FEDERAL COURT OF AUSTRALIA

SZQDI v Minister for Immigration & Citizenship [2012] FCA 932

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first, second and third appellants pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    The appellants are members of the same family. All are Sri Lankan nationals and ethnic Tamils. They say they fear they may be abducted and killed if they are forced to return to their country of nationality, in substance because of their ethnicity and their imputed association with the militant separatist organisation known as the Liberation Tigers of Tamil Eelam (“LTTE”). They left Sri Lanka on 25 May 2009, arriving in Australia on 24 June 2009 on visitors’ visas endorsed on false Malaysian passports via the circuitous route of India, Singapore, South Africa, Peru, Bolivia, Argentina and New Zealand. About two weeks after they arrived here, they applied to the Department Immigration and Citizenship (“the Department”) for protection visas. To succeed they first had to satisfy the Minister for Immigration and Citizenship (“the Minister”) that they were non-citizens in Australia to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol (“the Convention”) or members of the same family unit as such a non-citizen who holds a protection visa (see Migration Act 1958 (Cth) (“the Act”) ss 36, 65). Under the Convention Australia has protection obligations towards those (amongst others) who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, are outside their country of nationality and unable or, owing to such fear, unwilling to avail themselves of the protection of that country.

2    The Minister (through his delegate) rejected the appellants’ applications. The appellants then applied to the Refugee Review Tribunal (“the tribunal”) for a review of that decision. When that application was dismissed, they sought constitutional writs from the Federal Magistrates Court pursuant to s 476(1) of the Act, but failed to persuade the federal magistrate that the tribunal had made any error that would entitle them to the relief they were after. This is an appeal from that decision.

The parties

3    The first appellant is the mother of the other appellants. Without meaning any disrespect to her, for convenience I shall refer to her as the mother. The second appellant is her daughter, who was 17 when the family left Sri Lanka. The third appellant is the elder of two sons, who was 15 at that time. The fourth appellant is the younger son, who was then only 12. Each of them made separate applications, although the mother also named the children as dependent members of her family unit.

The claims

4    In a statutory declaration accompanying her visa application the mother said she was employed in the Taxation Department in Colombo from 1 October 1985 until 15 August 2008, when she stopped working because of safety problems in the country, especially travelling to and from work. She said that her husband, who owned a profitable restaurant, told her that the police often visited the restaurant to check on his and his staff’s identity. In 2005, she said, her husband told her the LTTE demanded money from him, threatening his life if he did not do as they asked, and so he gave them $A3,750. She said that on 12 August 2008 the police attended his restaurant and took him to the police station where they questioned him and his staff about giving money to the LTTE. She said that the police often attended their home “to check on their identity”.

5    On 21 February 2009 the LTTE conducted an air raid on Colombo during which a light aircraft was flown into the building occupied by the Department of Inland Revenue where the mother had formerly worked. The mother claimed that six days later, on 27 February 2009, police came to her house and asked her if she had left her job because she knew the raid was going to take place. She said she told them she left because of the children’s safety going to and from school. She said the police checked the house and kicked her husband. She said she believed they were suspicious he was a member of the LTTE.

6    The mother claimed that on 22 March 2009 her elder son, the third appellant, was kidnapped and only released by the payment of a ransom of about $30,000, which her husband had to borrow from friends. About three weeks after her son had been abducted, she said that her husband received a telephone call from a person demanding a further $17,000 and threatening that they or their children would be kidnapped if the money was not paid. She said they received about five or six similar calls before they left Sri Lanka but they paid no more money.

7    The mother also claimed that on 18 April 2009 her daughter, the second appellant, was taken by the police for questioning on her way home from a class. She was questioned for two hours about the family, her activities and visitors to the house and then released into the care of her father.

8    The mother told the tribunal that she made the decision to leave and not return to Sri Lanka on 14 or 15 May 2009 and that the catalyst for her decision was her son’s abduction.

9    Then, on 19 May 2009, the mother said her husband was kidnapped. She said she was distraught when he failed to return home and feared the worst. She spoke to one of his friends who told her that arrangements had been made for the family to go to Australia and advised her to be ready to leave on 25 May 2009. She said she did not know where the money had come from. She said they left on their own passports but in Peru they were met by an agent who took the passports off them and replaced them with Malaysian passports in their names. She said that she feared that, if they were to return to Sri Lanka, continuing attempts would be made to kidnap family members and extort money from them and that she and her daughter would be raped. She detailed the circuitous route they took to get here, claiming she did not know why they had so many flights “as it was the work of the agent”. She told the Minister’s delegate that she had not considered applying for asylum in any of the other countries they had passed through because she did not know anyone there, they did not speak English and she wanted to come to Australia because her sister lives here. She told the tribunal that her husband was released on 2 October 2009 and was in hiding in a friend’s house in Colombo. She said he told her he had been detained by “police, army and Karuna group (a group of armed Tamils founded by a former commander of the LTTE and aligned with the Sri Lankan Army against the LTTE)”, had been questioned about giving money to the LTTE, and was only released after he acceded to the demands of his captors for “an exorbitant amount of money”, which he borrowed from “a friend’s friend”. She said that to repay his debt the business is now leased out and her husband is planning to sell the house.

10    A statutory declaration made by the elder son, the third appellant, gave a more detailed account of his alleged kidnapping, and related his knowledge of threatening phone calls to the house after his release and of his father’s kidnapping. The son disavowed membership of the LTTE or any other political group. He said he was very sure that if he were returned to Sri Lanka he would be kidnapped again and killed, as the family had no more money. The younger son, the fourth appellant, also made a statutory declaration expressing the same fears.

11    In her statutory declaration the daughter, the second appellant, said she was extremely frightened for her brother when he was kidnapped. She confirmed her mother’s account of her own questioning. She said she was extremely worried her father had been murdered and, like her brothers, said that she was sure she would be kidnapped and killed because the family has no more money.

12    All the appellants said that the police would not help them because they are in league with the paramilitary, the very people who, they said, are carrying out the kidnappings.

