Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190
Outcome: applied
In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 at 1196, para 18, in the joint judgment of Gleeson CJ and Gummow, Callinan, Heydon and Crennan JJ, the following passage appears: 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 paragraph (a) of section 424A (1). Again, if the Tribunal affirmed the decision because even the best view of the Appellant's 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 [2004] FCAFC 123 ; (2004) 206 ALR 471 that: The word "information" does not encompass the tribunal's objective appraisals, thought processes or determinations ... nor does it extend to identify gaps, defects or lack or detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. 9 And then the High Court continued: 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. 10 There is both an evidentiary as well as a legal characterisation question involved in an allegation that s 424A has been breached. For present purposes, the evidentiary element is resolved against the Appellant in the sense that it is patent that the Tribunal sent to him a letter dated 3 August 2007, which at least purported to comply with the obligation the Tribunal apprehended it had under s 424A. When one examines the terms of that letter as a matter of legal characterisation, it is apparent that the Tribunal has complied with, and perhaps even exceeded, the obligations which fell on it pursuant to s 424A , having regard to what was said by the High Court in SZBYR . 11 The Tribunal has, at some length in the letter, highlighted particular inconsistencies, which it apprehended, having regard to statements made by the Appellant, either to the Department or in evidence at the hearing the Tribunal conducted. Having so done, the Tribunal, in its letter of 3 August 2007, stated that: The inconsistent statements are relevant to the review, as they indicate that you may not be a truthful witness, and that you may have not told the truth in the information provided to, and the statements made to, the Department and to the Tribunal in support of your protection visa application. 12 The Tribunal then, in its letter, invited the Appellant to give comments in writing on the information it had set out in the letter. The Appellant did not respond to this invitation. The learned Federal Magistrate concluded that in the circumstances, there had been no breach by the Tribunal of s 424A. His Honour noted that, at para 83 of the Tribunal's reasons, the Tribunal had come to a conclusion that the Appellant was not a truthful witness. His Honour made reference (at para 15) to a portion of the Full Court's reasons for judgment in VAF , quoted by the High Court in SZBYR , a passage I have already cited. I respectfully agree with the learned Federal Magistrate that no breach of s 424A is evident.