Case: SAAP Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: referred to
Allsop J, in SZEEU at [216]-[217], explained the application of the expression "a part of the reason" as follows: "In my view, in the light of [SAAP Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162] , 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 finds 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 v Minister for Immigration and Multicultural Afairs [2001] FCA 1196 ; (2001) 113 FCR 396] 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. That said, it is necessary to recognise the guidance that one nevertheless receives from aspects of [33] in VAF . One always needs to analyse and interpret the reason s of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves "information" does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s 424A , without any additional requirement (for which Paul and VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s 424A. The above tasks of assessment or interpretation of the Tribunal's reasons, of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straightforward and may lead to conclusions about which minds may differ." 32 The effect of SAAP Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 is that s 424A of the Act requires the RRT, at the hearing stage, to give the applicant 'particulars' in writing of any information that would be the reason, or a part of the reason, for affirming the decision under review; and any breach of this requirement constitutes jurisdictional error. 33 In view of this conclusion, it is unnecessary to consider the applicant's counsel's further submission concerning the form and content of the applicant's evidence given to the Department. I observe that the first respondent's counsel noted, in argument, that he had no notice of this latter submission prior to the 24 April hearing, although no blame attaches to pro bono counsel for this apparent fact. 34 If leave to amend the notice of appeal were granted and an extension of time were granted, the appeal would succeed. The first respondent has not argued that, if the court so concluded, then it should not grant leave because of any countervailing considerations. Accordingly, I would grant leave to amend the proposed notice of appeal in the terms sought by pro bono counsel. I would also grant the extension of time the applicant sought and I would allow the appeal, with costs.