FEDERAL COURT OF AUSTRALIA

SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 435

MIGRATION LAW – application of s 424A(1) of the Migration Act 1958 (Cth) – where applicant made references in application for review by Refugee Review Tribunal to material provided to department in visa application – meaning of ‘information’ under s 424A(1) and s 424A(3)(b) - incorporation by reference in application for review  and whether considered ‘information’ applicant gave for purposes of application - held objective test to be applied – where tribunal made positive finding of elaboration – treatment of omissions in evidence by Review Tribunal – whether considered information relevant to s 424A(1)(b) of the Migration Act 1958 (Cth) – appeal allowed

WORDS AND PHRASES – ‘information … that the applicant gave for the purposes of the application’, information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review’, ‘application’, ‘omission’ 

Migration Act 1958 (Cth), s 424A(1), s424A(2), s424A(3)(b)

Aaron’s Reefs Limited v Twiss [1896] AC 273 followed

Attorney-General (Q) v Australian Industrial Relations Commission (2002) 213 CLR 485 followed

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 cited

Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 discussed

China Ocean Shipping Co Ltd v PS Chellaram & Co Ltd (1990) 28 NSWLR 354 cited

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 applied

E Hulton & Co v Jones [1910] AC 20 cited

Gluckstein v Barnes [1900] AC 240 applied

In re Piracy Jure Gentium [1934] AC 586 followed

John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 cited

M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 discussed

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

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 followed

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed

Minister for Immigration v Yusuf (2001) 206 CLR 323 followed

Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 applied

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 cited

RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164 discussed

Re Macks;  Ex parte Saint (2000) 204 CLR 158 followed

Re Minister for Immigration and Multicultural Affairs;  Ex parte Durairajasingham (2000) 168 ALR  407 applied

Rex v Kylsant (Lord) [1932] 1 KB 442 referred to

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009, 215 ALR 162 discussed and applied

Smith v Land and House Property Corporation (1884) 28 Ch D 7 applied

SZBUS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1233 discussed and followed

SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 distinguished

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

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

SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1568 reversed

Toll FGCT Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 cited

Trustees Executors and Agency Co Ltd v Peters (1960) 102 CLR 537 cited

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

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

Webb v Bloch (1929) 41 CLR 331 applied

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 followed

SZGGT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND ANOR

NSD 2220 OF 2005

RARES J

21 APRIL 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be allowed.

2.         The first respondent pay the appellant’s costs, if any.

3.         The orders made by the Federal Magistrates Court on 18 October 2005 be set aside and in lieu thereof the following orders be made:

(a)        order in the nature of an order absolute in the first instance for a writ of certiorari to quash the decision of the second respondent made on  18 February 2004 and handed down on 11 March 2004 to affirm the decision of the first respondent not to grant to the applicant a protection visa.

(b)        order in the nature of a writ of mandamus directing the second respondent to hear and determine the application for review according to law.

(c)        the first respondent pay the applicant’s costs, if any.

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                     The substantive issue for decision raised by this appeal from the Federal Magistrate’s Court (SZGGT v Minister [2005] FMCA 1568) is whether the second respondent, the Refugee Review Tribunal (‘the Tribunal’), failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (‘the Act) in determining the appellant’s application for a review of the refusal of a delegate of the first respondent (‘the Minister’) to grant a Protection (Class XA) Visa (‘visa’) to him on 1 July 2003.

BACKGROUND

2                     The appellant is a citizen of the People’s Republic of China and arrived in Australia on 4 June 2003 on a Chinese passport issued in his name.  His wife accompanied him, but has since voluntarily returned to China.

3                     On about 22 June 2003 the appellant applied for a visa for himself and his wife.  He claimed to be of the Falun Gong religion and provided material with his application including a five page letter. The five page letter sets out in nine separate parts information which the appellant provided in relation to his application.  The parts are:

(1)               his background;

(2)               why he changed his political opinions;

(3)               how he was persecuted politically and religiously in China;

(4)               why he wanted to seek refugee status after arriving in Australia;

(5)               his understandings and feelings of Falun Gong;

(6)               his answer to question 40 in  Part C of the application form;

(7)               his answers to questions 41, 42 and 43 in Part C of the application form;

(8)               his answer to question 44 in Part C of the application form;

(9)               his request of the Australian government to be allowed to say.

4                     Included with his application was also a copy of his passport.

5                     On 1 July 2003 the delegate of the Minister refused to grant the visa.  On 27 July 2003 the appellant prepared an application for review to the Tribunal.  He included his wife as an applicant.  In section D of the application to the Tribunal which set out his reasons for making the application there was written ‘please see my statement attached’.  In a two page letter attached to the application for review the appellant wrote, among other things, as follows:

‘I have received the refusal letter from DIMIA and understood the reasons by the DIMIA case officer for refusing my Protection Visa application.  I do not agree with the following arguments by the case officer –

1)         My application was refused because I [am] not the leader of Falungong  organization –

…

b)         I could have my Passport issued in China before I left there, so I was not the person whom the Chinese Authorities would be interested in or regard as a high profile person -

I do not agree with this conclusion.  As I explained before, when I was departing China, the Authorities had not yet started actions against me so that I could leave China legally with no trouble.  However, if I continued to stay in China, I could be in trouble, not for the reason related to Falungong as by then I had not become a Falungong member yet, but for the reason that the Bureau Chief of my work unit would take strong actions against me (I gave full explanations in my previous statement).  Therefore the matter of issuing my PRC Passport while I was in China should not be a reason for the case officer to refuse my PV application.

c)         It is really impossible that I became a Falungong practitioner about two weeks after my arrival in Australia?-

            I think that this conclusion is not correct because if you come to our Sydney Falungong Group (you can come to have a look on every Sunday afternoon at the Sydney Chinatown), you will find that there are many new practitioners in our Group who are new arrivals like myself.  So I do not agree with the case officer’s argument.’  (emphasis added)

6                     On 5 August 2003 the Tribunal wrote to the appellant informing him, among other things, that it had asked the Department of Immigration & Multicultural & Indigenous Affairs (‘the Department’) to send its file to the Tribunal so that it could review the application:  see s 418(2) of the Act.

7                     On 8 December 2003 the Tribunal wrote to the applicant  giving notice of a hearing, fixed for 13 January 2004 saying:

‘The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.’

