FEDERAL COURT OF AUSTRALIA

SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200

MIGRATION – SAAP v MIMIA (2005) 215 ALR 162; MIMA v Al Shamry (2001) 110 FCR 24; s 424A Migration Act 1958 (Cth) – circumstances in which prior statement may be information that is the reason or part of the reason for affirming the decision under review

SZECF v minister for IMMIGRATION and multicultural and INDIGENOUS affairs

NSD 1977 of 2004

ALLSOP J

5 SEPTEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.        The Refugee Review Tribunal (the Tribunal) be joined as second respondent to this appeal.

2.        The appeal be allowed.

3.        The respondent pay the appellant’s costs (if any).

4.        The orders of the Federal Magistrates Court of Australia made on 14 December 2004 be set aside.

5.        In lieu thereof it be ordered that:

a.       A writ of certiorari issue to quash the decision of the Tribunal made on 27 June 2004

b.      The Tribunal reconsider the review brought by the appellant of the decision of the delegate of the Minister.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal against orders made by a Federal Magistrate dismissing an application for review by the appellant in respect of a decision of the Refugee Review Tribunal (the “Tribunal”) which affirmed the decision of a delegate not to grant a protection visa.

2                     The matter was heard by me, in the appellate jurisdiction of the Court, sitting as a single Judge, pursuant to a direction of the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth).

3                     The appellant is a citizen of Bangladesh. He claims that he was persecuted by Bangladesh Nationalist Party (BNP) activists. He said that he was tortured due to his involvement with a leading political figure in the Awami League, Dr H E M Iqbal. Dr Iqbal had been involved in politics and had set up a private airline. The appellant worked for Dr Iqbal as his personal assistant for a number of years. The appellant claimed that the opponents of Dr Iqbal in the BNP had filed a false case against Dr Iqbal charging him with murder. The appellant said that he was not charged, but Dr Iqbal advised him that if he did not leave his employment he might have similar charges laid against him by his political opponents. The appellant claimed that he was kidnapped and beaten, and when he went to the police he claimed that they would not help him.

4                     The appellant attended the hearing of the Tribunal and submitted a number of documents which included documents said to be court documents substantiating the claim that false charges had been laid against him.  The Tribunal did not accept his case. The independent information referred to by the Tribunal indicated that depending on the circumstances, a person who is a member or a supporter of the Awami League may have a well-founded fear of persecution in Bangladesh.  The Tribunal however was not satisfied on the evidence that the appellant was such a person.  The Tribunal's findings adverse to the appellant’s application were based not on the country information but on the appellant's own evidence.  The Tribunal found that the appellant had fabricated his claim and the documents submitted in support of it.

5                     The Tribunal accepted that an incident occurred in October 2000 in which the appellant was attacked, requiring medical treatment.  However it was not satisfied that this incident had anything to do with his political opinion or any other Convention ground. The Tribunal did not accept that the appellant was a member of the Awami League.  It accepted that he may be a supporter of the party but was not satisfied that mere support without more gave rise to a well-founded fear of persecution.

6                     The Tribunal did not accept that any of the documents that purported to relate to the charges against the appellant were genuine.  Instead, the Tribunal found that the appellant had fabricated them following the delegate’s rejection of the appellant’s application.  The Tribunal did not accept that any of the letters purported to be from the Awami League were genuine. The Tribunal referred to independent evidence that fraudulent documents of all sorts were readily available in Bangladesh, but accepted that this did not mean every document submitted was necessarily fraudulent, rather that those documents should be scrutinised with care. The Tribunal referred to the fact that the appellant’s documents were in identical terms which suggested that they were not written separately and some months apart but were all produced at the same time.

7                     Before the Federal Magistrate, the appellant reiterated the claims he made before the Tribunal. The respondent referred the Federal Magistrate to the decisions of NARD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 27 and Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2002) 168 ALR 407, particularly the judgment of McHugh J.

8                     It was submitted on behalf of the respondent, on the authority in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547, that the conclusions upon which the Tribunal based its findings were open on the evidence and did not show an error of jurisdiction.

