Case: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
Outcome: discussed
After hearing the parties on 10 March 2006, the court adjourned upon the understanding that judgment would be delivered later that day. In the interim, however, the first respondent faxed further submissions, drawing attention to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [216] per Allsop J and [155] per Weinberg J (" SZEEU "). As a result, a further hearing was rescheduled for 24 April 2006 to enable the applicant to obtain assistance from pro bono counsel on these further submissions. 15 At the hearing on 24 April 2006, pro bono counsel sought leave to amend the applicant's proposed notice of appeal to include the following ground of appeal: "The Federal Magistrates' Court should have found that the decision of the Refugee Review Tribunal was made in jurisdictional error in that the Tribunal failed to comply with s 424A of the Act when the Tribunal failed to provide particulars of information to the applicant, where this information was: i. part of the reasons for its decision; and ii. did not fall within the exception in s 424(3). Particulars The form and content of the appellant's evidence given to the Department. The assurance about privacy contained in the letter from the Department to the [Applicant] dated 18 February 2002." 16 Counsel for the applicant submitted that the RRT breached s 424A of the Act with respect to two pieces of information, i.e., with respect to (1) the form and content of the applicant's evidence given to the Department, particularly the omission in this evidence of certain claims the applicant made to the RRT; and (2) the assurance about privacy contained in the letter from the Department to the applicant dated 18 February 2002. She submitted that both pieces of information constituted "information" within the meaning of s 424A(1) of the Act ; and were part of the reasons for affirming the decision under review. It followed, so she said, that the RRT breached s 424A when it failed to provide particulars of these pieces of information to the applicant in accordance with the Act . Further, counsel for the applicant contended that there was no alternate basis for the RRT's decision that was unaffected by the s 424A error. 17 As counsel for the applicant acknowledged, the proposed ground of appeal raised a basis for a claim of jurisdictional error on the RRT's part that had not been argued before the Federal Magistrate. The court may allow such a ground to be argued on an appeal if it is satisfied that it is expedient in the interests of justice to allow the new ground to be argued and determined: see VAAC v Minster for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 (" VAAC ") at 177 [26] per North, Merkel and Weinberg JJ. It is only at this late stage in this proceeding that the applicant has had the benefit of counsel and this provides part of the explanation for the applicant's failure to raise the ground earlier. There is also the further fact that SZEEU was only delivered on 24 February 2006. In addition to this consideration, whether or not leave ought be granted depends on such matters as the prospects of success of the proposed new ground, the prejudice to the first respondent in allowing the ground to be raised, the possible serious consequences to the applicant if the leave sought is refused, and the integrity of the appellate process: see VAAC at 177 [26]. 23 The RRT's knowledge that the standard letter contained an assurance of privacy can be regarded as 'information' for the purposes of s 424A. The Court in SZEEU treated the discussion of the word 'information' in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (" VAF ") as a point of departure for its own consideration of the appeals before it. In VAF , Finn and Stone JJ said, at [24]: " [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 [104] . However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC ... ; (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 [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 at [3] ; irrespective of whether it is reliable or has a sound factual basis: Win , at [19]-[22]; and (iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25] ; approved [2002] FCAFC 120 ; 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 [26] - [29] ." 24 The Court in SZEEU accepted that the word 'information' in s 424A refers to "knowledge of relevant facts or circumstances communicated to or received by the Tribunal": see SZEEU at [23]-[25] per Moore J, at [94], [157], [171] per Weinberg J and [205] per Allsop J, although Allsop J stated, at [208], that there were limits on the statement in VAF that 'information' did not encompass or extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the RRT in weighing up the evidence by reference to those gaps. 26 On a fair reading of the RRT's reasons for its decision, the RRT's knowledge that the standard letter contained an assurance of privacy was knowledge that the RRT considered was a part of the reason it affirmed the decision under review. In SZEEU , Weinberg J discussed, at [163], the application of the expression "a part of the reason" in s 424A , observing that: "The strict view that the courts have taken in relation to breaches of natural justice can, in my view, inform the application of the expression 'a part of the reason' in s 424A. The cases suggest that this expression should be read benevolently, in favour of an applicant for review. If there is any doubt as to whether information that is adverse to an applicant did form a part of the reason for decision, that doubt should generally be resolved in favour of the applicant." 27 His Honour accepted, at [164], that "the similar claims information" in the case of SZBMI "played a part ... in the Tribunal's conclusion"; and therefore constituted a part of the reason for its decision. Weinberg J explained, at [164], that: "The fact is that the Tribunal regarded the similar claims information as a significant matter, sufficiently important to warrant specific mention. Although the Tribunal dealt with the matter as though it simply bolstered a conclusion that it had already arrived at, rather than an element in the decision-making process, it does not follow that it did not play "a part" in its reasons for decision. ... 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." 28 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." 29 The observations of Weinberg and Allsop JJ in SZEEU are helpful in this case, because, clearly enough, the standard letter played a part in the RRT's reasons for its decision, even if only a subsidiary part: see also SZEEU at [158] agreeing with Allsop J at [228] above. As previously noted, before the RRT, the applicant claimed that he feared persecution based on his own association with the LTTE, although he had not mentioned these claims until he gave evidence at the RRT hearing. 30 The RRT rejected this claim about his own involvement with the LTTE as "not credible", because, if genuine, the applicant would have mentioned the claim to the delegate or in his statement seeking review of the delegate's decision. The RRT rejected the applicant's explanation for his failure to mention the claim earlier on the joint bases of importance and confidentiality. In relation to confidentiality, the RRT referred to the assurances given both at the interview with the delegate and in the standard letter. The reference to the standard letter was apparently intended to take account of the fact that the applicant said that he could not recall being given such an assurance at the interview with the delegate. In effect, the standard letter was a part of the RRT's reasons for its decision because it provided a part of the reason for rejecting the applicant's explanation as to why he gave an account of personal involvement so late in the piece and thus for disbelieving this account. There were not, as the respondent maintained, three separate bases for the RRT's rejection of the applicant's explanation for failing to mention his own LTTE involvement until the oral hearing before the RRT. The matter of the standard letter was intertwined with the RRT's view that the applicant's explanation for his late claims should be rejected because of earlier assurances of confidentiality. 31 As noted earlier, the first respondent also contended that, even if there were a breach in this regard, the decision of the RRT was supportable on an independent basis that was not affected by the breach. This was that the RRT would have found the applicant's account not credible also on the basis that it did not find his evidence plausible. I reject this submission because, read fairly and as a whole, the RRT's finding that the applicant was not credible flowed from its determination that, if true, the applicant would have made his personal involvement claim earlier and its assessment that his evidence was vague, unresponsive and implausible. That is, the RRT treated these two considerations as supporting, together or cumulatively, its credibility finding. The RRT expressed the idea of cumulation when it said that it "also gives weight to the fact" that the applicant's evidence was general, unresponsive and implausible. Reading the RRT's reasons as a whole, it is plain enough that it relied on 'recent invention' and 'implausibility' as jointly founding its credibility finding. The RRT did not treat implausibility as a stand-alone basis for rejecting his claim on credibility grounds.