8                     On 11 December 2003 the applicant responded, on the advice of a migration agent that he did not want to come to the hearing.

9                     On 13 January 2004 the applicant’s wife informed the Tribunal in writing that she was leaving Australia voluntarily the next day and wished to withdraw her review application.

10                  By a decision dated 18 February 2004 but handed down on 11 March 2004, the Tribunal affirmed the decision not to grant a protection visa.

11                  The Tribunal decision recited at [14] that it had before it the Department’s file.  It is apparent from the written reasons of the Tribunal that a considerable amount of detail as to the applicant’s claims and history had been taken from the material in the departmental file, the principal source of which was the appellant himself.

THE APPELLANT’S CLAIMS IN THE TRIBUNAL

12                  In essence, the appellant had claimed that he was a member of the Chinese Communist party (‘the Party’) who had become the ‘deputy party general secretary’ of his work unit at the Xi Xia Market Materials & Suppliers Bureau in 1997, having worked there for the previous fourteen years.  In his last position, he said that he worked directly under the bureau chief and there saw considerable corruption inside the bureau, presided over the bureau chief.  He said that while corruption was, in effect, rife within the bureau he hated the corruption.  He declined a gift from a local contractor, but it was left at his home when he was not there and he decided to report the matter to his bureau chief who became very upset and angry.  Following this the bureau chief appeared to become quite cold towards him and he felt that a plan was being made to become rid of him.

13                  At the end of 2002 the appellant claimed that the security section chief in the bureau, who was friendly with him, showed him a letter indicating that, falsely the appellant says, he was involved in Falun Gong activities which he considered to be part of a conspiracy to set him up by his chief.  He was then questioned at a committee meeting and asked to explain the allegation, following which he was deprived of his position in the party.  He says that he was warned by the security section chief to leave the bureau, because unless he did so he would be in trouble and his family could also be damaged.  He said that at that time the import and export section of the bureau wanted to do business with an Australian company and that two staff were needed to travel here on business, as a result of which he and his wife decided to leave.  The bureau chief was in Beijing on business, so he was able to leave without difficulty and arrived here with his wife on 4 June 2003.

14                  He said that he was not a Falun Gong member and did not do anything about Falun Gong until after he had been in Australia for 2 weeks.  Towards the end of June 2003 he became a member.  He gave some description of the beliefs of Falun Gong and its founder. 

15                  The appellant gave as the reason that he left China what he had been told about the threats to him and his family, but he said that he had not at that time decided whether or not to seek refugee status.  When he arrived in Australia he said that he saw the good points of the democratic system in this country and became a Falun Gong practitioner.  He then decided to apply for refugee status.  He said that it is well known that as a Falun Gong member he would be in serious political and religious trouble if he returned to China, and thus he should be allowed to stay.  Secondly, he said that the Chinese Government was persecuting all Falun Gong members in China and that if he returned he would be punished politically, religiously and economically.  He concluded that returning to China now ‘means death’.

THE TRIBUNAL’S REASONS FOR DECISION

16                  The Tribunal considered these claims for refugee status, introducing the consideration with the following paragraph ([24]):

‘[24]   I accept that the applicant is a Chinese national and is who he claims to be.  This is so because he has a valid Chinese passport.  However, notwithstanding the claims made by the applicant, I am of the view that most aspects of the applicant’s evidence were vague, generalised, and lacked specific detail.  I am of the view that the applicant elaborated and fabricated his claims to bring himself within the definition of a refugee.’  (emphasis added)

17                  The Tribunal proceeded to set out reasons why the appellant’s account of what had transpired at his work in China relating to the corruption allocations and alleged threats against him had been couched in vague and general terms and lacked any real particularity.  As a result the Tribunal concluded that it would not accept those claims.

18                  The Tribunal then turned to consider the question of whether, because the appellant had claimed to have become a Falun Gong member after his arrival in Australia, he could be a refugee sur place.  Section 91R(3) provided:

‘For the purposes of the application of this Act and the regulations to a particular person:

(a)        in determining whether the person has a well founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b)        the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.’

19                  That claim required the Tribunal to be satisfied that the claim fell within the exception to s 91R(3) of the Act, by reason that the appellant had not engaged in his Falun Gong activities in order to strengthen his claim to be a refugee within the meaning of the refugee convention.  Again, the Tribunal concluded against the appellant’s claim.  It said that it was:

 ‘…unable to accept that the claim has been advanced for any other purpose than to elaborate on his claims based in China, and to provide for himself the profile of, and to enhance his claims to be, a refugee’.

            For that reason the Tribunal said that it was not satisfied within the meaning of            s 91R(3)(b) that the applicant was entitled to have his conduct in Australia taken into account in coming to a determination in his favour. 

FEDERAL MAGISTRATES COURT’S DECISION

20                  The primary judge concluded that the appellant had sought to have a review on the merits of his claim.  That was clearly beyond the jurisdiction of that court, as it is beyond the jurisdiction of this court.  The appellant also claimed that the Tribunal had failed to understand his claim or to consider relevant matters, but gave no basis for concluding that this had in fact occurred.  Lastly, the appellant asserted that the Tribunal had refused to grant his application without any proper grounds. The primary judge said that the appellant had told the Court that a migration agent had informed him that it was not necessary to go to the hearing to which the Tribunal had invited him.  His Honour said that that was very bad advice, as indeed it was.  His Honour, on the arguments advanced before him concluded that the appeal had to be dismissed and assessed the appellant liable to pay the Minister’s costs in the sum of $2,950.

ISSUE

21                  In this Court the appellant’s notice of appeal raised the following grounds:

(1)        His membership of Falun Gong would mean that if he were returned to China he would be persecuted within the meaning of the Refugee Convention.

(2)        The Tribunal failed to understand his claims and failed to consider relevant matters:  ‘Further particulars to be provided’.

(3)        The Tribunal exceeded its jurisdiction in arriving at the decision to affirm the Minister’s decision not to grant a protection visa because he was not accorded natural justice thereby enliving jurisdiction under section 39B of the Judiciary Act 1903:  ‘Further particulars to be provided’.

(4)        The Tribunal refused to grant a protection visa without any proper grounds and proper investigation.

