Case: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609
Outcome: applied
His Honour noted that counsel for the appellant had nonetheless suggested that the use of the phrase "future conditional" in the High Court's decision in SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 required the Tribunal to give notice of this in the s 424A letter. The learned Magistrate said at [21]: The reality is of course that in its findings and reasons in other words those parts of the decision that operate as a springboard for s 424A to apply the Tribunal made no reference whatever to the bond issue. It referred to another of other matters which went to the applicant's credit, but not that one. The learned Magistrate then said that even if it were shown that the Tribunal had breached s 424A he would reject the application for constitutional writs on discretionary grounds. Findings made in relation to those matters in respect of its decision were "unimpeachable" so there would be no utility in returning the matter. 13 On the appeal counsel for the appellant argued: 1. SZBYR establishes that it is not the Tribunal's published reasons or its reasoning process which determines the applicability of s 424A. The learned magistrate erred in treating the absence of any mention of the $20,000 bond issue in the Tribunal's reasons as determinative; 2. The material about the bond was "information" within the meaning of s 424A. It was not a case of mere inconsistency or omission; 3. The information went directly to the issue whether the appellant was to be believed in all his claims; 4. The information would "undermine" the appellant's claims to be a person to whom Australia owed protection obligations because he was not to be believed in his claims. 15 To understand the arguments on the present appeal it is necessary to refer in some detail to what the majority of the High Court said in SZBYR . In that case the information said to have attracted s 424A were claims made in a statutory declaration in support of the appellant's visa application. The Tribunal had drawn the appellant's attention to discrepancies between his oral evidence and the written claims in the statutory declaration. The appellant's only explanation was that his memory was poor. 18 There have been three decisions of the Full Court since SZBYR which touch on the aspect of s 424A previously under discussion. In Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 the Full Court looked at the transcript of proceedings and reasons of the Tribunal in determining the applicability of s 424A: see [58], [64]-[68]. Their Honours at [70] referred to what was said in SZBYR at [18], that is to say on the meaning of "information" and whether it extends to doubts, inconsistencies or the absence of evidence, but not to [17]. 19 In SZKLG v Minister for Immigration and Citizenship [2007] FCAFC 198 the information in question was the fact that the appellant had made an earlier application for protection visa which was different from the claim the subject of the instant appeal. The Tribunal sent the appellant a s 424A letter. The appellant's only challenge to its adequacy was a claim that it should have been sent prior to the s 425 hearing. Their Honours at [34] found "no express statutory basis for imposing such a temporal requirement". The purpose of s 424A was to ensure that the overall decision-making process, of which the s 425 hearing is only part, is fair. Their Honours said at [34]: That this is so appears from SZBYR at [17] where the majority held that the s 424A process must occur in advance of, and independently of, the Tribunal's reasoning process, not prior to the s 425 hearing. The Full Court had earlier at [33] said that "considers" in s 424A(1)(a) bears the meaning "be of the opinion that". Their Honours said: Clearly, it is that meaning which is intended in s 424A. The obligation to proceed pursuant to s 424A arises only if the Tribunal forms the opinion that particular information would be the reason, or part of the reason, for affirming the relevant decision. The conditional nature of the obligation reflects the fact that the Tribunal must consider the question in advance of its decision, considering the information upon which it would act, should it decide to affirm the relevant decision. Although the appellant asserts that the Tribunal formed the requisite opinion prior to the s 425 hearing, we see no evidence to that effect. It may have done so, but it may also have proceeded on the basis that the importance of the information could only be assessed after the appellant had given evidence. It is also possible that prior to the hearing, the Tribunal had not fully appreciated the potential significance of the information. It is not apparent that the Tribunal took the course contended for by the appellant . 20 In SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 the Full Court quoted [17] and [18] from SZBYR and stated at [25]: It is not necessary for present purposes to enter upon the question as to how far, in light of the above observation, a court can or should enter upon a consideration of the Tribunal's actual reasons for affirming the decision under review, when determining whether in a given instance a s 424A obligation to give information prior to the making of that decision had arisen. 