FEDERAL COURT OF AUSTRALIA

VWFP and VWFQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 231

MIGRATION – appeal from decision of Federal Magistrate – protection visa – whether section 424A complied with – whether information applicant gave for the purpose of the application – whether information a part of the reason for Tribunal’s decision – way information is used by Tribunal – appellant’s membership of religious, social and/or political group – whether Tribunal’s findings illogical or unsupported

PRACTICE AND PROCEDURE – amendment to notice of appeal – power to allow additional grounds to be argued – whether in the interests of justice – prospects of success on new ground – explanation for failure to raise ground earlier – whether prejudice to the respondents

H v Minister for Immigration and Multicultural Affairs (2001) 63 ALD 43 cited

VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 cited

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 cited

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577 referred to

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 411 referred to

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

Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 cited

WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 cited

Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212 referred to

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

NAIH v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 223 referred to

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 cited

Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 referred to

WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 cited

M17/2004 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 85 ALD 597 cited

Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 cited

Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 120 cited

Attorney-General (NSW) v Quin (1990) 170 CLR 1 cited

Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 cited

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited

SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 cited

NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 cited

W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 cited

VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 cited

NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 cited

VWFP and VWFQ v Minister for Immigration and Multicultural and Indigenous Affairs and Refugee Review Tribunal

VID 534 of 2005

YOUNG J

16 MARCH 2006

MELBOURNE

THE COURT ORDERS THAT:

1.             The appeal be dismissed.

2.             The appellants pay the respondents’ costs.

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

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Hartnett FM dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice directed that the appeal be heard and determined by a single judge.

2                     The first and second appellants are, respectively, a mother and her daughter, aged 36 and 12 years.  They are citizens of Turkey and arrived in Australia on 8 November 2002.  The first appellant has been divorced since 2001, and has no other children.

3                     The appellants are Alevis, that is to say they are members of a community which practices ‘Alaourte’ Islam.  In its reasons for decision, the Tribunal said that Alevis are considered to be heretical by other Muslims. 

4                     On 20 December 2002, the appellants lodged applications for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”).  No specific Convention claims were made on behalf of the second appellant, and the fate of her application rested on the outcome of the first appellant’s application.  It will be convenient, therefore, to refer in these reasons to the first appellant simply as the appellant.

5                     On 14 May 2003, a delegate of the first respondent refused to grant the appellants protection visas.  On 10 June 2003, the appellant applied to the Tribunal for a review of the delegate’s decision.  By a decision dated 4 March 2004 and handed down on 26 March 2004, the Tribunal affirmed the delegate’s decision. 

6                     The appellant then applied to the Federal Magistrates Court for judicial review of the decision of the Tribunal, invoking s 39B of the Judiciary Act 1903 (Cth).  On 12 May 2005, Hartnett FM dismissed the application for judicial review and ordered that the appellants pay the respondent’s costs fixed in the sum of $6,000.

the claim for a protection visa

7                     The essence of the appellant’s claim for refugee statues was that she feared persecution in Turkey by right wing militants and fundamentalist Muslims by reason of:

(a)           her actual/imputed political opinion as a member of the Turkish Human Rights Association (“the HRA”) and her activities for the HRA; and/or

(b)          her membership of a social group of politically left wing Alevi people and/or her actual/imputed political opinion based on her membership of that group.

The appellant claimed that this persecution had manifested itself in threats by telephone, assaults, threats of harm to her daughter, rejection from public service jobs, forced resignation from her job as a bank manager and interference that caused the end of her marriage.  In support of her application, the appellant submitted to the Department through her migration agent a letter from the Istanbul branch of the HRA and declarations by her brother and parents.

8                     When translated, the letter from the HRA (“the HRA letter”) stated:

“TO WHOM IT MAY CONCERN

[The appellant], who has been an active member of our Association since 1997, worked for our Association in various cases regarding human rights and freedom, which is our main target of issue.  Our above mentioned member has undertaken active tasks in investigating cases of human right violations in her region and collect information to enable the Association to take action as well as raising public awareness and informing the relevant authorities about these matters.

Please be informed that this document is issued as a response to our member’s request.

Kiraz Bicici

Director of the Istanbul

Branch of the Human Rights

Association

(SEAL AND SIGNATURE)”

tHE DECISION OF THE TRIBUNAL

9                     The Tribunal was not satisfied that the appellant had a well-founded fear of persecution within the meaning of the Convention.  Accordingly, the Tribunal affirmed the delegate’s decision to refuse to grant protection visas to the appellants.

10                  In its ‘Findings and Reasons’, the Tribunal said that it was not satisfied that the appellant was an active member of the HRA as she claimed.  It found that her knowledge of the HRA, and about human rights issues generally, was not the knowledge of a person who was genuinely involved as claimed.  In that regard, the Tribunal relied upon the appellant’s inability to identify the address of the HRA’s Istanbul branch office or its website, her mistaken evidence as to the nature of a police raid on that office in December 2000 and the appellant’s lack of knowledge about the profession of Eren Keskin (the former president of the Istanbul branch of the HRA) and the reason why Ms Keskin had been the subject of an Amnesty International campaign.  The Tribunal also said that the appellant’s evidence about her own activities on behalf of the HRA would have been much more precise if the claim were true that she had written and published reports; instead the Tribunal considered that she reacted evasively to the question of what she did with reports she claimed to have written.  On the whole, the Tribunal considered that these findings were not outweighed by the HRA letter.

11                  The Tribunal did not accept that the appellant had been harassed and threatened as she claimed, or that she is still being sought in Turkey as her family members claimed.  The Tribunal found that her identification of the perpetrators as right wing militants and/or religious extremists was unconvincingly vague and also implausible.  The Tribunal conceded that Islamists and nationalists had taken a similar stance on some issues in Turkey, but not on human rights activism in general, and found that it was not plausible that they would act in unison against a single human rights defender. 

12                  The Tribunal also found that the appellant’s failure to complain to the police was inconsistent with the role of a human rights defender, which reinforced the finding that she was not harmed as claimed.  The Tribunal noted the failure of the HRA letter to refer to any threats against the appellant.  The Tribunal said that it considered that some of the types of harm the appellant claimed did not appear consistent with the behaviour of militants, or human behaviour in general, for example, writing letters about the appellant to her boss.  The Tribunal was sceptical of claims that a marriage can actually be broken up over political differences or honestly deniable scandal manufactured by a political enemy.  The Tribunal found that if the appellant actually had been threatened she would not have resorted to these unconvincing and artificial claims.