CONSIDERATION

22                  I am of opinion that all of the grounds in the notice of appeal other than the ground involving s 39B of the Judiciary Act 1903 (Cth), are without substance and should be dismissed for the reasons given by the primary judge.  The appellant told me that he was unable to articulate any arguments in support of his claim because he did not understand the law and was not a lawyer.  I explained to him that it was not the function of the Court to make a case for him, rather it was the function of the Court to adjudicate impartially between him and the Minister.  And a court such as this, in cases where there has been no further evidence admitted on the appeal and no change in the law, can exercise its appellate powers only if satisfied that there was error on the part of the primary judge (Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 [14] per Gleeson CJ, Gaudron and Hayne JJ).  Apart from the ground I consider below, neither the notice of appeal nor the appellant’s submissions identify any error by the trial judge or any other basis for me to exercise the Court’s appellate powers.

ISSUE FOR DECISION

23                  The issue for decision is whether the Tribunal was entitled to proceed to the conclusion it did without giving the appellant notice in writing under s 424A of the Act in respect of the material in the departmental file.  That section 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.’

24                  The Tribunal stated in its reasons that it had the file before it and had considered its contents.  In his letter in support of the application for review made to the Tribunal, the appellant, dealing with the reasons he left China, said ‘as I explained before’ and ‘I gave full explanations in my previous statement’.  These statements incorporate by reference what the appellant had said to the delegate as contained in the departmental file for the purposes of      s 424A(3)(b); that is, the information which he had explained before in his previous statement was given to the Tribunal by the references in his letter accompanying his application for review ‘for the purpose of the application’.

25                  But that leaves undetermined the extent of the incorporation by reference which thus occurred.

26                  The Minister contends that the incorporation by reference is of everything which the appellant had put before the delegate, not just so much of the material as related to the events surrounding his leaving China.  In section (b) of the appellant’s letter accompanying his application for review (set out at [5] above) he asserts that he had not become a Falun Gong member while he was in China. 

27                  The  Minister submits that the appellant intended that the Tribunal look at all the previous explanations within the letter and so it is argued, he provided all of that information for the purposes of his application for review within the meaning of s 424A(3)(b).  If consideration of the material referred to by reference in section (b) of the letter were limited to his claims in relation to his activities and the events in China with which section (b) dealt, then the appellant would not have provided the Tribunal with the further information which was contained in his earlier application to the delegate concerning his activities in Australia and his claim to be a refugee sur place.

28                  I have not been referred to, and my researches have not found, any case involving the test to be applied to determine whether an incorporation by reference is to be limited simply to that part of the earlier material provided by the appellant to the delegate which is specifically referred to in the application for review or extends more broadly. 

PRINCIPLES

29                  In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009;  215 ALR 162 the majority, McHugh, Kirby and Hayne JJ, held that where the Tribunal obtained information which it considers would be the reason, or part of the reason, for affirming the decision that is under review, it had to inform an applicant in writing of that information as part of the fulfilment of the duty of procedural fairness, described as the natural justice hearing rule in s 422B.  McHugh J said that s 424A was a statutory formulation of the obligation to accord procedural fairness in the conduct of a review (215 ALR at 181 [73]).  His Honour continued (215 ALR at 183 [77]):

‘However, because the Act compels the tribunal in the conduct of the review to take certain steps in order to accord procedural fairness to the applicant for review, before recording a decision, it would be an anomalous result if the tribunal’s decision were found to be valid, notwithstanding that the tribunal has failed to discharge that obligation.  It is not to the point that the tribunal may have given the applicant particulars of the adverse information orally.  It is also not to the point that in some cases it might seem unnecessary to give the applicant written particulars of adverse information (for example, if the applicant is present when the tribunal receives the adverse information as evidence from another person and the tribunal there and then invites the applicant orally to comment on it).  If the requirement to give written particulars is mandatory, then failure to comply means that the tribunal has not discharged its statutory function. There can be no “partial compliance” with a statutory obligation to accord procedural fairness.  Either there has been compliance or there has not.  Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act.  Any suggestion by the Full Federal Court in NAHV to the contrary should not be accepted.  Parliament has made the provisions of s 424A one of the centrepieces of its regime of statutory procedural fairness.  Because that is so, the best view of the section is that failure to comply with it goes to the heart of the decision-making process.  Consequently, a decision made after a breach of s 424A is invalid.’

Hayne J, with whose reasoning Kirby J agreed (215 ALR at 199 [154];  203 [173]-[174]) said (215 ALR at 210-211 [206]-[208]):

‘The language of s 424A is, of course, imperative:  “the Tribunal must” take the several steps it prescribes.  That imperative language stands in sharp contrast with the permissive terms of, for example, s 424 which says that “the Tribunal may” take various steps.  The evident purpose of the provisions of    s 424A (and several other provisions in Div 4 of Pt 7) is to give applicants for review procedural fairness.

It is clear that want of procedural fairness may constitute jurisdictional error (Re Refugee Tribunal;  Ex parte Aala (2000) 204 CLR 82;  176 ALR 219;  [2000] HCA 57;  Re Minister for Immigration and Multicultural Affairs;  Ex parte Miah (2001) 206 CLR 57;  179 ALR 238;  [2001] HCA 22).  As Gaudron and Gummow JJ said in Re Refugee Review Tribunal;  Ex parte Aala ((2000) 204 CLR 82 at 109 [59];  176 ALR 219 at 237-8;  [2000] HCA 57):

            However, the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction.  The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures.  Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for “trivial” breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) should go.  The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s 75(v).

In the present matter, although the provision now in question was, as I have pointed out earlier, one of several intended to achieve procedural fairness, the immediate focus is not upon the “observance of fair decision-making procedures”.  It is upon “the character of the decision”.  Has the tribunal validly decided the review?  Or is the decision reached in the review, in breach of s 424A, invalid? 

Where the Act prescribes steps that the tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid.  Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point.  The Act prescribes what is to be done in every case.’  (his Honour’s emphasis)

REPUBLICATION

30                  The Minister submitted that where in an application for review an applicant cites, refers to, discusses, explains, elaborates on or cavils with information, that other information must be regarded as information provided by the applicant for the purposes of the review within the meaning of s 424A(3)(b).  The Minister argued that:

‘This must be so because of 2 things:  firstly it must be presumed that if an applicant refers to information s/he must have intended that the information be considered for the purpose of the review;  secondly, once that information is referred to by an applicant the tribunal must consider it – in full.’

