 August 2015.

(4)    The appellant’s application for review of the first respondent’s decision be remitted to the second respondent to be determined according to law.

(5)    The first respondent pay the appellant’s costs of the appeal and of the proceedings before the primary judge.

Associate:

Dated:    22 May 2018

REASONS FOR JUDGMENT

LOGAN J:

27    The first appellant is a citizen of the Republic of India. Before coming to Australia, he lived in a village in the Punjab in that country with his wife, the second appellant. She, too, is a citizen of the Republic of India. The third appellant is their daughter. Though born in Australia, their daughter is a citizen of the Republic of India.

28    The appellants came, in circumstances related below, to lodge a claim under the Migration Act 1958 (Cth) (the Act) for that class of visa known as a protection visa. The second and third respondents’ claims for that visa are derivative in the sense that they advanced no claim separate to that of the first appellant as to why the first respondent, the Minister for Immigration and Border Protection (the Minister), should be satisfied that they met the criteria for the granting to them of such a visa. Given this, it is convenient to focus just on the circumstances of the case in relation to the first appellant and, for that purpose to term him, “the appellant”.

29    The Minister was the only active party respondent. Quite properly and as might be expected, the second respondent, the Administrative Appeals Tribunal (Tribunal), filed a submitting appearance.

30    The appellant first entered Australia on 17 July 2009 as a dependent of his wife. She had been granted a Class TU (subclass 572) Vocational Education and Training Sector visa. That visa expired on 18 September 2011. Prior to the expiry of that visa, on 17 August 2011, the appellant’s wife sought a further student visa. That was refused by a delegate of the Minister on 28 October 2011. An application for the review of that decision by the then Migration Review Tribunal followed. On 11 June 2013, that tribunal affirmed the Minister’s delegate’s refusal decision. The appellant’s wife then made an application under s 351 of the Act for Ministerial intervention. That was declined on 1 November 2013. On 10 December 2013, the appellant lodged his application for a protection visa.

31    The appellant’s claimed fear of persecution arose against the asserted background of interfamily rivalry in his home village in the Punjab. His claims were as follows: that

    A member of the rival family to his own had been found dead in a local water drain in or about 2 May 2003.

    This led to his being arrested on 20 May 2003 by local police, acting at the behest of villagers associated with the rival family.

    Along with two friends, he was taken to the local police station and then, over a period of three months, transferred to and kept in detention in various local police stations.

    While in detention, he and his friends were denied access to food and severely beaten, sometimes to the point of unconsciousness.

    On those occasions when he had been beaten to the point of unconsciousness, he was taken by police to hospital.

    His father had paid a sum of money to police to secure his release.

    There was no follow up action by police for five years. During that time he and the same two friends had occasionally called in to a local police station.

    In March 2009, one of the two friends with whom the appellant had been arrested in 2003 was arrested and tortured and killed in custody by local police.

    On 28 April 2009, the appellant’s home was raided by police. He was again arrested in respect of the same matter as in 2003. He was taken to the local police station and beaten.

    Prior to this arrest, the appellant had been “framed” in another criminal case.

    As a result of these experiences, the appellant became fearful and planned to flee to Australia with his wife.

32    Following their arrival in Australia, the appellant and his wife returned to the Punjab on two short visits to India, once in 2010, the other time in 2011. He claimed that, during the 2011 visit, on or about 25 or 26 March 2011, the police raided his house at his home village. He further claimed that, when this occurred, he was in a different village and escaped soon afterwards.

33    The appellant also claimed the remaining of his two friends with whom he had been arrested in 2003 was arrested in January 2013 and died after a few days in custody.

34    The appellant’s application for a protection visa was refused by a delegate of the Minister on 31 October 2014. That refusal turned upon an assessment of the appellant’s credibility, although the delegate did accept some aspects of the appellant’s claims.

35    The appellant sought the review of the Minister’s delegate’s decision by the Tribunal. On 21 August 2015, the Tribunal decided to affirm the decision made by the Minister’s delegate. It will be necessary later in these reasons for judgment to detail the reasons for that affirmation. The Tribunal’s role was, of course, to review the decision of the Minister’s delegate, not the reasons for that decision. It is though a feature of the Tribunal’s reasons that, approaching afresh the subject of whether satisfied that the appellant met the criteria for a protection visa (or ought to be afforded complementary protection) the Tribunal also made adverse credibility findings in respect of the appellant. These were more pervasive than those which the delegate had made. The whole point of the conduct of a review on the merits is that the Tribunal is not bound by the findings of the person who made the decision under review. That is not to say that, in particular cases, the earlier course of the administrative decision-making continuum of which the Tribunal forms part (Jebb v Repatriation Commission (1988) 80 ALR 329 at 333, Davies J) may not shape what the parties to the review either put to the Tribunal as controversial or what they might be expected to apprehend in advance may be controversial in the review.

36    The appellant then applied for the judicial review of the Tribunal’s decision by the Federal Circuit Court. On 24 May 2017, that court dismissed that application with costs. The appellant has now appealed to this Court against that order of dismissal.

37    The grounds of appeal are:

1.    The Learned Judge erroneously found that breach of s 424AA of the Act was not a jurisdictional error because s 424A(3) relieved the Tribunal of the obligations under s 424AA in relation to country information.

Particulars

i.    When [the appellant] was appearing before the Tribunal because of an invitation under s 425 of the Act, the Tribunal orally gave him particulars of information that the Tribunal considered could be the reason, or part of the reason, for affirming the decision under review.

ii.    The information (Information) given to [the appellant] orally during the hearing was about:

a.    the Punjab police (see Tribunal’s decision at [25]); and

b.    the prevalence of document fraud in India (see Tribunal’s decision at [32]).

iii.    Having exercised its discretionary power under s 424AA of the Act to give oral particulars of the Information, the Tribunal breached the mandatory requirements in s 424AA(b)(i), (ii), (iii) and/or (iv) of the Act in its manner of giving the Information.

iv.    Section 424AA is not only intended to operate in conjunction with s 424A.

v.    Section 424A(3) does not relieve the Tribunal of the obligations under s 424AA in relation to country information, in circumstances where oral particulars of country information are given to an applicant at a hearing.

2.    Having found (Judgment at [46]) that the Tribunal had “overlooked, failed to consider or disregarded” two corroborative witness statements, the Learned Judge erred by concluding that this did not amount to jurisdictional error. In the circumstances of this case - where the Tribunal’s decision largely turned on adverse credibility findings and the witness statements were corroborative of the main appellant's claims - the Learned Judge ought to have found that there was a possibility of a different outcome had the Tribunal not erred in the manner found by the Court.

3.    The Learned Judge erred in finding that the Tribunal did not breach s 425 of the Act by failing to give the appellants a meaningful invitation to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review in circumstances where:

a.    the Tribunal overlooked, failed to consider or disregarded two corroborative witness statements; and

b.    the Tribunal purported to put Information orally during the hearing, but did so without giving [the appellant] sufficient details about the Information for [the appellant] to reasonably respond to it.

38    The Minister did not accept that the Tribunal had “overlooked, failed to consider or disregarded” the two corroborative witness statements in question. Accordingly, he filed a notice of contention on the basis of which he submitted that the appeal ought, in any event, to be dismissed. The Minister contended:

1.    The Tribunal did not fail to consider the corroborative evidence.

2.    Any corroborative evidence that was not considered by the Tribunal is not sufficiently important to justify the conclusion that the Tribunal failed to conduct a review as required by the Act or denied procedural fairness to [the appellant].

39    Consideration of the merits of the issues raised by these grounds of appeal and via the notice of contention requires some elaboration of why it was the appellant failed before the Tribunal and then, in turn, before the primary judge.

40    As I have mentioned, the Tribunal made adverse credibility findings in respect of the appellant. The Tribunal did not accept that the appellant had had the experiences claimed with the police in the Punjab or that the other events he related had occurred. There were seven particular reasons for this which, in turn, informed a conclusion which was expressed at para 33 of the Tribunal’s reasons in this way:

Based on the many significant inconsistencies and discrepancies in the applicant’s evidence, as discussed above, the Tribunal does not find the appellant to be a credible witness or his claims for protection genuine. Further, the Tribunal finds the applicant’s return to India despite the alleged targeting of him over a period of six years and his delay in seeking protection raises further doubts about the veracity of his fear …

41    The seven particular reasons were extensively detailed by the Tribunal (from paras 22 to 31 inclusive of the reasons). In summary, they were:

(a)    a change in the appellant’s evidence over time as to the reason why he and his friends were arrested and detained in 2003;

(b)    inconsistency over time in the appellant’s account as to when he and his friends were first arrested;

(c)    inconsistencies over time in the appellant’s account as to where and from whom he received medical treatment as a result of his claimed beatings when initially in custody and, in any event, when measured against general country information before the Tribunal, the inherent unlikelihood, given what was reported in that general country information that police in the Punjab would have been concerned about his well-being, given the reports of practices of arbitrary detention and extra-judicial killings and “disappearances”;

(d)    inconsistencies as between the appellant’s protection visa application and other statements made by him as to where he had lived in the period between the alleged incident in 2003 and when he departed for Australia with his wife in 2009;

(e)    an inconsistency between a statement the appellant made at the hearing as to a return to his village in 2007 and related experiences and an absence of reference to this event in either the protection visa application or a statutory declaration which he made in support of that application;

(f)    inconsistent evidence given by the appellant about his arrest in 2009;

(g)    an inconsistency as between evidence given by the appellant at the hearing and in his protection visa application about who had made threats to his father after the appellant had left India for Australia in 2009;

(h)    the unlikelihood of the appellant’s account as to why he feared persecution, including for his life, given his return to his village in 2011 for about a month and related to that, his wife’s travel there with their child in advance unaccompanied by the appellant;

(i)    the delay in the appellant’s making application for a protection visa after his arrival in Australia, despite the fear which he claimed were he to return to India.

42    Given the issue raised by the notice of contention relating to whether the Tribunal had overlooked two witness statements put forward by the appellant as corroborative of his claim, para 32 of the Tribunal’s reasons should be set out in full:

The Tribunal notes that the applicant provided a number of documents to substantiate his claims for protection including FIRs, receipts for FIRs, death certificates, hospital documents and newspaper articles. However, given the Tribunal’s concerns regarding the applicant’s credibility, the Tribunal places little weight on these documents. Further, the Tribunal has had regard to country information it put to the applicant at the hearing, including information from DFAT Country Information Report on India dated 15 July 2015 regarding the prevalence of document fraud in India. According to this report, there are no classes of documents which are not open to fraud.

It is apparent from earlier in the Tribunal’s reasons (para 11) that the acronym “FIR” refers to a “First Incident Report”, a class of document generated, or purportedly generated, by the police in the Punjab.

43    Of the two witness statements, one was a notarised, translated statement dated 16 January 2014, apparently prepared by the appellant’s father; the other was a like such statement dated 16 January 2014, apparently prepared by a member of the appellant’s village in the Punjab, “Mr P”.

44    The learned primary judge (at paras 13 and 14 of his Honour’s reasons for judgment) offered the following summary of the contents of the respective statements, which was not, of itself, controversial on the appeal:

13.     In his witness statement, the Applicant’s father, Mr S, stated that:

a)    following the recovery of the dead body of the son of Mr CK on 2 May 2003, the Applicant was arrested under a “murder conspiracy” on 20 May 2003. Mr S stated that “[Mr CK] of our village belongs to Akali Dal party of our opponent party”;

b)    the Applicant’s two friends were arrested and kept in separate police stations at Jagraon for three months, where they were beaten mercilessly until unconscious and were not given food;

c)    this was all done under a “political conspiracy”;

d)    they begged the police to hear their case but were not heard as Mr CK “was having high political approach”;

e)    with the help of other people (including Mr P, the second witness), they managed to free the Applicant and his friends by making payments to the police;

f)    the case was “hidden for about 5 years and several time [sic] police called my son and his friends to Police Station...”;

g)    during 2009, the police raided his home, and on 28 April 2009 they arrested the Applicant and beat him “mercilessly”;

h)    the Applicant then went to Australia on a student visa, following which, both he and the Applicant were threatened and harassed;

i)    the police threatened to shoot the Applicant; and

j)    both of the Applicant’s friends have already died and “they also want to kill [the Applicant] under a conspiracy”.

14.     In his witness statement, Mr P said that:

a)    the Applicant and his two friends, Mr R and Mr G, were falsely implicated in a murder case;

b)    they were kept in different police stations for three months and were “beaten mercilessly”;

c)    Mr CK’s son was murdered by another person, but under “some conspiracy”, the Applicant and his two friends were considered responsible and harassed illegally;

d)    Mr P, with the help of “other well renowned personnel”, managed to free the Applicant and his friends by giving some money to the inspector;

e)    after some time, the matter was “with held”, but suddenly the police started harassing their families;

f)    both of the Applicant’s friends were picked up by the police and beaten to death. Now the opposition party, through the police, is harassing their families and threatening dire consequences; and

g)    the Applicant’s life is in danger because they want to kill him “under a big conspiracy as per his friends.”

45    From his grounds of appeal, the appellant distilled in his submissions three bases upon which it was put the judgment of the Federal Circuit Court was in error:

(a)    The Court erred in finding that the Tribunal’s failure to consider the corroborative witness statements did not amount to jurisdictional error (Ground 2). In particular, in failing to be satisfied that “there [was] some possibility that the outcome would have changed”, the Court misapplied the test for jurisdictional error.

