FEDERAL COURT OF AUSTRALIA

BVE16 v Minister for Immigration and Border Protection [2018] FCA 922

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

GLEESON J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”) dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) made on 24 June 2016. The Tribunal’s decision in turn affirmed the decision of a delegate of the first respondent (“Minister”) not to grant the applicant a protection visa: BVE16 v Minister for Immigration & Anor [2017] FCCA 1094.

2    In summary, the appellant contends that the FCCA judge erred in failing to find that the Tribunal did not comply with the procedural requirements of ss 424A and 425A of the Migration Act 1958 (Cth) (“Act”).

3    Section 424A provides relevantly:

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

…

4    Section 425A provides relevantly:

Notice of invitation to appear

(1)    If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

(2)    The notice must be given to the applicant:

(a)     … by one of the methods specified in section 441A; or

…

(3)    The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

(4)    The notice must contain a statement of the effect of section 426A.

Background facts

5    The appellant is a Sri Lankan national, who was born in Jaffna in the country’s Northern Province. She is Hindu by religion and Tamil in ethnicity.

6    The appellant originally arrived in Australia on a tourist visa and applied for a protection visa on or about 13 December 2013. In written submissions filed on her behalf, the appellant identified the following key matters in the statement of claims accompanying the protection visa application:

4.    Accompanying the appellant’s visa application was a statement by the appellant dated 11 December 2013, in which she claimed that her family had originally owned properties, including farms and paddy fields, in the Jaffna and Kilinochchi districts of the Northern Province of Sri Lanka, which she would manage, and that her husband had a job in Colombo and would visit her on weekends. However, after the Indian Peace Keeping Force left Jaffna in 1990, she sent her children to live with their father in Colombo and then, after the Sri Lankan Army attacked Jaffna, went to join them. The appellant lived with her family in the Colombo suburb of Dehiwala-Mount Lavinia and ran a CD business in Wellawatte.

5.    After the signing of the peace accord, the appellant was able to return to Jaffna and Kilinochchi; however on return she found that the Liberation Tigers of Tamil Eelam (LTTE) had taken occupation of her land, taken her produce and demanded money from her.

6.    The statement continues that, after the peace accord collapsed, the Sri Lankan authorities once again started to arrest and persecute Tamils. In Colombo, the paramilitary Eelam People’s Democratic Party (EPDP) and Tamil Makkai Viduthalai Pulikal worked with the Sri Lankan authorities and in December 2007 the appellant was arrested and detained in Wellawatte police station for two months on suspicion of being an LTTE accomplice. The appellant had to pay 20 lakh rupees to her captors before they would release her.

7.    Around 2010, the appellant went to be with one of her daughters in the Netherlands who was having an operation and passed away whilst she was there. On return to Sri Lanka, she was detained and arrested at the airport and handed over to the police. She was questioned, searched and accused of bringing Tamil propaganda material into Sri Lanka. She was only released when her husband managed to speak to the government minister Douglas Devananda and agreed to payment 60 lakh rupees.

8.    By January 2013, the appellant’s husband had died and, other than one of her remaining daughters, all of her immediately family had emigrated from Sri Lanka. The appellant was contacted by Douglas Devananda, who said that her late husband had promised to sell their house in Dehiwala and business premises in Wellawatte in exchange for her release. He said that the appellant had been found to have provided assistance to the LTTE, including harbouring LTTE cadres in her Wellawatte property and distributing propaganda material; and the appellant said that she would sell her business and hand over her properties upon the upcoming marriage of her last daughter.

9.    The statement concludes with the appellant saying that she contacted her children, who were now living abroad, and used her youngest daughter’s wedding as an opportunity to flee Sri Lanka permanently for Australia. As soon as she obtained her visa to Australia, she left Sri Lanka immediately, leaving her properties, before she could be falsely charged and imprisoned.

7    The appellant’s application for a protection visa was refused by letter dated 22 September 2014. As the appellant’s submissions summarised this decision, the delegate, in broad terms, made adverse findings as to the appellant’s general credibility and did not accept the veracity of her claims of past mistreatment because she had been able to travel overseas without incident, had remained in Sri Lanka until 2013, and was not of a profile that would be “considered LTTE”.