31                  Taken to its logical conclusion this argument must mean that by applying for a review of the delegate’s decision, that decision itself is ‘information that the applicant gave for the purpose of the application’.  And, it would follow, if this were a correct interpretation, that everything which the delegate referred to in his or her decision was also given by the applicant for that purpose.

32                  I am of opinion that this construction is not open because the applicant, under s 412 of the Act, has a right to apply to the Tribunal for a review of the decision.  The decision in a case like the present is simply the determination to refuse to grant a protection visa.  The reasons for the decision are not made into information given by the applicant ‘for the purpose of the application’ simply because the applicant for review makes an application under s 412.  It is pursuant to s 414 of the Act that the original decision, not the reasons for it, is before the Tribunal for review and its statutory function is to review the decision.  In conducting that review the Tribunal must conform to the requirements in the Act for the exercise of its jurisdiction, including the requirements of Division 4 of Part 7, and relevantly s 424A.

33                  And part of the statutory function of the Tribunal is to decide the application for review by exercising its powers in accordance with s 415 and then giving what it considers to be the correct or preferable decision (Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at p 18).  It forms that opinion after considering the views of the original decision maker (189 CLR at p 18), but if there is some matter comprising ‘information’ in the reasons for that original decision then in my opinion s 424A(1) requires that ‘information’ to be furnished to the applicant for review unless it is excepted in               s 424A(3).  The very language of s 424A(1)(a) denies the construction put here by the Minister for it contemplates ‘information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review’.  It is the decision, not the reasons for it or the information on which it was based, which the Tribunal could so affirm.

34                  Thus, while the reasons for the original decision may not all be ‘information’ within the meaning of s 424A, no doubt some of the material before the original decision maker to which he or she referred in the reasons for that decision will be ‘information’ to which            s 424A applies.

35                  If the Parliament had intended that merely by seeking review of the decision – relevantly to refuse a protection visa – put before the Tribunal the reasons for arriving at that decision as ‘information’ within the meaning of s 424A(3)(b) given by the applicant for review for the purpose of the application, it could have said so.  The decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 proceeded on this basis, namely, that the material put by an applicant for review to the original decision maker was not, simply because a review was sought, ‘information’ within the exception in s 424A(3)(b) unless the applicant for review had done something more to give that ‘information’ to the Tribunal. That decision has stood for nearly 5 years. The question here is what more is sufficient. 

36                  In this, as in a number of areas of the law, I am of opinion that the question whether an applicant for review has given information for the purpose of the application within the meaning of s 424A(3)(b) when it is sought to say that he or she ‘republished’ something which had been provided at a different time by him or her, it is necessary to make an objective assessment as to what a reasonable person in the position of an observer of the interchange would have understood.

37                  In the law of torts, the law has created the ‘reasonable person’.  In the law of defamation, from which the notion of republication may have been sourced, the question as to whether a subsequent publication was intended by the original publisher or was a natural and probable result of providing the information in the first place is assessed objectively (John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 at 350:  Webb v Bloch (1928) 41 CLR 331 at 363-366 and see as to the objective nature of the act of publication E Hulton & Co v Jones [1910] AC 20).

38                  In the law of contract, the Court looks not at the subjective intentions of the parties to the contract as to what either intended to be conveyed by the words chosen but adopts the position that the construction of a contract is an objective process ascertained by what a reasonable person in the position of the parties, that is to say with knowledge of the objective matrix of facts with reference to which the parties contracted, would be taken to have intended by the actual words used (Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 462 [22];  Toll FGCT Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 186-187 [60]).

39                  When parties to a contract intend to incorporate material by reference, likewise, the Court makes an objective assessment of what was intended to be brought into the contract (e.g. China Ocean Shipping Co Ltd v PS Chellaram & Co Ltd (1990) 28 NSWLR 354 at p 363B-E per Gleeson CJ, 395F per Samuels JA agreeing;  Trustees Executors and Agency Co Ltd v Peters (1960) 102 CLR 537 at p 548 per Kitto J).  And, when the question of a whether a term ought be implied into a contract is considered, the Courts have used the expression, in the past, whether an ‘officious bystander’ would have assented to the proposition that the parties intended, without expressly so stating, that the term form part of their contract:  cp BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 282-284.

40                  In contrast, in other areas of law, regard is had to the subjective effect on a person of representations or conduct.  In Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 at 83-89 [98]-[110] the High Court discussed circumstances in respect of claims of misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) and the tort of passing off which were relevant to establishing either cause of action.  The Court contrasted situations in which such claims were made, on the one hand, to identified individuals, with those on the other hand, to the public at large or to a section thereof (202 CLR at 84-85 [100]-[101]).  In the former case a nexus may be easier to find because of the availability of evidence of the context in which the representation or conduct occurred.  Where the case involves the public generally or a section of it, the court, inter alia, has regard to the effect of the conduct on reasonable members of the class (202 CLR at 85 [103], 86-87 [105]).  That introduces an objective standard by reference to which conduct can be assessed.

41                  Here, the difficulty in applying a subjective criterion, namely, what information did the applicant for review actually intend to give for the purpose of his or her application when making the referential statement, is that to do so would link the lawful exercise of the jurisdiction conferred by the Parliament on the Tribunal to the state of mind of the applicant for review.  In other words, if a subjective test were to be applied, the applicant for review by his or her own expression of an intention at a time remote from the giving of the information in question, could determine whether or not the Tribunal had made a jurisdictional error.  To compound the difficulty with the subjective approach, one can easily imagine a case where the Tribunal may reject the applicant for review’s evidence as to his or her intention and thus accrue to itself jurisdiction which an objective test would deny it.

42                  In SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 Gyles J held that there was a clear republication of original claims made in a declaration by the applicant for review as part of his application for review.  That declaration critically examined the reasons given by the delegate for refusing his application in the course of which the there applicant for review referred several times to the claims that he had originally made.  Gyles J held that there was a republication of the original claims made to the delegate in the application for review.  The precise terms in which the republication was said to have taken place are not set out in his Honour’s judgment.  Each case will obviously depend on its own facts.  In one sense applicants for review could be treated, on every occasion to be asking the Tribunal, because it is reviewing the original refusal, to review all that they had previously put to the delegate.  But I am of opinion that that is not the proper construction of the general position having regard, to the terms of           s 424A as construed by the High Court.