9                     The Federal Magistrate found that the Tribunal did not accept the appellant’s evidence.  His Honour concluded that as long as the findings (although “severe”) were open to be made on the evidence available before the Tribunal, the Court would not go behind those findings, reassess the evidence and substitute its own view of that evidence.

10                  On this basis, the Federal Magistrate dismissed the application.

11                  The notice of appeal in this Court raises variously the grounds of a breach of the rules of natural justice or a denial of procedural fairness; that the making of the decision was an improper exercise of power; and that there was no evidence or other material to justify the making of the decision. None is particularised.

12                  The appellant has not filed any written submissions. In oral submissions put to me at the hearing of the appeal the appellant complained about the age of the material which the Tribunal took into account.  The situation in Bangladesh was said to have changed.  He submitted that the Tribunal had not considered his case properly.  The appellant did not in any way seek to articulate a complaint that he had been denied procedural fairness in the approach of the Tribunal.  Nor did he elaborate any other aspect referred to in the notice of appeal.  There was also no evidence before the Federal Magistrate upon which to found any submissions as to a denial of procedural fairness.

13                  No basis for error in the approach of the Federal Magistrate has been demonstrated.  In particular, no evidential foundation was laid for any assertion that the Tribunal failed to accord procedural fairness to the appellant in connection with its findings.  Subject to one group of considerations, to which I now turn, the appeal should be dismissed.

14                  In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 a majority of the High Court said that any failure whatever to comply with s 424A of the Migration Act 1958 (Cth) (irrespective of any conclusion one could reach from the surrounding circumstances that the applicant had been accorded substantive procedural fairness) amounted to jurisdictional error vitiating the decision.

15                  SAAP must be read together with Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 in which it was held that the reference in s 424A(3)(b) to the information “that the applicant gave for the purposes of the application” was a reference to the information given by the “applicant” for the purpose of the “application” for review:  that is, to the Tribunal.  Thus, s 424A(3)(b) does not encompass information provided to the Department or the delegate by the person who subsequently becomes the applicant to the Tribunal for review.

16                  Section 424A is in the following terms:

(1)     Subject to subsection (3), the Tribunal must:

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

(c)     invite the applicant to comment on 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.

(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; or

(c)     that is non-disclosable information.

17                  The issue as to compliance with s 424A appears on the face of the Tribunal’s reasons in a number of places.  The Tribunal recorded that on a number of occasions during the hearing it simply took the applicant to the statement that he had submitted with his visa application.  The reasons of the Tribunal reveal the following:

(1)   page 9 of the Tribunal’s reasons:

I asked the applicant why there was no reference in his detailed six-page written statement to either the false charge or to the fact that he had been detained for five months.  He gave several explanations.  He said at first that he wrote the statement in a hurry.  He then said he thought he would have an interview with the Department and would be able to make this claim then.  He referred also to the loss or theft of some of his papers while he was on a bus in Bondi and claimed that he only submitted to the Department those documents that he had on him at the time.  He then claimed that his lawyer told him that he should not make any reference to the charges and the detention because, at the time, he did not know the exact dates of either, and his lawyer told him he should make this claim later.

I put it to the applicant that a large part of the first page of his written statement was given to considerable detail about a false charge in 1983 which he had conceded had no connection to his political opinion and no bearing on his claims to protection, and yet it made no reference to the false charge in 2002 which was central to his current claim for protection.  He maintained that his lawyer told him that, unless he knew the exact dates of events, which did not at the time, he should not include this claim.

…

(2)      page 14 of the Tribunal’s reasons

The applicant’s written statement to the Department does not make clear the reason he left Bangladesh or what it is he fears would happen to him if he returned there. He refers to political and business opponents but does not identify them.  He makes no reference to the false charge brought against him in 2002 or his detention for five months in connection with it.  I find that he has enhanced and exaggerated his claims as his application has progressed and that his evidence overall lacks credibility.