8    On about 17 October 2014, the appellant applied to the Refugee Review Tribunal for merits review of the delegate’s decision.

Tribunal hearing

9    By letter dated 13 January 2016, the appellant was invited to attend a hearing before what was by then the Administrative Appeals Tribunal (“Tribunal”), which she accepted. There is no suggestion that the Tribunal did not comply with s 425A in giving the appellant this invitation to appear before the Tribunal.

10    On 24 February 2016 the appellant appeared before the Tribunal and gave evidence with the assistance of an interpreter in the Tamil and English languages. Towards the end of the hearing, the Tribunal proposed to call the appellant’s two daughters in Australia to give evidence by telephone, however they were both unavailable.

11    After an adjournment to wait for the arrival of one of the appellant’s daughters, the hearing resumed at 12.54 pm. The Tribunal member stated her understanding that the appellant “was going to wait for [her] daughter and if she comes in the next few minuted [she] will bring her upstairs”. Through the interpreter, the appellant replied “Yes”. After some more discussion, the transcript records the following interactions:

Tribunal Member:     Ok. Alright well what will happen is I wait here until quarter past one and the interpreter will wait until quarter past one. If she isn’t here by then, we will finish the hearing. So thank you very much for coming and speaking with me today. I hope I see you in the next 15 minutes but if I don’t, thank you for coming today.

Interpreter:         And in 15 minutes what are we going to do?

Tribunal Member:    In 15 minutes I will formally close the hearing and then you can put your timesheet in until then.

Interpreter:    Ok but she has a problem pressing the lift button.

Tribunal Member:    If her daughter arrives she will bring her up. If her daughter doesn’t arrive we will just forget…if her daughter arrives in the next 15 minutes she brings her up but if she doesn’t then we finish.

Interpreter:    So that means we say if we can’t make it within the 15 minutes then forget about it?

Tribunal Member:    Yes. Just forget about it.

Interpreter:    You won’t be giving her the decision now, is it?

Tribunal Member:    No, no, no, I cannot give the decision now anyway I have to….

Interpreter:    I mean I just wanted to give a reply if I could.

Tribunal Member:    I still have to think about everything that you have told me. So I will not be giving you a decision today anyway. Ok in any event when I make my decision I will write to you and will send you a written copy with all the reasons for my decision and the Department of Immigration will get the decision at the same time. So please come back if your daughter arrives in the next say 10 minutes. And I will just come out and tell you it’s formally finished if she doesn’t come back. Ok thank you.

Interpreter:    Thank you.

Tribunal member:     The hearing is adjourned again at 1:01pm.

End of recording

12    There is no transcript evidence of what happened after 1:01 pm.

13    However, there is no dispute that no further hearing date was set that day.

23 May 2016 letter

14    By letter dated 23 May 2016, the Tribunal wrote to the appellant. The letter is entitled “Resumption of adjourned hearing”. The letter asserts that “[o]n 9 February 2012 we adjourned the hearing in relation to your application for review”. This date is incorrect: the Tribunal’s earlier hearing was held on 26 February 2016. Counsel for the appellant, Mr Chia, also disputes that the earlier hearing had been adjourned.

15    The letter states that “[t]he resumption of the hearing will take place as follows” and sets out a date, time and location and a notation signifying that a Tamil (Sri Lankan) interpreter would be in attendance.

16    The letter stated relevantly:

We may wish to take evidence from Mrs Sivanthini Skandarooban and Ms Sabesan Sumathy. Please arrange for Mrs Sivanthini Skandarooban to attend the hearing in person, and include in your response a telephone number (preferably landline) on which we can contact Ms Sabesan Sumathy during the hearing.

17    The letter requested that the appellant “read and complete the enclosed “Response to resumption of adjourned hearing notice – MR Division” form to confirm [her] attendance at the hearing”.

18    On 30 May 2016, the Tribunal received the completed “Response to resumption of adjourned hearing notice – MR Division” form. The form was signed by the appellant and dated 28 May 2016.