(b)    The Court erred in finding that the Tribunal did not contravene s 424AA of the Migration Act 1958 (Cth) by reason of its failure to put particulars of the country information to the Appellants during the hearing (Ground 1).

(c)    The Court erred in failing to find that the Tribunal contravened s 425 of the Act (Ground 3). The Court should have found that the Appellants were not afforded a meaningful opportunity to present arguments and make submissions in accordance with s 425 in circumstances where the Tribunal mistakenly believed it had put particulars of country information to the Appellants during the hearing.

46    I shall deal with these bases of challenge in the order in which the appellant advanced them.

47    The first is premised upon the correctness of the conclusion of the primary judge that the two corroborative statements were not considered by the Tribunal.

48    In my view, it is salutary, in dealing with the merits of this first basis of challenge (Ground 2), to commence with a reminder as to the express approval given by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (Wu Shan Liang) of observations made by the Full Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280, at 287:

[A court should not be] “concerned with looseness in the language … nor with unhappy phrasing.” … “The reasons of the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

Of these observations, taken to be well settled, it was then added in the joint judgment in the High Court (at 272):

They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised on over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

[Footnote reference omitted]

49    The observations made or approved in Wu Shan Liang are authoritative and salutary. Those qualities are not diminished by their familiarity or by the frequency of their encounter in other cases.

50    At common law, there is no general duty on the part of an administrator, which includes a tribunal exercising the executive power of the Commonwealth in place of a primary administrative decision-maker, to give reasons: Public Service Board of NSW v Osmond (1986) 159 CLR 656 (Osmond). Where, in the absence of a duty to give reasons, an administrator chooses not to give them, that does not necessarily advantage that administrator in relation to the susceptibility of the decision to effective judicial review. As Gibbs CJ explained in Osmond, at 663, by reference to Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997, where an administrator not bound to give reasons chooses not to give them voluntarily, it may be possible nonetheless to infer that he or she had no good reason for the decision. Such an inference might be drawn where, in outcome, a decision is, given the context in which it fell to be made, unreasonable. This accords with an observation made by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] that, “Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.” Even though, as their Honours also state in that case (at [68]), unreasonableness is neither confined to the illogical or irrational nor fixed as to its metes and bounds by what was said of it by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, experience suggests that it will be a rare case where unreasonableness as a matter of inference from outcome will be established.

51    One purpose served by an alteration by statute of the common law position so as to require the giving of reasons either by an administrator or a tribunal is, undoubtedly, to facilitate effective judicial review by requiring the exposure of why the decision was made. Another is to promote better administrative decision-making and to reduce the commission of jurisdictional errors by such persons or bodies by imposing upon them the discipline of explaining why a decision has been made and thereby, so it is hoped, forcing an administrator to take into account all relevant considerations and not to be distracted by irrelevant considerations and otherwise to act according to law in the making of the decision. The Tribunal was subject to such a statutory obligation to give reasons: s 430 of the Act.

52    Against this background of alteration of the common law position, it is only to be expected that those dissatisfied with the outcome of a particular decision will seek to find error in the reasons given for it. It is in this context that the observations made or approved in Wu Shan Liang must be given not just formal acknowledgement but principled application. The present, in my view, is very much a case in point.

53    The Tribunal’s reasons expose in considerable detail and logically why it is that the Tribunal was not satisfied that the appellant had the fear which he claimed. The reasons given were cumulative in their effect and interplay. When it is remembered that the appellant’s claim was grounded in an alleged incident in 2003 and alleged related experiences that year, the claimed persecutory aspects of which were said never to have dissipated and which were, on the appellant’s claim, dramatically resurrected in 2009, just before he left for Australia with his wife, that no claim was then made for a protection visa, that the appellant and his family twice returned to their home village thereafter and that the claim for a protection visa was made only after all avenues for the securing of a further student visa by the appellant’s wife had been exhausted, a reasonable basis for the Tribunal’s scepticism is readily apparent in the reasons. Especially that is so given that the student visa originally granted was always limited in its duration and thus carried with it, from the moment of the appellant’s arrival in Australia, the prospect that he would have to return to India on its expiry. As the Tribunal’s reasons made plain, these factors were not the only basis for the Tribunal’s absence of satisfaction in respect of the claimed fear. What is telling about those factors relating to the appellant’s return to India and delay in the making of a Protection visa application is that the scepticism evidently bred by these factors took the nature of the appellant’s claim as made and apparently corroborated by purported documentation (including the witness statements) as a given and weighed those up against inferences as to an inherent unlikelihood of such visits and delay if the fear were as claimed. An observation made by Heerey J in Selvadurai, V. v Minister for Immigration & Ethnic Affairs [1994] FCA 301, at p 10; (1994) 34 ALD 347 (extract), at 349 is apposite:

The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution.