13    A UNHCR report published in April 2009 which was before both the delegate and the tribunal indicates that Tamils were victims of abduction and violence around the same time in Sri Lanka. It mentioned kidnappings for ransom. Most of the reported cases were in the east and north of the country including Colombo, where the family lived, and Jaffna, where the mother was born. The report also noted that “law enforcement authorities in Sri Lanka have been widely criticised for engaging in arbitrary arrest, which may be followed by periods of incommunicado detention”.

The proceedings

14    The Minister’s delegate considered the written material and interviewed the mother and the elder brother. The delegate considered that the mother’s actions were not consistent with a person fleeing Convention based persecution and found “the likelihood of the sequence of events” to be “very low”. He said that the only claimed events which relate to Convention based persecution were the questioning of the husband and daughter by the police from which there were no ongoing consequences. He found that “events have been claimed to provide support for the [appellants’] intention to come to Australia and to claim protection: [the appellants’] reasons for leaving Sri Lanka and seeking to remain [in Australia] are unrelated to Convention based persecution”. He said that

Even taking the applicant’s claim of the abduction of her son at face value, I find that this is a criminal matter; as are the follow-up phone calls asking for further money. She attempts to link this with being questioned by police but there is no factual or logical connection. The police questioned her husband about money given to the LLTE (sic) but this questioning stopped before 2009. Her daughter was stopped in a general questioning of Tamils and this also is unrelated to the other events. She states that her husband disappeared and there has been no contact concerning him: this is a different pattern from the claimed abduction of their son where a ransom demand was made almost immediately. This leads to the conclusion that the claimed events are unrelated.

15    The delegate went on to find that the appellants did not have a real chance of persecution and therefore their fears were not well-founded. He was not satisfied that they were persons to whom Australia has protection obligations.

16    On the basis of country information the tribunal accepted that there was some continuing harassment, violence and human rights abuses by Sri Lankan authorities, police, paramilitaries and others against actual or perceived LTTE supporters in Sri Lanka. It accepted that the appellants were Sri Lankan citizens and that they were who they claimed to be. It also accepted that they left Sri Lanka when they said they did by the route they said they took, and that they travelled on Malaysian passports, although they did not produce them on entry to Australia. But the tribunal did not accept that they left their country and cannot return for the reasons they advanced. It did not do so because, it said, it did not accept they were witnesses of truth.

17    The tribunal was particularly troubled by the fact that the family did not leave until late May 2009 and that the children continued to attend school until 19 May 2009, just under a week before they left. It regarded those circumstances as inconsistent with their stated fears. This led it to reject all the claims upon which those fears were founded. Thus, it dismissed the claims that the mother was questioned by police in February 2009 on suspicion of having links with the LTTE air raids on Colombo, that the elder son and daughter were abducted and questioned by police or paramilitary forces and that the younger son was afraid he would be abducted like his brother.

18    The tribunal also rejected the claim that the father/husband was abducted and in hiding in Sri Lanka because he feared harm from the authorities/police/paramilitaries there. The tribunal thought that claim was inconsistent with the appellants’ evidence that he was now living in Sri Lanka, going about various business affairs, leasing his restaurant business and trying to sell the house to settle the family’s debts. It said there was an inconsistency between what the appellants’ agent stated in response to a letter sent by the tribunal pursuant to s 424A of the Act (that they were ignorant of his whereabouts) and what the mother told the tribunal (that he is in hiding in Colombo).

19    The tribunal said it was also not consistent with their claims that they had travelled to and through the many countries/cities that they did before coming to Australia. Their explanation was that they did not plan the itinerary; it was the doing of the agent or agents. But the tribunal said it did not accept that they were simply following directions of an agent or agents in order to avoid detection and that the agents identified them from photographs. Nor did it accept that they sometimes did not know where they were staying or that they always stayed inside, or the mother’s claims that she was “clueless and unsure” about what was happening.

20    The federal magistrate had limited scope to review the tribunal’s decision. She was confined by the terms of s 474 of the Act to review for jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. The show cause application the appellants filed in the Federal Magistrates Court alleged numerous errors on the part of the tribunal. The grounds of the amended application are extracted in full in the federal magistrate’s judgment. I do not propose to reproduce them here. The federal magistrate rejected each of them. Most, but not all, were pursued on the appeal. I will deal with the federal magistrate’s reasons in the context of the issues to which they relate.

The issues

21    In their notice of appeal the appellants contended that the federal magistrate erred in failing to find certain errors on the part of the tribunal set out in the amended application filed in the Federal Magistrates Court “or otherwise”. In substance there are seven grounds of appeal. They raise the following issues:

(1)    whether the tribunal formed a view that it could not make a decision favourable to the appellants before it was in possession of the delegate’s decision (record) and for this reason exceeded its jurisdiction and/or contravened s 425 (and ss 415 and 427(1)(b)) of the Act (grounds 3, 5-7);

(2)    whether for the same reason there is a reasonable apprehension that the tribunal was biased against the appellants (ground 4);

(3)    whether the tribunal’s decision was one which no rational or logical decision-maker could make (ground 2); and

(4)    whether the tribunal failed to comply with s 424A of the Act because it took into account certain information it received during the process of review without putting that material to the appellants for comment, and when some of that information was provided by only some of the appellants (ground 8).

22    Ground 1 is merely a summary of the other grounds.

Did the tribunal form a view that it could not make a decision favourable to the appellants before it was in possession of the delegate’s decision and so exceed its jurisdiction and/or contravene ss 425, 415 and 427(1)(b)?

23    The answer to the first part of this question is “yes” but it does not follow that the tribunal exceeded its jurisdiction or that it contravened any of those sections. The argument was put in several different ways. Each of them is the subject of a separate ground of appeal.

24    First, the appellants contended that the Secretary of the Department breached his obligation under s 418(2) of the Act to give the Registrar of the tribunal a copy of the decision and the reasons for it within 10 working days of being notified of the application for review and this breach went to the core of the tribunal’s powers and functions, so that the tribunal committed a jurisdictional error by taking steps under the Act.

