Case: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396
Outcome: cited
There is no reason to doubt that 'information' in s 424A(1) is used in its ordinary sense of knowledge communicated or received concerning some fact or circumstance. In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (" VAF ") at 476-477 [24], Finn and Stone JJ set out the following propositions about the meaning of the term 'information' in its s 424A(1) setting: "(i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 429-30 [104] ; [2001] FCA 1196 ; 64 ALD 289 at 318. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; BC200301782; (ii) the word 'information' in s 424A(1) has the same meaning as in s 424; Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at 218 [20] ; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Indigenous Affairs [2000] FCA 1109 ; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win , at 217-18 [19]-[22]; and (iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 ; BC200107472 at [25]; approved [2002] FCAFC 120 ; BC200203793; 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: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-4 [26] - [29] ." The third proposition has not been doubted but its application has produced some fine distinctions. 37 In Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 (" Paul ") at 428 [95], Allsop J, with whom Heerey J agreed, said: "... I agree with the distinction drawn by Sackville J in Tin v Minister for Immigration and Multicultural and Indigenous Affairs that the information of which particulars must be provided is information or knowledge that has come to or been gained by the Tribunal and is not the subjective appraisal or thought process of the Tribunal ... However, the distinction can become very fine. If the subjective thought processes of the Tribunal are as they are because of the perceived importance of some piece of knowledge, those thought processes may merely reveal the relevance (for the purposes of s 424(A)(1)(b)) of information (for s 424A(1)(a)), requiring the Tribunal to give particulars of that information and to explain its relevance." 38 Allsop J also observed that some unbundling of the immediate reason for the Tribunal's affirmation may be required, and that in any given circumstance it may not be straightforward to identify from an expressed reasoning process whether information was the reason or a part of the reason for affirmation: see Paul at 428-429 [99]-[100]. 39 In the result, Allsop J adopted the following approach at 432 [116]: "The question as to whether information would be the reason or a part of the reason for affirmation is ultimately decided, in my view, by whether it can be characterised as sufficiently important to the reasoning process in the rejection of the appellant's claims, for fairness to warrant that the applicant be told if it is so that he or she can understand and be able to meet the integers or elements that make up the Tribunal's reasons or conclusion thus far reached (hence 'would') for finding adversely to the applicant." 41 Merkel J dissented. In the course of his Honour's reasons for judgment, he cautioned that it is impermissible to impose an additional criterion that the information must be an 'integral' or 'essential' reason for the decision in order for s 424A to apply. His Honour recognised that it may not be straightforward to identify from the reasons themselves whether the information in question was part of the reason for the Tribunal's decision. In discussing Paul , his Honour approved of the fact that Allsop J had eschewed a narrow view of what would constitute the reason or part of the reason for a decision to affirm the decision of the delegate. However, his Honour added the following cautionary words at 483 [54]-[55]: "His Honour's observations may provide guidance for assessing whether particular information was part of the reason for the Tribunal's decision where, as was the case in Paul , it may not be straightforward to identify from the reasons themselves whether the information in question was part of the reason for the Tribunal's decision. However, his Honour should not be regarded as having intended to lay down an exhaustive test for the circumstances in which s 424A is to apply. If his Honour's observations (at FCR 432 [116]; ALD 320-1) were said to lay down such a test, that test would become a substitute for the words the legislature has used in the section itself. Thus in a case, of which Al Shamry is an example, where it is clear on the face of the reasons expressed by the Tribunal that the information in question was a part of the reason for the decision, Allsop J's observations cannot be employed to arrive at a different conclusion because to do so would be to impermissibly import into s 424A an additional criterion of 'sufficient importance'." 50 Allsop J held that the test which had been advanced in Paul and VAF had to be reconsidered in the light of the High Court's decision in SAAP . His Honour said that, to the extent that Paul and VAF both include notions of fairness derived from the rules of procedural fairness as part of the analysis of whether something is part of the reason for affirming the decision, those decisions are in conflict with the approach of the majority of the High Court in SAAP . In consequence, his Honour set out what he thought that the approach to be adopted in the future should be at [215]: "In my view, in the light of SAAP , in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s 424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one find them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision. To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character which would make it unfair not to invoke the procedures of s 424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason." The application of these principles by the majority in SZEEU necessarily led to the conclusion that both the flight information and the similar claims information fell squarely within s 424A. It was sufficient that both pieces of information were referred to and relied upon by the Tribunal as relevant and operative considerations, whether or not they could be described as a subsidiary or a minor part of the reason for the Tribunal's decision. 52 I do, however, wish to make one observation. In my view, it does not follow from the decisions in SAAP and SZEEU that the statutory purpose of s 424A is irrelevant to its proper construction and application. In SAAP , McHugh J at 181 [73] said that s 424A is a statutory formulation of the obligation to accord procedural fairness in the conduct of a review, and endorsed statements in this Court to the same effect: see SAAP at 179 [66]. Hayne J emphasised the crucial role played by the language, scope and objects of s 424A in its construction and application: see SAAP at 211 [208]. In Paul , Allsop J construed and applied s 424A in the light of its purpose of 'ensuring that the claimant is fully informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it': see Paul at 429-430 [104]. In Al Shamr y at 40 [39], Merkel J said that s 424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise. Cases may arise in which it is appropriate to take account of the statutory purpose of s 424A in determining whether there is any information within the meaning of s 424A, or whether particular information is the reason, or a part of the reason, for the Tribunal's decision. I do not consider that there is anything to the contrary in SZEEU . 70 There is, in my opinion, a valid distinction between the HRA letter and the Tribunal's subjective evaluation of the weight that should be attached to it in the light of the appellant's oral evidence to the Tribunal. Such a distinction is supported by VAF per Finn and Stone JJ at 476-477 [24]; WAGP per Marshall, Weinberg and Jacobson JJ at 282-283 [26] [29]; Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 per Sackville J at [53] [54]; and Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 120 per Carr, Moore and Marshall JJ. It is also consistent with the statutory purpose of s 424A , which (to paraphrase the language of Allsop J in Paul at [104]) is to ensure that the applicant is fairly informed of information adverse to his or her case so that investigation may be made, and steps may be taken, if possible, to meet it. By itself, the HRA letter was not the reason, or a part of the reason, for the Tribunal's affirmation of the delegate's decision. Nor was there any point of time prior to the Tribunal's decision at which the Tribunal would have considered that the HRA letter might have constituted the reason, or a part of the reason, for affirming the delegate's decision. It follows that the HRA letter does not fall within the scope of s 424A.