Case: WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276
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. 42 In WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 (" WAGP "), the Full Court (Marshall, Weinberg and Jacobson JJ) held that the word 'information' in s 424A(1) does not encompass a failure to mention a matter to the Tribunal. Their Honours said at 282 [26]: "It is inappropriate to speak of the RRT 'getting information' where the substance of that information is merely an observation that the appellant did not refer to a particular matter in his evidence. The fact that the appellant did not refer to a particular matter constitutes nothing more than an aspect of the RRT's reasoning concerning a deficiency in his evidence. That observation cannot meaningfully be described as 'information'. Moreover, the appellant's submission cannot be accepted as a matter of sound policy. To permit an applicant for review of a delegate's decision to comment on each deficiency in his or her evidence, as viewed by the RRT, has the potential to allow a protracted and almost never ending process of review, a result plainly not intended by the legislature." 43 The Full Court went on to distinguish Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212, where the Full Court (Whitlam, Tamberlin and Sackville JJ) held that the assertions of an informant which cast doubt on the applicant's version of events constituted information for the purposes of s 424A(1). The Full Court said that there was a material difference between assertions of an informant and observations or conclusions arrived at by the Tribunal in weighing up aspects of the evidence of an applicant by reference to gaps or defects in that evidence: see WAGP at 282 [27]. 44 In SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 , the appeal arose from a Tribunal decision which had found that the applicant for a protection visa had fabricated his claim and various documents submitted in support of it. In reaching this conclusion, the Tribunal relied upon the fact that the applicant's written statement to the Department did not mention the claims of persecution that the Tribunal ultimately rejected. One of the issues that arose on the appeal to this Court was whether s 424A applied to the information contained in the applicant's original statement to the Department. After referring to VAF, Paul and WAGP , Allsop J at [26] and [34] held that it did: "I have extracted earlier the places in the Tribunal's reasons where the prior statement is used. Having read the whole of the reasons of the Tribunal, it is clear that the comprehensive disbelief of the appellant and the finding that he had brought forward fraudulent documentation was largely, if not wholly, a product of the importance placed by the Tribunal on the form and content of his first statement. In short, the Tribunal found that if what he was saying were true, it would have been referred to earlier. The fact that it was not, demonstrated the falsity of his evidence to the Tribunal. ... In my view, here, the knowledge of the Tribunal of the content of the earlier statement, including the limits of its contents can be seen to be a part of the reason for the decision because its form and content were instrumental in the Tribunal reaching a conclusion that the oral evidence of the appellant was false and the documents he was propounding were fraudulent." In Allsop J's view, the case before him involved something more than what Finn and Stone JJ in VAF at 476-477 [24] had called 'identified gaps, defects or lack of detail or specificity' in evidence given to the Tribunal, or what the Full Court in WAGP had described as a failure to mention something in evidence given to the Tribunal. 45 In the course of his reasons for judgment, Allsop J discussed the decision of Branson J in NAIH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1010 ; (2002) 124 FCR 223 (" NAIH "), which had been cited with approval by the Full Court in WAGP . In NAIH at 226 [8], her Honour had doubted that an intention can be discerned in s 424A that the totality of the claims and assertions in a statement made by an applicant in support of his or her application, and the general impression of coherence or otherwise created by those claims and assertions, is information received by the Tribunal. Allsop J distinguished NAIH on several grounds. First, he thought that Branson J was not directing herself to a case where the very form and content of the applicant's original statement is central to the rejection of virtually all of the applicant's evidence. Secondly, while the Tribunal contrasted the applicant's evidence with the cohesive account in the earlier statement, Branson J found that the Tribunal based its decision on the unconvincing nature of the applicant's oral evidence before it. 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.