25    Secondly, the appellants contended that the notice under s 425 “is to define the issues on the review”. As the notice was issued before the tribunal had received a copy of the reasons for the decision under review, it was impossible for the notice to do that and it did not do that. Consequently, according to the argument, it had no power to issue the notice.

26    Thirdly, the appellants contended (in effect) that they were denied procedural fairness because, although the delegate had accepted the accounts of the elder son’s abduction and of the daughter’s interrogation, they were not told that the truth of those accounts was an issue in the proceeding.

27    Before considering the contentions, it is necessary to define their factual and statutory context.

28    On 2 October 2009 a delegate of the Minister wrote to the appellants to advise them that their application (sic) for a protection visa had been refused, attaching a copy of the decision record and advising them of their rights of review. The appellants applied for review on 13 October 2009. The tribunal sent a letter the same day acknowledging receipt of the applications and advising the appellants, amongst other things, that it had asked the Department to provide “all documents and files which they consider[ed] to be relevant”.

29    On 10 November 2009 the tribunal wrote to the appellants informing them that “[it had] considered the material before it but [was] unable to make a favourable decision on [that] information alone” and so invited them to attend a hearing at the tribunal on 2 December 2009 to give evidence and present arguments “relating to the issues arising in [their] case”.

30    On 23 November 2009 the tribunal wrote again to the appellants to advise them that the presiding member was unable to conduct the hearing on 2 December 2009 as scheduled “due to circumstances beyond [their] control” and fixed a new date for hearing (23 December 2009).

31    On 23 December 2009 the hearing was adjourned again, after the tribunal informed the appellants that it had only recently received a copy of the delegate’s decision record and had not yet received the tape of the interview. The tribunal said it was preferable to conduct the hearing “all in one go” and the appellants appear to have agreed to this course, although, as it transpired, the hearing did not take place “all in one go”.

32    On 4 January 2010 the tribunal sent the appellants a further invitation to appear before it and advised them of the new hearing date. The hearing started on 5 February 2010 and evidence was taken from the mother but it did not then conclude because the tribunal said it wanted to hear from the other appellants and they were not in attendance.

33    On 8 February 2010 the tribunal again sent the appellants an invitation to attend a hearing. This time the document that was sent to them emphasised that it was an invitation to all four of them to give evidence. The hearing resumed on 16 March 2010 with all appellants in attendance. At the conclusion of the hearing that day the tribunal indicated, in effect, that it would reserve its decision. But the tribunal sent the appellants yet another hearing invitation on 14 October 2010 and on 18 November 2010 it conducted a further hearing with all the appellants present.

34    If a valid application for review is made under s 412 of the Act (which sets out who may make an application and how it is to be made), s 414(1) provides that the tribunal must review the decision. The review (including the decision) must take place within a 90 day period (s 414A). For the purposes of the review the tribunal may exercise all the powers and discretions conferred by the Act on the primary decision-maker (s 415(1)). Section 415(2) sets out the orders the tribunal may make on the completion of the review. In carrying out its functions under the Act, the tribunal is charged with pursuing the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 420(1)).

35    Section 418 provides:

(1)    If an application for review is made to the Refugee Review Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.

(2)    The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:

(a)    sets out the findings of fact made by the person who made the decision; and

(b)    refers to the evidence on which those findings were based; and

(c)    gives the reasons for the decision.

(3)    The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.

36    The prescribed number of copies is one: Migration Regulations 1994 (Cth), cl 4.34.

37    It was common ground in the court below that the delegate’s decision record was not before the tribunal when it wrote to the appellants on 10 November 2009.

38    Section 425 provides:

425 Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)    Subsection (1) does not apply if:

(a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)    subsection 424C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

39    Section 427(1)(b) gives the tribunal the power to adjourn the review from time to time.

40    It is now necessary to consider the questions raised by the appellants’ arguments.

Does non-compliance with s 418(2) give rise to jurisdictional error?

41    The appellants submitted that it was “a fundamental jurisdictional requirement before the machinery of review can be put into motion” that the tribunal have before it the delegate’s decision record (which contains the findings of fact, refers to the evidence on which they are based and provides the reasons for the decision). Without it, they argued, there was no power to issue the notice on 10 November 2009 or, in all probability, the later notice of 23 November 2009, to embark upon or adjourn the hearing. The foundation for the argument is that “the material” in s 425(2)(a) must, at least, include the decision record of the Minister or his delegate. This argument underpins grounds 3–7 of the notice of appeal. The federal magistrate rejected the argument and correctly so.

42    The federal magistrate said (at [118]) that it was unfortunate that the Secretary of the Department failed to comply with the obligation under s 418 but that “such a breach by itself does not establish jurisdictional error on the part of the Tribunal”. The appellants alleged that this is an error because there is no rule that any breach of s 418 will not constitute jurisdictional error. But nowhere in her Honour’s reasons did she articulate such a proposition. There is in fact no authority for the proposition that a breach of s 418(2) will amount to a jurisdictional error and the appellants’ submissions did not go that far. A failure to comply with a procedural or other requirement of the Act will not always give rise to a jurisdictional error. As McHugh J said in SAAP v Minister for Multicultural and Indigenous Affairs (2005) 228 CLR 294 (“SAAP”) at [72], to determine whether a decision under the Act involves jurisdictional error, it is necessary to first determine the limitations and restraints found in the Act and then to try, through statutory interpretation, to reconcile them with s 474 (the privative clause) to see whether failure to observe the requirement constitutes “an error which has resulted in the decision-maker failing to exercise or exceeding its jurisdiction”. Cf, Hayne J at [205] and Kirby J at [173].