(3)   page 14 of the Tribunal’s reasons:

In oral evidence before the Tribunal, the applicant made the claim that false charges had been laid against him and he was detained for five months.  I do not accept, if these claims were true, that he would omit entirely any reference to them from his detailed, handwritten statement.  None of the explanations he has given for the omission is convincing.  In particular, it makes no sense to devote a large part of a written statement to an incident that happened some twenty years ago, and which the applicant concedes has no connection to his political opinion but, at the same time, make no reference to the one incident that he claims gave rise to the decision to leave Bangladesh and which he says is the basis for his claims to protection in the future.  I find the applicant has fabricated this claim.

…

 (4)  page 14 of the Tribunal’s reasons:

Where there are inconsistencies between the documents themselves, or between the documents and the account they purport to document, it is open and reasonable to conclude that the documents are not genuine.  In this case the court related documents purport to be about an incident which the applicant omitted entirely from his written claims, an omission he was not able to satisfactorily to explain and which I find he has fabricated.  It follows that I do not accept that the document purporting to relate to the charge are genuine.

…

(5)   page 14 of the Tribunal’s reasons:

I do not accept that the applicant was detained for some months as he claimed in oral evidence.  Firstly, this claim relies on accepting that the charge, or charges, were brought against the applicant in the first place.  It would also depend on accepting his explanation for not mentioning his detention in his written statement to the Department.  I do not accept he would omit from his statement any mention of a period of some five months detention in the year before he left for Australia if this claim were true.

…

 (6)  page 16 of the Tribunal’s reasons:

I find the lack of any reference in his written statement to the Department to membership of the Awami League reflects that he was not at any time a member.

18                  Three considerations arise:

(a)      whether there is “any information” for the purposes of s 424A(1)(a);

(b)      if so, whether it can be said to be information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review; and

(c)      whether in the light of any questioning about the earlier statement the information can be said to have been given for the purpose of the Tribunal review application.

19                  The Full Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 discussed issues (a) and (b) above.  In dealing with the word “information”, Finn J and Stone J said the following at [24]:

…there is now a considerable body of case law concerned with the compass of the term "information" in its s 424A(1) setting. The following propositions emerge from it:

(i)      the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [104]. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74;

(ii)     the word "information" in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 at [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at [19] - [22]; and

(iii)    the word does not encompass the Tribunal´s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; appr [2002] FCAFC 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26] - [29].

20                  Here, no doubt the earlier statement of the appellant was information, but it must be viewed as such in the light of VAF at [24]. 

21                  Issue (b), however, is more difficult.  Accepting the above passages in VAF,it is important to recognize that there is a distinction, sometimes fine, but nevertheless important, between information which may be knowledge acquired by the Tribunal and the subjective appraisal or thought processes of the Tribunal.  As I said in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [95]:

…If the subjective thought processes of the Tribunal are as they are because of the perceived importance of some piece of knowledge, those thought processes may merely reveal the relevance (for the purposes of s 424A(1)(b)) of information (for s 424A(1)(a)), requiring the Tribunal to give particulars of that information and to explain its relevance.

Heerey J agreed with this in Paul as did Finn J and Stone J in VAF.

22                  The statute requires certain steps to be taken if information is the reason, or a part of the reason, for affirming the decision.  As I said in Paul at [99]-[100], [107]-[108] and [116] (with which Heerey J agreed):

 For information "to be the reason or a part of the reason" for the affirmation of the delegate's decision, some unbundling of the immediate reason for the affirmation is required. … the immediate or ultimate reason is the finding, or state of satisfaction, about the lack of protection obligations.  Section 424A is intended to be directed to information being the reason or a part of the reason for that conclusion.

In any given circumstance it may not be straightforward to identify from an expressed reasoning process whether information was the reason or a part of the reason for affirmation.

…

 … one needs to ascertain whether there is information which the Tribunal considered would be the reason or part of the reason for affirmation. This perhaps can be expressed as seeing how far one can remove oneself from the ultimate conclusion about the failure to meet the relevant criterion or criteria for the grant of the protection visa and still, sensibly, in accordance with the evident purpose of s 424A, be able to identify "information that the Tribunal considered would be the reason or a part of the reason" for affirmation.

