Case: SZLBA v Minister for Immigration &amp; Citizenship [2008] FCA
Outcome: followed
At best, it is a contention that the Appellant was entitled to be informed of the findings as proposed to be made by the Tribunal and to be afforded a further opportunity to be heard. The Appellant was not entitled to any such further opportunity. Concurrence is expressed with the reliance by the Federal Magistrate upon SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [18] , [2007] FCA 26 ; 235 ALR 609 at 616 and his Honour's conclusion that such findings do not fall within s 424A(1)(a). In SZBYR , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ held: [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 para (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 [[2004] FCAFC 123 , 206 ALR 471 at 477] that the word "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. 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. See also: SZICU v Minister for Immigration &amp; Citizenship [2008] FCAFC 1 at [24] [25], 100 ALD 1 at 6 7 per Tamberlin, Finn and Besanko JJ; SZLBA v Minister for Immigration &amp; Citizenship [2008] FCA 484 at [23] [24] per Cowdroy J. 25 Assuming that the written submissions constituted a previously unexpressed application for leave to amend the Notice of Appeal , the granting of such leave was opposed by the solicitor appearing for the Respondent Minister. Two principal contentions advanced on behalf of the Minister were that: (a) none of the grounds had been advanced before the Federal Magistrates Court; and (b) none of the grounds were formulated in such a manner as to be able to be properly understood. Further, and more specifically, submissions focussed upon the fact that s 91R initially had been raised as a ground before the Federal Magistrates Court and an alternative ground expressly " substituted " in lieu. A party, of course, is generally not entitled to raise new grounds which were deliberately or by inadvertence not put to the court from which an appeal is brought: SZIBR v Minister for Immigration &amp; Citizenship [2008] FCA 502 at [38] per Lander J. The contention that there was a failure to " assess information " is simply denied by the very task undertaken by the Tribunal. That, and other grounds, it was submitted were thus without substance, nor was there any specification as to which of the " findings " of the Tribunal were said to have been made without sufficient evidentiary foundation.