Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214
Outcome: referred to
This Court has discussed what is intended by the term "information" in s 424A on a number of occasions. As Finn and Stone JJ said in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477: [T] here is now a considerable body of case law concerned with the compass of the term 'information' in its s 424A(1) setting. The following propositions emerge from it: (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 Multicultural Affairs [2000] FCA 1109 ; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win , at 217-218 [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]; 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 Court substantially accepted this approach in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 (" SZEEU "): compare SZEEU at 226-228 per Moore J, at 252 and 254 per Weinberg J and at 259-260 per Allsop J. 24 Accordingly, I accept that, for present purposes, "information" does not encompass the Tribunal's appraisals or thought processes, although the Tribunal's appraisals and thought processes may show the relevance of the information in question and indicate what is required for compliance with s 424A(1). It follows that information is not constituted by what the Tribunal considers to be defects in evidence or a lack of evidentiary specificity. Secondly, information may have relevance for any number of reasons: compare SZEEU at 263 per Allsop J. 25 I accept that the Tribunal's knowledge of the letter was "information" for the purposes of s 424A(1). The contents of the letter included statements about the appellant and about the letter-writer. The information was, relevantly, the knowledge that the letter communicated to the Tribunal. 26 The Tribunal gave no weight to the statements in the letter about the appellant's psychological condition because the letter did not communicate enough about the letter-writer's qualifications. According to its reasons, the Tribunal's determination about the importance of the letter to its review was the product of its evaluation of the significance of this deficiency. As already noted, whilst the Tribunal's thought processes (including appraisals and evaluations) are not "information", they show why the information that they concern (here, the letter) was relevant for s 424A(1) purposes. 33 Obligations arise under s 424A(1) in respect of information that the Tribunal considers would be a part of the reason for affirming the decision under review. In the present case, for the reasons already noted, the letter played a part in the Tribunal's reasons for its decision, even if only a subsidiary part. Notwithstanding that a piece of information constitutes only a minor or subsidiary part of the Tribunal's reasons, s 424A is attracted: see SZEEU at 252 per Weinberg J and at 262 per Allsop J; and NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 (" NBKT ") at [31] per Young J, with whom Gyles and Stone JJ agreed. The Tribunal considered the letter in the form it took, and put the statements about the appellant's psychological condition, which it contained, out of reckoning because the letter did not state the letter-writer's clinical qualifications. The adverse credibility finding, made after the Tribunal had put this letter out of account, was central to the Tribunal's decision. The fact that the Tribunal's reasoning did not proceed in a straight-line way is immaterial. Weinberg J explained in SZEEU at 253 that: The actual process by which a decision is reached is, of course, a complex matter. It is not always as neat as the reasons themselves may suggest. The reasoning may not proceed in a linear fashion, and the Tribunal's reasons must, of course, be read as a whole. 43 In other cases, the Tribunal has asked the applicant about such information, which it has generally found in the Department's file in the Tribunal's possession. In cases of this kind, the Court has adopted no fixed view about the application of the exception. On some occasions, it has found that s 424A(3)(b) does not apply, because the applicant was not to be taken as having given the information to the Tribunal for the purposes of the review application: see, for example, NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 at [39] - [42] per Jacobson J. In SZBMI , which appeal is reported with SZEEU , the applicant confirmed with the Tribunal that an earlier statement as to flight information was true and correct. This led the respondent to argue that the appellant in that case had adopted the flight information and given it to the Tribunal for the purposes of its review. Moore J, at 225, specifically rejected this submission, commenting: I do not accept that, by adopting the statement at the hearing before the Tribunal, that information was transformed into information provided by the appellant in his application for review. In my opinion, the approach of Jacobson J in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs was correct. If the Tribunal comes to know of what was said by an applicant at a point before any application for review was made, and views what was said at that time as material to its assessment of what was later said by an applicant, then the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly information in the present appeal) being comprehended by s 424A(3)(b). Different considerations could arise if it was clear the Tribunal treated only the adoption of the earlier statement as the fact relevant to its consideration of the application in the review. In those circumstances the fact of adoption would almost certainly constitute information provided by the applicant in the application on which the exclusion would operate. 44 Weinberg J agreed with Moore J that the adoption of the earlier statement by the appellant during the hearing before the Tribunal did not render it information provided by him in his application for review: see SZEEU at 252. Allsop J did not consider the operation of the exception in s 424A(3)(b) in this context. 45 As Young J noted in NBKT at [55], the Full Court's approach in SZEEU to issues of this kind must also take into account its treatment of a similar question in the appeal in SZDXA , also reported with SZEEU . The relevant information in SZDXA was the fact that the appellant had a temporary business visa to Australia. Moore J concluded that, although the Tribunal had acquired this information from sources other than the appellant, the Tribunal had discussed the fact with the appellant at the hearing and the appellant had affirmed that he had entered Australia on a business visa. In this circumstance, Moore J concluded, at 242, that the information fell within 424A(3)(b) and Weinberg J agreed, at 254, observing, at 255, that the adoption of an earlier statement at the hearing can bring that statement within the exception. Allsop J agreed, at 268, with Moore J in relation to SZDXA . The Full Court in NBKT reached a similar conclusion in relation to the information in question in that case: see NBKT at [60]-[63] per Young J. See also SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [43] per Heerey J; and SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] per Kenny J.