 Further explication requires analysis of a specific situation. …

…

The question as to whether information would be the reason or a part of the reason for affirmation is ultimately decided, in my view, by whether it can be characterised as sufficiently important to the reasoning process in the rejection of the appellant's claims, for fairness to warrant that the applicant be told of it so that he or she can understand and be able to meet the integers or elements that make up the Tribunal's reason or conclusion thus far reached (hence "would") for finding adversely to the applicant.

23                  I do not understand Finn J and Stone J to have approached the task in VAF in a manner which would falsify the above approach.  I accept entirely the comments of Merkel J in VAF at [54]-[55] that my comments in Paul were a guide to the approach to be taken and not a text in substitution for the words chosen by Parliament.

24                  The taskis to analyse the reasons given by the Tribunal for its lack of satisfaction as to the lack of Australia’s protection obligations and assess whether the reason or a part of the reason for that conclusion can be said to be the relevant information; recognising that subjective appraisal and thought processes are not information, though they may be reflective of why the information is relevant to the review.  In Paul, Mr Knight’s evidence of a fact (the date of death of his brother-in-law, in 1986) was so contradictory to, and destructive of, the applicant’s case, which had the death in 1995, that it could be said that the information was part of the reason for rejecting the applicant’s claims.  The information was not merely part of the material used as a whole by the Tribunal to assess the reliability of the applicant’s evidence.  In such cases, it may be that looking at the reasons one can only say that the reason for the decision was the lack of belief in the credibility of the applicant and that the information itself is not part of the reason.

25                  Minds might differ about questions such as these.  This will be so because, after analysis of the expressed reasons of the Tribunal, one must assess or characterize the importance of the information itself to the reasoning process of the Tribunal apparently underlying its conclusion as to lack of satisfaction.  That this process may be seen to be judgmental is illustrated by the approach of Finn J and Stone J in VAF.  Having analysed the Tribunal’s reasons, their Honours concluded as follows at [41-[43].

 Considered in the context of the tribunal’s reasoning process and having regard to the aggregate of findings made that rejected both that the appellant had been persecuted for a Convention reason and that his situation was such as to give rise to a well founded fear of persecution, reference to the information as to his behaviour in Australia can only be categorised as being relatively minor and unimportant in the scheme of things. It was not so integral to the reasoning process rejecting the appellant’s claim as to require as a matter of fairness that the appellant be told that information (cf s 424A(1)(a)) and why it was relevant to the review (cf s 424A(1)(b)).

The tribunal explicitly recognised it had s 424A obligations, giving in its reasons an instance where information was in consequence provided to the appellant. Given this, and given the care with which it put important issues to the appellant (for example in relation to the FIR), we consider that the tribunal itself has given some indication of the relative importance of the information relating to his behaviour. It did not reach the s 424A(1)(a) threshold.

The reason the appellant’s application was rejected related to the tribunal’s non-acceptance of what the appellant alleged occurred in Pakistan. It did not relate to his conduct in Australia. The significance of the Australian behaviour such as it was, was that it was consistent in its own way with, and thus confirmatory of, a conclusion taken for other reasons. It was not, for s 424A purposes, a part of the reason for that conclusion.

          [emphasis added]

26                  I have extracted earlier the places in the Tribunal’s reasons where the prior statement is used.  Having read the whole of the reasons of the Tribunal, it is clear that the comprehensive disbelief of the appellant and the finding that he had brought forward fraudulent documentation was largely, if not wholly, a product of the importance placed by the Tribunal on the form and content of his first statement.  In short, the Tribunal found that if what he was saying were true, it would have been referred to earlier.  The fact that it was not, demonstrated the falsity of his evidence to the Tribunal.