19    The Tribunal conducted a further hearing on 1 June 2016. The appellant’s written submissions noted that the appellant appeared at the hearing and her two Australian daughters gave evidence, the older daughter attending in person and the younger giving evidence by telephone. The appellant’s written submissions referred to the following matters concerning the 1 June 2016 hearing:

…the two daughters said that they had moved to Colombo in 1990 and the appellant had stayed in Jaffna until 1995 before moving to Colombo until 2002 (daughters’ evidence). At the 1 June 2016 hearing, the Tribunal member showed the appellant a Google Maps photo of her house in Dehiwala. The Tribunal member asked the appellant several questions by reference to the photo.

20    On 27 June 2016, the Tribunal decided to affirm the decision to refuse to grant the appellant a protection visa. The appellant’s written submissions contained the following observations concerning the Tribunal’s decision:

14.    … The Tribunal purported to summarise the appellant’s claims and evidence to the Tribunal as well as the evidence give[n] by the daughters. It also said that it had put to the appellant inconsistencies between her own evidence and that of her daughters pursuant to section 424AA, including that she had said at the Tribunal hearing and interview with the delegate that she had remained in Jaffna until 2006, whereas her daughters said that she remained in Jaffna until 1995 then moved to Colombo in 2002.

15.    The Tribunal held that the appellant’s claims lacked credibility. It accepted that the appellant had been subjected to extortion by the LTTE and that the LTTE had used her land and farm products. The Tribunal also accepted that the appellant had been prevented from selling her properties in 2009. However the Tribunal found that the appellant had been able to obtain a passport to depart and re-enter Sri Lanka in 2004, extend the validity of her passport in 2008 and obtain a visa to leave Sri Lanka in 2010 without difficulty and was therefore up until then of no adverse interest to the Sri Lankan authorities. The Tribunal also found, in light of her previous travel and her husband’s connections to high profile politicians, that her claim to have been detained in 2010 and it took 2 months for her to be released, to be unpersuasive and lack credibility.

16.    As for the appellant’s claims in relation to Douglas Devananda and the EPDP, the Tribunal did not accept that she had left her house locked up with the title deeds inside, reasoning that the Google Maps photo of her Dehiwala home indicated that the house was lived in with the windows open. It held that her evidence in relation to extortion threats lacked credibility given the inconsistencies between her own evidence and that of her daughters and the fact that her evidence appeared to have been increasingly embellished over time.

FCCA proceeding

21    By her further amended application for review, the appellant contended that the Tribunal had failed to comply with s 424A in respect of her daughters’ evidence and the Google Maps photo (discussion of which is extracted at [19] and [20] above) and failed in its 23 May 2016 letter to give the appellant valid notice of invitation to appear under s 425A.

22    The appellant’s written submissions summarised the FCCA judge’s reasons as follows:

On 24 May 2017, Judge Street dismissed the appellant's Further Amended Application and gave ex tempore reasons for judgment. His Honour held at [39] that the daughters evidence was information used to evaluate the credibility of the appellant and was therefore not information the Tribunal considered would be part of the reason. His Honour held at [40) that the Google Maps photo did not contain a "rejection, denial or undermining" of the appellant's claims and therefore was not itself, or did not contain, information enlivening an obligation under section 424A. And in respect of the third ground his Honour's found that the Tribunal had adjourned the hearing on 24 February 2016… that the exercise of the power under section 427 to adjourn was not “unreasonable”, and that requirements of section 425A did not apply to the 23 May 2016 letter by reason of the decision of the Federal Court.

Grounds of appeal

23    The appellant’s notice of appeal raises the following five grounds of appeal

1.    His Honour erred in finding that the following were not “information” for the purposes of s 424A of the Migration Act 1958 (Cth):

(a)    The oral evidence of the appellant’s daughters [to the Tribunal]; and

(b)    The “photo of her house taken on Google maps”.

2.    His Honour ought to have found that the Tribunal was required but failed to give the appellant clear particulars of the oral evidence of the appellant’s daughters and invite comment and response in accordance with s 424A.

3.    His Honour ought to have found that the Tribunal was required but failed to give the appellant clear particulars of the photo of the appellant’s house taken on Google maps and invite comment and response in accordance with s 424A.