43    The answer depends on whether, having regard to the language of the section and the scope and object of the whole Act, there is a legislative purpose that any act done in breach of the provision should be invalid: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91], [93]; SAAP at [73]. It is relevant but not decisive that the sub-section is cast in mandatory terms: NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 214 at [23]. In this case the critical question is whether Parliament intended that the issue of an invitation to an applicant to appear at a hearing and decisions made in connection with the review be invalid because the tribunal had no jurisdiction to exercise any of its powers or perform any of its functions where the Secretary had not complied with his obligation under s 418(2). There appears to be no authority on this question. Certainly I was taken to none.

44    In Muin v Refugee Review Tribunal (2002) 190 ALR 601 (which concerned the Secretary’s failure to give the tribunal documents falling within s 418(3)), Gummow J said at [183] that it was “highly doubtful” that compliance with s 424 was an essential preliminary to the “more rigorous species of review with a hearing provided for by s 425” (now s 425(1)). Section 424 as it then stood is now substantially reproduced in s 425(2)(a). As French J said in Applicant S1693 of 2003 v Refugee Review Tribunal [2004] FCA 1512 (“Applicant S1693”) at [41], there is no support in Muin for the proposition that a failure to comply with s 418(3) could amount to jurisdictional error. The appellants relied on an observation by Gaudron J (at [45]) that it is “conceivable” that a failure by the Secretary to comply with the requirements of s 418(3) “might, in some cases, result in or contribute to jurisdictional error on the part of the tribunal”. But at [46] her Honour said:

Section 418 of the Act imposes an administrative duty on the secretary, the evident purpose of which is to enable the effective and efficient exercise by the tribunal of its review functions. But there is nothing in the Act to suggest that the secretary's compliance with s 418(3) is either a precondition to the tribunal's conduct of review proceedings or to its making of a decision on review. Accordingly, it does not, of itself, constitute an error which would entitle the plaintiffs to relief by way of constitutional writ…

Cf. Gleeson CJ at [21], Gummow J at [181] and Hayne J at [251].

45    There remains a question, however, as to whether, unlike s 418(3), compliance with s 418(2) is a precondition to the tribunal’s conduct of review proceedings or to its making of a decision on review so as to invalidate the tribunal decision. I have concluded that on a proper construction of the Act it is not. In SZNZK v Minister for Immigration and Citizenship (2010) 115 ALD 332 Perram J said (at [20]) he was unable to see that an error by the Secretary in the performance of a function under s 418 can result in jurisdictional error by the tribunal — “at least without something more”. And, unless the Act’s intention is that every act taken by the tribunal is invalid if the tribunal issues an invitation before receiving a copy of the decision under review, even if the tribunal had no power to issue an invitation without having received the decision, it had power to issue another one. Having done so, most, if not all, of the appellants’ arguments fall away.

46    The 10-day time limit imposed by s 418(2) is missing from s 418(3). The appellants contended that that is significant. They pointed to the fact that s 414A(2) of the Act imposes an obligation on the tribunal to review and record its decision within 90 days starting on the day on which the Secretary gave the Registrar the documents that s 418(2) requires the Secretary to give. They submitted that this suggests that the Act contemplates that the review will not start until the Secretary has given the Registrar a copy of the reasons for the delegate’s decision. But the obvious purpose of s 414A(2) is to promote timely decision-making and to guard against delay. That purpose is not subverted by issuing an invitation to attend a hearing. On the contrary, it is promoted. Moreover, s 414A(3) provides that a failure to comply with s 414A (as in this case) does not affect the validity of a decision made by the tribunal under s 415. On its face, this applies as much to the start date as to the finish date.

47    Suppose the Secretary sent the decision to the tribunal a day outside the 10 day period. Would the Parliament have intended that that would invalidate all the actions of the tribunal thereafter? Plainly not. What if the tribunal had issued the invitation before receiving any documents from the Secretary, and having received and read them decided it should allow the review before hearing from the applicant? Would it be precluded from doing so? I do not believe so. No section of the Act provides that the invitation to attend a hearing not be extended unless the tribunal has received the decision record and none requires that the tribunal member who is to hear the case must read it before the invitation is sent.

48    Section 425 does not impose an obligation on the tribunal to consider whether it is prepared to make a favourable decision without taking oral evidence: cf. Muin at [55]–[56] per Gaudron J. There is no requirement that the tribunal take particular material into account before issuing the invitation under s 425(1). Section 425(2)(a) is predicated on material being before the tribunal when a decision is made; s 425(1) is not. The tribunal acted pursuant to s 425(1), not s 425(2)(a). So a failure to read what the delegate had to say before inviting the applicant to attend a hearing would not give rise to jurisdictional error. As Gummow J observed in Muin at [179], the Minister might have had cause to complain if the tribunal had made a favourable decision without having any material before him. But the assertion of failure in the application of a condition for the exercise of the power in s 425(2)(a) is not to the point when there has been no purported decision under that paragraph.

49    There will obviously be cases where a tribunal, having received (and read) the delegate’s decision record, will form an opinion that the delegate was wrong and that a favourable decision should be substituted but in this case, even if the tribunal had read the delegate’s decision before issuing the invitation on 10 November 2009, it is inconceivable that, having done so, it would have decided the review in the appellants’ favour. So the appellants were not prejudiced or disadvantaged by the Secretary’s failure to observe the timetable in s 418(2). The tribunal did not embark upon the hearing until it had received both the delegate’s decision record and the record of his interview with the appellants. For these reasons, even if the proper conclusion is that non-compliance with s 418(2) resulted in a jurisdictional error, the error had no practical consequences and I would refuse relief on discretionary grounds. Cf. Applicant S1693 at [42].

50    The appellants also submitted that the tribunal could not exercise its powers and functions under the Act (including under s 425) where “there was no decision to review that was before it”. But the tribunal’s jurisdiction was not enlivened by the provision of the decision record. It was enlivened (as the federal magistrate found at [119]) by the filing of a valid application for review. That is the effect of s 414. There is no apparent reason why the tribunal cannot issue the invitation under s 425 if it is unpersuaded in the applicant’s favour by what is disclosed in the application for review and any material submitted in support of it. It is true that the tribunal is charged with the task of reviewing the delegate’s decision, but it is not charged with the task of reviewing his or her reasons. The tribunal is not bound by any of the delegate’s findings. Nor does the tribunal conduct an appeal either in the strict sense or in the nature of a rehearing. It conducts a new hearing, although (as the High Court observed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) at [40]) it need not consider every issue afresh. See, for example, Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 per McHugh J at [145]–[146]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16].

