ASR15 v Minister for Immigration and Border Protection
[2015] FCA 1513
•24 November 2015
FEDERAL COURT OF AUSTRALIA
ASR15 v Minister for Immigration and Border Protection
[2015] FCA 1513
Citation: ASR15 v Minister for Immigration and Border Protection [2015] FCA 1513 Appeal from: ASR15 v Minister for Immigration [2015] FCCA 2222 Parties: ASR15 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 1052 of 2015 Judge: RARES J Date of judgment: 24 November 2015 Legislation: Migration Act 1958 (Cth) Cases cited: ASR15 v Minister for Immigration [2015] FCCA 2222
Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152Date of hearing: 24 November 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 39 Solicitor for the Appellant: Stephen Hodges, Solicitor Counsel for the First Respondent: Mr BD Kaplan Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1052 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: ASR15
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
24 NOVEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1052 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: ASR15
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE:
24 NOVEMBER 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
This is an appeal from the decision of the Federal Circuit Court that refused the appellant's claims for constitutional writ relief in respect of the decision of the Refugee Review Tribunal given on 28 April 2015 that affirmed the decision of the Minister's delegate not to grant the appellant a protection visa: ASR15 v Minister for Immigration [2015] FCCA 2222.
Background
The appellant appeared in person before the trial judge, but has been represented by his solicitor before me. He was also represented by solicitors and migrant agents at the hearing before the Tribunal and throughout the Tribunal’s processes. The appellant made a number of claims that he was owed protection obligations under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth).
The appellant is a citizen of Sri Lanka of Tamil ethnicity and the Hindu religion. He arrived in Australia on 22 July 2012 as an irregular maritime arrival, that is, by boat. On 27 September 2012, he took part in an entry interview with an officer of the Minister's department. In his written application for a protection visa, the appellant included a statutory declaration in which, relevantly, he claimed that what is known as the Karuna group had kidnapped him on 18 August 2002 while he was riding his bike to school. The Karuna group was then aligned to the Liberation Tigers of Tamil Eelam (LTTE), but subsequently switched allegiances to the government faction. He claimed that he was held with six other people in a room for two weeks, and that they then managed to escape. He claimed that on the next day, members of the LTTE came to his home, but that he was staying at his uncle’s place. He claimed that he went to Colombo on the following day to escape the danger he was in, staying there for five months before going to Qatar.
He annexed his statutory declaration made on 7 November 2012 to a form which he filed with the Department on 12 November 2012. He completed details in the form of, among other things, his education. In a typed section of the form he set out in English his educational history. That recorded that from January 2001 to December 2002, he had attended years 10 and 11 of school at Batticaloa, and that he had completed that course. He also attached a certificate on which he had written details identifying it as his school certificate that was written in a language other than English, but on which there were some details of dates identifying a period between 3 January 2001 and 31 December 2002.
The central issue that emerged on the appeal involved the way in which the Tribunal dealt with the discrepancy between the appellant's statutory declaration and other statements made by him or on his behalf to which I will come, that he had been abducted in August 2002 and then fled to Colombo, whence he left for Qatar, and the statement in the form that he had completed year 11 of school at the end of 2002.
The appellant was interviewed by the Minister's delegate who made a number of findings and accepted the appellant's account in some material respects. However, in the end, the delegate was not satisfied that the appellant was entitled to a protection visa. The delegate found that the appellant had been kidnapped for two weeks by the LTTE on 18 August 2002, and that during the kidnapping, he had refused to join the LTTE or provide the names of other students. The delegate also accepted that the appellant had escaped and relocated to Colombo, where he remained from August 2002 until May 2003, and then departed from Sri Lanka on a false passport organised by his uncle. The delegate also accepted that the appellant had not had any further contact with the LTTE since 2002, his cousin had gone missing in October 1997, one of his maternal uncles had been killed in 1990 as a result of an incident involving either the Sri Lankan army or the LTTE, and that another of his uncles had been harmed prior to October 1997, again by one of the two warring parties in the civil war. The delegate found that no other family member had been kidnapped by the LTTE. The delegate also accepted the appellant’s claims that, after parliamentary elections in Batticaloa, he had been abducted and tortured by the Karuna group in September 2010. (In the event, and nothing now turns on this, the Tribunal rejected that account on the basis that the medical reports on which the appellant relied referred to a motor vehicle accident as the cause of his injuries, and it did not accept that they were caused by abduction or torture.)
The appellant also claimed that he had connections to the Tamil National Alliance (TNA) political party that was opposed to the Karuna group, and that his support for the TNA would place him at risk of persecution by the Karuna group. The delegate did not accept as true the appellant’s level for support for the TNA, although he did accept that the appellant was a supporter of the TNA. The delegate also did not accept the claim that the appellant had provided a very large sum of money to the TNA. By reason of that finding, and his non-acceptance of the appellant's account that he had subsequently remained in hiding for a considerable period as a result of his support for the TNA, the delegate did not consider that Australia’s protection obligations in respect of the appellant were enlivened. He found that the appellant could find employment and housing in Colombo practically and safely. Accordingly, the delegate found that there was no real chance that the appellant would be persecuted for a Convention reason, and that, similarly, he was not at risk of harm from the Karuna faction in his home, or if he relocated, in Colombo.
The Tribunal’s decision
After receiving submissions from the appellant's solicitors beforehand, the Tribunal held a hearing and questioned the appellant on his account when he gave evidence. At the end of the hearing, the Tribunal raised a number of matters with the appellant, pursuant to s 424AA of the Act. There was no transcript of the hearing before the Tribunal in evidence before the trial judge or on appeal.
In its account of the hearing on 12 February 2015, the Tribunal noted that the appellant had repeated his claims and clarified or added others. It summarised these as his claims that, on return to Sri Lanka, he feared harm from the Karuna group, from government forces, and the Criminal Investigation Department (CID) of the Sri Lankan Government, and that he was scared to return because he thought these people would kill him because he was a supporter of the TNA, having worked for them at the 2010 election. He claimed that that was why the Karuna group, the CID and the government forces were all against him, and that the Karuna group could identify a Tamil youth and say who was who within the various categories and political allegiances.
The Tribunal recounted at [30] the following account of what occurred at the hearing relating to the inconsistency in the appellant’s claims of what had happened in the second half of 2002:
The Tribunal asked the applicant about his education and what level he studied to. He said he had studied for grade 11, was supposed to sit the exams but didn’t. It was put to him this is not what is in the document that is his School Certificate, and it seems to indicate the applicant was at the school from 3 January 2001 to 31 December 2002 (folio 74). He said this couldn’t be true as he was abducted on 8 August that year by the LTTE; this at a time when Karuna was still with them and their head in the Batticaloa area. It was put to him apart from this he also, in his original application, states he completed studies to year 11 (folio 43) and studied to December 2002 and notes the course as “completed”. He said “that’s a mistake”. He repeated that he claimed to have been abducted in August 2002 and “it is a mistake that it says December 2002”. (emphasis added)
The Tribunal then recounted that it had asked the appellant questions about his work in Qatar, at the end of which he had claimed to have returned to Sri Lanka in early 2010 to work for the TNA in the election. The Tribunal put a number of matters directly to the appellant about difficulty it had in understanding why he was asserting that the Karuna group would seek to abduct and kill him, and why they had taken, as the appellant had alleged, all his documents. It then questioned him about his hospitalisation in September 2010, again probing his account as to what he had been doing against the various documents, including the abbreviation in the hospital reports of “RTA”, as meaning "road traffic accident" rather than meaning an incident in which he had been allegedly assaulted and tortured, thereby suffering the injuries for which he received treatment.
It suffices to say that the Tribunal's account, in its reasons, of its questioning of the appellant during the course of the hearing indicated that the Tribunal was exploring a considerable number of matters that the delegate appeared to have accepted in the appellant's favour. Its questions suggested the Tribunal required some persuasion before it would be prepared to accept those matters, even though the delegate had. For example, the Tribunal put to the appellant that he had told doctors in 2011 of his plans to leave Sri Lanka and go to another country, as recorded in hospital notes, which the appellant agreed to, and then he asserted that he could not live in Sri Lanka any more as he had been living in hiding and had been locked indoors for 18 months, and thus had to leave. The Tribunal recorded at [38]:
The applicant was asked how he could expect to be believed that he had been living in hiding for 18 months.
It set out the appellant's response, after which the Tribunal then asked him questions, putting to him that it had serious difficulty believing any of what the appellant was saying was true, and that it did not believe he had been in hiding for that time (see [38] of the Tribunal's reasons).
Subsequently, the Tribunal asked the appellant about his claims to have made a very large donation to the TNA, and set out the appellant's responses to its questioning. The Tribunal concluded that part of its account of the hearing with the statement at [41]:
It was put to the applicant [that] the Tribunal considered he was making the story up.
Finally, the Tribunal identified in a summary way a number of matters for the purposes of its giving the appellant an opportunity to deal with them in accordance with s 424AA of the Act, in [43] of its reasons which read as follows:
The Tribunal put part of the content of the entry interview to the applicant pursuant to section 424AA. In particular this was that he was living from 2010 to April 2012 at his sister’s house at Selvapuram in Batticaloa; he completed year 10 and 11 at secondary school until December 2002; and he worked for his father as a taxi driver from 2010 to April 2012. It was put to him that this was relevant as it contradicted later claims of: who he lived with; that he had not completed year 11; and of his claiming he didn’t work in Sri Lanka. He said he understood what the information was, why it was relevant and what the consequences were of the Tribunal relying on the information. He said he wanted to respond now and didn’t want any additional time. He said he had studied year 11 but didn’t complete the year as he had been abducted in August 2002; and the certificate saying he was studying later “is a mistake on the part of the school”. He said the address on the form is not his sister’s house but that of his fiancée and her family. He said he had been driving his father’s auto rickshaw but “for fun not for money”. He said “I told them I was driving a taxi, but I didn’t say I was earning any money … I would just drive to the temple and to visit friends. My physical condition was such that I couldn’t work.” (emphasis added)
The Tribunal recorded that at the end of the hearing, the appellant had said that he had not told any lies about being tortured and assaulted, and that any mistakes were due to his memory problems. The appellant’s solicitors and migration agents made a written submission to the Tribunal dated 26 February 2015. That primarily related to areas of concern that the Tribunal had raised with the appellant at the hearing. The submission dealt expressly with the matters that the Tribunal had raised under s 424AA. The submission recorded, among others, the following:
In particular, the Tribunal raised the following:
(c)[The appellant] stated that he did not finish school because he was abducted by the Karuna group, but his school certificate indicates that he completed Year 11.
In response, the appellant's solicitors submitted:
In relation to the discrepancies noted above at 1(c), [the appellant] instructs that it is quite common in Sri Lanka for incorrect information to be recorded on formal documents, such as school leaving certificates. [The appellant] confirms that he did not finish Year 11 due to his abduction by the Karuna group, but that his school recorded that he had finished regardless. We submit that this document must be viewed by giving proper weight to the context from which it comes; Sri Lanka is a country noted for bureaucratic inefficiency and corruption, especially within the public service, thus it is highly plausible that education documents may contain mistakes or deliberate mistruths.
The Tribunal concluded that it did not accept the appellant’s claims in respect of the many significant concerns that it had raised, having taken account of the injuries for which the appellant was treated in 2010, and his claimed lack of memory. It then found that it had serious concerns as to the truth of significant parts of the appellant's claims. The Tribunal found that he had fabricated significant aspects of his history so as to enhance his claims for a protection visa, setting out 11 matters at [51], the first of which relevantly was:
I do not believe as true that he did not continue his education until December 2002. He has provided a document that is headed “School Certificate”. It details that he attended the school until 31 December 2002. It is not disputed that this is what is on the document, but is said to be a mistake of the school. He also states in his application that he completed Year 11 at a school in Batticaloa from January 2001 to December 2002. He also stated in his Entry Interview that he completed year 11. The applicant in explanation claims that the school has mistakenly put this date, and it must have been an error that in his application it is also stated he has competed year 11. I do not accept these explanations as reasonable to believe as true in the circumstances. I find the applicant attended school until December 2002 and completed year 11. It follows I do not accept as true his claim to have been abducted by the LTTE in August 2002, to have escaped, been in hiding from them, and then to have lived in Colombo from August 2002 until departure from Sri Lanka the following year. (emphasis added)
The Tribunal concluded that the appellant had fabricated his claims, of being of adverse interest to the LTTE in 2002, of being associated with, or involved in, the TNA, and of being of adverse interest to the Karuna group and by association the CID in 2010. It said:
I find that little of what he has said, or claimed, can be considered as reliable. I find he is not a credible witness and none of his claims of being of adverse interest to anyone for any reason are true.
The Tribunal did accept that in the past, and prior to 1998, some of the appellant’s family members had been killed in the ongoing conflict, but it did not accept that those matters had any significance for him now in Sri Lanka, or that anyone would impute an adverse profile to him. It rejected all the bases of his claims for protection, including by reason of his Tamil ethnicity, or of his provenance from the area in the north or east of Sri Lanka known to be a stronghold of the LTTE.
The Tribunal accepted that if the appellant were to return, he would be doing so as a failed asylum seeker from a Western country, but noted that he had not departed from Sri Lanka illegally. It accepted the country information from the Department of Foreign Affairs and Trade that it had no information that failed asylum seekers would be targeted on their return to Sri Lanka on the basis of having sought asylum here, and found that this would not make him a target of the authorities. It did not accept that the appellant would be arrested or detained for offences such as illegal departure.
The Tribunal found that the appellant’s claim to fear harm on return to Sri Lanka in the reasonably foreseeable future was not well founded. It found that there was not a real chance that he would suffer serious harm amounting to persecution, and that he did not have a well‑founded fear of persecution for any Refugee Convention reason. Nor was it satisfied that he had any claims for complementary protection under s 36(2). The Tribunal found that, for the reasons it had found the appellant was not a credible witness on his Convention claims, he had exaggerated and fabricated his other claims, and that he was not of any adverse interest to the authorities, or in the position where he was entitled to claim complementary protection rights under the Act.
The proceedings in the Federal Circuit Court
The appellant’s application before the trial judge had sought relief on the grounds that, first, the Tribunal’s decision was unsupported by any evidence, and, secondly, the Tribunal had not fully dealt with his problems.
The trial judge found that the Tribunal had complied with s 424AA, which, I infer, was based on what was set out in [43] of its reasons. His Honour found that the Tribunal’s adverse credit findings were the subject of its detailed reasons, and that it had also identified country information that lent support to those findings. His Honour found that there was no substance in relation to ground 1.
His Honour also rejected ground 2, finding that the Tribunal had identified what the appellant's claims were and rejected them for the detailed reasons it gave, including his lack of credibility. His Honour rejected the appellant's assertion that he had been denied procedural fairness on the basis that he alleged the Tribunal had not complied with the requirements of ss 424A or 424AA. His Honour found that the Tribunal had sought to comply with s 424AA, and that there was no basis to think it had done so defectively. He found there was no substance in the appellant’s assertion of a denial of procedural fairness, or that the Tribunal had committed any jurisdictional error. Accordingly, he dismissed the application.
This appeal
The appellant’s notice of appeal relied on four grounds, but all but the first were abandoned in the course of argument today. The first ground alleged that his Honour erred in finding that no obligation under s 424A[sic] of the Act had been enlivened. In the appellant's written submissions on the appeal and in oral argument, he advanced another ground of error in the Tribunal's reasons, namely that at no point had the Tribunal identified that an issue in the review concerned whether the appellant had been abducted by the LTTE in August 2002, so as to undermine the delegate's finding in his favour on that claim.
Essentially, the Minister did not object to the appellant being able to rely on the orally articulated second ground, and implicitly in his written submissions, for the purposes of determining the appeal. Essentially, the two grounds are interlinked, because each really depends on how the Tribunal dealt with the one subject matter in the course of the hearing, its identification of the issue to the appellant under s 424AA, and its reasons.
The appellant’s solicitor confined his challenge to the Tribunal's decision to those two aspects. He argued that because the delegate had accepted the appellant's account of his abduction in August 2002, the Tribunal had to identify squarely that it regarded the question of whether he had been so abducted as being an issue in the review in accordance with the principles identified in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, esp at 165 [43]. He argued that nothing in the Tribunal’s decision record, or in the other material in evidence, indicated that the Tribunal had put the appellant or his solicitor on notice squarely that the appellant's account of his abduction in August 2002 was a matter that he needed to address during the course of the review, having regard to the favourable finding by the delegate on that matter. The appellant also argued that, under ss 424A and or 424AA, the Tribunal had to put squarely to the appellant why the material in his application form, dealing with his having completed his schooling in year 11 to the end of December 2002, could be said to be inconsistent with, or the reason or part of the reason for, affirming the decision of the delegate that was under review.
Consideration
Division 4 of Pt 7 of the Act contained procedural requirements that s 422B(1) identified as being an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that it dealt with. Relevantly, the Tribunal had to invite the appellant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review under s 425(1). That was because it did not consider that it should have decided the review in the appellant’s favour on the basis of the material before it. During the course of the hearing matters can arise which ss 424A and 424AA require the Tribunal specifically to address with an applicant for review. Those sections relevantly provide:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear 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 the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
…
(b)that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department
…
424AA Information and invitation given orally by Tribunal while applicant appearing
(1)If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant clear 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) if the Tribunal does so – the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. (emphasis added)
The Tribunal summarised in [43] of its reasons how it had complied with s 424AA. Relevantly, it informed the appellant that it had information that he had completed years 10 and 11 at secondary school until December 2002 and that this information was relevant, as it contradicted his later claims that he had not completed year 11. The appellant said that he wanted to respond immediately and that he had studied in year 11 but had not completed the year, as he had been abducted in August 2002. He said that the certificate saying that he studied later was “a mistake on the part of the school”.
As the Tribunal explained, in the passage that I have quoted above at [18], it did not consider the appellant’s explanation that the certificate was wrong to be true. It followed inevitably that if it were not true, the Tribunal was not satisfied about the abduction.
It was obvious that this must be the consequence of the Tribunal raising this issue orally during the hearing, as it recorded in [43]. Indeed, the appellant’s solicitor’s response of 26 February 2015 to this specific issue demonstrated that the appellant understood what the information was that the Tribunal considered would be a reason for affirming the decision under review and why that was so.
The reason that the appellant gave for not finishing school, as the certificate had asserted, was his alleged abduction. What the solicitor’s response sought to do was to explain the certificate away in order to support the claims of that abduction.
In my opinion, the Tribunal put the appellant clearly on notice and, as evidenced by his solicitor’s written response, he understood the significance of the Tribunal raising the relevance of his statement at his entry interview and an official certificate recording that the appellant had completed school in December 2002, as being flatly contradictory to his claim to have been abducted in August 2002, and then to have fled to Colombo to live with his uncle and not to have completed school in that year. He made that claim in his original application for a protection visa on 7 December 2012 and in substance it was repeated throughout his hearing in the Tribunal, as well as before the delegate.
There could be no doubt that, by the time that the Tribunal had raised its concerns and invoked the operation of s 424AA during the course of the hearing with the appellant, he was on notice that there was an issue about whether or not he had been abducted and fled Colombo or had, as both he, in his entry interview, and the certificate stated, had completed school and not been abducted. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 165-166 [47]-[48] Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said:
First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [[1975] AC 295 at 369]:
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. (emphasis added)
I am of opinion that during the Tribunal hearing, the appellant was on notice relevantly that an issue in the review was the veracity of his account that he had been abducted in August 2002 and therefore had not completed school. I reject the first ground.
The Tribunal considered that the conflict between the appellant’s account of his abduction in August 2002 and subsequent flight to Colombo with the certificate of his school was information that it considered would be the reason or part of the reason for affirming the decision under review, in the sense discussed by French CJ, Heydon, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at 514 [25]-[26]. Having arrived at that view, the Tribunal discharged any obligation that it had under ss 424A or 424AA in the way in which it summarised its explanation of the relevance of the appellant’s entry interview and the certificate in [43] of its reasons, as I have explained above.
It is not necessary to decide, although there is considerable force in the Minister’s argument, that the provisions of s 424AA were not actually engaged in respect of those matters. The Tribunal considered the information that it raised in [43] of its reasons to be the reason or part of the reason why it would affirm the decision under review. That is because it told the appellant about this issue in those terms, as it would have been obliged to do under s 424AA, if the Minister’s argument were not accepted. In that way the Tribunal discharged its obligation to afford procedural fairness in accordance with the exhaustive prescription in ss 422B and 424AA of the Act: cf Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 267 [40]-[42] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ.
Conclusion
For these reasons, I am of opinion that the appeal must be dismissed with costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 2 February 2016
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