4.    His Honour erred in finding that the Tribunal was not required in its letter dated 23 May 2016 to comply with the requirements of s 425A of the Act.

5.    His Honour ought to have found that the Tribunal was required but failed in its letter dated 23 May 2016 to meet the mandatory requirements of s 425A(3) and (4) of the Act.

24    The Minister contended that the FCCA judge correctly found that the matters identified by the appellant were not “information” within the meaning of s 424A and, therefore, the Tribunal was under no obligation to comply with s 424A.

Grounds 1 to 3: failure to comply with s 424A

Legal framework

25    Section 424A(1) sets out a requirement that the Tribunal give a review applicant clear particulars of “information” it considers would be the reason or part of the reason for affirming the decision that is under review and, amongst other things, invite comment and response. By s 441A, the invitation must be in writing. Failure to comply with subs 424A(1) has been found to constitute jurisdictional error: SAAP v Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at [77] per McHugh J, at [173] per Kirby J, and at [208] per Hayne J. In SAAP, the Tribunal identified three incidents that the first appellant relied upon to support her claim that Sabian-Mandeans were subject to harassment and discrimination in Iran. The Tribunal took evidence from the first appellant’s daughter concerning the three incidents. At [37], McHugh J noted that the Tribunal relied on the information obtained from the evidence given by the eldest daughter at the hearing as a reason to affirm the decision under review.

Cases rejecting information relevant only to credibility as information for the purposes of s 424A

26    The Minister submitted that “information” is only material that contains “in [its] terms a rejection, denial or undermining” of the appellant’s claims to be a refugee: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17]. In SZBYR, the plurality rejected a submission that that the appellants’ prior statutory declaration, which the Tribunal found to contain inconsistencies with other aspects of the appellants’ evidence, was or contained information for the purposes of s 424A(1). At [17] and [18], the plurality said (emphasis added):

…the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration 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.

…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 par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs 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.

If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. 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. 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.

27    In MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483 at [27], Heerey J explained SZBYR as follows:

SZBYR, and in particular [17] of the majority judgment, essentially says that a court must assess the “information” in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal. For example, let it be assumed an applicant claimed fear of persecution in a country because he was a Christian, and the Tribunal has a written statement from X that the applicant said to him he never was a Christian and had invented the claim in order to get a visa. If true, X’s statement, being “evidentiary material or documentation”, would be a reason for the Tribunal’s affirming the refusal of a visa. It would “undermine” his claims to have well-founded fear of persecution by reason of religion. By contrast, a statement by Y that the applicant had worked in Australia under a false name would at best only go to the applicant’s credibility. If the Tribunal in either of these hypothetical instances had not given a s 424A notice the reviewing court would have to characterise the statements of X and Y and determine whether or not they attracted the s 424A obligation as at the time they came to the Tribunal’s attention. This assessment would not depend on the use the Tribunal subsequently made of the statements in its reasons.

28    At [29], Heerey J also said:

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.

29    SZBYR was followed by the High Court in Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 at [22] and [23]. At [24] and [25], the Court then continued:

As a Full Court of the Federal Court of Australia (Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration and Citizenship, s 424A depends on the RRT's “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had “considered” or had any opinion about the file note.

As observed equally correctly by Heerey J in MZXBQ v Minister for Immigration and Citizenship, s 424A speaks of information which “would”, not which “could” or ”might”, be the reason or part of the reason for affirming the decision under review.

30    Thus, at [25], the High Court endorsed the reasoning of Heerey J in the first sentence of [29] in MZXBQ, and did not cast any doubt upon his reasoning in the remainder of that paragraph.

31    In SZMDS v Minister for Immigration and Citizenship [2009] FCA 210; (2009) 107 ALD 361 Moore J followed MZXBQ. His Honour found at [14] that a passport, which indicated that the appellant had previously travelled to a number of countries before returning to Pakistan and the Australian visitor visa, was not in itself of “dispositive relevance to the Convention claims advanced by the applicant”, and nor could such information be said to undermine the applicant’s claim of having a well-founded fear of persecution. Moore J concluded that the information was neutral in character, merely evidencing the fact that, firstly, the applicant had previously travelled to a number of countries before returning to Pakistan and, secondly, that the applicant had been granted an Australian visitor visa.

