Case: SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 , 235 ALR 609
Outcome: followed
When considering the decision of an administrative tribunal, including the Refugee Review Tribunal, considerable caution must be exercised in construing the findings and reasons set forth in that decision: Minister for Immigration &amp; Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. This approach has since been endorsed: SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [25] , [2007] FCA 26 ; 235 ALR 609 at 617 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration &amp; Citizenship [2007] FCAFC 189 at [36] , [2007] FCAFC 189 ; 99 ALD 1 at 9. 15 Section 424A(1)(a) of the Migration Act 1958 (Cth) provides as follows: 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; ... Compliance with this provision is mandatory: SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 , 215 ALR 162 ; SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [13] , [2007] FCA 26 ; 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. 18 At best, it is a contention that the Appellant was entitled to be informed of the findings as proposed to be made by the Tribunal and to be afforded a further opportunity to be heard. The Appellant was not entitled to any such further opportunity. Concurrence is expressed with the reliance by the Federal Magistrate upon SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [18] , [2007] FCA 26 ; 235 ALR 609 at 616 and his Honour's conclusion that such findings do not fall within s 424A(1)(a). In SZBYR , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ held: [18] ... if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). 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 [[2004] FCAFC 123 , 206 ALR 471 at 477] 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. See also: SZICU v Minister for Immigration &amp; Citizenship [2008] FCAFC 1 at [24] [25], 100 ALD 1 at 6 7 per Tamberlin, Finn and Besanko JJ; SZLBA v Minister for Immigration &amp; Citizenship [2008] FCA 484 at [23] [24] per Cowdroy J.