54    In Minister for Immigration and Citizenship v SZNSP, [2010] 184 FCR 485, [36] & [38], North and Lander JJ stated:

That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision-maker could determine to reject it out of hand.

…

The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20 ... does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all of the other evidence.

55    Of course it would have been felicitous if the Tribunal had made express reference to the two witness statements in its reasons, particularly in para 32. But that same paragraph makes it explicit that the Tribunal was well aware that the appellant sought to support his case by corroborative documentation. The reference in the reasons to particular such documents is inclusory, not exhaustive. This is not a case where the Tribunal has ignored completely the existence of corroborative evidence. It has just chosen to refer to that evidence, which includes the two statements, collectively.

56    In these circumstances, the correct approach is as distilled from prior authority by the Full Court in Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67, at [34]:

The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].

57    Here, that the Tribunal has detailed particular supporting documents but not all serves not to prove that it has ignored the two statements but rather, from the details of particular documents given, that the Tribunal was well aware that the appellant had submitted a range of superficially corroborative documents. A more bland reference, absent any particularity, might have supported an inference that it was nothing other than a formulistic reference, devoid of engagement with the particular, supposedly supporting case.

58    In the circumstances of the present case, to read the reasons in any other way than encompassing an awareness of, and regard to, the whole class of supporting documents is, in my view, and with all respect to the primary judge, to construe those reasons “minutely and finely with an eye keenly attuned to the perception of error”, contrary to Wu Shan Liang. It is to elevate to an asserted position of central importance, based on the absence of explicit reference to them, the witness statements over and above the particular documents which the Tribunal chose explicitly to mention. It is to fail to read the reasons as a whole. The Tribunal was entitled to, and in this case evidently did, have regard to other factors bearing on the appellant’s credibility prior to considering any asserted corroborative documents: Minister for Immigration v SZNSP (2010) 184 FCR 485. Each of the documents, including those said to be of “central importance”, if accepted, had the potential to corroborate parts of the appellant’s claim. Read as a whole, the reasons disclose that the cumulative bases for non-acceptance of the appellant’s credibility, coupled with generalised material about the nature and extent of documentary fraud in India, left the Tribunal in a position where it gave little weight to any of the supporting documents provided by the appellant. In this latter regard, it bears repeating that the supporting documents, considered either individually or collectively, were said to support a very particular fear of persecution based on a threat to the appellant’s life that, supposedly, had locally endured for years. Notwithstanding that claimed fear, the appellant had not only twice returned to his home village but delayed for well over four years his lodgement of his protection visa application.

59    The Tribunal’s reasons were sufficient unto the day in serving the purpose noted in Wu Shan Liang of informing, in this case, the appellant as to why the Minister’s delegate’s decision not to grant him a Protection visa was affirmed.

60    For these reasons, Ground 2 of the appeal grounds fails.

61    The second basis of challenge requires us to find error in the conclusion of the primary judge that the Tribunal did not contravene s 424AA of the Act. The appellant submits that the Tribunal contravened s 424AA(1)(b) of the Act.

62    The transcript of the hearing before the Tribunal was in evidence in the court below. That discloses that, during the course of the hearing and while the appellant was relating being beaten and injured by the police and then taken by the police to a doctor, the Member interrupted that account in this way:

The appellant: I still have marks of beatings, due to beating and on legs.

Member: I’ve read a lot about how the Punjab Police operated particularly during those years -

What strikes me is that they didn’t seem to be concerned about whether someone was going to bring a case against them or about the welfare of the people that they arrested falsely like you’re claiming-

The appellant: Because if they – they do care about people like welfare because they knew my father. They knew if they released us as we were after beatings they can be in trouble …

(Appeal Book, p 247).

63    Section 424AA of the Act provides:

Information and invitation given orally by Tribunal while applicant appearing

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

a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

b)    if the Tribunal does so--the Tribunal must:

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

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

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

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

2)    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).

64    One submission made by the Minister was that the appellant had not established that the Tribunal had furnished the appellant with “oral particulars” of country information about the police in the Punjab so as even to engage s 424AA.

65    Section 424AA of the Act is facultative. The Tribunal is permitted to make a discretionary value judgement in the course of a hearing to give to an applicant “clear particulars of information” that the Tribunal “considers would be the reason, or a part of the reason, for affirming the decision that is under review”. The Minister’s submission was, in effect, that the evidence did not show that the Tribunal considered that the information given about the police in the Punjab would be the reason, or a part of the reason, for affirming the decision that is under review.