32    In SZTNL v Minister for Immigration and Border Protection [2015] FCA 463; (2015) 231 FCR 204, Griffiths J applied SZBYR to conclude that neither a letter nor the appellant’s evidence in relation to that letter given to the Minister’s delegate in support of his application for a protection visa was information within the meaning of s 424A(1). Particularly, at [52] and [53], Griffiths J said:

[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).

33    MZXBQ was also followed by Yates J in Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052; (2015) 149 ALD 552 at [31]. His Honour found that information about the first respondent’s travel arrangements and travel to Australia and her living arrangements in Australia was not “not information which contains a rejection, denial or undermining of the first respondent’s claims to protection… Put another way, the information was not of “dispositive relevance” to the Convention claims advanced by the first respondent”. Rather, Yates J accepted that the information was “mere inconsistency” or “evidence that [came] to be relied upon to find inconsistency”.

34    In SZUXO v Minister for Immigration and Citizenship [2016] FCA 1399 at [33], Katzmann J cited MZXBQ and SZTNL for the proposition that information merely going to credibility is not caught by s 424A. At [35], her Honour noted that the question whether material is in fact “information” of the kind affected by s 424A is not answered by what the Tribunal did. This reasoning is consistent with the observation of the Full Court in SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90 at [53] that the fact that the Tribunal apparently believed s 424A(1) to apply to the information is immaterial if, in fact, the information was exempted from the operation of that provision. See also SZTNL at [49] and Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052; (2015) 149 ALD 552 at [32].

Cases supporting information relevant only to credibility as information for the purposes of s 424A

35    The appellant pointed to the following six cases where, it was contended, the Federal Court had accepted that the Tribunal was required to comply with s 424A(1) in relation to information relevant only to credibility. If correct, those cases would appear to depart from the line of authority set out above.

36    In SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405, Buchanan J found that information about growing vegetables in Australian home gardens used to evaluate the appellant’s evidence concerning commercial potato growing practices in China, whose only use was to impeach the credibility of the appellant, was information within the meaning of s 424A. However, the decision does not refer to SZBYR or MZXBQ.

37    In MZYHF v Minister for Immigration and Citizenship [2010] FCA 1250; (2010) 118 ALD 534, Bromberg J found that the Tribunal had complied with s 424A by a letter giving the appellant fair notice of critical matters of concern. His Honour did not address the question whether the information in the letter was information for the purposes of s 424A.

38    In SZNKO v Minister for Immigration and Citizenship [2010] FCA 297; (2010) 184 FCR 505, Flick J held (at [19]) that details of the author of a letter submitted in another case, which was said to be almost identical to a letter submitted by the appellant in support of his claim that he was a Christian, was information within the meaning of s 424A. At [20], his Honour noted that “[t]he similarity in the two letters was, at the very least, part of the basis upon which the Tribunal Member expressed the concern that they may have been “made to order””. Earlier, at [7], Flick J referred to SZBYR at [16], [18] and [19] (but not [17]). His Honour did not refer to MZXBQ. At [14], his Honour noted that the Tribunal’s concern as to the reliability of the letter submitted by the appellant “only fuelled the reservations that the Tribunal Member had formed about the appellant’s credibility”.

39    I am not persuaded that SZNKO illustrates an acceptance that the Tribunal was required to comply with s 424A(1) in relation to information relevant only to credibility. Flick J did not explain the basis for his conclusion that the relevant information was information for the purposes of s 424A(1). However, the information appears to have been material which undermined the appellant’s claim that he was a Christian because it may have suggested that the letter put forward by the appellant in support of that claim was fraudulent. In other words, it was not information going only to credibility: cf SZTNL at [52]. This is how Markovic J interpreted Flick J’s reasoning when considering SZNKO in SZVCB v Minister for Immigration and Border Protection [2017] FCA 479 at [28].

