Case: SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26
Outcome: followed
Section 424A(1) requires the Tribunal to provide " 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 ". It is a provision which imposes a mandatory requirement and a breach of that section constitutes jurisdictional error: SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 at [77] per McHugh J, at [173] per Kirby J, at [208] per Hayne J, [2005] HCA 24 ; 228 CLR 294 ; 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. 14 Even if the deficiencies in the Notice of Appeal be left to one side, a review of the terms of the 4 April 2007 letter and the terms of the decision of the reconstituted Tribunal does not reveal any relevant " information " which should have been brought to the Appellant's attention and which was not referred to in the letter. In particular, it should be noted that the term " information " in s 424A(1) does not extend to " the existence of doubts, inconsistencies or the absence of evidence ": SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [18] , [2007] FCA 26 ; 235 ALR 609 at 616. Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ there 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 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. This may have been what was envisaged by the Appellant. The grounds of the application as made to the Federal Magistrates Court similarly contended that there had been a failure to comply with s 424A and separately contended that the Tribunal had not informed " the applicant regarding the inconsistent evidence ". It may be that the Appellant sought to combine these contentions into the first Ground of Appeal . But that is speculation. Even if that was what was intended, there has been no failure to inform the Appellant of the inconsistencies relied upon and no failure to comply with s 424A.