Case: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Outcome: cited
In relation to these grounds of appeal, the submissions of the appellant can be summarised as follows: &#8226; the information relied on by the Tribunal was that the appellant could have gone to India immediately upon receiving her passport in 2003 without obtaining a visa. This appeared in response to the appellant's statement in a statutory declaration that she did not have a visa to depart Nepal. The information upon which the Tribunal relied, namely that she could leave Nepal without a visa, was not merely the conclusion or thought processes of the Tribunal &#8226; it is clear from the decision of the Tribunal that this information undermined the appellant's claim that Australia owed her protection obligations, and accordingly it was within s 424A as considered by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 as it was not information which fell within the exception in s 424A(3)(a) &#8226; information the Tribunal had with respect to Nepalese citizens entering India was limited to information the Tribunal had concerning whether it is possible to fly directly from Australia to India with a Nepalese passport. The relevant information upon which the Tribunal relied did not deal with circumstances in which a Nepalese person could enter India from Nepal. 26 In response, the respondent submitted in summary: &#8226; the statements of the Tribunal with respect to the ability of the appellant to leave Nepal with her passport was not "information" within the meaning of s 424A(1) , but rather the subjective appraisals, thought processes or determinations of the Tribunal: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476, SZBYR 235 ALR at 616 &#8226; if these statements, including with respect to the ability of the appellant to go to India, were "information", it was information within s 424A(3)(a) &#8226; even if the statements were "information" within the meaning of s 424A(1) the Tribunal did not act in breach of the section in that it brought to the appellant's attention the fact that she could have left Nepal when she received her passport. Did the Tribunal rely on "information" within the meaning of section 424A(1)? 29 The factual basis of "information" was reiterated by the majority of the High Court in SZBYR 235 ALR at 616 where their Honours said in relation to "information" in s 424A(1): "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." 30 It is not in dispute that "information" for the purposes of s 424A(1) does not include "subjective appraisals, thought processes or determinations" of the Tribunal: SZBYR 235 ALR 609. "Subjective appraisals, thought processes or determinations" include for example: &#8226; the Tribunal's disbelief of an applicant's evidence arising from inconsistencies in the applicant's evidence ( SZBYR 235 ALR at 616, Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 , VAF 206 ALR at 476, WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276) &#8226; a determination by the Tribunal that the applicant's account is or may not be credible ( Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 , Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 428) &#8226; a determination of the Tribunal that the information provided by the applicant in the original application lacks specificity and detail: VAAM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 120 &#8226; a view taken by the Tribunal as to the unsatisfactory nature of answers provided by an applicant: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328.