Case: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Outcome: discussed
The Minister argued that for the obligation to provide particulars under s 424A(1) to be engaged, the Tribunal must consider that the information to which it refers is adverse to the applicant for review's claim to have the review decided in his or her favour and must be integral to the decision. The Minister relied on a line of authority in the Court, in particular the decision of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 478 [33]. Moreover, the Minister submitted that to the extent that the Tribunal's reasons identified omissions in the claims made by the appellant in support of her application for a visa it was the omissions and nothing more which constituted the reason why, or the integral part of the reasoning why, the Tribunal came to reject the appellant's claim. In that respect the Minister relied upon what Finn and Stone JJ had earlier said in the VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477 [24], namely: '[24] As to the first of these, there is now a considerable body of case law concerned with the compass of the term "information" in its s 424A(1) setting. The following propositions emerge from it: (i) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 429-30 [104] ; [2001] FCA 1196 ; 64 ALD 289 at 318. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; BC200301782; (ii) the word "information" in s 424A(1) has the same meaning as ins 424: Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at 218 [20] ; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 ; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win, at 217-18 [19]-[22]; and (iii) the word does not encompass the tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; ALD 317; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 ; BC2000108482 at [25]; approved [2002] FCAFC 120 ; BC 200203793; 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: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-4 [26] - [29] .' 20 The task of statutory construction obliges courts to construe a relevant provision so that it is consistent with the language and purpose of all the provisions in the statute as is pointed out by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 381 [69] . When s 424A refers to 'the reason or part of the reason' it does not divide the reasoning process into what is said to be 'integral' from what the Tribunal is required to express as its reasons in the language of s 430(1). In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 478 [33] Finn and Stone JJ discussed the need to isolate what their Honours termed to be 'the integral parts of the reasons for the tribunal's decision'. Their Honours said that task, necessarily, was an interpretive one. 25 Moreover, there is a number of judgments in the Court in which conflicting views have been expressed as to whether the general proposition in VAF v Minister (2004) 206 ALR 471 at 447 lays down a rule of general application that identified gaps, defects or lack of detail or specificity in evidence or conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc. can never amount to information. In SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 at [21] , Allsop J pointed out there may be a distinction, sometimes fine, but nevertheless important, between information which may be knowledge acquired by the Tribunal and the subjective appraisal or thought processes of it. His Honour concluded (at [2005] FCA 1200 at [29] - [30] ): 'If, as here, the very form and content of a statement (including what was not said) is central to the rejection of virtually all of the evidence of the appellant, I do not see anything [Branson J said] in NIAH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] 124 FCA 223 at [28] as necessarily inconsistent with an application of s 424A. To say that there is no information here because the statement (which is information) lacked the aspect now being adduced would be to fail to recognize that the information that is central to the reason for the decision is that the appellant said so much and no more on an earlier occasion. That is the relevant information.'