NAWZ v Minister for Immigration - [2006] FMCA 1640

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAWZ v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1640

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error - application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.51A, 91X, 357A, 420, 422B, 424A, 476

Dranichnikov v Minister for Immigration [2003] HCA 26
Htun v Minister for Immigration (2001) 194 ALR 244
M55 v Minister for Immigration [2005] FCA 131
Minister for Immigration v Guo & Anor (1997) 191 CLR 559
Minister for Immigration v Lay Lat [2006] FCAFC 61
Minister for Immigration v Al Shamry (2001) 110 FCR 27
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
NATL v Minister for Immigration [2003] FCAFC 112
NAZY v Minister for Immigration [2005] FCA 744
NBHH v Minister for Immigration [2005] FCA 1198
Paul v Minister for Immigration (2001) 113 FCR 396
Randhawa v Minister for Immigration (1994) 124 ALR 265
Selvadural v Minister for Immigration (1994) 34 ALD 347
Sellamuthu v Minister for Immigration (1999) 58 ALD 30
SZBXR v Minister for Immigration [2005] FMCA 1946
SZCIJ v Minister for Immigration [2006] FCAFC 62
SZEEU v Minister for Immigration [2006] FCAFC 2
Tin v Minister for Immigration [2000] FCA 1109
VAF v Minister for immigration (2004) 206 ALR 471
VWBF v Minister for Immigration [2006] FCA 851
VUAV v Minister for Immigration [2005] FCA 1271
WAGP of 2002 v Minister for Immigration (2002) 124 FCR 276
WAHP v Minister for Immigration [2004] FCAFC 87
WAJQ v Minister for Immigration [2005] FCAFC 79
WAJR v Minister for Immigration [2004] FCA 106

Applicant:

NAWZ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1820 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

25 September 2006

Delivered at:

Sydney

Delivered on:

24 November 2006

REPRESENTATION

Counsel for the Applicant:

Mr S Prince

Counsel for the Respondents:

Mr S Free

Solicitors for the Respondents:

Ms A Nesbitt of Sparke Helmore Lawyers

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 28 June 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1820 of 2006

NAWZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 28 June 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

The Tribunal decision was made on 2 June 2006, affirming a decision of the delegate of the first respondent made on 18 January 2006, refusing to grant the applicant a Protection (Class XA) visa.

The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “NAWZ”.
The first respondent made the following response to the application:
a) The application filed on 31 July 2006 does not establish any jurisdictional error in the decision of the Tribunal handed down on 2 June 2006.

Background

Mr Free, counsel for the respondents, said that the procedural history of this matter was unusual and required explanation. I rely on the written submissions prepared by Mr Free which briefly sets out that procedural background and reproduce paragraphs 2 to 11 for the purposes of this judgment:
2.The applicant is a citizen of Pakistan. The applicant arrived in Australia on 20 February 2001. On 28 May 2001 an application in the name of Akhtar Mohammed Waisi, a person claiming to be an Afgan national, was lodged. That application was refused by a delegate of the Minister on 12 June 2002. It subsequently transpired that the person whose photograph was included in the application in the name of Akhtar Mohammed Waisi was the applicant, NAWZ. The applicant has since indicated that he paid a man to prepare and submit this application for a protection visa.(RRT’s reasons for decision dated 2 June 2006, CB 138)
3. On 30 January 2003 the applicant lodged an application for a Protection (Class XA) visa in his own name. On 10 June 2003 the Department advised the applicant that, pursuant to s.48A of the Migration Act 1958 (Cth) (“the Act) he was prevented from making the application on the ground that he had made a previous application under a different name which had been refused. On 31 July 2003 the applicant lodged an application with the Refugee Review Tribunal (“RRT”) which was rejected on 9 October 2003 on the ground that the RRT did not have before it an RRT-reviewable decision and therefore did not have jurisdiction to hear the application. The applicant unsuccessfully sought judicial review of that decision: NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 160; NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199. Special leave to appeal to the High Court was refused on 9 October 2005.
4.On 14 December 2006 the Minister exercised her power under s. 48B of the Act to the effect that s.48A did not apply to the applicant, with the result that the applicant was not precluded from making a further application for a protection visa.
5. On 3 January 2006 the applicant lodged an application for a Protection (Class XA) visa. The basis of the application was the applicant’s contention that he was a person to whom Australia had protection obligations under the Refugees Convention. The applicant claimed that he and his family had been and continued to be harassed and threatened in Pakistan because of his father’s political activities and membership of the Pakistan People’s Party (“PPP”). A further aspect of the claim was that the applicant father had been involved in the death of the son of a local leader of the political group Jamaat I Islami (“JI’) and the family was threatened with revenge attacks. The applicant claimed that he was from the Swabi District in the Mardan Division in Pakistan in North West Frontier Province.
6. On 18 January 2006 a delegate of the Minister refused the application for a protection visa. On 24 January 2006 the applicant lodged an application for review with the RRT.
7. On 1 March 2006 the RRT wrote to the applicant through his adviser and advised him in the following terms:
‘With your first application to the Refugee Review Tribunal in July 2003, you submitted a document headed ‘Background” in which you explained the reasons for which you were applying for a protection visa. You stated that you had twice telephoned your family from Sydney and, on the second occasion, you were told that you should not return, as you would be in danger.
The Tribunal has reliable information that, two days prior to your arrival in Sydney you had changed $US5,000.
This information is relevant because this information may lead the Tribunal to conclude that your departure from your ship was planned prior to your conversation with your family and your decision to remain in Australia was taken for reasons other than fear of persecution of Pakistan.(CB 135)
8. The applicant, through his adviser, sought a copy of the advice from the agent of the applicant’s ship which was the basis for the above letter. On 7 March 2006 a submission was received by the RRT from the applicant’s adviser responding to the issues raised in the letter of 1 March 2006 and other matters.(CB 135)
9. The applicant, accompanied by a migration agent, appeared before the RRT on 10 March 2006 to give evidence and present arguments.(CB 126) Following the hearing the applicant forwarded to the RRT other documents and submissions.(CB 139)
10. By a decision signed on 2 June 2006 the RRT affirmed the decision of the Minister’s delegate not to grant protection visa. The RRT was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if he were to return to Pakistan. The RRT did not accept the bulk of the applicant’s claims and found him to be “a person without credibility”.(CB 142)
11. By application filed on 30 June 2006 the applicant seeks judicial review of the RRT decision in this Court.

