FEDERAL COURT OF AUSTRALIA

SZTNL v Minister for Immigration and Border Protection [2015] FCA 463

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

1    The issue is whether the Federal Circuit Court of Australia (FCCA) erred in rejecting the appellant’s argument below that the Refugee Review Tribunal (the Tribunal) failed to comply with s 424A of the Migration Act 1958 (Cth) (the Act). There is another issue raised by the Minister’s notice of contention as to what constitutes “information” for the purposes of that provision.

Summary of background facts

2    The appellant is a citizen of Bangladesh. He applied for a Protection Visa (Class XA) (subclass 866) on 28 May 2012. As will emerge later, the appellant’s claims before the delegate and subsequently the Tribunal were not always consistent. In essence, however, he claimed that he was a businessman in Bangladesh and a Muslim. He claimed that his difficulties started in Bangladesh when he was accused by two of his business partners, who were both Muslim, of having converted to Christianity and of having an extra-marital affair with his receptionist, who was Christian. He claimed that he was assaulted by his partners at work and that they were members of the Jamaat-e-Islami party. He said that he was introduced to Christianity in Bangladesh by another of his business partners, who was a Christian. He claimed that the police showed no interest in his complaints of assault because his business partners had told them that he had converted to Christianity and that was the reason why he was assaulted. He claimed that his partners spread rumours that he had converted to Christianity and that he had had an affair with his Christian receptionist. He initially said that on 16 May 2010 the partnership with his two Muslim partners was terminated and they ceased to have anything to do with the company.

3    The appellant travelled to England with his wife on 10 December 2011. He claimed that he made inquiries about Christianity while he was there, much to his wife’s displeasure. He said that she terminated their holiday and they both returned to Bangladesh on 23 December 2011. He claimed that his wife then told others that he had become a Christian and that she had decided to divorce him for that reason. Furthermore, he claimed that he was later assaulted on two other occasions in January 2012. He said that he decided to leave Bangladesh because of his constant fear and “random religious persecutions, assaults and attacks”.

4    The appellant was granted a visitor’s visa on 15 March 2012. He arrived in Australia on 19 April 2012. He subsequently attended the Hillsong Church in Sydney and was baptised there on 11 May 2012. He was a regular attendee at that church.

The delegate’s decision

5    On 27 November 2012, the Minister’s delegate refused the appellant a Protection Visa. The delegate found that the appellant was not a credible witness and that he had fabricated his claims of difficulties in Bangladesh. The delegate found that the appellant’s written statements and responses at interview were inconsistent with country information and, in some instances, implausible. It is evident from the delegate’s record of decision that the delegate asked the appellant to explain how a letter dated 1 March 2012, which was written on the letterhead of his company in support of his visitor visa application, was signed by Mr X (the company’s managing director) in circumstances where the appellant alleged that he had ceased all association with the company in May 2010. The delegate found that the appellant was unable to offer any plausible explanation concerning this matter. The delegate recorded that he put to the appellant that the appellant’s claim that he had been assaulted by Mr X and Mr Y (the appellant’s business partners) never happened and that his entire claim to have encountered difficulties in Bangladesh because of his association with another business partner who was a Christian was fabricated. The delegate noted that the appellant failed to provide any response on that subject.

6    The delegate then made the following findings:

Although Country information cited above states that Christian converts may face some difficulties in Bangladesh including social ostracism from family members, I do not accept that he ever had problems in Bangladesh on account of any involvement in Christianity or that he genuinely converted to Christianity in Australia. I note that when the applicant was asked what he has learnt about the Christian religion, he was unable to enumerate any basic beliefs of Christianity. This reinforces my view that the applicant had no association with Christianity whatsoever in Bangladesh. If he had, he would have been able to describe the basic tenets of Christianity.

Even if I were to accept that he had genuinely converted to Christianity, country information indicates that attacks on Christian converts tend to occur in rural parts of Bangladesh. The applicant has always resided in Dhaka. Where attacks occur in metropolitan areas, the local police have responded with investigations and deployment of local security forces to defend churches, Christian communities and individuals. Consequently, I am satisfied that Christian converts do not face persecution in Bangladesh on account of their beliefs.

7    In view of the significance attached to s 91R(3) in the appeal, it is relevant to note that the delegate considered the application of that provision to the appellant’s case at pages 11-12 of the delegate’s reasons for decision. The delegate recorded that he put to the appellant that it may appear that the appellant only developed an interest in Christianity after arriving in Australia and prior to his interview with the delegate for the sole purpose of strengthening his claim to be a refugee. The appellant is recorded as responding by saying that his conversion to Christianity was genuine, but when he was asked what he had learnt about the Christian religion the delegate recorded that the appellant was “unable to enumerate any basic beliefs of Christianity”.