66    I do not accept the Minister’s submission on this point. Read as a whole, the transcript discloses that the Tribunal engaged very closely with the account which the appellant was giving and made a point of putting to him for comment particular propositions. The Tribunal was not obliged to accept the appellant’s uncritically. Reading the transcript as a whole does not suggest that nothing that the appellant could say could dissuade the Tribunal from a pre-conceived view about the credibility of his claimed fear of persecution. Rather, it suggests to me that a number of interrogative notes had been sounded in the Tribunal’s mind about his claim, prior to the commencement of the hearing, some of which drew upon generic or country information already within the Tribunal’s knowledge. This included information about the behaviours of the police in the Punjab over the course of the period to which the appellant referred in his claim for a Protection visa. I consider that it is inescapable, as a matter of necessary inference, that, upon the appellant’s giving evidence about his being beaten, injured and taken to hospital by the police, the Tribunal raised with him the result of prior reading about the police in the Punjab because the Tribunal considered that information would be the reason, or a part of the reason, for affirming the decision that is under review. Why else, in the circumstances, mention the information about the police and offer an opportunity for comment? Not to draw the inference would do a disservice to the commendably fair way in which the Tribunal conducted this hearing. The Tribunal made a point of offering the appellant numerous opportunities like that in respect of the information about the behaviours of the police in the Punjab to comment on a variety of subjects.

67    It does not, of course, follow from this conclusion that there has been no transgression of s 424AA of the Act. That is because, even though it seems to me, from the response (only part of which I considered necessary to set out for the purposes of determining the appeal) which the appellant gave to the Tribunal, that he was very much aware of the use which might be made of the information and of the potential consequences of that use, s 424AA(1)(b) contains a number of cumulative requirements and the Tribunal did not observe these.

68    Acceptance of this basis of the appellant’s challenge to the judgment below would, as was frankly acknowledged in the careful submission made on his behalf, require that I depart from a conclusion reached about ss 424AA and 424A of the Act by an earlier Full Court in SZMCD v Minister for Immigration (2009) 174 FCR 415 (SZMCD). In SZMCD, a unanimous Full Court (Moore J agreeing with the joint reasons for judgment of Tracey and Foster JJ and adding some further observations of his own) held that s 424A and s 424AA are complementary and that s 424AA does not operate independently of s 424A.

69    If I follow SZMCD, this basis of the appellant’s challenge must fail. That is because what was relevantly put to the appellant fell squarely within s 424A(3)(a) of the Act in that it was information, “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”. I did not understand the appellant to dispute that the information would fall within this provision, were it additionally applicable. Rather, his point was that s 424AA was “free-standing” such that the exclusion found in s 424A(3)(a) of the Act had no role to play in relation to s 424AA.

70    In support of this submission, the appellant drew attention to s 422B of the Act, which provides in respect of the Division in which each of ss 424A and 424AA are found that the Division provides an exhaustive statement of the requirements of the natural justice hearing rule “in relation to the matters it deals with”. It was then put that discerning the “matters dealt with” required a section by section analysis, not a conflation of sections dealing with different “matters”. Support for this approach was said to be found in the following passage in the joint judgment of French CJ, Gummow, Hayne, Crennan and Kiefel JJ in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [39] to [42] (Saeed). Dealing with the submission requires that a more lengthy excerpt from the joint judgment than just these paragraphs be set out, commencing at [35]:

35    The declaration in s 51A(1), that the subdivision is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule, is qualified by the words “in relation to the matters it deals with”.

36    The importance of the question about what “matters” are to be seen as dealt with in the subdivision was identified by French J in WAID v Minister for Immigration and Multicultural and Indigenous Affairs, with respect to s 422B of the Act. In NAQF v Minister for Immigration and Multicultural and Indigenous Affairs Lindgren J considered that two approaches to the question were open with respect to s 357A(1). If the general question was posed, “What is the subject matter of Div 5 of Pt 5?”, the answer would likely be, “The conduct of reviews by the MRT”. Translated to subdiv AB of Div 3 of Pt 2, the answer to the question would be, “The procedure for dealing with visa applications”. This approach, which looks to the totality of the matters dealt with by the subdivision, was submitted by the Minister to be correct.

37    The Minister’s argument laid stress on the word “it” in s 51A(1) as referable to the subdivision. Consistently, where s 51A(2) refers to the matters “they” deal with, it refers to the group of ss 494A to 494D, which deal with the giving of notice. So much may be accepted. However, a consideration of all the words “the matters it deals with” directs attention to provisions within the subdivision or the group of sections which are operative.

