Notice Provisions Must be Strictly Observed by Tribunals
The Full Federal Court ruled there must be strict compliance with the notice provisions about tribunals giving applicants notice of information to be taken into account against the applicant.
In SZKCQ v MIAC  FCAFC 119 (27.6.08) the Full Federal Court considered the nature of the information which had to be disclosed to a review applicant by a tribunal. There was a lengthy discussion by Buchanan J as to when an ‘omission’ may amount to information. He concluded that in certain circumstances an ‘omission’ can constitute information which ought to be revealed to a review applicant. It is worth setting out Buchanan J’s reasons in some detail:
However the Minister argued that none of the other material was required to be supplied at all because it was not adverse to the appellant in the relevant sense or was not ‘information’. As I understood the argument it was that, taken at its highest, the RRT relied upon ‘omissions’ and that ‘omissions’ are not ‘information’…
78 Although it could not be determinative of the legal position there is no doubt that the information supplied by the High Commission, which summarised the responses from both Mr Khalid and Mr Abbas, was provided to the appellant by the RRT in order that the RRT could not be said to be in breach of its obligations under s 424A. In light of the use made of the material, that was a correct assessment. It seems to me to be apparent from the findings and reasons of the RRT which I set out earlier that Mr Khalid’s failure to make any reference to the appellant having been put in jail or subject to any threats subsequent to the 2002 election campaign can only be seen satisfactorily, fairly and in a legally meaningful way in the context of the third question which the High Commission was asked to put to him. The RRT itself refers to the lack of reference to jail and threats in that very context. The appellant, however, was never advised of the question the High Commission was asked to put to Mr Khalid. He had no way of understanding the significance of Mr Khalid making no reference to those matters. The appellant did not know that Mr Khalid had been asked to say something about ‘how exactly’ the appellant ‘suffered as a result of his work for the party’. The fact that he had been asked to do so was itself information of which the appellant should have been advised. S. 424A(1) provides as follows:
‘(1) … the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.’
81 In VAF v MIMIA (2004) 206 ALR 471 (‘VAF’) at  Finn & Stone JJ said:
‘ 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: …
(ii) the word “information” in s 424A(1) has the same meaning as in s 424: Win v MIAC (2001) 105 FCR 212 at ; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v MIMA  FCA 1109; BC200004607 at ; irrespective of whether it is reliable or has a sound factual basis: Win, at  – ; and
(iii) the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at ; Paul at ; Singh v MIMA  FCA 1679 at ; BC200107472 at ; approved  FCAFC 120; BC200203793; 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 MIMIA Affairs (2002) 124 FCR 276 at 282-4  – .’
82 In the present case the Minister drew attention to the fact that the observations in (iii) set out above were cited with approval by the High Court in SZBYR at . The Minister’s submission asked us to regard SZBYR as impliedly overruling a judgment of a Full Court of this Court in NBKS v MIMA Affairs (2006) 156 FCR 205 (‘NBKS’), which also discussed VAF. It will therefore be necessary to give some attention to precisely what was said in NBKS and in SZBYR. First, it is important to point out that in VAF Finn and Stone JJ provided a synthesis of established propositions derived from earlier cases. The synthesis, so far as it referred to ‘gaps’ (the word ‘omissions’ was not used) was derived from WAGP of 2002 v MIMIA (2002) 124 FCR 276 (‘WAGP of 2002′) at 282-4 -.
83 In WAGP of 2002 the Full Court said (at ):
‘It is inappropriate to speak of the RRT “getting information” where the substance of that information is merely an observation that the appellant did not refer to a particular matter in his evidence. The fact that the appellant failed to refer to a particular matter constitutes nothing more than an aspect of the RRT’s reasoning concerning a deficiency in his evidence.’
and, referring to an earlier judgment of the Full Court in Win v MIMA (2001) 105 FCR 212 (‘Win’) said that in Win at :
‘The Full Court did not intend to include in its definition of “information” conclusions arrived at by the RRT in weighing up aspects of the evidence of an applicant by reference to gaps or defects in that evidence.’
84 The reference in all these judgments (Win, WAGP of 2002 and VAF) to gaps or defects in the evidence of an applicant is not apt, in my view, to be extended to the circumstances of the present case. Here, there was no gap or defect, as such, in the evidence given by the appellant. What told against him was that Mr Khalid was to be asked a specific question (which the appellant did not know about) but he made no reference to things the appellant had spoken about. That ‘omission’ by Mr Khalid only had significance in a context where it was known that the question was to be asked and on the assumption that it was. The fact that the question was to be posed was part of the ‘information’ upon which the RRT relied. In my view, therefore, the observations in VAF at [24(iii)] do not apply here. Rather, the observations at [24(ii)] apply. Mr Khalid’s response was a relevant fact or circumstance which was used by the RRT to decide matters adversely to the appellant. Contrary to the Minister’s submission the RRT correctly drew it to the appellant’s attention and was obliged to do so. However, the use made of the response by the RRT depended importantly on the context in which the response was given. The nature of the questions to be asked (both of Mr Khalid and Mr Abbas) was equally a relevant fact or circumstance, and therefore ‘information’, required to be disclosed.