Application for Review of the Tribunal’s Decision

On 28 June 2006, the applicant filed an application for review under s.39B of the Judiciary Act setting out the following grounds:
1.On several adverse findings as to the credibility of the Applicant, the RRT based its decision on documentary evidence provided by the Applicant AFTER the Tribunal hearing. The RRT did not give the Applicant an opportunity to respond to the Tribunal’s negative inferences about this new material. The Tribunal thus failed to comply with section 424A of the Migration Act by putting the negative aspects of the Tribunal’s interpretation of key evidence to the Applicant.
2.The Tribunal denied the Applicant procedural fairness in that the Tribunal made core negative findings on hearsay evidence, which was potentially capable of being investigated and verified, The RRT was in jurisdictional error in failing to seek answers to whether the Tribunal’s interpretation of that evidence was likely to be correct.
3.The Tribunal made a jurisdictional error in that it misapplied the test for establishing whether the applicant was subject to a reasonable fear of persecution within the terms of the Refugee Convention. (copied without alteration or correction)
At the commencement of the hearing on 25 September 2006,

Mr Prince, counsel for the applicant, indicated that he had only received a copy of the Court Book that morning. Although he previously had access to most of the documents contained in the Court Book, he wished to raise issues in his submissions not contained in the original grounds filed and reproduced above. As the applicant was in immigration detention, I permitted Mr Prince to proceed on the condition that he file an amended application as soon as possible after completion of the hearing. Leave was also granted for the first respondent to file further submissions in response to the new grounds raised.
An amended application was filed on 26 September 2006 in accordance with the above direction which contained the following grounds:
1.On several adverse findings as to the credibility of the Applicant, the RRT based its decision on documentary evidence provided by the Applicant AFTER the Tribunal hearing. The RRT did not give the Applicant an opportunity to respond to the Tribunal’s negative inferences about this new material. The Tribunal thus failed to comply with section 424A of the Migration Act by not putting the negative aspects of the Tribunal’s interpretation of key evidence to the Applicant, the information about the documents (for example the similarity of handwriting) was not information “that the applicant gave for the purpose of the application” it was information “given” by third parties which was provided by the Applicant to the Tribunal.
2.The Tribunal denied the Applicant procedural fairness in that the Tribunal made core negative findings on hearsay evidence, which was potentially capable of being investigated and verified. The RRT was in jurisdictional error in failing to seek answers to whether the Tribunal’s interpretation of that evidence was likely to be correct, such denial of procedural fairness is not within the scope of the matters with which s422B deals.
3.The Tribunal made a jurisdictional error in that it misapplied the test for establishing whether the applicant was subject to a reasonable fear of persecution within the terms of the Refugee Convention. In that it failed to consider the applicant’s true claims and failed to exercise its jurisdiction.
PARTICULARS
It Is clear that the Tribunal considered the applicant’s claims as though he were claiming to be a supporter of a particular political party and found that “no one in the party suffers or has suffered harm amounting to persecution”.
Infact, the applicant claimed to fear persecution on tho grounds of membership of a particular social group, namely family members of his father who had been accused of involvement in the death of the son of a leader of Jamaat I Islami: (C8144.6-7; CB129 [6] - [13].
4.The tribunal failed to comply with s 424A of the Migration Act 1958 in that:
a) It did not provide 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
b) It failed to ensure, as far as is reasonably practicable that the applicant understands why it is relevant to the review
PARTICULARS
i) The Tribunal responded to a request on 2 March 2006 to provide documents referred to in its letter of 1 March 2006, but failed to provide a copy of document headed “Background” from the “first application to the Refugee review Tribunal in July 2003” to which reference had been made in its letter of 1 March 2006 (CB94; CB92-03): (CB76- 77)(CB142);
ii) The Tribunal provided a copy of the email dated 21 November 2001 to which reference was made in the 1 March 2006 letter in a font which blacked out important information concerning a witness (CB93);
iii) The Tribunal did not provide any written notice concerning the information contained in the protection visa application which it used as a part of the reason for affirming the decision under review (CB144.5-8) and in particular the information contained in those documents that the entire family was in danger as a result of incidents which occurred in December 2001, presumably derived from (CB50 [13]; CB49 [8]; CB30)
(iv) The Tribunal did not provide any written notice concerning the information that the applicant had originally said that he had been warned by his family on arrival in Australia in February 2001 that he was in danger and that such information would be used together with that in (iii) above to conclude that none of the events that the applicant claimed to form the basis of his claim had occurred at the time he made his original claims, which conclusion effected the Tribunal’s view of the applicant’s credibility(CB144.5-8).
(v) The Tribunal did not provide any written notice concerning the information that the Applicant’s family had remained in the same place throughout the applicant’s time in Australia CB144.5-8; CB145.1-3), which information must have been derived from sources other than the information in the tribunal application.
(vi) The Tribunal did not provide any written notice concerning the information that in his second protection visa application, the documents so submitted purported to show that the applicant’s family was caught up in a political murder and that his father was accused of involvement in the crime and the use to which that information would be put, namely that it was inconsistent with certain county information (the country information itself was not required to be put due to 474A(3)(a) but the information to which it was compared (from the protection visa application) was required to be put and the relevance of the information was required to be put (CB144.5-6)
(vii) The Tribunal did not provide any written notice concerning the information that “the documents submitted to the Department were prepared to assist the applicant’s application and should be given no weight: (CB144.9-10)
5.The applicant was denied procedural fairness in relation to matters not dealt with in s4228 of the Act in that:
(a) The Tribunal failed to put to the applicant its views that certain documents provided to the Tribunal by the applicant were not authentic, not truthful, not genuine and as a whole concocted: (CB143.5-6; CB144.4-5).(copied without alteration or correction)

Submissions

In anticipation of the amended application being filed, Mr Prince indicated that he wished to raise three main issues:
a) Section 424A of the Act;
b) Various letters which were referred to by the Tribunal and rejected concoctions for the purpose of the claim, which also has s.424A relevance;
c) The documents which the Tribunal found were concocted for Tribunal review and were not put to the applicant.
In respect of the s.424A question, Mr Prince referred the Court to a letter from the District Registrar of the Tribunal dated 1 March 2006 and addressed to Ms Rozlyn Smidt of Craddock Murray & Newmann.(Court Book (“CB”) 76-77) Mr Prince indicated there the document contained two pieces of information and one conclusion which the Tribunal came to. The first piece of information was that the shipping company who employed the applicant as a seaman had at his request changed US$5,000 into Australian currency prior to his arrival in Sydney. The second was that in the first application to the Tribunal in July 2003, the applicant submitted a document headed “Background” which stated that he had twice telephoned his family from Sydney. During the second telephone call, he was told that he should not return home as he would be in danger. That document, “Background”, was part of the first application to the Tribunal in 2003 and is not reproduced in the Court Book in respect of the current application. Mr Prince submits that this was clearly not information which was given for the purposes of the application to the Tribunal in 2005 and is not excluded by s.424A(3)(b) of the Act. Mr Prince submits the question is whether the letter from the Tribunal dated

1 March 2006 provided sufficient particulars of information to enable the applicant to respond to the invitation and comment on the “Background” information.
Mr Prince then turned to the issue of the US$5,000 and referred the Court to an email which was forwarded by the shipping company to the Australian Customs Service which was copied to the Department.(CB 93) The email refers to a crew member who failed to report for duty upon the ship’s departure. The email said that the ship’s staff captain advised that the missing seaman had changed US$5,000 into Australian currency two days before arrival in Sydney. The email contained the name of a crew member who the company claimed could provide more information about the missing seaman, but that information was never provided to the applicant. That email was not originally provided together with the s.424A notice but was provided later, prior to the Tribunal hearing.
An internal Tribunal file note was prepared by a Tribunal administrative assistant and dated 2 March 2006, being the day after the s.424A notice:
2/3/06 The adv called asking to have the document relating to the 424A faxed to her. I told her I will discuss it with the Member and call her back-N Mohammed.(CB 94)
Mr Prince submits that of the two documents referred in to in the s.424A notice, one was provided to the applicant while the other was not. Mr Prince contends that by providing one of those documents, namely the email, the Tribunal had presumably taken the view that it was necessary to provide a greater degree of specificity than was provided in the s.424A letter. Having provided that document, the Tribunal did not provide the Tribunal application of 2003. There is nothing in the Court Book to suggest that the 2003 application itself was before the Tribunal and was not reproduced along with the relevant material that the Tribunal had taken into account. It is submitted that this was significant. The alleged inconsistency arises from a comparison of both pieces of information, each piece being of equal importance. The allegation that the applicant had stated that he had twice telephoned his family from Sydney and on the second occasion was told he should not return, contradicts with what he did two days prior to his arrival in Sydney.

Mr Prince took the Court to the material that had been prepared by Rozlyn Smidt, migration agent, for the applicant in support of his protection visa application.(CB 29) I do not believe it necessary to itemise all that material. Mr Prince emphasised that that material omits any reference to the phone calls made by the applicant upon the applicant’s arrival in Sydney and the essential information that he received in the second telephone call. There is only one reference made in connection with the applicant’s decision to leave the ship and the news that his father was being targeted because of allegations that he was involved in the death of a son of a Jamaat I Islami leader. Paragraph 9 of the applicant’s statutory declaration of December 2005, refers to him being informed by his family that they faced continued harassment.(CB 49-51) However, there is no reference in the statutory declaration to the applicant having made two telephone calls, the second of which upon arrival in Sydney and when he first became aware of problems with his father. Paragraph 13 of the statutory declaration makes reference to when the father of the killed Jamaat I Islami member was alleged to have fired shots at the home of the applicant’s brother, killing him and a relative in December 2002.

The Tribunal made the following statement in its ‘Findings and Reasons’:
Moreover, the documents and the submission which accompanied them claim that the entire family is in danger as a result of an incident which occurred in December 2002. Yet the applicant arrived in Australia in February 2001 and claims that he remains as a result of a warning from his family at that time that he would be in danger if he returned. None of the events which he now claims to be the basis of his fear of persecution had occurred at that time.(CB 144.8)
Mr Prince submits that this was a complete misreading of the evidence by the Tribunal. What was put in the statutory declaration was that the event in December 2002 was a manifestation of an earlier problem, that is, the applicant’s father accused involvement in the death of the son of a Jamaat I Islami member.
Mr Prince further submits that none of the information provided in the second protection visa application included reference to the two telephone calls the applicant made. The only information that that the problem with his father could have been based on was information from the earlier application which was never provided to the applicant. Mr Prince argued that given the nature of the allegations that were being made to the applicant, the document itself would have to have been provided to the applicant to accord with the fairness contemplated by s.424A. The email had to be provided to the applicant and his adviser to check the material and confirm what appeared in this particular context. It is submitted that this was just an assertion.

Mr Prince submits that the applicant’s statutory declaration was made in December 2005 and the Tribunal application on 24 January 2006. As the statutory declaration was provided together with the second protection visa application and not the Tribunal application, it would not be excluded by s.424A(3)(b) of the Act.
Mr Prince then referred to the second group of documents which form part of the first ground and drew the Court’s attention to the Tribunal decision referring to the applicant’s evidence which it found “extremely confusing”:
·    In his submission to the Tribunal of 20 February, he stated “Due to divesting earth quake in Pakistan which bust my whole family, As a result of that my family house was totally destroyed, And my younger son is missing I don’t know whether he is still alive or dead. My family has been living in streets there is no means of shelter, proper food and clothing.”
·    The statement by his son submitted to the Tribunal by his adviser on 19 April 2006 includes the following: “In short, we have been compelled to leave the vicinity and to reside somewhere else.” (The fax from Pakistan is dated 3 March 2006).
·    The letter from his adviser dated 29 May 2006 stated that “his family had been visited by local police who made enquiries about his whereabouts and the problems which his family has been facing……..A visit involving both police and the local leader is a serious and unusual event in (the applicant’s) village…”(CB 143)
Mr Prince submits that the information referred to in the first point above is contained in a letter from the applicant to the Tribunal, which was clearly information provided to the Tribunal by the applicant.(CB 73) The statement referred to in the second point is contained in the material forwarded by the applicant’s solicitors to the Tribunal on

19 April 2006 as a document addressed to the first respondent, “Request for Political Asylum”.(CB 110) Mr Prince submits that the Tribunal’s comment about the material referred to in the third point, that “there is no way of reconciling these statements”, is clearly wrong.(CB 143.4) He submits there the statements do not conflict, particularly if one has regard to the dimension of time. The letter from the adviser simply says that the family had been visited by the local police with no mention that that took place at their home. The letter on 19 April 2006 does not say that the family was forced to leave the region or the area, but rather the vicinity. There is nothing to indicate that they left their village. This would have to have been conveyed if the statements conflicted.
Mr Prince then went to a document prepared by the doctor who treated the applicant’s father.(CB 112) The Tribunal said that this document was vague.(CB 143.5) Mr Prince said that this document was submitted to the Tribunal with other documents on 19 April 2006 (listed at CB 109). The Tribunal found that that letter from the doctor was not credible and lacked the minimum characteristics of a genuine medical certificate.(CB 143.6) Mr Prince submits, however, that this was never put to the applicant.
Mr Prince then referred to two other medical certificates from two different doctors, although the handwriting appears to be identical.(CB 143.7) He submits that it does not necessarily mean that the documents were forged, as both certificates were extracted from hospital records and both doctors simply used the same source. There is no evidence that the doctors personally handwrote the documents; therefore it does not necessarily follow that the documents are not authentic even though the handwriting may be similar. Mr Prince submits again that the documents were never put to the applicant.
Mr Prince then referred the Court to the paragraph in the Tribunal decision which begins with:
Copies of other documents were previously submitted to the Department with the applicant’s primary application.(CB 144.5)
Mr Prince contends that this sentence makes clear that the Tribunal was moving on to deal with what was provided with the protection visa application. That information was used by the Tribunal against the applicant in the following way:
Moreover, the documents and the submission which accompanied them claim the entire family is in danger as a result of an incident which occurred in December 2002.(CB 144.7)
Mr Prince contends that this Tribunal reference is consistent with what appeared in the protection visa application. The paragraph continues:
Yet the applicant arrived in Australia in February 2001…
That is a fact that the Tribunal knew from elsewhere other than the protection visa application. It is submitted that information from the protection visa application was used as part of the reasons for the Tribunal decision to reject the application.The adverse matters flowing from the information provided in support of the protection visa application ought to have been put to the applicant by way of a letter in compliance with s.424A of the Act. Mr Prince submits that not doing so was a breach of the Act.
The Tribunal then went on to say:
…my findings regarding the documents recently submitted to the Tribunal and my finding that the applicant planned to remain in Australia before he had any contact with his family after disembarking lead to the conclusion that the applicant is not credible or truthful and that the documents submitted to the Department were prepared to assist the applicant’s application for protection and should be given no weight.(CB 144.9)
Mr Prince argues that the Tribunal rejected wholesale the applicant’s entire claim, including the documents provided, the evidence he gave and all of what was said to have occurred in 2001. This rejection caused the Tribunal to juxtapose information from the first protection visa application with the email. In the circumstances, a copy of the 2003 application should have been put to the applicant.

The paragraphs from the Tribunal decision referred to at [18] above indicate that the Tribunal did not consider events which occurred after December 2002. Or, if the Tribunal takes the view that the events have not occurred before February 2001, then they can be discounted.
Mr Free, appearing for the respondents, referred the Court to SZEEU v Minister for Immigration [2006] FCAFC 2 at [205] - [207] (“SZEEU”) per Allsop J (with whom Weinberg J agreed):
205.Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: The Complete Oxford English Dictionary (2^nd Ed 1991). In this context, the word has been taken as referring 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 at [3], approved in VAF at [24] or knowledge which has come to, or has been gained by, the Tribunal: Paul at [95].
206.Information does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54], Paul at [95] and VAF at [24]. In this respect, it is relevant to recall the root of the word ‘information’: that of which one has been told or apprised, or informed. The distinction can become fine: Paul at [95]. It is a distinction, nevertheless, to be maintained. Also, the fact that appraisal, thought processes and determination are not information does not mean they are not relevant to the operation of s 424A. The thought processes of the Tribunal may reveal the relevance of information for s 424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s 424A(1)(a), (b) or (c).
207.The word ‘information’ has been said not to encompass or 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) 124 FCR 276 at [26]-[29], cited in VAF at [24]. It will be necessary in due course to explain the limits of this expression of view.
Justice Allsop also explained the qualification regarding WAGP of 2002 v Minister for Immigration (2002) 124 FCR 276:
223.…The argument that was rejected in WAGP was that “information” encompassed what was not mentioned to the Tribunal as a matter of evidence. This was a clear application of the distinction between information and mental processes. The argument sought to manufacture “information” out of the consideration and assessment by the Tribunal of the applicant’s oral evidence to the Tribunal. I do not see Finn J and Stone J in VAF in [24(iii)] of their reasons as requiring a formalistic analysis of information such as prior statements depending upon whether its or their relevance is from the text or from the absence of text. Where there are things such as a prior statement or a visa application form, the information for the purposes of s 424A will be that a document in that form was provided. That information may have relevance to the Tribunal for all sorts of reasons. Such relevance is not limited to whether the information leads to a positive factual finding based on its terms. It may be relevant because it plays some part (as here) in the conclusion as to the truthfulness of the applicant. (SZEEU at [223])
Mr Free submits that applying the principles as set out in SZEEU, any negative inferences the Tribunal may have drawn from information that the applicant provided after its hearing could not constitute “information” for the purposes of s.424A. Such inferences were not “knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal” but rather qualitative assessments of the evidence. The Tribunal is not obliged under s.424A to inform an applicant of its thought process in the course of making a decision or inviting the applicant to comment upon them: VAF v Minister for Immigration (2004) 206 ALR 471 (“VAF”) at [47] per Finn and Stone JJ. The information which the applicant himself provided, from which the Tribunal was said to have drawn adverse inferences, is not information to which s.424A applies because it is “information that the applicant gave for the purposes of the application”: s.424A(3)(b) of the Act.
Mr Free made the further written submissions in response to issues raised in the further amended application. He submits that inferences which the Tribunal itself drew from material which the applicant provided, such as an observation about the similarity of handwriting, could not constitute information that was “knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal”.

