Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Outcome: cited
has been written about the scope and purpose of operation of s 424A , but in my opinion two aspects thereof may be conveniently emphasised, each being highlighted in the joint judgment of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [23]: the Tribunal must possess [the] "information".' the Tribunal must consider that that information "would be the reason, or part of the reason" for affirming the decision under review.' Moreover when it becomes necessary or appropriate for the Tribunal to make findings and formulate conclusions cumulatively, though in stages, and being unavoidable in situations involving some measure of complexity of evidentiary material, such as here exemplified in relation to the three so-called 'sets of reasons' of the Tribunal (and reproduced already in these reasons at [24] above), it is of practical assistance to an implementation of the s 424A(1)(a) process, to bear in mind the following further observations appearing in the joint reasons for judgment of Finn and Stone JJ in VAF at [33] and [41] respectively: It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the Tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the Tribunal's decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a Tribunal's reasons are to be evaluated for s 424A(1) purposes, the Court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal's decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy and made the more so by less than explicit indications in the reasons themselves as to what the tribunal itself considered to be integral.' Considered in the context of the Tribunal's reasoning process and having regard to the aggregate of findings made that rejected both that the appellant had been persecuted for a Convention reason and that his situation was such as to give rise to a well founded fear of persecution, reference to the information as to his behaviour in Australia can only be categorised as being relatively minor and unimportant in the scheme of things. It was not so integral to the reasoning process rejecting the appellant's claim as to require as a matter of fairness that the appellant be told that information (cf s 424A(1)(a)) and why it was relevant to the review (cf s 424A(1)(b)). ' It was stated widely by the appellants at the threshold of their written submissions that Nicholls FM found that the so-called first set of reasons appearing in the Tribunal's decision 'was affected by a breach of s 424A of the [Migration Act]... as a consequence of the tribunal using information given by the first appellant [husband/father] in his protection visa application as a part of its reasons for affirming the decision of the delegate'. That first set of reasons addressed the implications of what the Tribunal described as the claims made by the applicant on key issues having 'changed from time to time in significant ways' by reason of the circumstances thereby exemplified . His Honour summarised those circumstances attending the first set of reasons as comprising or involving differences, or inconsistencies, found between details that the first appellant had put to the delegate and the account given to the Tribunal which led the Tribunal to conclude that the first appellant had exaggerated or fabricated his political activism and the situation of harm that he faced in Bangladesh. Nicholls FM observed that the Tribunal relied on the inconsistencies in the appellants' claim in its reasons for decision rather than the information contained in the visa application and that 'in the alternative that even if [the first set of reasons] of the Tribunal's decision did not contain jurisdictional error, it did not have necessary consequence in the ultimate decision to affirm the delegate's decision, because of other independent reasons given for affirming the delegate's decision' . The submissions of the appellants by way of response to the so-called second and third sets of reasons commenced to the effect that '[i]n considering whether to grant relief, the Federal Magistrate found the other two sets of reasons for affirming the decision were not affected by the breach [of s 424A] ', and were said to have provided 'an alternative basis upon which the decision could be made'. The applicants referring thereby apparently to the Tribunal's decision that the first appellant could 'secure justice in circumstances where' he faced 'false charges' in Bangladesh, and to the Tribunal's finding as to the appellants' absence of effort to relocate outside the Dhaka district of Bangladesh to elsewhere in 'one of the 63 districts' of that country . His Honour summarised the circumstances attending the so-called second set of reasons as being 'based on [the first appellant's] behaviour both before and after the lodgement of claims in 1997 and 2001' and on the 'Tribunal's finding that his actions were not consistent with a genuine fear of persecution for Convention reasons'. His Honour observed that the Tribunal characterised 'these actions... [on the part of the appellants] as a repeated failure to provide documents and claims as promised, "unconvincing oral evidence" and a "catalogue of repeated tardiness and failure to co-operate"' (referring thereby to page 15 of the Tribunal's reasons). His Honour summarised those circumstances attending the so-called third set of reasons as being 'based on the Tribunal finding that even if the [first appellant's] claims about what happened to him in 1997, and previously, were true, that the events and situations giving rise to those claims have been overtaken by more recent events, [and that] [i] n particular the Tribunal relied on independent country information which showed that the party which the [first appellant] claimed to support was at the time of the Tribunal's consideration in government, and further that the independent information led it to conclude that this conferred an advantage on its supporters in terms of the level of treatment from the organs of the State'. That summary of his Honour continued further that 'the Tribunal found that... it did not believe the [first appellant's] claim that he faced "false cases" as being credible, but even in the event that he did face some charges, then the Tribunal concluded from the country information available to it... that he would eventually secure justice (referring thereby to pages 15 and 16 of the Tribunal's reasons). Lastly his Honour summarised the circumstances further attending the Tribunal's reasons generally that the Tribunal '... also looked at the issue of relocation and whether protection was available in another part of Bangladesh', and 'found that as the [first appellant] had only referred in his claims to one (Dhaka) of the 64 districts in Bangladesh [and] based on independent country information available to it (pages 9 and 13 of the Tribunal's reasons appearing under the heading 'Country information'), the [first appellant] would be able to safely relocate to another part of Bangladesh and that it would be reasonable to expect him to so relocate (pages 16 and 17 of the Tribunal's reasons). I should interpolate to point out the compelling force of that location observation.