8    The delegate recorded that he drew the appellant’s attention to s 91R(3) and was satisfied that the appellant’s claimed association with Christianity in Bangladesh was fabricated. The delegate accepted that the appellant was baptised at the Hillsong Church in Sydney on 11 May 2012. But the appellant was unable to satisfy him that he engaged in the conduct in Australia (i.e. his conversion to Christianity) otherwise than for the purpose of strengthening the appellant’s claim to be a refugee.

9    The delegate concluded that s 91R(3) of the Act applied. Accordingly, he disregarded the appellant’s conduct in Australia for the purposes of assessing the appellant’s claims under the Refugees Convention criteria.

10    The delegate explained why he also rejected the appellant’s claims for complementary protection.

The Tribunal

11    The appellant sought a review of the delegate’s decision by the Tribunal. On 9 September 2013, the Tribunal held a hearing which was attended by the appellant. Prior to the hearing, the appellant’s migration agent lodged a detailed written submission dated 15 August 2013 in support of the review. The submission addressed the delegate’s adverse findings on credibility including admitting that the applicant had provided the wrong date on which the partnership was terminated and that the true date was the middle of February 2012. Attached to the submission was medical material which indicated that the appellant had suffered serious heart problems in January 2013 and was admitted to Prince of Wales hospital.

12    In the course of the Tribunal hearing, the Tribunal advised the appellant that it had “some concerns about the evidence you’ve given about your practice of Christianity in Australia” and that the Tribunal needed “to consider why you have undertaken activities in Australia because under Australian Migration Law there’s a provision which says that if you undertake activities in Australia solely for the purpose of strengthening your protection visa application, [it was] required to disregard those activities”. The Tribunal added that it needed to consider “why…you attended church in Australia and whether it was solely to strengthen your protection visa application” and, if so, it would “be required to disregard it in assessing your claims about whether or not you’re a refugee”. The Tribunal was plainly referring to s 91R(3) of the Act even though that provision was not explicitly identified.

13    In response to these matters, the appellant said that he did everything “under the dictation of my heart”. After explaining that his heart problems had affected his memory and that his statement “may be a little bit inconsistent”, the appellant said that he did what he did as his heart dictated, and that he “did not do it for the purpose of staying in Australia”. This exchange is set out in full at [44] below.

14    Following the Tribunal’s hearing, the Tribunal wrote a letter dated 16 September 2013 inviting the appellant’s comments or response to certain information. The letter was written in purported compliance with s 424A of the Act. It is convenient to set out that provision before extracting the relevant parts of the letter.

15    Section 424A of the Act relevantly provided at the relevant time:

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.

…

(3)    This section does not apply to information:

…

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

…

16    The Tribunal’s 16 September 2013 letter contained the following relevant material (errors in original):

…

6.    In support of your application for a visitor visa you provided a letter dated 1 March 2012 from [Mr X], Managing Director, [the company] which states:

This is certify that [SZTNL]… is the Chairman of this Company from 2006 to till now…

We learned from him that he is willing to visit to Australia. We extend all our best wishes and a pleasant rest and recreation.

I wish him a pleasant trip at the Australia and hope he will join with us after completion of his proposed visit.

This information above is relevant to the review because it appears to be inconsistent with your evidence to the Tribunal that you ceased to be involved with [the company] in mid February 2012 and that you have an acrimonious relationship with Mr [X] because of your interest in Christianity.

If the Tribunal relies on this information in making its decision it would find that the letter you provided from Mr [X] with your visitor visa application is a genuine one and that at the time you left Bangladesh both you and he were still partners in [the company]. This would lead the Tribunal to find that your partners in [the company] do not have any conflict with you in relation to Christianity. The Tribunal would also find that you have not been truthful about aspects of your evidence which may cast doubt on the credibility of your claims overall, and would cause the Tribunal to find that you are not owed protection obligations as claimed.

7.    At the Departmental interview you stated that you had tampered with this letter by changing the date on it.

8.    At the Department interview you stated that you got the letter because you planned to leave Bangladesh in 2009.

The information in 7 and 8 above is relevant to the review because it appears to be inconsistent with your evidence to the Tribunal that you got this letter from Mr [X] in December 2011 for the purposes of travelling to England and that you changed the date and the contents of the letter in order to submit it with your application for a visa to Australia.

If the Tribunal relies on this information in making its decision it would find that the letter you provided from Mr [X] with your visitor visa application is a genuine one and that at the time you left Bangladesh both you and he were still partners in [the company]. This would lead the Tribunal to find that your partners in [the company] do not have any conflict with you in relation to Christianity. The Tribunal would also find that you have not been truthful about aspects of your evidence which may cast doubt on the credibility of your claims overall, and would cause the Tribunal to find that you are not owed protection obligations as claimed.