43                  The Minister also relied on what Gray J had said in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 and what Moore J had said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [20] when he was dealing with the SZBMJ case.  Moore J dissented in this point.

44                  Attention needs to be paid in each case to what s 424A(3)(b) identifies as the information ‘that the applicant gave for the purpose’ of the application for review.  Of course, there will be cases where the applicant puts forward everything in the departmental file provided originally by him or her to the delegate.  But such a result flows from the facts of the individual case.  If the Parliament had intended otherwise it would have been easy to make the natural exception in s 424A(3) of the material which the applicant provided to the Minister originally and then to provide, as is now discretely provided in s 424A(3)(b), for other information.  Because the Parliament has identified the elements integral to a fair procedure of review in the way in which Division 4 of Part 7 of the Act provides, I do not think it appropriate to add glosses to that or to provide easy means for avoiding consequences which may be inconvenient in the construction of the provision.

45                  In my opinion, the lawfulness of the exercise of jurisdiction by the Tribunal was not intended by the Parliament in enacting Division 4 of Part 7 of the Act, and especially s 424A, to depend on the subjective intention of the applicant for review as to whether what he or she in fact gave as information, let alone whether it included, where there is ambiguity, what subjectively the person had in mind to include.  If this were the test, results would differ in cases where the applicant for review did not give evidence at a hearing on the point and had to have his or her conduct assessed objectively, from cases where such evidence was given.

46                  A surer guide to whether jurisdictional error will occur is afforded by an objective assessment of the kind I have described.  The Tribunal will know from such an objective assessment in all cases from the time it receives information from an applicant for review whether or not it must comply with s 424A(1) in respect of ‘information’ which falls within the scope of the statutory obligation to afford natural justice.  This will lead to consistency in decision making and to achieving the fairness of process which the Parliament intended by treating all applicants for review in the same way.  Moreover, judicial review of the exercise of jurisdiction in this regard can proceed in a principled and logical manner. 

47                  To take an example common in every day life, when one refers to something that has been read in a newspaper, by referring to an article, the ordinary person would not understand the reference to embrace every other article in the same edition of the newspaper.

48                  So the question in the present case is what a reasonable person would have understood the appellant to have included by his reference in his letter, forming part of the application for review, to the earlier material he had put before the delegate.

49                  Applying the principle which I have identified, a reasonable person would have regard to the fact that neither the applicant for review nor the Tribunal would be taking an overly technical approach to their communications.  However, the objective circumstances in which the exchange of information was taking place is in the context of a procedure dictated by the Parliament mandating what is required to be done in order that the Parliament’s prescription of fairness in the process of assessing an application for review be followed.

50                  I am of opinion that an objective person in the position of observing what was in the application for review in the present case would have understood the appellant to have been referring, and referring only, to his earlier explanation as to his circumstances in China, and not to his explanation of his Australian sur place claim which he elaborated in different words, albeit no doubt framed by his migration agent having regard to his difficulties with the English language.  There was no ‘republication’ of the material the applicant had provided to the delegate relating to his activities in Australia.  I am of opinion that a reasonable person would have said that the appellant’s letter accompanying his application for review was identifying the points he wished to make and emphasise to the Tribunal and the information which he wished it to consider in order that he achieve a favourable outcome.  An objective reading of the material indicates that he was adopting or republishing, indeed in effect repeating, only what he had said to the Department about his activities in China rather than incorporating the entirety of the information which had been given to it contained in the file..

51                  Nor in my opinion is this defect in procedure cured by the fact that the Tribunal told the appellant that it would be in receipt of the departmental file.  It would render nugatory the purpose identified by the majority in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 for the relevant information to be identified and of communicating to the applicant for review what Hayne J described (215 ALR at 211 [208]) as ‘… the relevance to the review of the information that is conveyed’.

DID THE TRIBUNAL COMPLY WITH SEcTION 424A?

52                  I am of opinion that it follows from the way in which the Tribunal expressed its reasons, that the reason or a part of the reason for affirming the decision the subject of the review included what the applicant had said and failed to say in the material placed before the delegate in relation to his application as a refugee sur place.  The Tribunal had no further information than what had been put before the delegate and what was the subject of the application for review.  Having formed the view, communicated in its letter of 8 December 2003, that on the written material before it, it was unable to make a decision in favour of the appellant, the Tribunal necessarily had regard to information in the file which, as it said in its reasons, was before it.  Throughout the operative parts of its reasoning (in [24]-[31]), the Tribunal referred to the failure of the appellant to provide supporting documentation, details of the circumstances of his claim and the generality with which he expressed himself about important matters, including, his knowledge of Falun Gong.  Critically, the Tribunal said at [28]:

‘While the applicant has provided general information about Falungong, its practices and beliefs, information which is freely available through public resources, he has not provided any specific details of his Falungong adherence or practice.  The applicant has not provided any supporting evidence of his Falungong membership in Australia, merely making assertions of what he had done.’

53                  The Tribunal continued at [30]:

‘I have found that the applicant did not have any interest in Falungong prior to leaving China and arriving in Australia, and in light of the applicant’s vague and generalised evidence in support of his claim of interest in and adherence to Falungong in Australia, I am unable to accept that the claim has been advanced for any other purpose than to elaborate on his claims based in China, and to provide for himself the profile of, and to enhance his claims to be, a refugee.  In this respect I am satisfied that section 91R(3) of the Act applies to the applicant and his conduct in Australia must be disregarded in determining whether he has a well founded fear for being persecuted for a Convention reason.’  (emphasis added)

54                  The Tribunal had before it the departmental file including the appellant’s letter to the delegate of 22 June 2003.  I am of opinion that the Tribunal, in coming to its positive finding at [24] of its reasons that the appellant ‘elaborated and fabricated his claims to bring himself within the definition of arefugee’, took into account what it said was before it, namely all of what was in that file in the applicant’s letter accompanying his application for a protection visa.  If all of that was not information ‘that the applicant gave for the purpose of the application’ for review (see s 424A(3)(b)) because it had not been incorporated by reference in his application for review, then the appellant had to be given particulars of the balance of that information to which the Tribunal was having regard contained on the departmental file but not incorporated into the application for review.  As Hayne J said in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR at 211 [208], s 424A(2) required the Tribunal to inform the applicant for review, among other things, of the relevance to the review of the information that was conveyed by the information which was extraneous to the application for review.