What is the purpose of a notice under s 425?

51    Contrary to the appellants’ submission (said to be based on the judgment in SZBEL) the notice under s 425 need not define the issues on the review. Its purpose is to inform an applicant that s/he will be given an opportunity to be heard before a determination will be made. The point the Court was making in SZBEL was a different one. The issue in SZBEL was whether the tribunal denied the appellant procedural fairness by not putting to him at any time the critical factors upon which the decision was likely to turn. In SZBEL the tribunal never challenged or queried the appellant’s account or invited him to amplify any of the three particular aspects of the account he had given in his statutory declaration and repeated in his evidence but which the tribunal later found to be “implausible”. The first he knew of the tribunal’s reaction to his account was when he received the tribunal’s published decision. That situation is far removed from the present. The ratio of the judgment in SZBEL appears in [35]:

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the tribunal. But if the Tribunal takes no steps to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

52    This does not mean that at the time the tribunal invites an applicant to attend a hearing, it must identify the issues arising in relation to the decision under review. Indeed, the appellants made no such submission. Rather, it means that an applicant is entitled to assume, unless the tribunal advises otherwise, that the issues identified by the delegate are the only issues. The problem arises if the tribunal makes an adverse finding about an applicant on an issue not previously raised, depriving him or her of an opportunity to be heard. SZBEL is not authority for the proposition that the purpose of the notice under s 425 is to define the issues. No objection is taken to the invitations issued after 23 November 2009, none of which identify the issues.

53    The appellants had a copy of the delegate’s decision record when they applied for the review. Unless they were told differently by the tribunal, they were entitled to assume that the issues raised in the delegate’s reasons would be “the issues arising in relation to the decision under review”. Provided any additional or different issues were identified in sufficient time to give them the opportunity to address them, the absence of notice of those issues in the s 425 invitation would not deny them procedural fairness.

Were the appellants on notice that there was an issue about whether the elder son had been kidnapped and the daughter taken away for questioning? Was there a denial of procedural fairness?

54    The appellants claimed that the tribunal failed to identify that the truth of the accounts of the elder son and daughter was an issue in the review in circumstances where the delegate was prepared to accept at face value the elder son’s account of his kidnapping and the daughter’s assertions that she had been stopped and questioned by police.

55    The federal magistrate rejected the premise for both these contentions. Her Honour pointed out that the delegate was not satisfied that the appellants had suffered Convention related persecution as claimed and found that their fears were not genuine. She said that both these findings called into question the credibility of the appellants. In the result she said that the appellants were on notice that their credibility was in issue. In any case she said that the tribunal made it clear to them. She also said that with respect to the children, this was a situation in which, as the High Court contemplated in SZBEL at [47], it would have been inappropriate for the tribunal to put to them in so many words that they were lying or might not be accepted as witnesses of truth. She referred to them (at [110]) as “children supporting their mother’s claim”. I am not persuaded that her Honour was wrong.

56    On 18 December 2009 the appellants’ migration agent sent a lengthy submission to the tribunal addressing what he deduced were the issues arising from the delegate’s decision. It is possible that he did not apprehend that the credibility of the son’s account of his kidnapping or the daughter’s account of her interrogation was in issue, although he did state his disagreement with the delegate’s statement that the likelihood of the sequence of events the mother described was very low. Nevertheless, the delegate’s decision record includes the following statement:

The cost of the journey outlined by applicant 1 [the mother] from Sri Lanka through South America for four adult airfares plus living expenses, payments to ‘agents’ who assisted them along the way and four altered Malaysian passports would be very considerable. Yet applicant 1 stated at interview that they had to borrow the money to ransom her son only two months before this journey. She also stated (folio 121) that they were not rich. Since the journey did take place I find that this lessens the likelihood that their son was abducted and ransomed.

[Emphasis added.]

57    The delegate’s reasons are rather perfunctory and are not at all compelling. But whatever criticisms might be levelled at them, this passage does call into question the credibility of the claim that the son had been abducted. As noted in [14]–[15] above, the delegate did not directly question the daughter’s account, but he did find, not only that the likelihood of the sequence of events was very low, but also that “events have been claimed to provide support for the applicant’s intention to come to Australia and to claim protection…”. The inference is that he thought the events relied upon by all the appellants were concocted. Moreover, he found that there was no real chance the appellants would be persecuted. As the country information to which the delegate referred was corroborative of the appellants’ claims, more particularly kidnapping and detention, the inference is that the delegate reached this conclusion because he did not believe that they had been kidnapped or detained or treated in a way that could give rise to a fear of persecution.

58    In any event, as the federal magistrate observed, the issue was raised with the appellants during the tribunal hearing.

59    After hearing at length from the elder son about the circumstances of his capture and its impact on him, the tribunal asked him whether he learned his statement. When he denied having done so, the tribunal pointed out the evidence he gave at the hearing was “almost word for word from [his] statement” (T83, AB 415). The member also put to the mother (T115, AB 447):

The other thing that concerns me is that even though your son, the claim is your son, was abducted in March and your daughter was questioned and taken aside in April you still stayed on there to the time you did. You didn’t really make a decision to leave till the 14th or 15th of May, then finally left on the 23rd of May, given the very serious circumstances that you describe there I got concerned that you didn’t leave any earlier than you did.

60    The member repeated these concerns in the very next exchange with the mother. Then again a little later on the member said to the mother:

What I am saying is well I don’t understand about your case… if these things happened and you are in a position to go, to leave which buys you time at least short term in say India where you have been before why you still stay waiting to get the best agent in the country. That’s a concern to me if all these very serious things have happened.

[Emphasis added.]