…

17    The appellant’s migration agent responded to the Tribunal’s 16 September 2013 letter in a detailed letter dated 23 September 2013. The responses which were provided to items 6, 7 and 8 were as follows (errors in original):

6.    …

The applicant instructed to submit and also he stated to the Tribunal hearing that the letter was written by [Mr X] prior to their conflict and fall out with regard to the applicant’s Christian related activities. As the applicant confronted violence, assault and speculation of conversion to Christianity, the applicant changed the date of his reference letter written by Mr. [X] prior to mid February 2012 and submitted to the Australian high commission for his visa grant purpose as he had been in a desperate situation in Bangladesh as explained in the applicant’s protection visa application.

The applicant agreed that the letter he submitted was genuine and written by [Mr X] but the applicant changed the date and contents of the letter to make it a current one for his visa grant purpose. However, the applicant does not agree that he had normal relationship and were active partners of the business at the time the applicant has left Bangladesh.

7.    …

The applicant instructed to submit without any dispute that he tapered the date and contents of his reference letter and submitted with the visa application to Australia for his visa grant purpose.

    …

8.    …

The applicant instructed to submit without any dispute that he tapered the date and contents of his reference letter and submitted with his visit visa application to Australia for visa grant purpose in March 2012.

The applicant also acknowledged that he got the letter because he planned to leave Bangladesh in 2009. The applicant added that he had the plan to leave Bangladesh in 2009 not with the meaning that he had the plan to leave Bangladesh for good like this time he arranged in Australia rather he had only a plan to travel to overseas in 2009 and got that reference letter just in case he needed to support his visa application.

Further the applicant instructed to submit that he was confused and made a mistake remembering the date in a more than 4 hours long hearing with his recent heart surgery etc while providing evidence to the tribunal by stating that he got his reference letter from Mr. [X] in December 2011 prior to his visa application to England instead of stating that he got his reference letter way back in 2009 of which he changed the date and contents to make it updated instead of writing a reference letter every time he was planning trips. The applicant also added that it was unfortunate for him that he lacks the capacity to explain things in detail and that’s how all those questions were not probably appropriately answered date by date with full explanation during his departmental and as well as in the Tribunal hearing.

…

18    On 28 October 2013 the Tribunal affirmed the delegate’s decision. Although the Tribunal accepted that the appellant had converted to Christianity in Australia, in the light of both the “significant credibility concerns” which it set out earlier in its reasons and also its finding that the appellant did not have any involvement in Christianity in Bangladesh, the Tribunal found that the appellant’s involvement with the Hillsong Church was solely for the purpose of strengthening his claim to be a refugee and should therefore be disregarded in accordance with s 91R(3). The Tribunal indicated that it was not satisfied that the appellant had any genuine interest in Christianity or that he would participate in Christianity if he returned to Bangladesh.

19    The Tribunal also rejected the appellant’s claim to be entitled to a Protection Visa under the complementary protection criteria in s 36(2)(aa) of the Act.

The FCCA judicial review proceedings

20    The appellant sought judicial review in the FCCA of the Tribunal’s decision on the ground that it had failed to comply with s 424A in respect of adverse information which was relied on by the FCCA. The information was identified by the appellant as:

(a)    the letter dated 1 March 2012 from Mr X, managing director of the company; and

(b)    comments made by the appellant at his interview with the delegate in relation to his Protection Visa application, namely that he had obtained that letter from Mr X in 2009.

21    The appellant argued that the Tribunal’s letter dated 16 September 2013 did not comply with s 424A(1)(b). He argued that s 424A(1)(b) required the Tribunal to do more than simply inform him that the consequences of the relevant information “may cast doubt on the credibility of your claims overall, and would cause the Tribunal to find that you are not owed protection obligations as claimed”.

22    The FCCA rejected the Minister’s contention that the Tribunal was not obliged to send the letter because the material did not constitute “information” caught by s 424A(1). But the Tribunal then rejected the appellant’s argument that s 424A(1)(b) was breached for reasons which are set out in [33]-[37] of the reasons for judgment:

The applicant now seeks to rely on [35] (at CB 218 to CB 219 ) and [39] (at CB 219 ) of the Tribunal's decision record to argue that the Tribunal failed to put the applicant on notice of s.91R(3) of the Act in connection with the information which it said would be the reason for affirming the delegate's decision. In my view, the requirement in s.424A(1)(b) of the Act, was met by the terms of the Tribunal's letter. The two pieces of information were relevant to the review because they, in turn, led to findings of certain inconsistences in the applicant's claims and evidence, which were part of a larger number of inconsistencies and difficulties with his evidence that were identified by the Tribunal.