This was information “that the applicant gave for the purpose of the application”: s.424A(3)(b). In the amended application, the applicant suggested a distinction between information “provided” by the applicant and information “given” by the applicant. There is no authority in the Act or the case law to support such a distinction. If the applicant gave the Tribunal documents containing information, then the applicant has “given” the information for the purposes of s.424A(3)(b) and s.424A does not apply.
The first ground is misconceived to the extent that the applicant relies on s.424A in respect of the negative inferences which the Tribunal drew from the material that the applicant and his agent provided after the Tribunal hearing. Mr Free took the Court to SZEEU at [205] - [207] per Allsop and Weinberg JJ, which is binding on this Court in respect of this issue. I believe that the only issue for this Court to resolve is whether all of the inferences made by the Tribunal in relation to the material identified can be correctly characterised as being “inferences, subject appraisals, thought processes or determinations” as considered in SZEEU: relying on Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54], Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [95] and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24].
The email concerning the currency exchange of US$5,000 was provided to the applicant and I do not believe that it needs to be considered further. However, this issue was pleaded in ground 4(i) of the amended application filed by Mr Prince on 26 September 2006. The argument in that ground is that the Tribunal did not provide the applicant with adequate particulars in its letter to the applicant’s agent on 1 March 2006. Detailed submissions in respect of the repleaded ground 4(i) are addressed at [51] – [53] of these reasons, which further supports the conclusion reached in this ground of review.
Therefore, the documents which are the subject of first ground are:
a)      The document headed “Background” that was submitted as part of the first application for review by the Tribunal in July 2003. Referred to in the Tribunal letter to Ms Rozlyn Smidt dated 1 March 2006.
b)      The application for review by the Tribunal in July 2003.
c)      The group of documents which are identified as the medical certificate.
To the extent that any inferences are drawn from these documents, they are excluded by s.424A(3) of the Act as discussed above. However, the new pleading in the fourth ground contains a full explanation of compliance with the requirements of s.424A. I have addressed issues in relation to the document identified as “Background” at [53] - [54] of these reasons below. The 2003 Tribunal application is addressed at [56] – [57] below. The documents the subject of the first ground (identified at [24](c)) were addressed in the further submissions filed by Mr Free on 5 October 2006 and I am satisfied that he correctly applied the authorities. The first ground of the amended application cannot be sustained.
In respect of the second ground, Mr Prince referred the Court to the Tribunal’s ‘Findings and Reasons’ in its decision, in particular the following passage:
Finally, the statement by the applicant’s friend refers to the shooting of his son and refers to the injury suffered as being in his shoulder, whereas the doctor’s certificate refers to the injury as being to the hand.
In all the circumstances, I find that these documents are not truthful and, in the case at least of the medical certificates, are not genuine. If the statement by the friend is genuine, which it may be, it also lacks credibility, since it conflicts with independent country information and contradicts the medical certificate which refers to a hand injury. The documents as a whole have been concocted for the purposes of the present application for review of the delegate’s unfavourable decision on the application for a protection visa.(CB 144)
Mr Prince submits that there was no evidence that was put to the applicant that the documents were not genuine: WAHP v Minister for Immigration [2004] FCAFC 87 (“WAHP”) at [36] per Lee J. Mr Prince acknowledged that the majority in that decision (Carr and Tamberlin JJ) came to a different view based on a distinction between the particular terms of the decision and whether or not the terms of the decision had an impact on the reasoning process: WAHP at [56].

Mr Prince submits that WAHP was referred to in WAJQ v Minister for Immigration [2005] FCAFC 79 (“WAJQ”) per Marshall, Mansfield and Siopis JJ. Their Honours held that WAHP did not apply to the circumstances in WAJQ as that Tribunal had made no finding that the documents were not authentic. Rather, the Tribunal in WAJQ did not accept the documents in its case because they conflicted with other material. Mr Prince also submits that WAJR v Minister for Immigration [2004] FCA 106 (“WAJR”) applies as to the effect of s.422B of the Act. Also, that the Tribunal is not required under s.424A to put thought processes or conclusions to an applicant for comment. Accordingly, matters such as conclusions that documents are forged, unless based on other information, are not within the scope of the Division.Consequently, as per WAJR, s.422B would not exclude the operation of natural justice and procedural fairness.
Mr Free submits in his written submissions that s.422B exclusively sets out the requirements of the natural justice hearing rule in relation to matters dealt with in that Division of the Act. It is not open to an applicant to try to establish that the Tribunal breached requirements of procedural fairness (in respect of the hearing rule) by reference to extraneous principles derived from the common law: SZCIJ v Minister for Immigration [2006] FCAFC 62 (“SZCIJ”) which approves Minister for Immigration v Lay Lat [2006] FCAFC 61 (“Lay Lat”) at [60] – [70]. If an applicant is to succeed in establishing a breach of the natural justice hearing rule, this must be by establishing a breach of one of the statutory requirements in that Division. Mr Free submits that there is no provision in that Division, or anywhere else in the Act, to the effect that a Tribunal cannot take into account hearsay evidence. Accordingly, it cannot be said that a Tribunal so doing is in breach of procedural fairness. Section 420(2) of the Act relevantly provides that a review of a decision of the Tribunal “is not bound by technicalities, legal form or rules of evidence”. Federal Magistrate Scarlett noted in SZBXR v Minister for Immigration [2005] FMCA 1946 at [53] that by virtue of s.420(2), hearsay evidence is not inadmissible in the Tribunal. His Honour further noted that while the hearsay nature of certain evidence may go to its weight, that consideration in itself does not make the evidence irrelevant. Accordingly, the mere fact of taking into account hearsay evidence cannot be said to constitute jurisdictional error.