38    The alternative inquiry considered by Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs was, “What are the matters Div 5 of Pt 5 deals with?” The answer to that question would require a search of the sections within the Division for a provision “dealing with” a relevant “matter”. And, as his Honour observed, the plural form of “matters” suggests that the inquiry might be directed to a number of such provisions.

39    It was not necessary for Lindgren J to reach a conclusion as to which was the correct approach, but his Honour said that he favoured the latter, as did French J, implicitly, in WAID v Minister for Immigration and Multicultural and Indigenous Affairs . Such an approach is plainly correct. The presumption is that words are used in a statute for a reason; they should be given their meaning and effect.

40    Necessarily, provisions which “deal with” “matters”, for the purposes of s 51A, will contain some procedural requirements which go some way towards satisfying the fundamental requirements of the natural justice hearing rule. Some such procedural requirements are necessary if s 51A is to operate and the procedures provided for are to be taken as exhaustive of the rule. Section 57 contains such procedures. The power given in s 56, to invite an applicant to give further information, may be used to further procedural fairness but it does not mandate procedures which may be taken as a substitute for the requirements of the rule. Section 51A is not addressed to s 56.

41    A point made by Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs is that the “matters” “dealt with” in the subdivision cannot be simply equated with the procedural requirements of its operative provisions , for s 51A(1) would then be largely otiose. Thus, if the matter dealt with by s 57 was the giving of information fulfilling the description of “relevant information” to a visa applicant for comment, s 51A would operate so that it was exhaustive of the requirements of the natural justice hearing rule so far as concerned the giving of information only of that kind. A limited purpose would then be achieved by s 51A(1). The rule would continue to apply to the provision of other information. The search, as his Honour said, is for a larger subject matter or matters .

42    In order to give s 51A operation it is necessary to refer to the subject of the “matter” with which s 57 deals as the provision of information, more generally relevant and adverse, for comment. But there is a qualification to the description of the “matter”, which arises from the persons to whom the information is to be provided. The terms of the section limit such persons to onshore visa applicants. The “matter” with which s 57 deals, is the provision of such information to onshore visa applicants. The provision of information to offshore visa applicants, such as the appellant, is not a “matter” dealt with by the sub section. It follows that the application of the hearing rule in dealings with the appellant's application is not excluded by subdiv AB.

[Footnote references omitted]

71    Saeed disposed of by rejection a ministerially promoted construction of the Act that would, by analogy, have the word “it” in s 422B construed as referring to the group of sections in the Division. However, the High Court allowed (at [37]) that the “matters it dealt with” “directs attention to provisions within the subdivision or the group of sections which are operative”. Further, the High Court cited (at [38]) with evident approval a view which had been earlier expressed in the original jurisdiction of this Court by Lindgren J that, as summarised by the High Court, “the plural form of ‘matters’ suggests that the inquiry might be directed to a number of such provisions”.

72    It is axiomatic that primacy must be given to the text of the Act, read in context and having regard to its subject matter, scope and purpose. But approaching the construction of s 424AA in this way reveals that, for all of the reasons given in SZMCD, the two sections do not operate independently. This is made explicit by s 424A(2A), which provides a further exemption from the requirements of s 424A(1), “… 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”. The subject of the provision of certain information to an applicant is dealt with by a group of sections comprising s 424A and s 424AA. This is one of the “matters” dealt with within the Division. Construing these provisions in this way is not inconsistent with the statements made in the joint judgment in Saeed. To the contrary, it is expressly in accordance with the approach to construction mandated by those statements.

73    The appellant pointed to a reservation voiced, without elaboration, by Mortimer J in Minister for Immigration and Border Protection v MZAIV [2016] FCA 251, [72] as to whether s 424AA was only intended to operate in conjunction with s 424A. Her Honour’s absence of elaboration was occasioned by her acceptance that she was bound by SZMCD. I am not so bound but that does not mean I am at liberty to embark afresh on the construction of these provisions as if SZMCD had not been decided. I would have to be persuaded that SZMCD was clearly wrong; in effect that the construction of the Act for which that case is authority is not reasonably arguable: SZEEU v Minister for Immigration (2006) 150 FCR 214, [148] (Weinberg J), cited with approval in New Zealand v Moloney (2006) 154 FCR 250, [136] (Black CJ, Branson, Weinberg, Bennett and Lander JJ) and Ayoub v Minister for Immigration (2015) 231 FCR 513, [39] (Flick, Griffiths and Perry JJ). The operation of the doctrine of precedent requires no less. With all respect to Mortimer J, I do not have any reservation as to the correctness of the conclusion that the two sections are complementary. I regard SZMCD as plainly right.