I agree with the Minister that the Tribunal's obligation was to put the applicant on notice that the information was relevant to the assessment of his credibility, and, that an adverse finding as to his credibility may lead to a finding that he was not owed protection.

That obligation did not extent (sic) to the Tribunal having to put the applicant on notice of the entirety of its subsequent analysis, as revealed in its decision record. I agree that the Tribunal was not required to note every section of the Act, including s.91R(3) of the Act, that may be referred to in its subsequent analysis.

It is relevant to note that the Tribunal did not find that the applicant was not owed protection in Australia, because he had engaged in certain conduct in Australia. Rather, it found (in relation to both the criteria at s.36(2)(a) and (aa) of the Act) (albeit for different reasons) that he was not owed protection, in spite of his having engaged in certain Christian related conduct in Australia. Conduct which it otherwise accepted had occurred.

In all, the Tribunal's letter referred, relevantly, to the two pieces of information set out above. The information was sufficiently identified. The applicant was put on notice as to the relevance of the information to the review. He was also on notice of the adverse effect on the credibility of his claims overall, and the consequences for him if the Tribunal relied on this information.

23    The FCCA noted the following additional matters:

(a)    the Tribunal had given eleven reasons for rejecting the appellant’s claim that he feared persecution on the basis of his religious belief if he were returned to Bangladesh;

(b)    the Tribunal disregarded the appellant’s conduct in Australia in attending the Hillsong Church and being baptised on the basis that it found that such conduct was solely for the purpose of strengthening the appellant’s claim to be a refugee and s 91R(3) applied; and

(c)    the appellant’s complaint concerning s 91R(3) was that it was not sufficient for the Tribunal merely to say that the information contained in its 16 September 2013 letter cast doubt on the credibility of the appellant’s claims overall because the Tribunal was obliged to give a specific explanation as to the relevance of the information to its finding concerning the appellant’s conduct in Australia.

24    The appellant’s contentions were rejected by the FCCA for the following three reasons:

(a)    the 16 September 2013 letter demonstrated that the Tribunal was well aware of the requirements of s 424A(1)(b) and the letter made specific reference to both the relevance of the information set out therein and the consequences of it being relied upon by the Tribunal;

(b)    the appellant should reasonably have understood what the Tribunal sought to inform him in the 16 September 2013 letter, namely that the letter of support from Mr X was inconsistent with the appellant’s own evidence that he was involved in an acrimonious relationship with Mr X because of his claimed interest in Christianity; and

(c)    the appellant should reasonably have understood that this inconsistency (as well as others) might cast doubt on his credibility.

The appeal

25    As noted above, the sole ground of appeal is that the FCCA erred by finding that the Tribunal had complied with s 424A(1)(b) of the Act.

26    In his outline of written submissions, the appellant contended that the FCCA erred by finding that that provision only required the Tribunal to put him on notice that the adverse information was relevant to the assessment of his credibility and that an adverse finding may lead to a finding that he was not owed protection. The appellant emphasised that the adverse information was also relevant for the purposes of s 91R(3) and s 36(2)(aa) of the Act in relation to the issues of the appellant being a genuine Christian, and not simply his credibility. He submitted that s 424A(1)(b) required that the letter also put him on notice that the information would be used for the purposes of s 91R(3). He argued that the information he was given was simply another way of stating that the information was being relied upon to affirm the decision under review, which did not satisfy the “consequences” element of s 424A(1)(b). The appellant submitted that a failure to comply with s 424A constituted jurisdictional error (citing among other cases, SZNKO v Minister for Immigration and Citizenship [2010] FCA 297; (2010) 184 FCR 505 at [27]-[31] per Flick J, and see also SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at [78], [173] and [208]).

27    In his oral submissions, Mr Dobbie (who appeared for the appellant) highlighted the fact that s 91R(3) effectively reversed the burden of proof and that the appellant was deprived of an opportunity of seeking to discharge that burden because the letter did not mention s 91R(3). He submitted that the obligation imposed by s 424A(1) was not satisfied merely because the possible application of s 91R(3) was raised with the appellant during the course of the Tribunal hearing. In support of that submission, he highlighted the fact that, while s 424AA required the Tribunal to allow time for an applicant to respond to information which is given orally under that provision, there was no equivalent opportunity envisaged by s 424A.