40    In SZMYO v Minister for Immigration and Citizenship [2011] FCA 506; (2011) 121 ALD 272, Gilmour J was concerned with a different question, namely whether the Tribunal ought to have obtained an audio recording of an interview that was requested by the appellant in response to a s 424A letter, to enable the appellant to have a meaningful opportunity to comment or respond to the s 424A letter. His Honour did not address the question whether any information was information for the purposes of s 424A.

41    In Sandhu v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 842, Cowdroy J considered an appeal concerning a decision to cancel a student visa, following the revelation of fraudulent conduct by a migration agent. The appellant had relied on SZNKO and SZLIQ. At [30], Cowdroy J distinguished those two cases on the basis that there was no issue before him as to the credibility or relevance of the sources of the information that was a reason or part of a reason for possible cancellation of the visa. At [31], his Honour rejected a submission that the opportunity afforded to the appellant to comment on or respond to the information was not meaningful. This case does not involve an acceptance that information relevant only to credibility is information for the purposes of s 424A.

42    In SZVCB at [26], Markovic J found that an “agent’s letter” and a “bank document” were information for the purposes of s 424A(1), rejecting the Minister’s submission that there was nothing in that material which itself constituted a rejection, denial or undermining of the appellant’s claims. At [27], her Honour concluded that the content of the two documents was information for the purposes of s 424A(1) “because it formed part of the basis upon which the Tribunal was concerned about the veracity of the appellant’s claims and, ultimately, her credibility”. Hence, as was the case in SZNKO, the information in SZVCB did not go only to credibility: cf SZTNL at [52]. At [29], her Honour thus held:

In the Appellant’s case the contents of the Agent’s Letter and the Bank Document was evidentiary material which undermined the Appellant’s claim to fear harm from debt collectors. It was the existence of that material which exposed the inconsistencies in her evidence and was a basis upon which the Tribunal was concerned about the veracity of her claims, which in turn led to the Tribunal’s credibility finding.

43    As such, in my view, only SZLIQ is a clear case where information relevant only to credibility was found to be information for the purposes of s 424A(1). However, in that case, it does not appear that the Court was referred to SZBYR or MZXBQ. Moreover, in my view, the information in SZNKO and SZVCB was information of a dual character: while going to general credibility, the information in those cases also undermined particular claims for protection and was therefore of “dispositive relevance”. Accordingly, in my view, those decisions are not inconsistent with MZXBO even though they do not expressly apply that decision.

44    It follows that I do not accept that there is a line of authority that I should follow to the effect that the Tribunal was required to comply with s 424A(1) in relation to information relevant only to credibility.

Daughters’ evidence

Appellant’s submissions

45    At the 1 June 2016 hearing, the Tribunal questioned two of the appellant’s daughters about the appellant’s living arrangements especially during the period 1995 to 2006.

46    The appellant submitted that the daughters’ evidence to the Tribunal was “information that the Tribunal [considered] would be the reason, or a part of the reason, for affirming the decision that is under review”.

47    As summarised in the appellant’s written submissions, the daughters’ evidence was that the appellant had been in Colombo rather than Jaffna for the twelve years prior to her arrest in December 2007. As the appellants’ submissions put it, if the daughters’ evidence was accepted, then the appellant could not have been in Jaffna (or the Vanni) giving farm produce and other support to the LTTE.

48    In her statement in support of her protection visa, the appellant herself had said that:

(1)    She fled Jaffna and went to Kilinochchi in 1995, before escaping and arriving in Colombo where she lived with her husband and children at Mount Lavenia.

(2)    In 2002, she travelled from Colombo to Kilinochchi and Jaffna “to renovate our house and to start doing farming with the help of refugees who needed jobs”.

(3)    She was harassed by the LTTE and “came forward to pay half the produce [of her farms] but refused to stay permanently in Kilinochchi”.

(4)    When she visited Vanni in around 2006 “to inspect our farms under the instructions of my siblings from abroad, [the appellant] found that the LTTE was continuing to do farming on [her] lands and refused to permit [her] to enter [her] lands”. The appellant completely gave up farming after this.

(5)    In December 2007, she was arrested and kept at the Wellawatte police station for interrogation on suspicion of being a LTTE accomplice.

