Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , 96 ALD 1
Outcome: applied
manner in which s 424A is to be construed and applied has been discussed in many other decisions of this Court (e.g. SZLPO v Minister for Immigration and Citizenship (No 2) [2009] FCAFC 60 , 108 ALD 303 ; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 , 150 FCR 214 ; SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 , 164 FCR 578) and by the High Court (e.g. SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 , 96 ALD 1). And in SZBYR , supra , although the correctness of the decision of the Full Court in SZEEU was assumed, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ concluded (references omitted): [17] ... 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 &#8212; and independently &#8212; 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. Reference was thereafter made, with approval, to the observations of the Full Court of this Court in VAF , supra . In SZMHD, supra , Jacobson J observed that the question as to whether s 424A(1) is engaged is to be determined in advance of and independently of the Tribunal's reasoning on the facts of the particular case: [2009] FCA 712 at [46] , citing SZBYR , supra , at [17] and [22]. In SZMNP v Minister for Immigration and Citizenship [2009] FCA 596 at [38] , Jacobson J referred to there being " some tension in the authorities as to what use, if any, can be made of the Tribunal's written reasons in determining whether s 424A(1)(a) was enlivened ". His Honour accepted that in light of the decision in SZBYR " the question is to be determined in advance of, and independently from, the Tribunal's reasoning ". And there is no requirement imposed upon the Tribunal to afford a party any opportunity to comment upon proposed findings that it may make: WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]. There is no such obligation imposed by the common law: Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314 , applying F Hoffman-La Roche &amp; Company AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Diplock LJ. Nor does " information " for the purposes of s 424A " encompass the Tribunal's subjective appraisals, thought processes or determinations ": SZEEU , supra , at [206]. In SZBYR , supra , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ observed (citations omitted): [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 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. See also Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [16] per Emmett, Kenny and Jacobson JJ; SZIWL v Minister for Immigration and Citizenship [2007] FCA 1260 at [20] to [21] per Siopis J.