27                  Finn J and Stone J in VAF at [24], however, said that “identified gaps, defects or lack of detail or specificity in evidence or conclusions arrived at by weighing up the evidence by reference to those gaps” were not information.  This was said by reference to WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276, 282-83 [26]-[29].  The Full Court there decided that “information” did not include a failure to mention something to the Tribunal.  The Full Court said at [26] to [29]:

In our opinion, the word "information" in s 424A(1) does not encompass a failure to mention a matter to the RRT. As the Full Court observed in Win at 218 [20] "information" is used in the same sense in ss 424(1) and 424A(1). Section 424(1) provides that the RRT "may get any information that it considers relevant". It is inappropriate to speak of the RRT "getting information" where the substance of that information is merely an observation that the appellant did not refer to a particular matter in his evidence. The fact that the appellant failed to refer to a particular matter constitutes nothing more than an aspect of the RRT's reasoning concerning a deficiency in his evidence. That observation cannot meaningfully be described as "information". Moreover, the appellant's submission cannot be accepted as a matter of sound policy. To permit an applicant for review of a delegate's decision to comment on each deficiency in his or her evidence, as viewed by the RRT, has the potential to allow a protracted and almost never ending process of review, a result plainly not intended by the legislature.

At 218 [22] in Win the Full Court considered that assertions which cast doubt on an applicant's version of events may constitute "information" for the purposes of s 424A. However, the assertions in Win were those of an informant. The Full Court did not intend to include in its definition of "information" conclusions arrived at by the RRT in weighing up aspects of the evidence of an applicant by reference to gaps or defects in that evidence.

Support for the approach we take to our rejection of counsel's submission may be gleaned from the judgment of Branson J in NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs(2002) 124 FCR 223 at 226 [8] where her Honour said:

"I am inclined to doubt that an intention can be discerned in s 424A that the totality of the claims and assertions in a statement or statements made by an applicant in support of his or her initial application, whether believed by the Tribunal or not, and the general impression, whether of coherence or otherwise, created by those claims and assertions, is `information' received by the Tribunal when the Tribunal is given a copy or record of the statement or statements. If such an intention is to be discerned from the section, the consequences would seem to be that, before the Tribunal can place weight on any inconsistency or incompatibility between claims and assertions made to the Department and the evidence given by the applicant to the Tribunal, the requirements of s 424A would have to be met. As Merkel J pointed out in Al Shamry[2001] FCA 919 at [30], [(2001) 110 FCR 27 at 37] the requirements of s 424A are unlikely to be able to be met during the course of the hearing before the Tribunal. It may be that the invitation to comment could be given by hand to the applicant at the hearing pursuant to s 441A(2) although Merkel J seems to have doubted this. However, even if the invitation were able to be given to an applicant during the course of a hearing, the effect of s 424B is that the time within which the comments could be given would be unlikely to expire until well after the completion of the hearing. Consequently, in virtually every case in which the Tribunal considered that a reason or part of the reason for affirming the decision under review would be inconsistency or incompatibility between a statement made by the applicant to the Department and the applicant's evidence to the Tribunal, the review process would have to be extended to allow the invitation required by s 424A of the Act to be issued and the applicant given an opportunity to respond."

We are also fortified in our conclusion that the matters sought to be relied upon by counsel for the appellant do not constitute "information", in the relevant sense, by the remarks of Tamberlin J in WABY v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 1091. An issue in that case was whether the RRT had failed to furnish the appellant with particulars in writing of information to which the RRT had had regard, contrary to s 424A. A matter relied upon by the RRT, and claimed not to have been particularised, concerned the evidence of a Mr Davoodi, a witness said to corroborate the appellant's case. His evidence was considered by the RRT and rejected. Tamberlin J observed (at [15]-[18]):

"The submission for the appellant, in relation to Mr Davoodi's evidence is not, in substance, that he was unaware of the particulars of the information, but that the RRT did not inform him in writing as to the approach it would take in relation to the evidence of Mr Davoodi.