49    However, at the Tribunal hearing, the appellant gave evidence that she only moved permanently to Colombo in 2006.

50    The appellant submitted that the daughters’ evidence was comparable to the evidence given by the daughter of the appellant in SAAP, which the High Court found attracted the obligation to give information and invitation under section 424A.

51    At [38]-[39], the FCCA accepted the Minister’s submission that SZLFX had established that it is relevant to look at the Tribunal’s actual reasoning to determine whether material was “information” of the kind specified in s 424A. His Honour concluded that the daughters’ evidence was used to evaluate the appellant’s credibility and, as such, was not information “that would itself be information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review”.

52    The appellant argued that, in contrast to SZLFX, there was evidence that the Tribunal considered the daughters’ evidence would be part of the reason for affirming the delegate’s decision in para 56 of the Tribunal’s decision record. In that paragraph, the Tribunal recorded that it put particular inconsistencies between the appellant’s evidence and that of her daughters to the applicant for her comment and or response “pursuant to s 424AA of the Act”.

53    On that basis, the appellant argued, the Tribunal must have considered during the hearing that the daughter’s evidence would be part of the reason for affirming the delegate’s decision.

Consideration

54    The appellant did not dispute that the daughters’ evidence was relevant only to an assessment of the appellant’s credibility.

55    As the Minister argued, the appellant claimed to fear harm because, relevantly, she feared being arrested, detained, tortured or killed on account of her imputed or suspected connections to the LTTE. In that context, the daughters’ evidence was not “in [its] terms a rejection, denial or undermining” of the appellant’s claims for protection, as required by SZBYR at [17]. The daughter’s evidence was about where the appellant had lived over the period 1995 to 2006. Using the language of Heerey J, and as the FCCA judge found at [41], the daughters’ evidence was not of “dispositive relevance” to the specific claims advanced before the Tribunal.

56    The daughters’ evidence may be contrasted with the evidence of the daughter in SAAP. In the latter case, the evidence concerned the facts surrounding the incidents relied upon by the first appellant to support her claims for protection. Thus, the daughter’s evidence in its terms directly undermined the protection claims (in addition to damaging the first appellant’s general credibility).

57    It follows, therefore, that the FCCA judge was correct to find, at [41] of his Honour’s reasons, that the appellant’s daughters’ evidence was not “information” for the purposes of s 424A of the Act. The Tribunal was thus not under any obligation in relation to that evidence pursuant to s 424A of the Act.

58    Accordingly, grounds 1(a) and (2) must fail.

Google Maps photo

59    At [40] of his Honour’s reasons, the FCCA judge correctly observed that the photo related to whether or not the appellant’s house had been vacant at the time the appellant had sought protection in Australia. His Honour concluded that the photo was “clearly on its face Information that did not contain a rejection, denial or undermining of the applicant’s claims”.

60    The appellant’s argument was based on her claim that, after receiving threats from Douglas Devananda, she had fled Sri Lanka, abandoning her properties. As the appellant put it, the Google Maps photo undermined her claims because it showed that her home in Dehiwala had been maintained and appeared to be occupied. It was “evidentiary material” that contained, in its terms, a “rejection, denial or undermining” of the appellant’s claims. The Google Maps photo was, in this way, comparable to the substantially identical letter in SZNKO or the gardening textbook which suggested that the appellant in SZLIQ had been untruthful about her farming experience in China.

61    On behalf of the appellant, it was submitted that the Tribunal recognised that the Google Maps photo was information that would be “part of the reason for affirming the decision under review” and, accordingly, purported to give clear particulars of information and invite the appellant to provide comment and response in accordance with s 424AA. However the Tribunal did not explain to the appellant the relevance of the Google Maps photo, did not explain the consequences of it being relied upon, and did not advise the appellant that she could seek further time to provide comment and response. The Tribunal could not then rely on s 424A(2A) and, as no written invitation was sent to the appellant, the Tribunal failed to comply with s 424A(1).

62    I do not accept these submissions for the reasons the follow, which are essentially the reasons that were identified on behalf of the Minister.