Mr Free, in supplementary written submissions, referred to the oral submissions of Mr Prince not in support of the proposition that it was still possible to argue that the Tribunal had breached the requirements of procedural fairness without showing a breach of the statutory requirements of Div 4 Part 4 of the Act. Mr Free also submits that the authorities cited by Mr Prince are no longer good law (WAJR, WAJQ and WAHP per Lee J).
Mr Free submits that Lay Lat noted that ss.51A, 422B and 357A had been subject to different interpretations in a number of cases, including WAJR. Lay Lat considered and expressly rejected the argument that s.51A of the Act requires that a decision-maker “must, in each case, consider whether there is an applicable common law rule of natural justice and then examine the provisions of Subdiv AB to see whether it is expressly dealt with.”: Lay Lat at [69].Another Court effectively extended the same reasoning to s.422B: SZCIJ at [7] – [8]. Accordingly, if an applicant is to succeed in establishing a breach of the natural justice hearing rule, this must be done by establishing a breach of one of the statutory requirements of Part 7, Div 4 of the Regulations.
I accept Mr Free’s submissions and the authorities he relied upon in respect of the second ground. The second ground cannot be sustained.
In respect of the third ground, Mr Prince in his oral submissions referred the Court to the following passage in the Tribunal’s ‘Findings and Reasons’:
A further problem I have with his friend’s statement is that it conflicts with country information which I accept and which is reproduced above regarding the situation in the North West Frontier Province. Country information does not confirm a state of on-going or systematic violence between the PPP and Jamaat-i-Islami. This is not to say that occasional incidents do not occur. Some such incidents are described in the country information submitted by the applicant. However, to constitute persecution, there must be an element of systematic and deliberate targeting of an individual or a group (or deliberate, systematic or on-going absence of state protection) and I do not accept that such occurs.(CB 144.2)
The country information deals with the fact that the anti-Jamaat I Islami groups in that region, the Awami National Party (“ANP”) and the Peoples’ Party of Parliamentarians (“PPP”), had both won more seats than in the past. The applicant claimed that his father was aligned with the PPP and was accused of a murder as discussed above at [12] which led to the applicant’s family being targeted by a Jamaat I Islami leader. Mr Prince submits that this proposition differs from a general assertion of political violence in the area or general persecution of the PPP or ANP.
Mr Prince submits that the last sentence of the above extract of the Tribunal decision showed the Tribunal taking information from a very high level of abstraction about a general political matter and applying it without taking into account the particular claims made by the applicant. That is not to say that occasional incidents do not occur. Some of the incidents as described in the country information reveal otherwise.

Mr Prince argues that there is no denial of PPP rivalry with Jamaat I Islami as there are references to attacks on the applicant’s family, which is very clear from the material that the applicant’s friend is putting before the Tribunal. A counsellor of Zarobi Pakistan indicated that the Jamaat I Islami believed that the applicant’s father and family caused the murder in question. Mr Prince submits the Tribunal’s finding indicates it did not understand the nature of the applicant’s true claim and was a jurisdictional error: Dranichnikov v Minister for Immigration [2003] HCA 26.
Mr Free submits that an applicant applying for refugee status (such as the applicant in this matter) must establish that his fear of persecution for a Convention reason is “well-founded”. This was considered by the High Court in Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 571-572 per Brennan CJ, Dawson, Toohey, Gummow, Gaudron and McHugh JJ and Their Honours held:
…This element adds an objective requirement to the requirement that an applicant must in fact hold such a fear…As Chan [v Minister for Immigration (1989) 169 CLR 379 at 389] shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
The High Court recognised that in determining whether an applicant has a “well-founded” fear of persecution, a decision-maker such as the Tribunal may need to resolve questions of credit, or attribute weight to particular evidence and consider any inherent improbability of events. In Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 281 - 282, Brennan CJ, Toohey, McHugh and Gummow JJ considered:
…When conflicting information available to the Minister's delegate relates to some past event…the attribution of greater weight to one piece of information as against another or an opinion that one version of the facts is more probable than another is not necessarily inconsistent with the correct application of the Chan test. The chance of persecution is not a fact to be inferred solely from facts that are found to have existed; the very uncertainty of what has happened in other cases is itself material to the assessment of the chance of persecution in the instant case… When it is a question of personal satisfaction, there can be nothing wrong with the attribution of weight. In that context, the attribution of weight may indicate no more than that some material has assisted the decision-maker more than other material in the ascertainment of whether the requisite satisfaction has been reached.
Mr Free submits that consistent with these principles, the Tribunal should adopt a liberal attitude in considering whether a claim for persecution has been made out. However, it is not appropriate for it to accept uncritically allegations of fact by the applicant: Randhawa v Minister for Immigration (1994) 124 ALR 265. The Tribunal can lawfully find that a particular factual assertion by an applicant is not made out even without any rebutting evidence: Selvadurai v Minister for Immigration (1994) 34 ALD 347 at 348. Mr Free submits that the Tribunal did not commit jurisdictional error in its assessment of the applicant’s claim. The Tribunal was not satisfied as to the credibility of the applicant’s claim or the authenticity of a number of documents submitted by the applicant. This was a finding of fact open to it and no error is apparent from the way the Tribunal arrived at these findings.
Mr Free in his additional written submissions submits that the applicant asserts in the third ground that the Tribunal “misapplied the test” for determining whether the applicant had a well-founded fear of persecution for a Convention reason by dealing with the applicant’s claim as a claim of being a supporter of a particular political party. In fact, the applicant claimed to fear harm because of the particular circumstances of his family.
Mr Free submits that as a matter of general principle, it is well settled that the Tribunal will fall into jurisdictional error if it fails to deal with a distinct claim for refugee status that has in substance been raised and not abandoned by applicant: Htun v Minister for Immigration (2001) 194 ALR 244 at [8]-[12], [41]-[42]; Sellamuthu v Minister for Immigration (1999) 58 ALD 30. Similarly, the Tribunal will err if it misstates the particular social group of which the applicant claims to be a member, or fails to consider whether that group is capable of constituting a social group for the purpose of the Convention: Dranichnikov v Minister for Immigration (2003) 197 ALR 389.
Mr Free further submits that on reading the Tribunal decision as a whole, it is clear that it recognised the basis of the applicant’s claim as fear of persecution if he returned to Pakistan because of the incident involving his father and the risk that opposing factions would seek to exact revenge on him. In summarising the oral evidence at the hearing, the Tribunal referred to the following exchange between it and the applicant:
“1 asked why it would be unsafe for him to return. He said that he would be killed because of the incident in which his father was said to have killed a man. The police had investigated and his father had not been charged, but his mother and his father had been killed.”(CB 139)
The Tribunal then referred to country information concerning, among other things, conflict between the PPP and Jamaat I Islami in the North West Frontier Province. The Tribunal also noted a discrepency between the description of events given by the applicant’s friend and that country information.
Mr Free submits that the reason why the Tribunal rejected the applicant’s claims is clear. This was not a case where the Tribunal accepted the factual claims made by the applicant, but based on its own analysis of the country information, concluded from the factual circumstances described by the applicant that the applicant did not have a well-founded fear of persecution. Rather, the Tribunal in this case understood what the applicant was claiming but did not accept them to be true. This much is clear from the fact that the Tribunal considered the veracity of the factual claims, such as the nature of the father’s injuries and the statement by a local councillor. Given that the Tribunal considered each of the factual elements comprising the claim of risk of revenge attacks on the family, it cannot be said that the Tribunal did not consider the applicant’s claim. The fact that the Tribunal referred to general country information about the political situation in Pakistan and noted that the applicant’s story was not consistent with that information, does not mean that the Tribunal misunderstood the nature of what was claimed by the applicant.