55                  The Minister submitted that it was not necessary for the Tribunal to foreshadow to the appellant any reasoning process which it proposed to adopt in its determination of the application.  That submission, however, does not meet the difficulty that no particulars were given about the information which the Tribunal proposed to use from the material which the applicant for review had put before the delegate nor did it inform him of ‘the relevance to the review of the information that [was] conveyed’, as s 424A(2) required.

56                  Supplementary written submissions were filed on 3 March 2006 pursuant to directions which I made at the hearing to take account of the imminent decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2.  There, the Minister characterized the appellant’s statement in his letter forming part of the application to the Tribunal for review, set out in [5] above namely:  ‘I gave full explanations in my previous statement’ as inviting reference to the whole previous statement, not just that section which dealt with the subject matter of the appellant’s work unit in China.  The Minister submitted that there could ‘… be little doubt that the [a]ppellant intended that the Tribunal look at this material and thereby provided this information to the Tribunal …’ within the meaning of s 424A(3)(b).  But, for the reasons I have given, I am of opinion that it is essential to consider, objectively, what was the extent of the material which the applicant for review was thereby giving to the Tribunal within the meaning of                   s 424A(3)(b).

57                  The Minister made further submissions on 13 March 2006 on this issue in response to a letter from the Court.  The Minister drew attention to the Tribunal having said that the matter had been ‘… determined on the evidence available’ arguing that it thus had assessed the totality of the evidence.  The Minister pointed to the reference in the application for review (see [5] above) in which the appellant ‘cavilled’ with the delegate’s reasons, and, so the submission ran, thus incorporated the appellant’s letter of 22 June 2003 to the delegate.

58                  The Minister referred to M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131, a decision of Gray J given on 25 February 2005, some three months before the High Court decided SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162.  Gray J held that information in the applicant’s passport given for the purposes of the original application for a protection visa to which the applicant’s counsel invited reference in submissions made to the Tribunal was not excluded by s 424A(3)(b) ([2005] FCA 131 [25]).  But his Honour held in respect of other information that the Tribunal had not complied with the obligations imposed by           ss 424A(1) and (2) ([2005] FCA 131 [23] and [31]).  Gray J ultimately concluded that as a matter of discretion the error of the Tribunal in failing to comply with its obligations under    s 424A(1) did not attract the grant of relief because the appellant in that case had not revealed what submissions might have been made were he afforded an opportunity to comment ([2005] FCA 131 [35]).

59                  His Honour’s reasoning on the exercise of the discretion to withhold prerogative relief cannot now be supported because in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at 184-185 [83] per McHugh J 203 [174] per Kirby J and 211-212 [210]-[211] per Hayne J it was held that any failure to comply with s 424A(1) was a jurisdictional error.  Their Honours held that where there had been no delay, waiver, acquiescence or other conduct of the appellant such as might found a reason for the exercise of the Court’s discretion to refuse prerogative relief, a writ of certiorari should issue to quash the decision and a constitutional writ of mandamus should issue to require the Tribunal to hear the application for review according to law.  In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [111], [155], [231]-[232], which was decided after the oral hearing in this matter, the majority, Weinberg and Allsop JJ decided that this was the proper approach to the grant of relief where a contravention of s 424A(1) had occurred in the Tribunal.

60                  A conclusion of fabrication and elaboration of claims is substantively different from a finding that the Tribunal was not satisfied as to the claims.  It is one thing for a body, such as the Tribunal, where the question for its decision, as here (see s 65(1) of the Act), is whether a person has satisfied it, to reach a decision on the material before it, that it is not so satisfied (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277).  And in reaching such a conclusion, the body can weigh the material properly before it in accordance with its statutory functions (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 573:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282).  In such a case, the decision may not necessarily be invalid if, as here, the Tribunal considered other material together with what the appellant had given it and, without complying with s 424A, was still not satisfied that he had made out his claim.  This is because the reason why it was not so satisfied would be and would remain that what the appellant had ‘given’ it was insufficient.  The extra material would not be a reason or a part of the reason for that state of mind since it did not affect it.

61                  But, it is another thing for such a body to use material not properly before it in coming to a positive conclusion of fabrication or elaboration.  In  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 280, Brennan CJ, Toohey, McHugh and Gummow JJ said:

‘Giving greater weight to one matter indicates that less weight is being given to another.  Lesser weight is not the equivalent of rejection.’

62                  Here, part of the reason for the Tribunal not being satisfied of the appellant’s claims was its rejection of them as fabrications or elaborations after it took all of the information in the departmental file into account.

63                  In SZBUS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1233 at [18], [20] Allsop J held that a conclusion by the Tribunal of fabrication of claims, based in part on information outside the exception in s 424A(3)(b) provided by an applicant for review with his initial claim for a visa, was important and formed part of the reason for the decision.  He explained why this vitiated the decision saying ([2006] FCA 1233 [20]):

‘However, a question arises whether primary relief should be granted. In particular, whether in the light of the previous unwillingness of the appellant to attend the Tribunal hearing in the face of a letter making plain that unless he came, in all likelihood, he would not be granted a visa, any different result would have obtained had a somewhat different letter been sent, identifying with a little more specificity (reflecting the findings in the above mentioned paragraph) why the appellant would not be granted a visa unless he gave further assistance.’

64                  I agree with that analysis.  Here, the Tribunal came to a conclusion that the appellant had fabricated and elaborated claims. That was based on all the information which he had provided. It included what had been given to the delegate at an earlier stage and was not limited solely to that given for the purpose of the application for review. Contrary to the obligation under s 424A(1) the appellant was not given an opportunity to comment on information in, or the adequacy or completeness of, what he had put forward on the earlier occasion or its impact on the present application.

CHARACTERISATION OF OMISSIONS

65                  One of the problems created by s 424A is the dilemma, in a practical sense, which a decision maker faces in categorizing whether what is before him or her, or that to which he or she wishes to refer, constitutes ‘information’ which attracts an obligation to notify under that section.  In SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 at [21], Allsop J pointed out that notwithstanding what Finn and Stone JJ had said in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477 [24]:

‘… it is important to recognise 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.’