63    The appellant’s relevant claim was not that she had abandoned her properties in Sri Lanka. It was a claim to fear harm because, if she returned to Sri Lanka, Minister Devananda (or the EDPD or thugs) would extort money from her or might kill her (paras 34 and 36 of the Tribunal’s decision record). The Tribunal was not satisfied that there was a real chance the appellant would suffer harm for that reason because it was not satisfied that the appellant had been the subject of extortion or been threatened by thugs, paramilitary, or Minister Devananda, either since her detention in 2010 or since her husband died in 2013 (paras 113 to 115 of the Tribunal’s decision record). The Google Maps photo showed (in the Tribunal’s view) that her house was maintained and/or occupied (para 62 of the Tribunal’s decision record). Whether the appellant’s house was occupied or not was of no “dispositive relevance” to her claim to fear harm. The Google Maps photo was relevant only to the Tribunal’s assessment of the appellant’s credibility, it being inconsistent with her claim that the house had been left unoccupied after she departed Sri Lanka (paras 97 to 99 of the Tribunal’s decision record).

64    As the photo was relevant only to the Tribunal’s assessment of the appellant’s credibility, it was not “information” that the Tribunal could have considered would be the reason, or a part of the reason, for affirming the decision that is under review. Accordingly, the FCCA judge did not err in failing to find that the Tribunal was required to comply with s 424A in connection with the Google Maps photo.

65    I also note that I do not accept the appellant’s contention that the Tribunal was purporting to comply with s 424AA in asking the appellant questions about the Google Maps photo. Those questions were equally consistent with a more general purpose of testing the appellant’s credit.

66    Accordingly, grounds 1(b) and 3 must fail.

Grounds 4 and 5: Failure to comply with s 425A

67    The appellant contends that the FCCA judge erred in finding that the Tribunal was not required in its 23 May 2016 letter to comply with the requirements of s 425A of the Act, and this his Honour should have found that the Tribunal was required to meet the requirements of s 425A(3) and (4) but failed to do so.

68    The obligation to give notice under s 425A arises “[i]f the applicant is invited to appear before the Tribunal”. In this case, the appellant was invited to appear before the Tribunal by its letter dated 13 January 2016.

69    The question is whether the Tribunal gave the applicant a further invitation to appear before the Tribunal by the 23 May 2016 letter. The FCCA judge evidently did not construe the letter in that way, finding at [43] that, following the Tribunal’s first hearing, the Tribunal exercised its power under s 427 to adjourn the merits review hearing.

70    At [42], the FCCA judge referred to Minister for Immigration & Multicultural & Indigenous Affairs v SZFML [2006] FCAFC 152; (2006) 154 FCR 572 at [82]. In SZFML, the Full Court referred to the Tribunal’s power to adjourn a hearing from time to time, both under s 427 and pursuant to an implied incidental power to give practical effort to its obligation to provide a hearing. The Full Court said:

The power of the Tribunal to reschedule a hearing of which notice has been given is of the same character. Provided the notice of the rescheduling is reasonable there is no requirement, applicable to that procedure, for the application of the minimum prescribed period applicable to the notice required by s 425A.

71    At [83], the Full Court stated that the approach of Bennett J in SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 was correct. In that case, her Honour found that the Federal Magistrate was not in error in concluding that there was no prescribed time limit in relation to an adjourned hearing.

72    It was open to the FCCA judge to find that the Tribunal had exercised its power to adjourn the 24 February 2016 hearing, based on the evidence of that adjournment in the 23 May 2016 letter. While it is true that the transcript of the Tribunal’s 24 February 2016 hearing contains suggestions that the Tribunal member was not contemplating an adjournment of the hearing beyond that day, the transcript nevertheless concludes at 1:01 pm with the hearing being adjourned. The transcript does not require a finding that there was no adjournment of the 24 February 2016 hearing, contrary to the statements in the 23 May 2016 letter.

73    Once it is accepted that Tribunal had exercised its power to adjourn the 24 February 2016 hearing, grounds of appeal 4 and 5 must fail because the Tribunal was not required to comply with s 425A in relation to its notification to the appellant of the 1 June 2016 hearing, much as the FCCA judge implicitly found.

Conclusion

74    All grounds of appeal having failed, the appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    19 June 2018