13                  The Tribunal found that while the appellant may be a nominal member of the HRA, there was no independent evidence before the Tribunal indicating that ordinary members of the HRA (numbering about 16,000) are persecuted in Turkey.  The Tribunal did not accept that the appellant had been harmed economically due to her political opinion, given her successful career at a bank up to the point of her departure from Turkey.

14                  As to her religious background, the Tribunal found that, based on country information and the presentation of her own written claims, the chance that she would be seriously harmed due to her religious background was remote.

the decision of the federal magistrates court

15                  In her application to the Federal Magistrates Court for judicial review of the Tribunal’s decision, the appellant alleged that the Tribunal’s decision was affected by jurisdictional error on two bases.  First, she alleged that the Tribunal failed to consider her claim based on membership of a left wing Alevi social group and the actual/imputed political opinion arising from this membership.  Secondly, she alleged that the Tribunal based its decision on findings or inferences of fact which were not supported by probative material or logical grounds.  Rather, the appellant contended that the Tribunal’s findings or inferences of fact were based on the Tribunal’s own personal and irrelevant views.  In the appellant’s submission to Hartnett FM, the appellant referred to the Tribunal’s views that:

“The appellant’s failure to complain to the police was not consistent with the role of a human rights defender;

Some of the types of harm the appellant claimed of did not appear consistent with the behaviour of militants, or human behaviour in general; for example, writing letters about the appellant to her boss, especially to complain about her performance at work, is something that a customer might do but is rather bureaucratic for an ultra-right thug;

The Tribunal is sceptical of claims that a marriage can actually be broken up over political differences or honestly deniable scandal manufactured by a political enemy.”

16                  As to the first ground of alleged jurisdictional error, her Honour found that the Tribunal properly considered the appellant’s claim based on membership of a left wing Alevi social group.  In reaching this finding, her Honour relied on the following passage in the transcript of the Tribunal hearing:

“MS HAMILTON:  Now, you’ve also said that your – the branch of Islam that your family is from is Alevi.  You haven’t made any claims indicating that you anticipate being harmed because of your religion and my research about the Alevi faith in Turkey indicates that it’s not a persecuted faith, the Alevis aren’t persecuted, although there have been some serious incidents in the past.

INTERPRETER:  But there is a different treatment for them.  Certain parts of the country or certain parts of the crowd, community, do not live all these – they don’t experience all these things that Alevi is and under the right of left, whatever, but a certain group of people, certain parts of the community, they do have problems.

MS HAMILTON:  The information I have indicates that although there have been incidents of violence against Alevis, not in recent years, and that Alevi are free to practise their religion.

INTERPRETER:  They do have an association and all that, but it’s still continuing.  There are secret things going on.  All the sources have been lost and opinions that have been lost, people, and Turkey wants to become a member of European Union now so they try to look their best and there’s still pressures on the organisations and murderers.  I still have the (indistinct) they do – but so many people die and so many people died being burnt, you know, they died (indistinct) and all those things happened in the past.

MS HAMILTON:  Okay.  Based on the way you’ve presented your claim, I would think that the chance of anything like that happening to you would be remote and that you yourself perceive it that way.

INTERPRETER:  Well,  there’s a certain part of the community are still exposed to all those problems but some part do not, but of course my being an Alevi is not important at the moment.  It’s not an issue but my, you know, surroundings and area we were living, they were all leftist and Alevi.  Of course that was true and that’s a reality, and my family and my parents are Alevi.  Just for one person sometimes, that person’s existence can cause the killing of – and dieing of many, many people.

MS HAMILTON:  Thank you.”

17                  In the light of this passage, Hartnett FM arrived at the following conclusions:

“It is quite clear that the applicant said to the Tribunal that her being an Alevi was not important nor an issue at that time.  The applicant did not put to the Tribunal a claim to fear persecution because of her membership of the Alevi social group.  Not only was such a claim not put at the hearing but it was not put prior to the hearing, including in the statement from the applicant, in response to the Tribunal’s invitation to attend a hearing.  Notwithstanding that the claim to fear persecution because of the applicant’s membership of the Alevi social group was not put, the Tribunal dealt with Alevis and with Alevism, citing country information on the topic.  The Tribunal considered the chance of the applicant being seriously harmed due to her religious background as an Alevi to be remote and based that finding on the country information before it and the applicant’s presentation of her own claims.  The Tribunal noted that the applicant had not claimed that she risked persecution as an Alevi and noted that the applicant agreed her being Alevi was not important at the moment but that she lived in a leftist Alevi area.  The Tribunal directly asked the applicant about her being an Alevi and considered that religious background in the context of a possibility of persecution.”

18                  Hartnett FM then turned to consider each of the particular findings or inferences that the appellant attacked on the grounds that they were illogical, unsupported by probative material or based on personal and irrelevant views of the Tribunal.  Her Honour said that there was nothing illogical in what the Tribunal had said concerning the appellant’s failure to make certain complaints to the police.  In her Honour’s view, the relevant passage in the Tribunal’s reasons set out an assessment of the plausibility of the appellant’s claim and, while the appellant may not agree with the assessment, no illogicality was manifest.

19                  The next passage in the Tribunal’s reasons that the appellant criticised as illogical stated:

“Third, some of the types of harm the appellant claimed of did not appear consistent with the behaviour of militants, or human behaviour in general.  For example, writing letters about the appellant to her boss, especially to complain about her performance at work, is something that a customer might do but is rather bureaucratic for an ultra-right thug.  And the Tribunal is sceptical of claims that a marriage can actually be broken up over political differences or honestly deniable scandal manufactured by a political enemy.  If the appellant had really been threatened or harmed she would not have resorted to these unconvincing, and artificial claims.”

Hartnett FM concluded that, on a fair reading of the Tribunal’s decision as a whole, this passage amounted to an assessment of the plausibility of the appellant’s claims.  Her Honour noted that the Tribunal remains the finder of fact and is not required to accept the appellant’s claims uncritically.

