Case: SZMHD v Minister for Immigration and Citizenship [2009] FCA 712
Outcome: considered
the terms of s 424A make clear, the particulars required by s 424A(1) must be given in writing: s 424A(2). But s 424A(2A) creates an exception to s 424A(1) in that the Tribunal is not obliged to give written particulars of all information if the Tribunal gives clear particulars of the requisite information to the applicant at a hearing to which he has been invited under s 425. See also SZMHD v Minister for Immigration and Citizenship [2009] FCA 712 at [11] to [15] per Jacobson J. It is understood that the Appellant now seeks to contend that there has been a breach of s 424A essentially by reason of: (i) an alleged failure to " discuss ... Independent Information "; (ii) an alleged failure to provide " an opportunity, to provide an explanation in relation to " findings made by the Tribunal; and/or (iii) a failure to provide him with " particulars as to the derivation of adverse evidence which might affect a consideration of whether the information is reliable... ". The " findings " to which reference is made are not further identified, nor is the " independent information ". It has been assumed, however, that the reference to " findings " is a reference to each adverse finding made by the Tribunal and that the " information " is a reference to independent country information that was available to the Tribunal. And in SZBYR , supra , although the correctness of the decision of the Full Court in SZEEU was assumed, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ concluded (references omitted): [17] ... The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance &#8212; and independently &#8212; of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review. Reference was thereafter made, with approval, to the observations of the Full Court of this Court in VAF , supra . In SZMHD, supra , Jacobson J observed that the question as to whether s 424A(1) is engaged is to be determined in advance of and independently of the Tribunal's reasoning on the facts of the particular case: [2009] FCA 712 at [46] , citing SZBYR , supra , at [17] and [22].