The Tribunal accurately described the applicant’s claim, considered the factual elements of that claim and dealt with the claim by finding that it did not accept it to be factually true. I accept the submissions made by Mr Free and the third ground of the amended application cannot be sustained.
In the amended application filed on 26 September 2006, two new grounds have been pleaded which in effect expand and replead grounds one and two of the original application. These are a failure to comply with s.424A and a denial of procedural fairness in relation to matters not dealt with in s.422B. Mr Prince did not specifically address the fourth and fifth grounds of the amended application in his oral during the hearing. They presumably were covered by the submissions in respect of grounds one and two. Mr Prince did not file any written submissions specifically addressing any of the grounds raised in either the original or amended application.
Mr Free prepared detailed written submissions in response to the grounds raised in the amended application and made supplementary remarks to his written submissions filed in answer to the original application. I thank Mr Free for his detailed examination and analysis of the issues raised in the amended pleadings and I consider those submissions below.
Mr Free submits that the amended application raises a number of alleged breaches of s.424A of the Act. It is necessary to deal with each of the alleged breaches separately. Before doing so it is useful to note some general matters. The first is to consider whether the information referred to in each of the grounds particularised under the fourth ground is information to which s. 424A applied. Section 424A does not apply to information “that the applicant gave for the purpose of the application”: s.424A(3)(b). In a number of the particularised grounds, the applicant contends that the Tribunal should have given him written notice that it intended to rely on information that the applicant had previously provided as part of his protection visa application.The applicant accepted that “application” within s.424A(3)(b) means the application for review by the Tribunal: Minister for Immigration v Al Shamry (2001) 110 FCR 27 at [17] and [40]. In general terms, if the information in question was in documentation provided for some purpose other than the application to the Tribunal (such as the original visa application), then that information is not information given by the applicant for the purpose of the Tribunal application.However, that information can become information given by the applicant for the purpose of the Tribunal application, if the applicant expressly adopts that information as part of the application for review to the Tribunal.
Mr Free submits that the applicant in M55 v Minister for Immigration [2005] FCA 131 (“M55”) filed written submissions to the Tribunal which expressly relied upon the terms of the applicant’s previous protection visa application. Justice Gray held in M55 at [25] that this made the information in the visa application “information” given for the purpose of the application for review:
…By means of the written submission of his counsel to the Tribunal, the appellant relied expressly on the terms of his protection visa application. He informed the Tribunal that the detail of the claims was set out in the protection visa application and his earlier statements. He thereby invited reference to the copy passport, which was attached to the application form. There can be little doubt that the appellant intended that the Tribunal should look at this material. In my view, he thereby provided the passport, and the information to be derived from it, to the Tribunal for the purpose of the application for review. This was sufficient for the appellant to have been taken to give the information contained in the copy passport to the Tribunal for the purpose of his application for review, and therefore for that information to fall within s 424A(3)(b) of the Migration Act. This provision operated to exclude the copy passport from the Tribunal’s obligations pursuant to s 424A(1) and (2).(emphasis added)
Similarly in NBHH v Minister for Immigration [2005] FCA 1198 (“NBHH”) at [12] – [13], Lingren J held that the specific written adoption of earlier documents by the Tribunal makes the information in those documents “information” given to the Tribunal for the purpose of the application for review:
12.The Federal Magistrate also dealt with an issue arising under s 424A of the Migration Act 1958 (Cth). Although the issue was not raised by the appellant, the Federal Magistrate considered whether the use made by the Tribunal of the appellant's visa application and supporting statements gave rise to any non-compliance with s 424A(1). The Federal Magistrate thought, and I agree with him, that by reason of the appellant’s having stated in his application to the Tribunal: ‘Please refer to my statement at DIMIA’, the appellant was giving to the Tribunal, for the purpose of his application to it, the information contained in the statements which were attached to his visa application.(emphasis added)
13.Accordingly, there was no non-compliance by the Tribunal with s 424A(1) because of the exception provided for in s 424A(3)(b).
The same approach was adopted by Merkel J in VUAV v Minister for Immigration [2005] FCA 1271 (“VUAV”) at [10] – [11].
Mr Free further submits that the Federal Court has cast doubt on the proposition that an applicant’s verbal reference to earlier documents at a Tribunal hearing can be taken as the applicant having given the information and earlier documents as part of the application for review: NAZY v Minister for Immigration [2005] FCA 744 (“NAZY”) at [37] per Jacobson J; SZEEU at [20], [157] and [218]. However, the proposition as to written adoption, developed in M55 and followed in NBHH and VUAV, remains authoritative. Indeed, Jacobson J in NAZY did not criticise the principle in M55, which was stated as being that an applicant who makes express written reference to other documents will be taken to have “given” the information in those documents if the applicant puts the documents forward as part of his or her application for review: NAZY at [37].Justice Jacobson said that this principle was consistent with the purpose behind s.424A because it may be assumed that by making an express written adoption of earlier information, “the applicant is aware of the significance of the information.” However, Jacobson J distinguished NAZY from M55 on the facts, on the basis that an applicant who merely responds to a question about earlier documentation is not putting that information forward.
Mr Free submits that in VWBF v Minister for Immigration [2006] FCA 851, Heerey J expressly held that the principle in M55 was not altered by NAZY and SZEEU. Information contained in an earlier document which has been positively advanced and adopted by an applicant for the purpose of the Tribunal application is information which has been “given” for the purpose of the application: at [30] – [51].
Mr Free submits that the principle developed in M55 is directly applicable to this case. The Tribunal referred to a statutory declaration by the applicant setting out his claims which he had submitted with his primary visa application.(CB 129 - 150)The Tribunal also referred to a submission accompanying the statutory declaration which begins:
Submissions in support of RRT application
Background
[NAWZ’s] claims ate set out in detail in the statutory declaration provided with his application to the Department of Immigration. A submission provided with this application contains additional information relating to his case. [NAWZ] continues to rely on these submissions. (CB 135)
Mr Free submits that the applicant, through his adviser expressly adopted the information which he had given in his earlier statutory declaration and submission.This information then became information which the applicant “gave for the purpose of the application” for review to the Tribunal and was not information to which s.424A applied.
To the extent that s.424A did apply to some of the information referred to in the fourth ground, it is imperative to bear in mind the nature of the obligation imposed on the Tribunal by s.424A.A number of the alleged breaches of s.424A set out below are that the Tribunal should have provided the applicant with more detail about the information it proposed to rely upon, or provided the applicant with complete versions of documents containing information which it proposed to rely upon. There are essentially three elements to the obligation.