28    As was made clear during the course of the hearing, the Court had some difficulty understanding the Minister’s case in the appeal. Part of the problem may relate to the alternative ways in which the Minister’s case was presented. Its essential elements appear to be as follows:

(a)    the information provided to the appellant in items 6 to 8 of the Tribunal’s 16 September 2013 letter was directed to each of the paragraphs in s 424A(1)(a) to (c);

(b)    the two pieces of information the subject of items 6 and 8 of that letter were not in their terms a reason or part of the reason for affirming the decision to refuse the appellant a Protection Visa;

(c)    the Tribunal’s decision to disregard the appellant’s conduct in Australia because of s 91R(3) was not a consequence of either of those pieces of information shorn of their analytical content, because the Tribunal’s adverse credibility findings were not based on that information alone but, rather, on a comparative analysis between that information and other statements by the appellant;

(d)    the appellant’s case should be rejected because its acceptance would require the Tribunal to disclose its deliberative processes, contrary to SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (SZBYR) at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; and

(e)    in any event, there was no breach of s 424A because, applying the obiter remarks of Flick J in SZMTJ v Minister for Immigration and Citizenship (No 2) [2009] FCA 486; (2009) 109 ALD 242 (SZMTJ) at [52] and [55], the manner in which the Tribunal discharges the obligation imposed by s 424A(1)(b) can extend beyond matters set forth in a purported s 424A letter and include, for example, things said during the course of the Tribunal’s hearing, as well as the terms of any response by the visa applicant either during the hearing or in reply to a purported s 424A letter.

The Minister’s notice of contention

29    The Minister sought an extension of time within which to file a notice of contention. The appellant had been put on notice of the Minister’s intention to seek leave to file a notice of contention on 30 April 2015, at which time he was provided with a copy of the draft notice of contention. In “the interest of the proper administration of justice and the need to ensure that a decision has been made in a procedurally fair manner and in accordance with law”, I consider that leave should be granted to enable the Minister to rely upon the notice of contention (see SZMTJ at [17] per Flick J).

30    The ground relied upon in the notice of contention is as follows:

The primary judge ought to have held that the information identified in particulars (ii)(b) and (ii)(c) to ground one in the appellant’s amended application filed in the FCC on 1 May 2014 was not information of the type that had to be particularised and given to him under s 424A(1)(a) of the Migration Act 1958 (Cth), and his Honour erred by failing so to hold: Judgment at [15], [18].

Consideration

(a) The appeal

31    The history of s 424A was described by Tracey and Foster JJ in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 (SZMCD) at [63]-[70]. The rationale underlying s 424A was explained by their Honours at [71]:

The policy and purpose reflected in s 424A is that the Tribunal should be compelled:

(a)    To put the visa applicant on fair notice in writing of critical matters of concern to the Tribunal;

(b)    To ensure that the visa applicant understands the significance of those matters to the decision under review; and

(c)    To give the applicant a reasonable opportunity to comment on or to respond to those matters of concern.

32    Despite the absolute terminology used by their Honours in (b) of the extract above, it is plain that they were not suggesting that the qualifying words in s 424A(1)(b), i.e. “ensure, as far as is reasonably practicable”, had no application.

33    For the following reasons, and assuming for the purposes of the appeal that the two pieces of information identified by the appellant constituted “information” for the purposes of s 424A(1) of the Act, I am not satisfied that the appellant has established appellable error on the part of the FCCA in concluding that the 16 September 2013 letter complied with s 424A(1)(b).

34    The Tribunal made clear in its letter dated 16 September 2013 that Mr X’s letter was relevant to the review because it appeared to be inconsistent with two aspects of the appellant’s evidence: namely, that he ceased to be involved with the company in mid February 2012 and that, because of the appellant’s interest in Christianity, he had an acrimonious relationship with Mr X.

35    As to the comments made by the appellant during his interview with the delegate that he obtained Mr X’s letter in 2009, the Tribunal explained in its letter that this was relevant to the review because the comments appeared to be inconsistent with the appellant’s evidence to the Tribunal that he obtained Mr X’s letter of support in December 2011 for the purposes of travelling to England and that he changed the date and contents of the letter in order to submit it with his application for an Australian visitor’s visa.

36    The appellant was put on notice by the Tribunal’s 16 September 2013 letter that the consequences of both pieces of information being relied upon by the Tribunal in affirming the delegate’s decision were that it would find that:

(a)    Mr X’s letter was genuine so that, when the appellant left Bangladesh, both he and Mr X were still partners in the company;

(b)    his partners in the company did not have any conflict with him in relation to his Christianity; and

(c)    the appellant had not been truthful about aspects of his evidence, which might cast doubt on the credibility of his claims overall and lead the Tribunal to find that no protection obligations were owed to him.

37    The letter served to put the appellant on notice that the two pieces of information were relevant to the Tribunal review because they were inconsistent with the appellant’s statements. The appellant was also notified that the consequence of the two pieces of information being relied upon was that the Tribunal would find that the appellant was not a truthful witness and that this finding would result in the Tribunal concluding that he was not owed any protection obligations as claimed by him. It is important to note in this context that the appellant’s only claim for protection was that he feared harm in Bangladesh on the basis of his Christianity.