20                  More generally, Hartnett FM considered that the observations of the Tribunal and the Tribunal’s findings as a whole indicated that it had properly exercised its jurisdiction.

the appeal

21                  The appellant appealed the decision of Hartnett FM by notice of appeal filed 2 June 2005.  The notice of appeal alleges jurisdictional error by the Tribunal on the same grounds as the appellant put to Hartnett FM, and goes on to allege that her Honour erred in not finding that the Tribunal had made those errors.

22                  When the appeal was called on for hearing before me, the appellant sought leave to amend the notice of appeal to include a ground of appeal which was not raised before the Federal Magistrates Court.  The proposed new ground was that the Tribunal had committed a jurisdictional error by failing to comply with s 424A of the Migration Act 1958 (Cth) (“the Act”).  Specifically, the alleged non-compliance was that the Tribunal failed to give particulars of the following information:

(a)           information that Ms Keskin was a lawyer by profession and that Amnesty International had campaigned on her behalf because she was being persecuted in Turkey for being a human rights defender (“the Keskin information”); and

(b)          the HRA letter which I have extracted at [8] above.

In respect of each piece of information, the appellant contends that it was relied on by the Tribunal as the reason, or part of the reason, for affirming the delegate’s decision; particulars of the information were not provided to the appellant as required by ss 424A(1) and (2); the information was specifically about the appellant or another person rather than being information that concerned a class of persons (s 424A(3)(a)); and the information was not provided to the Tribunal by the appellant for the purposes of the Tribunal’s review (s 424A(3)(b)). 

23                  This Court has power to allow grounds to be argued on appeal that were not argued before the trial judge.  The principles governing the exercise of this power have been considered by the Full Court on several occasions, and those principles are well settled: see H v Minister for Immigration and Multicultural Affairs (2001) 63 ALD 43 (Branson, Katz and Marshall JJ) (“H”); and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 (North, Merkel and Weinberg JJ) (“VAAC”). 

24                  In H, Branson and Katz JJ said at 44-45 [6]:

“An appeal to this Court from a decision of a judge of the Court is an appeal in the strict sense and not an appeal by way of rehearing (Dynasty Pty Ltd v Coombs (FC) (1995) 59 FCR 122 at 129; White v Minister for Immigration & Multicultural Affairs [2000] FCA 232).  The appeal power is thus to be exercised for the correction of errors (Coal and Allied Operations Pty Ltd v The Full Bench of the Australian Industrial Relations Commission [2000] HCA 47 per Gleeson CJ, Gaudron and Hayne JJ at para 21).  This does not mean that an issue can never be argued on appeal that was not argued at the hearing at first instance.  In a case where, had the issue been raised before the primary judge evidence could have been given which might have prevented the point from succeeding, the issue will not be allowed to be raised on appeal (Coulton v Holcombe (1986) 162 CLR 1 per Gibbs CJ, Wilson, Brennan and Dawson JJ at 7-8).  In other cases, it will be for the Full Court to determine whether it is expedient in the interests of justice that the issue should be argued and decided (O’Brien v Komesaroff (1982) 150 CLR 310 per Mason J, with whose judgment the other members of the Court concurred, at 319; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 per Mason P, with whom Gleeson CJ and Priestley JA agreed, at 645-646; Jones v Minister for Immigration & Ethnic Affairs (1995) 63 FCR 32 (FC) particularly per RD Nicholson J at 47).”

25                  In VAAC at 177 [26], the Full Court identified factors which need to be considered in applying these principles:

“It is therefore necessary to consider whether it is expedient in the interests of justice to allow the new ground to be argued and determined.  In the present case, the interests of justice require reference to a number of considerations, namely, the appellant’s prospects of success on the appeal on the new argument, the explanation given by the appellant for failing to raise the argument before the primary judge, the prejudice to the respondent in allowing the appellant to raise the new argument, the potentially serious consequences to the appellant if leave to amend is refused, and the integrity of the appellate process.”

26                  The Full Court in VAAC also observed that determining the appellant’s prospects of success on the appeal requires consideration of the merits of the proposed new ground.  In this case, the convenient course was to hear full argument on the appeal, including the proposed new ground of appeal, without ruling on the application for leave.  In taking this course I took the following matters into account: a determination of the leave application would require consideration of the merits of the new ground; it was common ground between the appellant and the first respondent that if the proposed new ground of appeal had been raised as a ground of review before Hartnett FM, it would not have involved the calling of additional evidence; the first respondent did not suggest that it would be prejudiced if leave were granted to add the proposed new ground of appeal; and the duration of the appeal would not be significantly affected by allowing the proposed new ground to be fully argued before ruling on the application for leave to amend.  However, I would not wish it to be thought that the same course will always be followed.  There may be occasions when it is more appropriate or convenient to rule on an application for leave to amend a notice of appeal before embarking on the substance of the appeal itself. 

27                  Counsel for the appellant submitted that their failure to raise the s 424A ground before the Federal Magistrates Court is explained by the fact that the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 (“SAAP”) was handed down after Hartnett FM dismissed the appellant’s application.  In SAAP, the trial judge (Mansfield J) had held that, while there had been a failure to comply with s 424A, that failure had not deprived the appellant in that case of any opportunity to learn of material adverse to her claim or comment on it.  In those circumstances, his Honour declined to grant relief: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577.  The Full Court (Heerey, Moore and Kiefel JJ) dismissed the initial appeal: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 411.  However, the High Court took a different view and allowed the appeal. 

28                  The main issue in the High Court was whether, on the true construction of the Act, s 424A established an inviolable procedural requirement, compliance with which was essential to the validity of the Tribunal’s decision.  If so, the argument was that it was beside the point to say that there was no procedural unfairness, and the primary judge ought not to have exercised his discretion to decline relief.  On this issue, McHugh J said at 180 [68]:

“However, the assumption that no breach of s 424A occurs if the applicant has otherwise been given procedural fairness overlooks the imperative nature of the section.  Nothing in the section suggests that fairness in the way in which the Tribunal observes its statutory obligations is an implied limitation on its operation.  The section describes a procedural step that, if enlivened by the circumstances of the case, the Tribunal is required to take in every case.  Further, the mandatory nature of the obligation in s 424A(2)(b) points to the conclusion that the failure to provide in writing to the applicant particulars of the adverse material and the invitation to comment upon it amounts to a breach of s 424A.”

29                  A little later, McHugh J said at 184-185 [83]:

“However, where the relevant breach is the failure to observe fair decision-making procedures, the bearing of the breach upon the ultimate decision should not itself determine whether the constitutional writs of certiorari and mandamus should be granted.  If there has been a breach of the obligation to accord procedural fairness, there is jurisdictional error for the purposes of s 75(v) of the Constitution.  There is no reason to rewrite the limitation ordinarily implied on the statutory power to deny jurisdictional error for ‘trivial’ breaches of the requirements of procedural fairness.”

30                  The other members of the majority, Kirby and Hayne JJ, expressed similar views: see Kirby J at 203 [173] and Hayne J at 211 [208].

31                  In oral submissions in this Court, counsel for the appellant said that even if it be the case that the s 424A ground should have been raised before the Tribunal, its significance was brought into much sharper focus by the High Court’s decision in SAAP.  There is some force in this submission, particularly where there was a risk that any s 424A ground would fail at the same hurdle as that which proved decisive before Mansfield J and the Full Court in SAAP. 

32                  In all the circumstances, I consider that it is expedient in the interests of justice to grant leave to the appellant to amend the notice of appeal so as to raise the new ground.  In reaching this conclusion, I have taken into account the potentially serious consequences to the appellant if leave to amend were to be refused and the lack of any prejudice to the respondents in allowing the appellant to raise the new argument.  I also consider that the failure of the appellant to raise the argument before the Tribunal has been adequately explained.  As to the prospects of success of the new ground, I consider that the ground is sufficiently arguable to warrant the grant of leave to amend. 

section 424a

33                  Section 424A provides:

“(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.”

34                  As the contention that the Tribunal failed to comply with s 424A relates to two pieces of information, it is necessary to apply the terms of the section separately to each piece of information.  The questions that will arise in doing so include the following: what was the information; does the information fall within an exception in s 424A(3); and was the information the reason, or a part of the reason, for the Tribunal’s decision to affirm the delegate’s decision?

the authorities on section 424A

35                  I preface my discussion of the authorities by making a general observation.  I was invited to examine the possible application of s 424A by separately analysing the questions whether the Tribunal relied on any information within the meaning of s 424A and whether the information was a part of the Tribunal’s reason for affirming the delegate’s decision.  A two-step analysis of this kind may be convenient in preparing reasons for decision.  But, in my opinion, the two questions will usually merge and, unless due care is exercised, their separation carries a risk that the words the legislature has used in s 424A will be supplanted by different and more abstract inquiries. 

36                  There is no reason to doubt that ‘information’ in s 424A(1) is used in its ordinary sense of knowledge communicated or received concerning some fact or circumstance.  In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (“VAF”) at 476-477 [24], Finn and Stone JJ set out the following propositions about the meaning of the term ‘information’ in its s 424A(1) setting:

“(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 429-30 [104]; 64 ALD 289 at 318.  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; BC200301782;

(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 218 [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 Indigenous Affairs [2000] FCA 1109; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at 217-18 [19]-[22]; and

(iii)      the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679; BC200107472 at [25]; approved [2002] FCAFC 120; BC200203793; 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 282-4 [26]-[29].”

The third proposition has not been doubted but its application has produced some fine distinctions.

37                  In Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 (“Paul”) at 428 [95], Allsop J, with whom Heerey J agreed, said:

“… I agree with the distinction drawn by Sackville J in Tin v Minister for Immigration and Multicultural and Indigenous Affairs that the information of which particulars must be provided is information or knowledge that has come to or been gained by the Tribunal and is not the subjective appraisal or thought process of the Tribunal … However, the distinction can become very fine.  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 424(A)(1)(b)) of information (for s 424A(1)(a)), requiring the Tribunal to give particulars of that information and to explain its relevance.”

38                  Allsop J also observed that some unbundling of the immediate reason for the Tribunal’s affirmation may be required, and that 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: see Paul at 428-429 [99]-[100].

39                  In the result, Allsop J adopted the following approach at 432 [116]:

“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 if it is so that he or she can understand and be able to meet the integers or elements that make up the Tribunal’s reasons or conclusion thus far reached (hence ‘would’) for finding adversely to the applicant.”

40                  In VAF, Finn and Stone JJ at 478 [33] said that, in applying s 424A, it is necessary to differentiate between the integral and inessential parts for the reasons for the Tribunal’s decision.  Ultimately, the test which Finn and Stone JJ applied in VAF (at 481 [41]) was whether the information in question was 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 and why it was relevant to the review.

41                  Merkel J dissented.  In the course of his Honour’s reasons for judgment, he cautioned that it is impermissible to impose an additional criterion that the information must be an ‘integral’ or ‘essential’ reason for the decision in order for s 424A to apply.  His Honour recognised that it may not be straightforward to identify from the reasons themselves whether the information in question was part of the reason for the Tribunal’s decision.  In discussing Paul, his Honour approved of the fact that Allsop J had eschewed a narrow view of what would constitute the reason or part of the reason for a decision to affirm the decision of the delegate.  However, his Honour added the following cautionary words at 483 [54]-[55]:

“His Honour’s observations may provide guidance for assessing whether particular information was part of the reason for the Tribunal’s decision where, as was the case in Paul, it may not be straightforward to identify from the reasons themselves whether the information in question was part of the reason for the Tribunal’s decision.

However, his Honour should not be regarded as having intended to lay down an exhaustive test for the circumstances in which s 424A is to apply.  If his Honour’s observations (at FCR 432 [116]; ALD 320-1) were said to lay down such a test, that test would become a substitute for the words the legislature has used in the section itself.  Thus in a case, of which Al Shamry is an example, where it is clear on the face of the reasons expressed by the Tribunal that the information in question was a part of the reason for the decision, Allsop J’s observations cannot be employed to arrive at a different conclusion because to do so would be to impermissibly import into s 424A an additional criterion of ‘sufficient importance’.”

42                  In WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 (“WAGP”), the Full Court (Marshall, Weinberg and Jacobson JJ) held that the word ‘information’ in s 424A(1) does not encompass a failure to mention a matter to the Tribunal. Their Honours said at 282 [26]:

“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 did not 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.”