61    In other words, the tribunal was concerned that the account given by all the appellants did not stack up. Put differently, at the hearing the tribunal raised as an issue the question of whether “all these very serious things” happened.

62    Even before these remarks were made, the mother appears to have appreciated that the credibility of the appellants was in question. The transcript of the tribunal hearing on 16 March 2010 records her as pleading (T102, AB 434): “We have told the whole truth. I didn’t lie”.

63    I am not satisfied that the federal magistrate was wrong to conclude that the appellants were on notice that the credibility of their accounts (including the reported abduction and interrogation of the son and daughter) was an issue on the review. I am not therefore satisfied that there was a denial of procedural fairness.

64    The appellants further contended that the federal magistrate erred when she observed that the children were supporting their mother’s claim. They claimed that this was an error because she failed to have regard to the fact that they each gave evidence in support of their own claims, which have to be separately considered. But that is a misrepresentation of the federal magistrate’s reasons. It takes the remark out of context. The children were supporting their mother, notwithstanding that they were also making their own claims. I do not think that it could reasonably be concluded that the federal magistrate lost sight of that.

65    For all these reasons grounds 3, 5, 6 and 7 of the notice of appeal must be dismissed.

Was there a reasonable apprehension of bias on the part of the tribunal?

66    This is the subject of ground 4 of the notice of appeal.

67    The allegation is that the federal magistrate erred in failing to find that the tribunal decision was infected by ostensible or apprehended bias. The reason for it is that the tribunal concluded that it could not find in the appellant’s favour before it had read the decision record. The contention is without merit. Not without good reason, the federal magistrate appears to have struggled to understand the argument when it was put to her.

68    It is not clear what material the tribunal had before it when it wrote to the appellants on 10 November 2009. While it did not have the delegate’s statement of reasons or the record of his interview with the mother and the elder son, it may have had their visa applications and statutory declarations. Certainly it had the application for review submitted by their migration agent. It bears a receipt stamp dated 13 October 2009. That application, however, provided no information on the merits of the application. Although they were invited on 13 October 2009 to send material or written arguments for the tribunal to consider and urged to do so as soon as possible, the appellants did not avail themselves of that opportunity until 18 December 2009, when their migration agent made submissions on their behalf.

69    The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the tribunal might not bring an impartial mind to the resolution of the dispute: Livesey v NSW Bar Association (1983) 151 CLR 288 at 293–4, 300; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]–[28] where Gleeson CJ, Gaudron and Gummow JJ suggested that in cases like this concerning administrative proceedings held in private, the test might be better formulated “by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”. But before the reasonableness of the apprehension can be assessed two steps must be taken. First, it is necessary to identify what it is said that might lead the decision-maker to decide a case other than on its merits. Secondly, it is necessary to articulate the logical connection between that matter and the feared deviation from that course. See Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8] and Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [63]. Neither step was taken here. In any event, the statement in the s 425 notice that the tribunal is “unable to make a favourable decision on this information alone” does not create an impression of pre-judgment.

70    It is inconceivable that an informed fair-minded lay observer might reasonably conclude that a tribunal might be biased against an applicant because it has concluded without having read a decision that it knows to be adverse to the applicant that it cannot decide the application in the applicant’s favour without hearing from the applicant. In any case, s 425 contemplates that the invitation may be made precisely when the tribunal has decided that it cannot find in the applicant’s favour on the papers.

71    Ground 4 must also be dismissed.

Was the tribunal’s decision one to which no rational or logical decision-maker could come?

72    In ground 2 of the notice of appeal the appellants alleged that the tribunal’s decision that the “applicant” was not a person to whom Australia owes protection obligations for the purpose of s 65 of the Act was affected by illogical or irrational reasoning in that:

(a)    it found that the events and claims from 2009 onwards could be rejected by reference to unrelated events the appellants claimed to have occurred in 2008 and inferences drawn from those events; and

(b)    it rejected the claims that the appellants had a well-founded fear of persecution by reference to the route they took to come to Australia.

73    A further basis pleaded in the notice of appeal (that the tribunal found that the appellants were not witnesses of truth) was not pressed.

74    The appellants submitted that it now unambiguously accepted that illogicality or irrationality can form a basis for judicial review in Australian law, citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”). By judicial review I assume they mean judicial review for jurisdictional error because that is the only relevant form of review. That may be putting the matter too high. It must be remembered that in SZMDS the majority consisted of Heydon, Crennan and Bell JJ and Heydon J thought it unnecessary to comment on the question of principle (see [87]). The position was more accurately described by McClellan CJ at CL in D’Amore v Independent Commission Against Corruption [2012] NSWSC 473 at [81]:

[A]fter SZMDS, irrationality or illogicality in the finding of a jurisdictional fact may constitute jurisdictional error. The High Court has not decided whether irrational fact-finding more generally is an independent ground of review: SZMDS at [31] (Gummow ACJ and Kiefel J), [124] (Crennan and Bell JJ).

[Original emphasis.]

75    What is more, identifying the circumstances in which an administrative decision-maker will have fallen into jurisdictional error through irrational or illogical reasoning remains elusive: Martin Smith, “‘According to law, and not humour’: Illogicality and administrative decision-making after SZMDS” (2011) 19 AJ Admin L 33 at 45. But it is not necessary to dive into these murky waters in this case for I am not satisfied that the tribunal committed the errors of which the appellants complain.

76    Although the notice of appeal referred to events in 2008, I was informed by counsel for the appellants that the allegedly unrelated events consisted of the mother’s previous travels. The tribunal said (at [130]) that if “the very serious events and threats occurred as the [appellants] claim” and they had left Sri Lanka to travel to Australia for the reasons that they claimed, then they would have made the decision to do so and departed earlier than they did. The appellants submitted that the tribunal found the mother’s explanation for the time taken to leave Sri Lanka (between February and May 2009) to be unreasonable “especially because the [mother] ... travelled extensively including to London and Switzerland in 2007 and to India three times previously, attending a conference in 2006 ... and she and her husband went to India in December 2008”. The appellants submitted that the tribunal held that it could reject the explanation because of its view that things would be no different for the appellants than when they went to India in December 2008. They then contended:

There is a clear circularity in this reasoning process. The Tribunal used its rejection of the claimed events in 2009 as a reason for its rejection of the explanation of one of reason for the delay in departure, which delay in departure is used to reject the claimed events in 2009. It was illogical for the Tribunal to rely on travel which had taken place prior to the claimed instances in 2009 as a justification for finding that there was no explanation for the delay in departing Sri Lanka after the events of 2009.