85 Weinberg J was a member of the Full Court in WAGP of 2002. In NBKS his Honour referred (at 33) to VAF. He said:
‘33 In VAF v MIMIA (2004) 206 ALR 471, it was suggested by Finn and Stone JJ (at ) that the term “information”, in s 424A, did not extend to “identified gaps, defects or lack of detail or specificity in evidence”.’
86 His Honour however went on to say at -:
‘38 To the same effect is SZCNP v MIMA  FCA 1140. There Tamberlin J rejected a submission on behalf of the Minister that the term “information” in s 424A did not encompass a failure to mention a matter to the Tribunal. His Honour noted that in the instant case the matters raised in the original application had been used by the Tribunal to suggest recent invention by the appellant. That meant that the Tribunal used the omission in a way that went beyond “mere omissions” in the sequence of facts presented by the appellant. This amounted to a positive use of information, as opposed to an observation made in relation to a failure to give information or make a claim. 39 It seems to me that each case must depend upon its own particular circumstances. There is no reason in principle why an omission (which the Tribunal views as important, and which is plainly adverse to the applicant’s case) should be treated any differently, when it comes to s 424A, than a positive statement. That is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant’s case. It makes no difference whether the omission is to be found in a prior statement of an applicant or, as in this case, in a statement provided by a third party.’
87 Allsop J said, in NBKS (at ):
‘As I said in SZEEU v MIMIA (2006) 150 FCR 214 at -, care needs to be exercised in applying [24(iii)] of VAF 206 ALR 471. Here, the absence of something in Dr Nair’s report was not merely taken as a gap, but was implicitly probative of Dr Nair’s view that there was no such danger. If the form of Dr Nair’s report (including what it did not say) did not have this significance for the Tribunal there would have been no point in mentioning it.’
88 The observations of Weinberg J and Allsop J are conceded by the Minister to be against the argument advanced to us in the present case. In my respectful view their Honours’ reservations are appropriate ones. I share them. If an ‘omission’ has evidentiary weight and may be regarded as a fact which is probative it may, depending on the circumstances of the case, be ‘information’ within the meaning of s 424A. I do not understand Finn and Stone JJ, when they distilled the proposition in VAF to which the Minister referred in argument, to have been attempting to lay down any unyielding principle to the contrary, any more than did the earlier cases to which they referred.
89 The Minister’s contention is that the approach taken by Weinberg and Allsop JJ in NBKS has been impliedly overruled. I do not agree that is so. In SZBYR the High Court distilled the issue for its examination in the following way (at ):
‘15 … S 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal’s obligation is limited to the written provision of “particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. What, then, was the “information” that the appellants say the Tribunal should have provided? In their written submissions, the appellants appeared to focus on the requisite “information” as being the “inconsistencies” between their statutory declaration and oral evidence. However, in oral argument they focused on the provision of the relevant passages in the statutory declaration itself, from which the inconsistencies were later said to arise.’
90 Four points were then noted which may (without unduly removing the context supplied by the accompanying discussion) be extracted as follows from , ,  and  respectively:
’16 … First, while questions might remain about the scope of para (b) of s 424A(3), it was accepted by both sides that information “that the applicant gave for the purpose of the application” did not refer back to the application for the protection visa itself and thus did not encompass the appellants’ statutory declaration. … 17 Second, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. … 18 Third and conversely, 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 appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. … 19 Fourth, and regardless of the matters discussed above, the appellants’ argument suggested that s 424A was engaged by any material that contained or tended to reveal inconsistencies in an applicant’s evidence. Such an argument gives s 424A an anomalous temporal operation. …’
91 All of these points were dealt with at  as follows:
‘21 The short answer to all these points is that, on the facts of this case, s 424A was not engaged at all: the relevant parts of the appellants’ statutory declaration were not “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. …’
92 The Court observed at  that if the content of the statutory declarations was believed, that would have been a relevant step towards rejecting, not affirming, the decision under review.
93 No part of the analysis involved any rejection of the reasoning in NBKS either expressly or impliedly. The high point of the Minister’s submission was the endorsement of the passage from VAF which I earlier identified. However, that endorsement was given in a context where there is no obligation to point out, before a decision is handed down, that an applicant’s evidence has failed to disclose a Convention nexus. The High Court confirmed (again at ):
‘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.’
94 In the present case the information constituted by the questions to be posed to Mr Khalid and Mr Abbas, and their responses, is not correctly described as ‘the absence of evidence’. The whole exchange with each of them was properly to be seen as ‘information’. It was important and necessary that the whole of the exchange be disclosed. Otherwise the appellant was denied part of the information which s 424A guaranteed him.
So as can be seen omissions can be information which has to be revealed to a review applicant.
Finally it is necessary to note that the Migration Act was amended after proceedings were filed in this case to remove the requirement of the Tribunals to provide a notice in writing about adverse information relevant to the applicant but could undertake the same task orally. That amendment affects of on the successful grounds of appeal but it does not affect the ‘information’ and ‘omission’ point.