66                  His Honour noted ([2005] FCA 1200 at [27]) that Finn and Stone JJ had held 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 and that a failure to mention something to the Tribunal was also not information, relying on WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282-283 [26]-[29].

67                  Allsop J went on to hold that it was only information which was part of the reason for the decision that engaged s 424A if, as his Honour said:

  ‘… 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, it was capable, if it were an earlier statement by a person, of being information.’

68                  Subsequently in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [224] Allsop J, with whose reasoning on this Weinberg J agreed ([2006] FCAFC 2 [155], [158]-[164]) adhered to and adopted what he had earlier said in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 concerning the reasoning of Finn and Stone JJ in VAF v Minister (2004) 206 ALR 471 at 477 [24 (iii)].  He said that:

‘… it is necessary to exercise care in applying what was said in VAF  by Finn J and Stone J at [24(iii)] that the word information does not:

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.’

69                  Allsop J, with whose reasons Weinberg J appears to have agreed ([2006] FCAFC 2 at [94], [155], [158], [169]) held that the operation of s 424A(1) is not limited to circumstances where the information imports some positive factual finding ([2006] FCAFC 2 [221]).  Rather, his Honour observed, that was but one way in which information could be part of the reason for affirming a decision under review within the meaning of s 424A(1)(a).  He continued ([2006] FCAFC 2 [221], [223]:

‘Another would be the inconsistency between the information and what was now being said.  If the Tribunal considers that inconsistency relevant to the assessment of the claims, it may be that the information would be part of the reason.  If a Tribunal says that it does not believe an applicant for reasons that can be seen to include the fact that one thing was said in the prior statement and another at the hearing, or the fact that if what is now being asserted at the hearing is true it would have been in the prior statement in that form, the information would be part of the reason.  The information is the knowledge imparted to the Tribunal of a prior statement in a particular form.  The significance given to it by considering it in the light of evidence is the product of mental processes.  This significance and those mental processes are not information, but rather, are why the information is relevant for s 424A(1)(b).

…

… I do not see Finn J and Stone J in VAF  in [24(iii)] of their reasons as requiring a formalistic analysis of information such as prior statements depending upon whether its or their relevance is from the text or from the absence of text.  Where there are things such as a prior statement or a visa application form, the information for the purposes of s 424A will be that a document in that form was provided.  That information may have relevance to the Tribunal for all sorts of reasons.  Such relevance is not limited to whether the information leads to a positive factual finding based on its terms.  It may be relevant because it plays some part (as here) in the conclusion as to the truthfulness of the applicant.’

70                  Ordinarily, the reason why an omission of information from the initial claim is relevant to a review is that a person in the position of the Minister or his or her delegate or the Tribunal would be able to expect the initial claim to include all material ‘information’ which the applicant for a visa had to put forward in support of his or her claim.  A later provision of such a material matter could be capable of being characterized as a recent invention calculated to enhance the claim rather than as a genuine supplementation of the original material (see e.g. the analysis of Weinberg J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [177]-[180]).  Hence in such a situation, the relevance to the review of the ‘omission’ may be its bearing on the likelihood that each of the applicant’s initial claim, and the later addition, would be accepted as reliable or as satisfying the Tribunal, as the decision maker, for the purposes of s 65(1) of the Act.

71                  A process of reasoning which uses an ‘omission’ in the way described above is both common in every day life and, provided the facts support its use, unexceptionable.  But, often times it will proceed upon the unstated premise that the initial claim gave, or could be expected to give, a full account of all the material facts which an applicant had available  to give.  That is, where such a premise is present, the initial claim will have included a representation, by implication or inference, that all of the bases which the applicant knew of had been put forward then and there by him or her.  After all, the only person or the best person to tell the applicant’s whole story in support of his or her claim, is ordinarily that applicant.  As Allsop J said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [205]:

‘Information is that of which one is told or apprised; it is knowledge concerning some particular fact, subject or event.’

72                  The later provision of some material fact to support a claim is often, if not usually, able to be characterized as an ‘omission’ from the initial claim only because the initial claim conveys a representation, by implication or inference, that it is itself a complete account.  And, in such a case it will be that latter representation which, in my opinion, is ‘information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision which is under review’ within the meaning of s 424A(1)(a).

73                  The law dealing with representations, as well as the law concerning defamatory meanings or imputations, looks at the overall effect of the words and conduct of a representor or publisher and assesses whether, in the context in which the communication was made, a particular piece of information – a representation or imputation – was conveyed by it to an ordinary reasonable person in the position of a recipient of the communication.

74                  So, in RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164 at 166, 172 a Full Court of this Court held that where an expert insurance broker published its opinion on a rival insurer’s policy wording there was ‘… implicit in the expression of opinion a statement of fact, namely [the broker] knew of facts which justified the opinion’ (41 FCR at 172 per Beaumont and Spender JJ).  The Full Court there had followed a line of English authority starting with Smith v Land and House Property Corporation (1884) 28 Ch D 7 at 15 where Bowen LJ had said:

‘It is material to observe that it is often fallaciously assumed that a statement of opinion cannot involve the statement of a fact.  In a case where the facts are equally well known to both parties, what one of them says to the other is frequently nothing but an expression of opinion.  The statement of such opinion is in a sense a statement of a fact, about the condition of the man’s own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is.  But if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion.’   (emphasis added)

75                  Of course, there is a difference between a claim for a visa and a statement of opinion, but in the present context it is not, in my opinion, material.  As Lord Macnaghten said in Gluckstein v Barnes [1900] AC 240 at 250:

‘… it is a trite observation that every document as against its author must be read in the sense which it was intended to convey.  And everybody knows that sometimes half truth is no better than a downright falsehood.’