77    It is doubtful whether circularity of reasoning is sufficient to establish jurisdictional error. Nevertheless, the submission misapprehends the tribunal’s reasoning process. To see why it is necessary to look at precisely what the tribunal said and the context in which the remarks were made. Although it is a lengthy passage, it should be reproduced in full.

In the Tribunal’s view if the applicants had left their country to travel to Australia for the reasons that they claim they would have made that decision and left the country earlier than they did. It is clear that the applicants did not make the decision to leave Sri Lanka because of the husband’s/father’s kidnapping; all the applicants claim that this event occurred on 19 May 2009 after the decision to leave Sri Lanka had been made. The Tribunal asked the [the mother] at the hearing when the decision was made to leave and not return to Sri Lanka and she said it was on 14 or 15 May 2009; although the [the daughter] told the Tribunal that she learned she was leaving Sri Lanka after her father was abducted she also said that she learned they were going to leave Sri Lanka about one week before they left on 25 May 2009 as she overheard her parents discussing this and clearly this was before her father, one of her parents, was abducted; the [elder son] also told the Tribunal that he learned from his parents about the decision to leave Sri Lanka about five days to one week before they left and it had been discussed between his parents. The [mother] claims that police were interested in her/the family due to the fact that she left her job before the air raids occurred in Colombo and that police came to her house on 27 February 2009 and questioned her about her connection to the air raids in Colombo and ill treated her husband. The applicants claim that the [elder son] was abducted on 22 March 2009 and that after that the family received threatening phone calls and the [daughter] was taken for questioning on 18 April 2009. The Tribunal considers that if these very serious events and threats occurred as the applicants claim, the family would have left Sri Lanka earlier than they did, given that these events go back to February and March 2009. The applicants’ explanation for why they did not leave the country sooner and go, for example, to India given the seriousness of what had happened, was that their father/husband was in the process of making arrangements, he was arranging an agent and there were arrangements about money and getting a good agent because some people were being duped on the way. They also said it was because they had information that the Q Branch in India might come to know of them and persecute them there, that they had no family in India and it was difficult to borrow money in India. In submissions made to the Tribunal it was submitted that arrivals (in India) in more recent years attracted suspicion and it is a requirement that Sri Lankan Tamils overstaying their visa period (which is normally about one month) are required to register with the police. In the Tribunal’s view this does not reasonably explain why the [mother] did not leave Sri Lanka with her children earlier than they did, especially as the first named applicant told the Tribunal that she had travelled extensively including to London and Switzerland in 2007 and to India three times previously, attending a conference in 2006, visiting Delhi and temples in Madras and Chennai and that she and her husband and children went to India in December 2008. To the extent that the applicants claim that they could not have gone to India in 2009 because things were worse for them there after the events that occurred in Sri Lanka in 2009, the Tribunal does not accept this is true; in the Tribunal’s view things would have been no different for the applicants in India if they had gone there at that time than they were for them when they went to India for their visit in December 2008.

78    Even supposing that circularity of argument would be sufficient to support this ground of review, the tribunal’s reasoning process was not circular. The tribunal’s point was that they could have left Sri Lanka earlier than they did and they would have done so if their accounts of what happened to them in February and March 2009 were true. In my view the tribunal’s reference to the mother’s travels in the period between 2006 and 2008 was logically connected to the tribunal’s decision to reject her explanation. It is an available inference from the fact that she was accustomed to travelling overseas that she would be less hesitant to leave and more adept at leaving than someone who had never left the country or who was not a seasoned traveller. I do not think the tribunal was saying any more than this. While, on the appellants’ accounts, things were worse for them in Sri Lanka in 2009, the tribunal found they were no different in India in 2009 than they were when the family travelled there voluntarily only a few months before.

79    The second string to this argument is also not made out. The tribunal said (at [133]):

In the Tribunal’s view it is also not consistent with the applicants’ claims that they left their country to come to Australia because they feared harm in Sri Lanka that they travelled to and through the many countries/cities that they did, including India, Singapore, Buenos Aires, Peru and Bolivia before coming to Australia to claim protection. The Tribunal told the applicants that it was concerned why the applicants should come all the way to Australia via South America. The applicants’ explanation is that it was because of the agent they came that way, and they themselves did not intend/plan to come that way. They claim that after they landed in India, they learnt they were coming via Peru, and after Peru, they were directed from one country to another. The Tribunal does not accept as true that they were simply following directions of an agent/agents for the reasons that they claim, that they were directed from one country to another so that they could avoid detection, that different agents met them at various international airports identifying them by photographs and that they sometimes did not know where they were staying or where they were as they always stayed inside. In the Tribunal’s view this conduct is not consistent with the applicants’ evidence about their background and experience; they were from a family that had travelled previously (the first named applicant agreed she had travelled a lot and that the family had travelled previously together to India) and the first named applicant had worked as a tax assessor with the department of Inland Revenue in Sri Lanka for many years. The Tribunal does not accept as true that the first named applicant who was the adult responsible for the other applicants travelling with her would not know where they were because they did not go out or that she was “clueless and unsure” about what was happening as she told the Tribunal.