43                  The Full Court went on to distinguish Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212, where the Full Court (Whitlam, Tamberlin and Sackville JJ) held that the assertions of an informant which cast doubt on the applicant’s version of events constituted information for the purposes of s 424A(1).  The Full Court said that there was a material difference between assertions of an informant and observations or conclusions arrived at by the Tribunal in weighing up aspects of the evidence of an applicant by reference to gaps or defects in that evidence: see WAGP at 282 [27].

44                  In SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200, the appeal arose from a Tribunal decision which had found that the applicant for a protection visa had fabricated his claim and various documents submitted in support of it.  In reaching this conclusion, the Tribunal relied upon the fact that the applicant’s written statement to the Department did not mention the claims of persecution that the Tribunal ultimately rejected.  One of the issues that arose on the appeal to this Court was whether s 424A applied to the information contained in the applicant’s original statement to the Department.  After referring to VAF, Paul and WAGP, Allsop J at [26] and [34] held that it did:

“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.

…

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.”

In Allsop J’s view, the case before him involved something more than what Finn and Stone JJ in VAF at 476-477 [24] had called ‘identified gaps, defects or lack of detail or specificity’ in evidence given to the Tribunal, or what the Full Court in WAGP had described as a failure to mention something in evidence given to the Tribunal. 

45                  In the course of his reasons for judgment, Allsop J discussed the decision of Branson J in NAIH v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 223 (“NAIH”), which had been cited with approval by the Full Court in WAGP.  In NAIH at 226 [8], her Honour had doubted that an intention can be discerned in s 424A that the totality of the claims and assertions in a statement made by an applicant in support of his or her application, and the general impression of coherence or otherwise created by those claims and assertions, is information received by the Tribunal.  Allsop J distinguished NAIH on several grounds.  First, he thought that Branson J was not directing herself to a case where the very form and content of the applicant’s original statement is central to the rejection of virtually all of the applicant’s evidence.  Secondly, while the Tribunal contrasted the applicant’s evidence with the cohesive account in the earlier statement, Branson J found that the Tribunal based its decision on the unconvincing nature of the applicant’s oral evidence before it.

46                  After argument concluded in this appeal, the Full Court (Moore, Weinberg and Allsop JJ) handed down its decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) which incorporates four related appeals.  The main issue addressed by the Full Court was whether the authority of Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 (“Al Shamry”) should be reconsidered.  The Court held unanimously that it should follow the construction of s 424A(3)(d) adopted in Al Shamry.

47                  In separate reasons for judgment, each member of the Full Court in SZEEU considered the application of s 424A(2) to information which the Tribunal had relied on to make adverse credibility findings.  The first piece of information concerned a statement which the appellant had made in a document lodged in support of his protection visa application explaining the circumstances in which he had left Bangladesh.  The members of the Full Court described this as ‘the flight information’.  The second piece of information was that the Tribunal had received essentially the same claims in the same words from several other applicants represented by the same migration agent.  This was referred to as ‘the similar claims information’.  Both pieces of information were used by the Tribunal in making an adverse assessment of the appellant’s credibility.  Each member of the Full Court considered that the information constituted information within the meaning of s 424A(1).  Allsop J expressly stated that he adhered to what he had said in SZECF.  There was, however, a difference of view between Moore J on the one hand, and Weinberg and Allsop JJ on the other, concerning the approach which should be adopted to the question whether these pieces of information constituted a part of the reason for the Tribunal’s affirmation of the decision made by the Minister’s delegate.

48                  Moore J adopted and applied what had been said by Finn and Stone JJ in VAF: see SZEEU at [22]–[25].  In his Honour’s view, the flight information was not of sufficient significance to warrant a conclusion that it formed part of the Tribunal’s reasons for affirming the decision of the Minister’s delegate.  This was because it was a subsidiary and peripheral reason which the Tribunal relied upon to reject the applicant’s claim that charges were outstanding against him in Bangladesh.  Other factors referred to by the Tribunal were of greater significance.  As for the similar claims information, Moore J noted that the Tribunal only referred to this information after analysing and rejecting the applicant’s central claims.  In his Honour’s view, the Tribunal therefore rejected the central claims of the appellant by a process of reasoning not dependent on the similar claims information: see SZEEU at[27]-[28]. 

49                  Weinberg J said that the expression ‘a part of the reason’ in s 424A should be read benevolently, in favour of an applicant for review, so that if there is any doubt as to whether information that is adverse to an applicant formed a part of the reason for decision, that doubt should generally be resolved in favour of the applicant.  Weinberg J considered the flight information was a part of the reason for the Tribunal’s decision for the reasons advanced by Allsop J at [51] below.  As for the similar claims information, his Honour agreed with Allsop J’s conclusion that it played a part (albeit in conjunction with the other factors that Moore J had mentioned) in the Tribunal’s conclusion that the appellant’s evidence should not be accepted.  His Honour added at [164]-[165]:

“The fact is that the Tribunal regarded the similar claims information as a significant matter, sufficiently important to warrant specific mention.  Although the Tribunal dealt with the matter as though it simply bolstered a conclusion that it had already arrived at, rather than as an element in the decision-making process, it does not follow that it did not play ‘a part’ in its reasons for decision.  It would be both artificial, and dangerous, to determine whether there is a causal link between a piece of information that is seriously adverse to a claimant, and a decision rejecting that person’s claim, by focussing largely upon where, in the reasons for decision, the information is discussed.  The actual process by which a decision is reached is, of course, a complex matter.  It is not always as neat as the reasons themselves may suggest.  The reasoning may not proceed in a linear fashion, and the Tribunal’s reasons must, of course, be read as a whole.

The possibility that the similar claims information contributed to the Tribunal’s rejection of the appellant’s claim cannot realistically be excluded.  The appellant’s credibility was of critical importance to his claim.  Any ‘information’ that the Tribunal considered as casting serious doubt upon his credibility, whether referred to in the early stages of its reasons, or as fortifying its earlier conclusions, seems to me likely to have played ‘a part’ in the decision.”

50                  Allsop J held that the test which had been advanced in Paul and VAF had to be reconsidered in the light of the High Court’s decision in SAAP.  His Honour said that, to the extent that Paul and VAF both include notions of fairness derived from the rules of procedural fairness as part of the analysis of whether something is part of the reason for affirming the decision, those decisions are in conflict with the approach of the majority of the High Court in SAAP.  In consequence, his Honour set out what he thought that the approach to be adopted in the future should be at [215]:

“In my view, in the light of SAAP, in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s 424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one find them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision.  To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character which would make it unfair not to invoke the procedures of s 424A, I think SAAP requires that such an approach be rejected.  It is only necessary that the information be a part of the reason.”

