Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Outcome: applied
In response, the respondent submitted in summary: &#8226; the statements of the Tribunal with respect to the ability of the appellant to leave Nepal with her passport was not "information" within the meaning of s 424A(1) , but rather the subjective appraisals, thought processes or determinations of the Tribunal: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476, SZBYR 235 ALR at 616 &#8226; if these statements, including with respect to the ability of the appellant to go to India, were "information", it was information within s 424A(3)(a) &#8226; even if the statements were "information" within the meaning of s 424A(1) the Tribunal did not act in breach of the section in that it brought to the appellant's attention the fact that she could have left Nepal when she received her passport. Did the Tribunal rely on "information" within the meaning of section 424A(1)? 28 The term "information" within s 424A(1) was considered by the Full Court in VAF 206 ALR at 476 and defined by Finn and Stone JJ in that case to refer to: "...knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3] , irrespective of whether it is reliable or has a sound factual basis: Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at [19] [22]." 30 It is not in dispute that "information" for the purposes of s 424A(1) does not include "subjective appraisals, thought processes or determinations" of the Tribunal: SZBYR 235 ALR 609. "Subjective appraisals, thought processes or determinations" include for example: &#8226; the Tribunal's disbelief of an applicant's evidence arising from inconsistencies in the applicant's evidence ( SZBYR 235 ALR at 616, Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 , VAF 206 ALR at 476, WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276) &#8226; a determination by the Tribunal that the applicant's account is or may not be credible ( Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 , Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 428) &#8226; a determination of the Tribunal that the information provided by the applicant in the original application lacks specificity and detail: VAAM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 120 &#8226; a view taken by the Tribunal as to the unsatisfactory nature of answers provided by an applicant: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328. 31 The statements of the Tribunal in this case with respect to the ability of the appellant to leave Nepal and go to another country such as India without a visa appear to refer to "information" upon which the Tribunal was relying, rather than constituting "subjective appraisals, thought processes or determinations." The Tribunal was relying on what it understood to be a fact - namely that it was legally possible for the appellant to have left Nepal once she obtained her passport, and, irrespective of having a visa, gone immediately to another country such as India. In my view this was clearly "knowledge of relevant facts or circumstances" as explained by the Full Court in VAF 206 ALR 471, not a view taken by the Tribunal based on facts. The conclusion which was reached by the Tribunal, based on what it understood to be the fact that the appellant was entitled to leave Nepal and, without needing a visa, go to India, was that because the appellant had not done so she did not have a well-founded fear of serious harm from the Maoists or from any other source. 32 Accordingly, the Tribunal was relying on "information" for the purposes of s 424A(1). Did the information upon which the Tribunal relied fall within the exception in section 424A(3)(a)? 33 The first respondent submitted that, if the findings of the Tribunal were based on "information", it was information falling within s 424A(3)(b) in that it was information not specifically about the applicant or another person, but was about a class of persons of which the applicant or other person was a member.