80    In other words, the appellants’ explanation for the circuitous route they took to come to Australia was that they were the artless, unsuspecting dupes or pawns of the various agents they met en route. The mother repeatedly described them as “clueless”. The tribunal felt that that explanation was inconsistent with the mother’s background of extensive travel and the fact that she had worked for many years as a tax assessor. There is nothing illogical about this reasoning. The appellants submitted that there was no basis to impute any particular level of education or sophistication to the mother in the absence of “specific evidence”. But that is not so. In her visa application she stated that she had undertaken four years of primary education, 13 years of secondary education and three years of tertiary education culminating in the conferral of a diploma from Jaffna Technical College. She had held the position of assessor in the Department of Inland Revenue for 23 years until she left of her own accord. As the Minister submitted, that suggests a certain level of intelligence and application (if not guile). It was open to the tribunal to reject the explanation given to them and to deploy the process of reasoning they used (see SZMDS at [133]). Whether or not it is a conclusion that should have been drawn, it is neither illogical nor irrational to decide that if the explanation is false then so, too, the entire story.

81    Certainly the route the appellants took to come to Australia was an odd one. One might think, as their counsel intimated during argument, that their journey was rather more consistent with their account than not. But (regardless of whether the tribunal itself suggested an alternative explanation) reasonable minds might differ about the conclusions to be drawn from the evidence and a preference for one conclusion over another is not enough for jurisdictional error: SZMDS at [131] per Crennan and Bell JJ. Cf, Heydon J at [78].

Did the tribunal fail to comply with s 424A?

82    The appellants contended in ground 8 of the notice of appeal that the tribunal contravened s 424A in that it relied on information:

(a)    in a letter from their migration agent dated 8 February 2011 that the first appellant’s husband was kidnapped on 19 May 2009 and has not been heard of since; and

(b)    provided by the mother, daughter and elder son that those two children continued to attend school until they left Sri Lanka;

but did not ask them to comment on or respond to it.

83    Section 424A provides:

424A Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

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

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

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

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

(2A)     The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

84    The federal magistrate noted that the information in the letter of 8 February 2011 had been sent to the tribunal in response to its invitation (pursuant to s 424A) to comment on certain concerns it had about the credibility of some of the appellants’ claims. Her Honour stated at [135]:

It was not “information” that was a rejection, denial or undermining of the [appellants’] claims to be persons to whom Australia owed protection obligations. In those circumstances, the information … did not enliven s 424A (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17]).

85    I respectfully agree. The appellants advanced no argument as to why her Honour was wrong. I note the High Court went on to observe in SZBYR at [18] that:

if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1) … However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.

86    The appellants’ submissions were focussed on the operation of s 424A(3)(b). They sought to distinguish information given for the purpose of the application for review from information given during the process of review. The federal magistrate rightly rejected the supposed distinction, holding that the reference to “application for review” in subs (3)(b) was “clearly intended to cover the process of review”. In this Court the appellants pointed to the reference in sub (3)(ba) to “the process that led to the decision under review”, arguing that the Parliament distinguished between information given during ”a process” and information given “for the purpose of the application”. But the argument wrongly assumes that Parliament intended to distinguish between the application under review and the review process, rather than the application under review and the process leading to the decision under review. Plainly, information provided for the purpose of the application for review includes information provided to the tribunal during the process of review. Both the legislative history and the extrinsic material bear this out.

87    Section 424A(3) was amended in 2007 by the Migration Amendment (Review Provisions) Act 2007 (Cth) which inserted para (ba) and made changes to para (b). The amendment came into effect on 29 June 2007. Before then the subsection relevantly provided:

This section does not apply to information:

(a)    …

(b)    that the applicant gave for the purpose of the application; or

(c)    …

88    According to the Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 (Cth), para (ba) was inserted to overcome the effect of two Full Court judgments (Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 and SZEEU v Minister for Immigration and Multicultural Affairs (2006) 150 FCR 214 and the High Court judgment in SAAP. Apparently, the cumulative effect of these decisions was that both the Migration Review Tribunal and the Refugee Review Tribunal were having to adopt “a very literal approach” to affording applicants procedural fairness and that was causing unacceptable delay in the processing of applications and the finalising of reviews, impairing the tribunals’ ability to conduct reviews in a way that is fair, just, economical, informal and quick (as mandated by the Act): The Explanatory Memorandum stated that:

[t]hese amendments are designed to ensure that applicants are still provided with procedural fairness while providing flexibility to the Tribunals [the Migration Review Tribunal and the Refugee Review Tribunal] in how they meet their obligations. If the Tribunals do not orally, at the hearing, give applicants clear particulars of the relevant adverse information and invite them to comment or respond, the Tribunals will be required to do so in writing. The provisions ensure that an applicant will not be taken by surprise in this process and will have a reasonable time to comment or respond (including a requirement for the Tribunal to adjourn the review if the Tribunal considers the applicant reasonably needs additional time), and that they will be treated fairly and justly.

89    The second part of the appellants’ complaint related to information provided during the review about the children continuing to attend school after the events of February and March 2009. There was a lack of clarity about the complaint as formulated in the notice of appeal but the gravamen of it was that the tribunal should have put to the elder son and daughter that the fact that they continued to attend school was inconsistent with their claims of abduction and interrogation.

90    Her Honour rightly rejected this claim, too, as being excluded from s 424A. As the High Court explained in SZBYR at [18], however broadly “information” is defined, in this context it does not include inconsistencies in the evidence.

91    In any event, as the Minister submitted and for the reasons given above, if this was information within the meaning of s 424A, it was information that was provided for the purpose of the application for review and would therefore be excluded from s 424A by subs (3)(b). Contrary to the implication contained in the pleading of this ground in the notice of appeal, the elder son provided the information about his own school attendance and the daughter provided information about hers. Neither offered information about the other. The fact that the mother also provided information to the same effect is immaterial. Consequently, the information was given by each of them for the purpose of the application for review.

92    Ground 8 is not made out.

Conclusion

93    The Federal Magistrates Court was only able to review the tribunal’s decision for jurisdictional error and this Court may only disturb its judgment if the decision of the court below was wrong on one or other of the grounds pleaded in the notice of appeal. For the reasons given, I am not persuaded that it was.

94     The appeal must therefore be dismissed with costs. As the youngest child is still a minor, the costs orders should be made against the first three appellants only.

Associate:

Dated:    31 August 2012