Case: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Outcome: discussed
Minister supported the trial judge's finding that the information conveyed by Ms L at the hearing was not part of the reason for the tribunal's decision because it did not undermine the appellant's claim to be a refugee. His Honour made that finding, relying on what was said by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 615 [17]. In addition, his Honour held that Ms L's evidence was called at the request of the appellant, and was thus to be taken to have been given by him for the purposes of his application for review within the meaning of the exception in s 424A(3)(b). In SZBYR 235 ALR at 615 [17], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said that the reason or part of the reason for affirming the decision under review was that the appellant was not a person to whom Australia owed protection obligations under the Convention. In that case, a statutory declaration that did not in terms contain a rejection, denial or undermining of the appellant's claims to refugee status was held not to attract the operation of s 424A(1)(a). Tamberlin, Finn and Besanko JJ applied that reasoning in SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 ; (2008) 100 ALD 1 at 7-8 [26] . In that case the Court held that information in an appellant's passport was neutral, and that what undermined his claims was not conveyed by the passport, but by country information. There, the tribunal had used the country information in assessing whether the appellant was of adverse interest to the authorities because he had obtained his passport and was able to leave his country of origin with it. Their Honours, applying SZBYR 235 ALR at 616 [18], said that the relevant "information" within the meaning of s 424A(1) was not to be found in disbeliefs arising from a process of reasoning applied to the evidence. In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at 259 [205] , Allsop J said: "Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: the Complete Oxford English Dictionary (2 nd ed, 1991)." And, in SZBYR 235 ALR at 616 [18], the plurality said: "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." (emphasis added) The next question is whether the jurisdictional error I have found entitles the appellant to relief. A grant of constitutional writ relief is discretionary and may be refused if no useful result could ensue from quashing the tribunal's decision and ordering it to perform its duty according to law: SZBYR 235 ALR at 618 [28]-[29]. I am of opinion that the tribunal should have drawn the appellant's attention to the significance it proposed to give to the failure of Ms L to discuss with him the efforts she had made to explore obtaining a visa. The tribunal was conscious of the evidence she had given, including her statement that he may have become too excited had she told him what she was undertaking and then depressed if she failed, as a result of which she decided not to tell him. However, Ms L also gave other accounts of why she did not tell him, which the tribunal had noted in its statement of the evidence. For example, it recorded that Ms L had told it that she had not told the appellant because she did not think it was necessary as she could not get it [the visa] anyway. The question here is whether, had the tribunal written a letter under s 424A(1) or given oral particulars under s 424AA and identified the reason why what Ms L's evidence had conveyed could have caused the tribunal to decide as it did, that would have made any difference to the result.