38    In determining whether or not the Tribunal has complied with s 424A(1)(b), I respectfully agree with and adopt the obiter observations of Flick J in SZMTJ at [55]:

A further and independent argument advanced on behalf of the Respondent Minister to oppose leave being granted to now place reliance upon s 424A(1)(b) thus need not be resolved. But it is considered to be an argument which has considerable merit. The argument seizes upon the tripartite obligation imposed by s 424A(1) – i.e. to “give clear particulars of any information”; to “ensure” as far as is reasonably practicable that the applicant understands why that information is relevant; and to “invite” the applicant to comment or respond to the invitation. The requirement imposed by s 424A(2), so the argument proceeds, only fastens upon s 424A(1)(a) and (1)(c). The manner in which the Tribunal discharges the obligation imposed by s 424A(1)(b) can thus extend to both that which is set forth in a letter given to an applicant under s 424A and also that which may occur during the course of a hearing before the Tribunal. Apparent deficiencies in a letter, upon such an approach, may well be removed when a review is undertaken of that which has occurred during the course of a hearing when the relevance of information may then have been clearly and unambiguously communicated to the applicant. Upon such an approach, it would not be possible to determine whether there has been a breach of s 424A(1)(b) without considering both the terms of the letter and any previous discussion of the material at the hearing.

39    I should also indicate that I respectfully agree with Flick J’s additional observations at [52] in SZMTJ which serve to underline the importance of the particular circumstances of any individual case in determining whether the requirements in s 424A(1)(b) have been satisfied:

Although s 424A(1) imposes the trinity of requirements set forth in paragraphs (a), (b) and (c), it is not considered that compliance with s 424A(1) is necessarily to be approached by considering each of the three requirements as though it were divorced from the rest. The greater the degree of clarity in the “particulars of any information” provided, the less may be the exposition needed to convey the relevance of that information to the review being undertaken; the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant. Section 424A(1)(b) remains a requirement to be satisfied; but the steps to be undertaken to discharge that requirement may well depend upon the clarity with which the information has been identified and indeed the character of that information.

40    The combined effect of ss 424A(2) and 441A is to make clear that the information referred to in s 424A(1)(a) and the invitation under s 424A(1)(c) to comment on or respond to that information have to be conveyed to the review applicant in writing. It is significant that there is no express reference in s 424A(2) to the obligation imposed by s 424A(1)(b). When the circumstances set out in s 424A(1)(a) are present, the Tribunal must give clear particulars of the relevant information in the way that the Tribunal considers appropriate in the circumstances by one of the methods specified in s 441A (unless the review applicant is in immigration detention), all of which envisage that the method of communication will involve a written document. Likewise, the invitation referred to in s 424A(1)(c) must, given the terms of s 424A(2), be extended by way of a written document. But s 424A(2) is silent on how the related obligation imposed by s 424A(1)(b) is to be discharged. This omission may well reflect the different nature of the obligation which arises under that provision. The obligation to ensure, as far as is reasonably practicable, that a review applicant understands the relevance and consequences of particular information is more inchoate than the obligations to particularise the information and extend an invitation under s 424A(1)(a) and (c) respectively. Those latter obligations are quite precise and finite in nature when compared with the obligation under s 424A(1)(b). The subjective and variable nature of that particular obligation is reflected not only in its intrinsic subject matter (i.e. another person’s understanding of certain matters), but also in the presence of the qualifying phrase “as far as is reasonably practicable”.

41    Contrary to the appellant’s submission, I do not consider that this construction of s 424A(1)(b) is inconsistent with s 424AA. Section 424AA provides for the relevant information and invitation to be given orally to a review applicant. Section 424AA provided at the relevant time:

424AA    Information and invitation given orally by Tribunal while applicant appearing

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

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

(b)    if the Tribunal does so – the Tribunal must:

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

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

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

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

42    Section 424A(2A) provides that the Tribunal’s obligation to give particular information to an applicant and invite comments on or respond to that invitation under s 424A does not apply where the matters are given orally under s 424AA. As referred to above at [27], the appellant emphasised that under s 424AA(b)(i) the Tribunal has a similar obligation to that imposed by s 424A(1)(b) regarding the review applicant’s understanding of certain matters, but that there were additional obligations imposed on the Tribunal under s 424AA(b)(iii) and (iv) regarding the time within which the applicant should comment on or respond to the relevant information. The appellant submitted that there was no equivalent provision in s 424A, which suggests that the obligation in s 424A(1)(b) can only be discharged by using a written document.