74    What follows from this is that the Tribunal was not obliged to comply with s 424AA(1)(b), given the class of information concerned.

75    This basis of challenge (ground 1) must also therefore be dismissed. There was no error in the conclusion reached by the primary judge that the Tribunal had not violated s 424AA.

76    What remains for consideration is whether the primary judge was correct in holding that the Tribunal had not failed to comply with s 425 of the Act.

77    It was, rightly, common ground that the hearing to which an applicant was invited under s 425 of the Act had to be “real and meaningful” (Minister for Immigration v SCAR (2003) 128 FCR 553, [37]) and that this may entail an obligation on the part of the Tribunal to bring to the attention of an applicant any issue arising in the review that was not obvious in the circumstances (SZBEL v Minister for Immigration (2006) 228 CLR 152, [32]-[43]). It was put on behalf of the appellant that the Tribunal had not done this. As to this, particular reference was made to:

(a)    the practices of the Punjab police during the period when the appellant was being detained; and

(b)    the authenticity of the documents provided in support of appellant’s claims.

78    As to the former, I have already, in dealing with the challenge based on an asserted non-compliance with s 424AA of the Act, set out a pertinent excerpt from the hearing and made some observations based on a reading in context of the transcript about what the Tribunal stated concerning the police on the Punjab and put to the appellant. The response made by the appellant is consistent only with an understanding on his part of an apparent inconsistency between the concern about his well-being evidenced by his being taken, as he stated, to doctors and the general reading of the Tribunal as put to him as to the indifference to prisoner well-being of the police and, by necessary inference, an interrogative note about the credibility of his account of his experiences with the police. That explains why he responsively proffered the explanation he did. To this extent, there is no substance in the appellant’s claim of a violation by the Tribunal of s 425 of the Act.

79    As to the supporting documents, having put to the appellant for comment a number of inconsistencies in his account and the subject of his delay in the lodgement of an application for a Protection visa, the Tribunal stated (Appeal Book, p 268), in response to an answer which the appellant made about now having the originals of the documents:

Member: Well the fact is that there is quite a lot of information about the availability of these types of documents that even original documents, it doesn’t necessarily mean they’re genuine because such documents – the prevalence of document forging in India is so high that these documents can be easily obtained just as getting newspaper articles: people can pay to have articles put into legitimate newspapers so I have the same concerns about all the documents you’ve provided that the Delegate as well based on the information, independent information.

The appellant made a number of responses to this statement, including that the Tribunal could take the providers of the documents to court for forgery and accompany him to his home village to “talk to anyone”.

80    I have already made reference to the Tribunal’s forming part of an administrative decision-making continuum: the Tribunal formed part of an administrative decision-making continuum. A practical application of this is evident in the Tribunal’s stating to the appellant that it held the same concerns about the documents which he had submitted as had the Minister’s delegate.

81    There was no onus of proof to which the appellant was subject either in the hearing or otherwise in the conduct of the review which he had initiated. It was just that it was in his interest for him to place before the Tribunal such testimony and other material as he was able to engender satisfaction on the part of the Tribunal that he met the criteria for a Protection visa. That there may arise a concern about the authenticity of the supporting documents which he had submitted ought already to have been apparent to him as a contingency as a result of the Minister’s delegate’s decision and the reasons given for that decision. These recorded that the delegate had placed little weight on the supporting documents. That the Tribunal might also do so by reason of particular inconsistencies was made patent to the appellant at the hearing, as the extract from the transcript reveals. The “issue” was fully revealed then to the appellant, if his earlier experience had not already put him on notice. How the appellant responded to that issue was a matter for him. But in this respect also he cannot successfully contend that he was not, as s 425 required, offered a meaningful hearing in which he was apprised of issues which might be adverse to him.

82    It is nothing to the point as to whether or not the reasons reveal that the Tribunal was or was not mistaken in the understanding (para 32) that it had put “country information” about document fraud to the appellant at the hearing. As it happens, it appears to us from the Tribunal’s reference to “independent information” in the excerpt quoted that the Tribunal’s recollection was correct. But the Tribunal was not obliged to put “country information”. What it was obliged to do was to afford the appellant a meaningful hearing in which he was apprised by the Tribunal of issues which were not otherwise obvious. As I have stated, the Tribunal did this.

83    The primary judge was correct in holding that there was no violation of s 425 by the Tribunal.

84    There is no substance in this final basis of challenge.

85    It follows that the appeal must be dismissed, with costs.

Associate:

Dated:    22 May 2018