The RRT did not have any obligation to give information to the appellant, before making its decision, as to its reasoning process or its conclusions in relation to the inconsistency or unconvincing nature of the evidence of Mr Davoodi. The appellant had called Mr Davoodi and it was for the RRT to accept or reject his evidence or to give it such weight as it thought appropriate. It cannot be said in any way that the appellant was unaware of the nature and extent of the information.

It is well settled that in reasoning to its conclusion there is no obligation on the RRT to accept submissions as credible and it does not have to set out or provide to an applicant, prior to the making of its decision, its reasoning process in reaching a conclusion in order to enable an applicant to make further submissions in relation to a proposed line of reasoning. As the Full Federal Court said in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592:

The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.' (Emphasis added.)

This extract was cited with approval by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah(2001) 206 CLR 57 at 117-118 [194]."

28                  If I may say so, [26] and [27] above can be seen as uncontroversial.  They deal with the evidence at the Tribunal hearing and reject (with respect, plainly correctly) the proposition that a gap in that evidence and the appreciation of it by the Tribunal is information the relevance of which must be the subject of the procedures under s 424A.  This can be understood as simply characterizing the “gaps” in the evidence at the Tribunal as the mental appraisal of the information given to the Tribunal in the review process.

29                  However, the apparent approval of the judgment of Branson J in NAIH of 2002 at [28] takes the matter one step further.  Her Honour was “inclined to doubt” that any inconsistency in an original statement with evidence to the Tribunal necessarily required the engagement of s 424A.  That can be accepted.  It is only information that is a part of the reason for the decision that engages the section.  If, as here, the very form and content of a statement (including what was not said) is central to the rejection of virtually all the evidence of the appellant, I do not see anything her Honour said as necessarily inconsistent with an application of s 424A.  Her Honor did not say, nor did the Full Court in WAGP, that an earlier statement of an applicant could not be information. 

30                  To say that there is no information here because the statement (which is information) lacked the aspect now being adduced would be to fail to recognize that the information that is central to the reason for the decision is that the appellant said so much and no more on an earlier occasion.  That is the relevant information.

31                  The above passage from the decision of Branson J in NAIH was not the subject of further detailed consideration by her Honour.  It was not the reason that her Honour found as she did.  In that case, the reason for the decision of the Tribunal, upon analysis, was the unconvincing nature of the oral evidence at the hearing.  True it was that it was contrasted with the cohesive account in the earlier statement.  However, whilst the prior statement provided an express point of contrast with the oral evidence, the earlier information was not the reason or a part of the reason for the decision.  As Branson J in fact said in NAIH at [16]:

…It seems to me that the incompatibility to which the Tribunal referred was the incompatibility, in the sense of the unexplained contrast, between the persuasive nature of the cohesive account of the applicants' claims given by the written statements and the unconvincing nature of the applicant husband's oral evidence. So understood, it was not any information as such derived from the written statements that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review but rather the unconvincing nature of the applicant husband's oral evidence.

         [emphasis added]

32                  Nor does what Tamberlin J said in WABY referred to in WAGP at [29] gainsay anything that I have said.  His Honour was drawing a clear distinction between information and reasoning – a distinction which was made in Paul.

33                  Thus, [24(iii)] of VAF should be understood in the context of a proper understanding of WAGP, NAIH and WABY.

34                  In my view, here, the knowledge of the Tribunal of the content of the earlier statement, including the limits of its contents can be seen to be a part of the reason for the decision because its form and content were instrumental in the Tribunal reaching a conclusion that the oral evidence of the appellant was false and the documents he was propounding were fraudulent.

35                  The reasons of the Tribunal may lead one to conclude that the appellant was accorded procedural fairness.  He appears to have been taxed with the relevant inconsistencies at the hearing.  No criticism in this respect can or should be directed to the Tribunal.  However, on the authority of SAAP there was a failure to follow mandatory procedure under s 424A leading to the vitiation of the decision making process.

36                  Issue (c) above did not arise on the facts.

37                  For these reasons the appeal should be allowed, the orders of the Federal Magistrates Court set aside, the decision quashed and the review remitted to the Tribunal for rehearing.

Associate:

Dated:              5 September 2005