43    I disagree with these submissions. It is significant that the Tribunal’s obligation under s 424AA(b)(iv) to adjourn the review at the review applicant’s request is confined to circumstances where the applicant seeks additional time to comment on or respond to the relevant information, which is a reference back to s 424AA(b)(ii) and not to s 424AA(b)(i).

44    If there be any deficiency in the terms of the Tribunal’s letter insofar as the requirements of s 424A(1)(b) are concerned, I consider that it is appropriate also to take into account other relevant circumstances which indicate that the Tribunal did ensure, as far as was reasonably practicable, that the appellant understood why the two pieces of information were relevant to the review and the consequences of that information being relied on by the Tribunal in affirming the delegate’s decision. In particular, as noted above, there were several exchanges between the Tribunal and the appellant during the course of the Tribunal’s hearing in which the Tribunal raised its concerns regarding the letter dated 1 March 2012 and its inconsistency with other evidence. It is desirable to set out those exchanges (referred to at [12]-[13] above), which indicate that the appellant was on full notice that s 91R(3) might be engaged in these circumstances (noting that the appellant is referred to as “A(I)” and his migration agent as “Mr HUK”):

Q314    I do have some concerns about the evidence you’ve given today. A number of times the evidence appeared to change or, and/or appeared to be inconsistent with evidence you’d previously given in writing in the Departmental interview. Some of the documentation you provided doesn’t appear to support your claims. For example in relation to the documents provided for your visitor visa application.

INTERPRETER

    Which letter are you talking about?

MR HUK

    Visitor visa.

TRIBUNAL MEMBER

Q315    Visitor visa. I also have some concerns about the evidence you’ve given about your practice of Christianity in Australia, and some, some aspects of your claim in your evidence, I have concerns about the plausibility. I need to consider how significant all those concerns are, but because I do have some concerns about your overall credibility I need to consider why you have undertaken activities in Australia because under Australian Migration Law there’s a provision which says that if you undertake activities in Australia solely for the purpose of strengthening your protection visa application, I am required to disregard those activities. So I need to consider why I think you attended church in Australia and whether it was solely to strengthen your protection visa application. And if I do consider that that was the case then I will be required to disregard it in assessing your claims about whether or not you’re a refugee. So why would it be wrong to think that you’d only attended church in Australia for your protection visa application? Why would it be wrong to think that you had only attended---

INTERPRETER

    O.K.

A(I)    I believe from my, you know, did everything under the dictation of my heart. My statement may be a little bit inconsistent because after I had the heart operation, in my country I had everything, now I lost everything, due to excessive stress my brain does not work, my heart problem is there, but what I did, I did, I did it for my, as my heart dictated me to, I did not do it for the purpose of staying in Australia. If you have any doubt about whether I attend or not you can discuss with my priest. After my problem with the heart my memory does not work properly. There may be some inconsistencies in my witness.

45    Furthermore, it is apparent from the detailed written response prepared by the appellant’s migration agent to the Tribunal’s letter dated 16 September 2013 that the appellant was fully aware that his conduct in Australia was a relevant issue (errors in original):

Finally, the applicant insists that he has genuinely respected Christianity and finally converted himself to Christianity and the applicant also acknowledged clearly that there were inconsistencies in his evidences during his interview with the departmental delegate as well as to the Tribunal. However, the applicant is in mouthful appreciation as to the way the Tribunal compassionately conducted his almost 5 hours of hearing acknowledging that it was his shortcomings and lacking that he couldn’t unfortunately provide detailed and elaborate explanations of his circumstances, events and incidents while providing evidences time to time and humbly requested the Tribunal to recognise his inability of his explanation.

Besides, the applicant insists that he has truly converted to Christianity and baptized himself with Hillsong Church in Sydney and attending the Church regularly and also furnished all relevant documentations including letters from his church and teacher and pasture referring to contact and verify the authenticity of his claim and waiting lo see a fair assessment and judgment of his claim so that he does not have to return back to Bangladesh where his life would be in extreme danger and he is constantly fearful to return and also the applicant is constantly concerned for his present health condition.

46    These matters leave no doubt that the appellant fully appreciated that the Tribunal would take into account his conduct in Australia and determine whether it should be disregarded having regard to s 91R(3).

47    I do not accept the appellant’s contention that the Tribunal’s letter was legally deficient because it did not explicitly notify him that the two pieces of information also had implications for the possible application for s 91R(3). First, for reasons given above, it is also relevant to take into account what the appellant was told at the Tribunal hearing. The Tribunal went to some length to notify the appellant orally that it needed to consider whether the appellant’s activities in Australia were solely for the purpose of strengthening his application, in which case those activities would have to be disregarded. Secondly, and in any event, the appellant’s contention sits uncomfortably with binding authority which is to the effect that that s 424A does not oblige the Tribunal to give advance written notice “not merely of its reasons but of each step in its prospective reasoning process” (SZBYR at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 at [21]-[25]).