The application of these principles by the majority in SZEEU necessarily led to the conclusion that both the flight information and the similar claims information fell squarely within s 424A.  It was sufficient that both pieces of information were referred to and relied upon by the Tribunal as relevant and operative considerations, whether or not they could be described as a subsidiary or a minor part of the reason for the Tribunal’s decision.

51                  On the question whether the Keskin information and the HRA letter were a part of the reason for the Tribunal’s affirmation of the decision made by the Minister’s delegate, I consider that I am bound by, and ought to follow, SZEEU as the most recent considered statement of principle by the Full Court.

52                  I do, however, wish to make one observation.  In my view, it does not follow from the decisions in SAAP and SZEEU that the statutory purpose of s 424A is irrelevant to its proper construction and application.  In SAAP, McHugh J at 181 [73] said that s 424A is a statutory formulation of the obligation to accord procedural fairness in the conduct of a review, and endorsed statements in this Court to the same effect: see SAAP at 179 [66].  Hayne J emphasised the crucial role played by the language, scope and objects of s 424A in its construction and application: see SAAP at 211 [208].  In Paul, Allsop J construed and applied s 424A in the light of its purpose of ‘ensuring that the claimant is fully informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it’: see Paul at 429-430 [104].  In Al Shamry at 40 [39], Merkel J said that s 424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise.  Cases may arise in which it is appropriate to take account of the statutory purpose of s 424A in determining whether there is any information within the meaning of s 424A, or whether particular information is the reason, or a part of the reason, for the Tribunal’s decision.  I do not consider that there is anything to the contrary in SZEEU.

the keskin information

53                  It is common ground that the Tribunal did not inform the appellant that Ms Keskin was a member of the legal profession, and that Amnesty International campaigned on her behalf because she was persecuted in Turkey for being a human rights defender.  The appellant submitted that this information was probably contained in country information accessed by the Tribunal itself, and was not provided to the Tribunal by the appellant.  This was not disputed by the first respondent.

54                  The Tribunal refers to Ms Keskin several times in its reason for decision.  In describing the appellant’s interview with the delegate on 19 February 2003, the Tribunal said that the appellant was asked if she knew Ms Keskin.  The appellant’s response was that Ms Keskin was the chair of the HRA in Istanbul until 2002, but now it was someone else.  A little later in its reasons, but in the same context, the Tribunal stated:

“Asked what happened to Eren Keskin in 2000, the applicant said she did not. (sic) Asked what Keskin was doing now, the applicant said she did not know, because she had been away for some time, having come to Australia.”

55                  Much the same ground was covered in the appellant’s evidence at the Tribunal.  In its reasons, the Tribunal records the following exchanges:

“The Tribunal asked the applicant why Eren Keskin was the subject of an Amnesty International appeal.  The applicant said she did not know.  The Tribunal asked the applicant what Keskin’s profession was.  The applicant said she did not know.”

56                  Finally, in its ‘Findings and Reasons’, the Tribunal stated:

“The Tribunal also would have expected someone active with the Istanbul branch to know Eren Keskin’s profession (lawyer) and that the reason Amnesty International campaigned on her behalf was because she was persecuted as a human rights defender herself.”

57                  Based on these passages, the appellant submitted that the Keskin information was a reason, or a part of the reason, for the Tribunal deciding to affirm the decision under review, in that the appellant’s ignorance of the information was a reason that the Tribunal used to affirm the delegate’s decision. 

58                  The first respondent submitted that neither the fact that Ms Keskin was a lawyer, nor the reason why Amnesty International campaigned on Ms Keskin’s behalf, were a part of the reason for the Tribunal’s decision.  Instead, the relevant fact upon which the decision was based was the appellant’s lack of knowledge about these issues in her oral evidence.

59                  The first respondent also argued that it would not be consistent with the duties and functions of the Tribunal under Div 3 of Pt 7 of the Act to treat the Keskin information as information that attracted s 424A.  In particular, the first respondent submitted that the statutory duty of the Tribunal was to test the appellant’s evidence of her involvement in the HRA to enable it to decide whether her involvement was as she claimed.  A logically probative avenue of inquiry was to test her general knowledge of the HRA.  It was put that this avenue of inquiry would have been rendered useless if the Tribunal were required to provide the appellant with advance notice of the answers to the questions it sought to ask to test her general knowledge of the HRA.

60                  In applying the authorities, it is important to bear in mind the way in which the Tribunal used the Keskin information.  The Tribunal treated the Keskin information as accurate factual information which would have been known to the appellant if she were an active member of the HRA in Turkey as she claimed.  However, the Tribunal did not at any stage put the information to the appellant for her comment.  Indeed, there is nothing to indicate that the information was disclosed by the Tribunal prior to the publication of its reasons.  Before the Tribunal, the appellant was simply asked by the Tribunal why Ms Keskin was the subject of an Amnesty International appeal and what Ms Keskin’s profession was.  To each question the appellant answered that she did not know.  These answers were then used, along with other matters, to found the Tribunal’s conclusion that it was not satisfied that the appellant was an active member of the HRA as she claimed.

61                  In these circumstances, I find it unhelpful to separate the question whether there was any information within the meaning of s 424A(1) from the question whether the Keskin information was the reason, or a part of the reason, for the Tribunal’s decision.  The Tribunal’s expectation that someone active in the Istanbul branch of the HRA would know Ms Keskin’s profession, and that Amnesty International had campaigned on her behalf because she was persecuted as a human rights defender herself, depends on the Tribunal’s receipt and acceptance of those two pieces of factual information.  I am prepared to assume that the Keskin information was information that the Tribunal considered in the course of its reasoning, but it is a different question whether it was the reason, or a part of the reason for the Tribunal’s decision.

62                  In applying s 424A, it is necessary to focus on matters that, viewed prospectively, would be the reason or a part of the reason for the Tribunal’s decision, or viewed retrospectively in the light of the Tribunal’s actual decision, can be seen to be the reason, or a part of the reason, for the Tribunal’s decision.  At the outset of the Tribunal hearing and prior to the appellant’s evidence to the Tribunal, I doubt that the Keskin information could be characterised as information that the Tribunal then considered, or might consider, would be the reason or a part of the reason for affirming the delegate’s decision.  By itself, the Keskin information was not adverse to the appellant.  Numerous cases suggest that s 424A is concerned with information that is adverse to the interests of the visa applicant: see SAAP per McHugh J at 175 [50]; VAF per Finn and Stone JJ at 476-477 [24]; WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 per French J at 637 [57]; and M17/2004 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 85 ALD 597 per Ryan J at 615-616 [79]–[83].  The Keskin information was simply factual information that might assist in testing the extent of the appellant’s knowledge of the activities of the HRA in Turkey and the veracity of her claims.  The same picture is presented when the matter is viewed retrospectively in the light of the Tribunal’s reasons.  The Tribunal attached some significance to the fact that in her evidence to the Tribunal the appellant displayed a lack of knowledge of the Keskin information, amongst other matters.  In my opinion, the Keskin information cannot be characterised as the reason, or as a part of the reason, for the Tribunal’s affirmation of the decision under review.

63                  The relevant fact that the Tribunal relied upon in its reasons for decision was the appellant’s lack of knowledge about the Keskin information, rather than that information itself.  As a matter of substance, the appellant’s real criticism is directed at the Tribunal’s subjective appraisal of the credibility of the appellant’s evidence, including in particular, conclusions arrived at by the Tribunal in weighing up that evidence by reference to gaps, lack of knowledge, or lack of detail in the evidence.  It follows that the Keskin information did not attract s 424A.  Nor do I think that it would be consistent with the statutory purpose underpinning s 424A for the section to be construed so that it extended to the Keskin information.

the hra letter

64                  The HRA letter was provided to the Department in connection with the appellant’s application for a protection visa; it was not given to the Tribunal for the purposes of the review application.  In these circumstances, the exception in s 424A(3)(b) is inapplicable.  It only applies to information that is given for the purposes of the review application before the Tribunal: see Al Shamry per Ryan and Conti JJ at 33-34 [17]-[20] and per Merkel J at 38-39 [35]; and SZEEU per Moore J at [9], per Weinberg J at [154] and per Allsop J at [199].  The first respondent did not contend that the exception applied, or dispute the appellant’s submission that it was inapplicable.

65                  The HRA letter contains information that was evaluated by the Tribunal in the course of its reasons for decision.  Early in its reasons, the Tribunal referred to the HRA letter and stated:

“The signature block is for Kiraz Bicici (as Director of the Istanbul Branch).  However there is no signature above the signature block, only an ink seal (Istanbul Branch of the Human Rights Association) below it and a squiggle over the top of the seal, which may or may not be Bicici’s signature.”

The appellant submitted that this description of the letter was to some extent critical and dismissive.  The first respondent answered by submitting that the description of the letter by the Tribunal was purely factual. 

66                  Later in the reasons, the Tribunal said that various factors which indicated that the appellant was not an active member of the HRA were ‘not outweighed’ by the HRA letter.  Finally, the Tribunal referred to the failure of the HRA letter to mention any threats against the appellant, which it thought was not satisfactorily explained.  In this context, the Tribunal observed in passing that the HRA could have referred to such threats and harassment against the appellant without committing itself to being able to prove that the incidents occurred.

67                  The appellant submitted that the reasons showed that the Tribunal had serious reservations about the HRA letter, or at the very least perceived weaknesses in the information it conveyed.  The appellant submitted that any perceived weaknesses in the HRA letter, and indeed any reasons why the Tribunal was not prepared to accept the facts deposed to by the letter, should have been put to the appellant pursuant to s 424A. 

68                  The first respondent submitted that the Tribunal’s decision treated the HRA letter as a potentially positive part of the appellant’s claim.  This was why the Tribunal said that the various reasons for concluding that the appellant was not an active member of the HRA were not outweighed by the letter, that is to say the letter was taken into account by the Tribunal as some positive evidence that the appellant was an active member of the HRA, but there was other more weighty evidence pointing in the other direction.

69                  Does the HRA letter constitute information to which s 424A applies?  The first respondent advanced two reasons why s 424A did not apply.  First, it was argued that the Tribunal’s subjective appraisal of the HRA letter, in weighing it against the appellant’s oral statements and explanations to the delegate and to the Tribunal, did not constitute information for the purposes of s 424A.  Secondly, the first respondent argued that any reservations which the Tribunal had about the letter could not be considered integral to, nor an important aspect of, the Tribunal’s reasoning process so as to enliven the Tribunal’s obligations under s 424A.  The second argument must be rejected having regard to the Full Court’s decision in SZEEU.  The first argument has more substance. 

70                  There is, in my opinion, a valid distinction between the HRA letter and the Tribunal’s subjective evaluation of the weight that should be attached to it in the light of the appellant’s oral evidence to the Tribunal.  Such a distinction is supported by VAF per Finn and Stone JJ at 476-477 [24]; WAGP per Marshall, Weinberg and Jacobson JJ at 282-283 [26]–[29]; Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 per Sackville J at [53]–[54]; and Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 120 per Carr, Moore and Marshall JJ.  It is also consistent with the statutory purpose of s 424A, which (to paraphrase the language of Allsop J in Paul at [104]) is to ensure that the applicant is fairly informed of information adverse to his or her case so that investigation may be made, and steps may be taken, if possible, to meet it.  By itself, the HRA letter was not the reason, or a part of the reason, for the Tribunal’s affirmation of the delegate’s decision.  Nor was there any point of time prior to the Tribunal’s decision at which the Tribunal would have considered that the HRA letter might have constituted the reason, or a part of the reason, for affirming the delegate’s decision.  It follows that the HRA letter does not fall within the scope of s 424A.

membership of a religious, social and/or political grouping

71                  The appellant submitted that the Tribunal failed to consider the appellant’s claim to fear persecution because of her membership of a group of politically left wing Alevi people, and/or her actual or imputed political opinions arising from that membership.  It was submitted that the failure to consider this claim constituted a jurisdictional error by the Tribunal, which the Federal Magistrate wrongly failed to recognise. 