25 In SZBYR at [22] the majority rejected the concept of "unbundling". The expression appears in the judgment of Allsop J in Paul at [99] and later in SZEEU at [208] where his Honour said: Whether or not information is the reason or part of the reason for affirming the decision was discussed in Paul at [99]-[100], [107]-[108] and [116] and by VAF at [29]-[41]. The approaches taken by the respective majorities in VAF and Paul were very similar. The majority in VAF did not disapprove of Paul and to a degree built upon the reasoning in it. Aspects common to the approaches in both Paul and VAF were as follows: (a) To identify the reason or part of the reason for the affirmation of the decision requires some "unbundling" of the reason for the affirmation of the decision which is ultimately the relevant lack of satisfaction of the existence of protection obligations. (b) In circumstances where (as is usually the case) the complaint is in the context of a decision of the tribunal that has been made supported by a set of reasons generally this is to be undertaken by reference to the reasons of the tribunal in the context in which one finds them. 27 SZBYR , and in particular [17] of the majority judgment, essentially says that a court must assess the "information" in question in terms of its dispositive relevance to the Convention claims advanced by the applicant before the Tribunal. For example, let it be assumed an applicant claimed fear of persecution in a country because he was a Christian, and the Tribunal has a written statement from X that the applicant said to him he never was a Christian and had invented the claim in order to get a visa. If true, X's statement, being "evidentiary material or documentation", would be a reason for the Tribunal's affirming the refusal of a visa. It would "undermine" his claims to have well-founded fear of persecution by reason of religion. By contrast, a statement by Y that the applicant had worked in Australia under a false name would at best only go to the applicant's credibility. If the Tribunal in either of these hypothetical instances had not given a s 424A notice the reviewing court would have to characterise the statements of X and Y and determine whether or not they attracted the s 424A obligation as at the time they came to the Tribunal's attention. This assessment would not depend on the use the Tribunal subsequently made of the statements in its reasons. 28 Conditional clauses generally express a direct condition, indicating that the truth of the host clause is dependant on the fulfilment of the condition in the conditional clause: Greenbaum, The Oxford English Grammar (1996) p 340. The meaning conveyed by s 424A(1)(a) is that the Tribunal considers that if the information is true (conditional clause), it would be the reason, or a part of the reason, for affirming the decision (host clause). Ex hypothese, the Tribunal does not know whether the information is true or not. That is the point of giving the applicant the opportunity to rebut, qualify or explain the information. That is why subsequent use made by the Tribunal in its reasons, on the basis that the information is true, is no guide to whether the Tribunal at the earlier point in time should or should not have applied s 424A. 29 It can also be noted that the section speaks of information that "would" be the reason etc, not "could" or "might". This is another indication that information merely going to credibility is not within the section. An applicant may be disbelieved on some issues, but believed on others, or the application may be determined one way or the other by issues unrelated to credibility. Lack of credibility in itself does not necessarily involve rejection, denial or undermining of an applicant's claims. 30 Accordingly, counsel for the appellant was correct in submitting that the learned Magistrate's reasons in the present case were flawed. He reached the right decision for the wrong reasons. He thought the $20,000 bond issue could not have been a reason for affirming the decision if the Tribunal never mentioned it. Post- SZBYR the correct approach would have been for the Tribunal to consider whether the $20,000 bond information, if true, would be the reason, or part of the reason, for affirming the decision to refuse the appellant's protection visa application. For all the Tribunal knew, the appellant's account may have been true. The fact that he named the friends suggests a reason why the Tribunal did not pursue the matter further. Even if the account was untrue, and in fact the appellant provided the $20,000 himself, at most it might suggest he was lying when he said he worked illegally because he needed money. Either way, the issue was quite peripheral. Untruthfulness of the appellant's account would not be the reason, or part of the reason, for affirming the decision under review. 31 However, discretionary relief would properly have been refused anyway, as the learned Magistrate intimated, because no useful result could ensue: SZBYR at [29].