Case: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609
Outcome: cited
The appellant's written submissions appeared to have accepted that a distinction was to be drawn, for the purposes of s 359A, between information considered by the Tribunal and the thought processes of the Tribunal which were founded on that information. Reference was made to VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 at [24] and SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [18] . Despite this acknowledgment the appellant contended: "... that inconsistencies cannot remain inconsistencies. It is to be brought within the scope of information and this can only be achieved if the Tribunal gives particulars of these inconsistencies and explains its relevance which may well differ from Tribunal member to Tribunal member." 43 The authorities referred to by the appellant do not support the proposition that the Tribunal is required to particularise any inconsistencies which it discerns when considering the evidence before it and to incorporate such particulars in any notice given under s 359A of the Act. In SZBYR the joint judgment (at [18]) said that: "... 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." (Emphasis added). The distinction between "information" and inconsistencies emerging from such information was referred to by Siopis J in SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260. His Honour said: "[20] I understood the appellant's submission to complain that he had not been given an opportunity to comment in writing upon what he regarded as findings of inconsistencies in his evidence, in the two respects identified; which he said was "information" to which s 424A(1) applied because it was the reason, or part of the reason, for the Tribunal affirming the decision under review. [21] In my view, the appellant's submission is not to be accepted. The reason why the Tribunal affirmed the decision was that it disbelieved the appellant's evidence because of the implausibility of that evidence, rather than as the appellant characterised it, the "inconsistencies" in his evidence. But whether the appellant's evidence was disbelieved due to its "implausibility" or "inconsistency" is naught to the point, because it is accepted that a finding that evidence is disbelieved on the grounds of implausibility or inconsistency as part of the subjective appraisal made by the Tribunal which does not comprise "information" for the purpose of s 424A(1) of the Act (VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 , SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR at 616, at [18])..." The appellant was unable to point to any decision which had held that it was necessary for inconsistencies to be particularised in notices given under s 359A or 424A of the Act.