72                  In oral submissions, this contention was put in the following way:

“But it is in essence that the Tribunal failed to consider the cumulative claims of the applicant being both Alevi, a left wing, and living in an area with left wing, Alevi people.  So that while the somewhat awkward claims of the appellant made during the Tribunal hearing at first glance appear to abandon any, or not put any claim based on the Alevi faith when you look beneficially for the appellant at the transcript of the hearing it is arguable that a claim was put that there was a fear of persecution based on the appellant living in an area of left wing Alevi’s.”

73                  It is doubtful that any such claim was ever made to the Tribunal.  Certainly it was not clearly made in the terms in which it is now put.  But, in any event, the Tribunal addressed the possibility of a claim based on the appellant’s status as an Alevi and her residence in a left wing Alevi area.  The Tribunal dealt with Alevis and with Alevism, referring to country information on the issue.  The Tribunal considered that the chance of the appellant being seriously harmed due to her religious background as an Alevi was remote.  It based that finding on the country information before it and the appellant’s own evidence.  In her evidence, the appellant did not claim that she risked persecution as an Alevi.  The Tribunal expressly noted the appellant’s evidence that her being an Alevi was not important at the moment but that she lived in a left wing Alevi area.  Against this background, the Tribunal said that it did not accept that the appellant was harassed and threatened as she claimed, or that she was still being sought in Turkey as her family members claimed.  The Tribunal also concluded that the chance of the appellant being seriously harmed due to her religious background is remote.  On a fair reading of the Tribunal’s reasons, its ultimate conclusion that it was not satisfied that the appellant had a well-founded fear of persecution within the meaning of the Convention took all of the foregoing matters into account. 

74                  Hartnett FM drew attention to the range of matters considered by the Tribunal.  Her Honour found that no jurisdictional error was committed by the Tribunal; in particular there was no substance in the contention that the Tribunal had failed to deal with a claim made by the appellant.

75                  In my opinion, the appellant has failed to demonstrate any error by Hartnett FM, whether of fact or law.  This ground of appeal must fail.

illogical or unsupported findings

76                  The final ground of appeal is that the findings listed in [15] above were not supported by any probative material or logical grounds.

77                  The immediate obstacle confronting this ground of appeal is that the Tribunal is the finder of fact.  Mere errors in fact-finding will not constitute an error of law, let alone a jurisdictional error: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 per Brennan J at 35-36; and Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 (“Appellant S106/2002”) per Gleeson CJ at 61–62 [5]–[9] and per Kirby J at 85–86 [116]–[120].  Even if a factual finding is illogical or unsupported by evidence, it would only be capable of constituting a jurisdictional error if it constituted a critical step in the Tribunal’s ultimate conclusion or demonstrated that there had been only a purported, rather than a real, exercise of power: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 355-357; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 per Mansfield, Selway and Bennett JJ at 407-408 [19]–[20]; and NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 (“NACB”) at [29].  In NACB, the Full Court (Tamberlin, Emmett and Weinberg JJ) affirmed a line of authorities to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error, or necessarily indicate that there had only been a purported exercise of power.  In W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35], Lee and Carr JJ, with whom French J agreed, said that even though the Tribunal’s reasoning could be regarded as illogical, this did not in itself show a ground of review although it may on occasion manifest other reviewable error.  In VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18], the Full Court (Kiefel, Marshall and Dowsett JJ) reviewed the authorities and concluded that want of logic in the reasons of the Tribunal is not an available ground of review.

78                  The appellant submitted that the decision in Appellant S106/2002 shows that McHugh and Gummow JJ (at 67 and 71) were prepared to consider a challenge to a Tribunal decision based on the grounds that it was illogical, irrational or lacking a basis in findings or inferences of fact.  The first of these passages merely describes the argument and is purely introductory.  In the second passage, their Honours were directing themselves to a case where the decision itself was illogical or irrational; not a case where particular findings of fact or findings about credibility are impugned as illogical or lacking in probative support. 

79                  Far from assisting the appellant, the decision in Appellant S106/2002 illustrates the difficulties of contending that the Tribunal’s evaluation of the credibility of a witness, or the plausibility of particular pieces of evidence, involved jurisdictional error.  The essence of the complaint in Appellant S106/2002 was that the Tribunal failed to consider the evidence as a whole, but first considered and disbelieved the evidence of the applicant without taking account of corroborating evidence, and then considered and rejected the corroboration because of the rejection of the applicant’s evidence.  Gleeson CJ said at 63 [12]-[13]:

“In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant’s story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering.  The member could have expressed herself more clearly.  It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.

Upon analysis, the complaint is that the Tribunal member did not have regard to the whole of the evidence before deciding whether she believed the applicant/appellant, and did not properly assess the significance of the evidence of the corroborating witness.  I am not persuaded that this criticism is justified.”

See also McHugh and Gummow JJ at 70 [49] and 71 [51]–[52].

80                  Here, the statements by the Tribunal which are attacked as illogical form part of the Tribunal’s overall assessment of the appellant’s evidence, including her credibility and the plausibility of her claims to have a well-founded fear of persecution.  That assessment was supported by other considerations which are not impugned as illogical, such as the Tribunal’s reference to the appellant’s vague and unconvincing identification of those who threatened or harassed her as right wing militants and/or religious extremists. 

81                  Hartnett FM concluded that none of the impugned findings was illogical, or indicated that the Tribunal had failed to properly exercise its jurisdiction.  As Gleeson CJ pointed out in Appellant S106/2002, the description of reasoning as illogical or irrational may merely be an emphatic way of expressing disagreement with it.  It is not enough that another Tribunal might not have made the impugned findings, or attached the same weight to them.  As the Full Court (Heerey, Sundberg and Crennan JJ) said in NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [27], opinions can vary about what is inherently improbable or unacceptable as evidence of the fact, or what evidence makes sense, that is whether evidence is probative in relation to a particular fact.  In the absence of perversity or manifest error, sufficient in each case to give rise to jurisdictional error, the Court cannot intervene.

82                  In my opinion, it cannot be said that any of the impugned findings discloses jurisdictional error or indicates that the Tribunal failed to properly exercise its jurisdiction.  There is no appealable error in the conclusions reached by Hartnett FM.

conclusion

83                  For the foregoing reasons, the appeal must be dismissed with costs.

Associate:

Dated:              16 March 2006