(b) The notice of contention

48    As noted above, the FCCA rejected the Minister’s argument that the Tribunal was not obliged by s 424A to send its letter of 16 September 2013 because the two pieces of information about which the appellant complained did not constitute “information” which was caught by s 424A(1) of the Act. It is strictly unnecessary to resolve this matter having regard to the rejection of the appeal. For completeness, however, and in the event that it is determined that the appeal should have been allowed, I make the following observations on the notice of contention.

49    It is evident from [18] of the FCCA’s reasons for judgment that its rejection of the Minister’s position was based on the fact that the Tribunal had sent its letter of 16 September 2013. The FCCA seemed to assume that the Tribunal’s conduct in sending the letter, based on the apparent belief by the Tribunal that it was required to be sent under s 424A(1), was determinative that the relevant material constituted “information”. If his Honour intended to suggest that the Tribunal’s view as to whether information had to be provided pursuant to s 424A(1) was decisive, I respectfully disagree. That approach is inconsistent with the Full Court’s recent decision in SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 at [50] per Perram, Jagot and Griffiths JJ. It is also inconsistent with a similar view expressed earlier by Moore J in SZMDS v Minister for Immigration and Citizenship [2009] FCA 210 at [14].

50    SZBYR establishes the following relevant principles concerning s 424A:

(a)    the Tribunal does not operate in a statutory vacuum; its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act (although the High Court referred in [17] to the appropriate criterion in that case being s 36(1) of the Act – being the provision under which the appellants in that case sought their Protection Visa – the relevant criteria were actually to be found in s 36(2) of the Act, as referred to earlier in SZBYR at [3]). Accordingly, the High Court stated that the reason or part of the reason for affirming the decision under review in that case was that the appellants were not persons to whom Australia owed protection obligations under the Convention. Accordingly, at [17] the plurality commented on the difficulty of seeing how relevant passages in the appellants’ statutory declaration would itself be “information” for the purposes of s 424A(1)(a) because those passages did not contain in their terms:

… a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review;

(b)    if in fact the reason why the Tribunal affirmed the decision under review in that case 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). At [18], the plurality approved the view expressed by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at [24], that the word “information”:

… does not encompass the tribunal’s subjective appraisals, thought processes or determinations… nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc…;

(c)    however broadly “information” is defined (at [18]):

… its meaning in this context is related to the existence of evidentiary materials or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself….; and

(d)    the effect of s 424A is not “to create a back-door route to a merits review in the federal courts of credibility findings made by the Tribunal” (at [21]).

51    The application of those principles must, of course, take into account the circumstances of any particular case. However, their application to the circumstances here must mean that the notice of contention should be upheld.

52    Neither of the two relevant pieces of information constituted “information” for the purposes of s 424A(1). Neither Mr X’s letter nor the appellant’s evidence in relation to it given to the delegate comprised a rejection, denial or undermining of the appellant’s claim to be a person to whom Australia owed protection obligations. The relevant information was not, of itself, of “dispositive relevance” to the appellant’s claims for protection, nor did that information, by itself, undermine his claims. Rather, the information, when viewed against other statements made by the appellant, cast doubt on the appellant’s credibility. I accept the Minister’s submission that information merely going to credibility does not fall within s 424A. As Heerey J observed in MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483 at [29]:

It can also be noted that the section speaks of information that “would” be the reason etc, not “could” or “might”. This is another indication that information merely going to credibility is not within the section. An applicant may be disbelieved on some issues, but believed on others, or the application may be determined one way or the other by issues unrelated to credibility. Lack of credibility in itself does not necessarily involve rejection, denial or undermining of an applicant's claims.

53    The relevant two pieces of information became material only because the Tribunal relied upon them in finding inconsistencies in the appellant’s evidence, which lead to the conclusion that he was not a truthful witness. I accept the Minister’s submission that it was these inconsistencies (or the process of comparison between the appellant’s evidence and the factual statements with which the evidence was compared) that counted against him, however, neither inconsistency nor such a comparative process constitutes “information” for the purposes of s 424A(1) (see SZBYR at [18] and SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; (2009) 179 FCR 109 at [104] per Buchanan J, with whom Perram J agreed).

54    For these reasons, if the appeal had been allowed I would also have upheld the Minister’s notice of contention.

Conclusion

55    The appeal should be dismissed and the appellant ordered to pay the Minister’s costs.

Associate:

Dated:    25 May 2015