Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Outcome: cited
The manner in which the appellant's counsel has argued the matter has been somewhat unusual. He has conceded that in confirming the details of his protection visa application at the Tribunal hearing, the appellant thereby gave the information in the visa application statement "for the purpose of the application" to the Tribunal: cf s 424A(3)(b). It is not for me to consider whether this concession needed to be, or was properly, made: see SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [29] ff. It was then said that the inconsistencies between the statement and the oral evidence were not required to be notified under s 424A of the Migration Act either because of s 424A(3)(b) or, in my view, more properly because inconsistencies in evidence given by an applicant are not "information" for the purposes of s 424A: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] . 34 It is difficult to see how s 424A has any significance in the resolution of the issue save perhaps as manifesting a legislative intent that the natural justice hearing rule will not apply to information provided by an applicant for the purposes of an application to the Tribunal. Given that the section imposes, and then delimits, the scope of a statutory obligation to provide information having prospectively a particular character (i.e. "would be the reason" etc), the fact of there being inconsistencies is not "information" for the purposes of the provision. As was indicated by the joint judgment of five members of the High Court in SZBYR at [18]: "... if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting 'information' within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute 'information'. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word 'information' [(2004) 206 ALR 471 at 476-477]: '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'. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly 'information' be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant 'information' was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself."