Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Outcome: followed
The Minister was represented by Ms Wheatley of Counsel. A summary of her submissions is as follows: Ground 1 &#8226; Pursuant to s 359A of the Act, the Tribunal need only give the appellant particulars of information it considers would be the reason or part of the reason for affirming the decision. This does not extend to "information" encompassing the Tribunal's thought processes, determination, subjective appraisals, or relate to the existence of doubts, inconsistencies or absence of evidence ( SZBYR v Minister for Immigration and Citizenship [2007] HCA 26). &#8226; The Tribunal considered the information given by the appellant in relation to property valuations and decided not to place any weight on it. Such an approach is open to the Tribunal ( Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229 at [55] ). &#8226; The appellant was invited by the Tribunal to provide further information supported by documentation in accordance with s 359A(2) of the Act. &#8226; The real estate valuations of the appellant were given to the Tribunal for the purposes of the review. Section 359A(4)(b) of the Act specifically excludes information, given for the purposes of the application for review, from the operation of s 359A. Ground 2 &#8226; The Tribunal did consider the appellant's advanced diplomas and also considered the other available evidence before it. The decision the Tribunal made was open to it in light of: o the appellant's reliance on an interpreter at the hearing; o the fact that, when an interpreter was not used, the appellant was hesitant and had difficulty answering questions in English; o the courses of study upon which the appellant relied were conducted by correspondence; o the fact that the appellant communicated with tutors in those courses in English and Vietnamese; and o the fact that the appellant did not claim to have produced any written assignments in English. &#8226; In relation to the asset valuations, the Tribunal did consider and take into account the real estate properties and valuations but determined not to place weight on those valuations. The weight to be attributed to such valuations was an issue for the Tribunal ( Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24). Ground 3 &#8226; The Tribunal did not misunderstand the questions it was to ask itself; rather it identified the correct issues and considered all of the evidence before it. &#8226; The PAM policy guidelines as to functional ability in English and "better than functional ability" provide that either educational qualifications or the IELTS test results may be regarded as sufficient in deciding whether the appellant has better than functional English. The Tribunal merely adverted to the IELTS test as an alternative assessment. Ground 4 &#8226; The findings of the Tribunal in relation to the part-time study and mode of delivery were open to the Tribunal. &#8226; A finding that the appellant undertook part-time study was open to the Tribunal upon the evidence. The facts before the Tribunal were that the appellant studied by correspondence, completing 12 subjects over two years while undertaking full-time work (seven days a week). &#8226; A finding that the appellant communicated with his tutors in both English and Vietnamese was open to the Tribunal on the evidence. The appellant at the Tribunal hearing stated that his tutors spoke with him in both languages and assessment was mostly by way of "tick the box" answers. 26 "Information" in s 359A of the Act has only a limited scope (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [22] ). Considering a similar legislative provision in SZBYR [2007] HCA 26 , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [18] said that "information": does not encompass the Tribunal's subjective appraisals, thought processes or determinations...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. 27 The appellant's first ground of appeal related to the Tribunal's consideration of real estate valuations provided by the appellant. However in its statement of decision and reasons it is clear that the Tribunal carefully considered all the evidence relating to the assets claimed by the appellant. In upholding the delegate's decision to refuse the grant of a visa to the appellant, the Tribunal noted, inter alia : &#8226; the fact that the property valuations provided by the appellant were not supported by evidence; and &#8226; that the valuations currently provided were inconsistent with the valuations provided in 2003. 28 The appellant in ground 1 does not identify the information upon which it is said the Tribunal should have invited comment. After consideration of the evidence, the Tribunal was of the view that little weight should be given to the valuations provided by the appellant. Inconsistencies and disbelief of the appellant's evidence are not, for the purposes of s 359A of the Act, "information" which must be provided by the Tribunal to the appellant.