76                  In Webb v Block (1928) 41 CLR 331 at 367 Isaacs J used that passage to emphasise that omission of material matter can change the sense in which what is communicated is understood by the ordinary reasonable publishee, adding that such an omission could make what was published ‘lie like truth’ as in Lord Blackburn’s famous speech in Smith v Chadwick (1884) 9 App Cas 187 at 201.  And in a passage applied by the English Court of Criminal Appeal in Rex v Kylsant (Lord) [1932] 1 KB 442 at 447-448, Lord Halsbury said in Aaron’s Reefs Limited v Twiss [1896] AC 273 at 281:

‘It remains only to consider the final question, namely, whether or not there was evidence for the jury which would justify them in finding that this was a fraudulent prospectus – that these statements were fraudulent and false.  Now, in dealing with that question, again I say I protest against being called on only to look at some specific allegation in it; I think one is entitled to look at the whole document and see what it means taken together.  Now, if you look at the whole document taken together, knowing what we now know and what the jury had before them, I suppose nobody can doubt that this was a fraudulent conspiracy ….  It is said there is no specific allegation of fact which is proved to be false.  Again I protest, as I have said, against that being the true test.  I should say, taking the whole thing together, was there false representation?  I do not care by what means it is conveyed – by what trick or device or ambiguous language:  all those are expedients by which fraudulent people seem to think they can escape from the real substance of the transaction.  If by a number of statements you intentionally give a false impression and induce a person to act upon it, it is not the less false although if one takes each statement by itself there may be a difficulty in shewing that any specific statement is untrue.’  (emphasis added)

77                  In the law of defamation, as Mason J pointed out in Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 at 301, a distinction needs to be drawn between the reader’s understanding of what a publisher is saying and judgments or conclusions which the reader may reach as a result of his or her own beliefs and prejudices.  It is, his Honour said:

‘… one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader.’

78                  Here, the ordinary reasonable person in the position of the Tribunal would understand an initial claim, in the ordinary course of things, drawing on its knowledge and experience of human affairs, to be a complete statement of all material circumstances which the applicant had at that time to justify to the Minister the grant of a protection visa.  And because of that, what is sought to be relied on as an ‘omission’ is properly capable of being characterised as information in the initial claim, being a representation of the, in effect, completeness and fullness of the material put forward. 

79                  Of course there may be cases, because of what is said or not said, where a different conclusion will be appropriate.  For these reasons, I am of opinion that the reasoning of Allsop J in the authorities above is the appropriate way to analyse the Tribunal’s use of the initial claim of the appellant in this matter.  The earlier account given by the appellant was information which the Tribunal had before it, defective or not.  The Tribunal regarded, as part of the reason for its rejection of the appellant’s case, the totality of the appellant’s explanation of his sur place application.

80                  Section 430 of the Act requires the Tribunal, in making a decision on a review, to set out ‘the reasons for the decision’(see esp s. 430(1)(b)).  As McHugh, Gummow and    Hayne JJ said in Minister for Immigration v Yusuf (2001) 206 CLR 323 at 346 [69] that provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material.  McHugh J said in Re Minister for Immigration and Multicultural Affairs;  Ex parte Durairajasingham (2000) 168 ALR  407 at 422-423 [65]:

‘… the obligation to set out “the reasons for the decision” (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings.  Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons.  But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal.’

81                  The reasons of an administrative decision-maker, including the Tribunal, are meant to inform and are not to be scrutinized upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.  There is no such inadequacy to be found in the reasons of the Tribunal in the instant case.  Rather, the reasons reveal – as the Act required – what the reasons were and the matters which the Tribunal considered were material.

82                  The Minister submitted that the proper characterization of the Tribunal’s reasons concerning the omissions in the appellant’s initial claim was that this was simply an assessment or subjective appraisal of the information provided by the appellant.  The Minister contended that the finding, based on what it said was the appellant’s ‘vague and generalized evidence in support of his claim’ (at [30] of its decision: see [53] above), that his sur place claim was to elaborate on his claims based in China, to provide for himself the profile of and to enhance his claim to be a refugee, was mere assessment or appraisal which did not use any ‘information’ so as to enliven an obligation to provide particulars under s 424A.

83                  But, in order to assess the appellant’s ‘general information’ and ‘vague and general evidence’, the Tribunal had to have that evidence before it in accordance with the regime of procedural fairness for which s 424A provides.   And, in stating its ultimate conclusion that it was not satisfied that the appellant was a person to whom Australia owed protection obligations the Tribunal said (at [32]) that it had ‘… considered the evidence as a whole’.  The flaw in the Minister’s argument is that the Tribunal made its assessment of all the information and evidence sourced to the appellant in the material before it, which included information he had earlier provided to the delegate but which he had not expressly given to the Tribunal for the purpose of his application pursuant to s 424(3)(b). 

84                  Applying the principles set out above, I am of opinion that the reasoning of the Tribunal reveals that it did regard as material the whole of the evidence and information before it and took it into account as the reason, or as part of the reason, for rejecting the application for review.  It follows that because no particulars were provided to the appellant pursuant to s 424A(1) in relation to the information in his initial claim, namely that it contained or conveyed an implication or inference that it was a complete account of his claim, the Tribunal committed a jurisdictional error.

85                  As Viscount Sankey LC said on behalf of a strong Judicial Committee in In re Piracy Jure Gentium [1934] AC 586 at 600 of attempts to be prescriptive:

‘However that may be, their Lordships do not themselves propose to hazard a definition of piracy.  They remember the words of M. Portalis, one of Napoleon’s commissioners, who said “We have guarded against the dangerous ambition of wishing to regulate and to foresee everything …  A new question springs up.  Then how is it to be decided?  To this question it is replied that the office of the law is to fix by enlarged rules the general maxims of right and wrong, to establish firm principles fruitful in consequences, and not to descend to the detail of all questions which may arise upon each particular topic.”  (Quoted by Halsbury LC in Halsbury’s Laws of England, Introduction, p. ccxi.)’

(see too per Weinberg J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [174], [182], [183])

86                  Whatever may be the merits of the claims made by the appellant before the Tribunal are not relevant.  The application of the fair procedure identified by the Parliament may have caused the appellant to form a different view as to giving evidence and possibly providing an explanation which did satisfy the Tribunal compared to the course he might be thought, inadvisably, as found by the judge below, to have taken at the suggestion, of his migration agent.

87                  For these reasons, I am of opinion that the appeal must be allowed.  The Tribunal did not exercise its jurisdiction in accordance with the Act. The appellant is entitled to orders quashing the decision and remitting the matter to the Tribunal (see Re Macks;  Ex parte Saint (2000) 204 CLR 158 at p 287; Attorney-General (Q) v Australian Industrial Relations Commission (2002) 213 CLR 485 at 503[43]).

Associate:

Dated:              21 April 2006