Section 424A(1) provides that in respect of information which is covered by s.424A and which the Tribunal considers would be the reason or a part of the reason for affirming the decision under review, the Tribunal must:
a)      give to the applicant “particulars” of that information;
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.
Mr Free submits that Full Federal Court held in NATL v Minister for Immigration [2003] FCAFC 112 (“NATL”) at [14] per curiam:
The obligation imposed by s424A of the Migration Act 1958 is to "give ... 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...". The significant phrase is "particulars of any information". The section does not require the provision of evidence. The test is whether an applicant is fairly informed of the information considered to be adverse: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396…(emphasis added)

Justice Heerey in Paul held that the requirement in s.424A for provision of “particulars” rather than “information”, “certainly does not suggest that the detailed reasoning process that the Tribunal intends to adopt be given to an applicant”: at [46]. Justice Allsop made the following relevant observations about the purpose of s.424A:
The evident purpose of s424A is to play its part in the provision of a procedural analogue to the common law of procedural fairness. I think s424A should be looked at with a purpose in mind of ensuring that the claimant is fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it. The extent of particulars of any information should be looked at in a common sense way in the context of the matter in hand and with fairness to the applicant in mind. A consideration of these matters is obviously affected by the chosen approach of the Tribunal. Particulars of information need to be provided to the applicant so that the applicant understands what is the relevant information to the review. This very much depends upon what the Tribunal takes to be relevant.( at [104], emphasis added)
Mr Free submits that the argument underlying ground 4(i) is that the Tribunal did not provide the applicant with adequate particulars or evidence of the information that it had identified as relevant in its letter of 1 March 2006.However, that letter clearly identified the information that the Tribunal was bringing to the applicant’s attention as being information that the Tribunal considered would be, subject to the applicant’s response, a reason for affirming the delegate’s decision. The letter described a basic factual proposition with the following steps:
a) The applicant had previously stated that he had twice telephoned his family from Sydney and on the second occasion had been told that he should not return as he would be in danger; and
b) The Tribunal had reliable information that two days prior to arriving in Sydney, the applicant had exchanged US$5,000 into Australian dollars.
The letter explained clearly to the applicant that the information was relevant because it “may lead the Tribunal to conclude that your departure from your ship was planned prior to your conversation with your family and your decision to remain in Australia was taken for reasons other than fear of persecution in Pakistan”.(CB 76)

The applicant was invited to comment on the information. (Mr Free submits that..) Bearing in mind the principles set out above, the letter itself effectively satisfied the Tribunal’s obligations under s.424A in respect of the matters referred to in the letter.It contained adequate particulars of the information and clearly explained the relevance of the information.
The statutory obligation under s.424A is to provide particulars of the information itself, which the Tribunal did. The particulars were adequate to enable the applicant to respond effectively to the information. The applicant was put on notice of the two relevant pieces of information and the inference that the Tribunal sought to draw from that information. If the applicant considered that the information was incorrect or the inference should not be drawn because there was an innocent explanation for the apparent inconsistency, then he could have done so. As held in Paul and NATL, s.424A does not require the Tribunal to give the applicant the evidence that it is relying upon. Instead, the applicant must be “fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it”: Paul at [104] per Allsop J. The letter achieved this purpose by putting the applicant in a position to respond to the adverse information. Moreover, the applicant was provided (following a request from his representative) with a copy of the email from the shipping company about the applicant having changed US$5,000 prior to arrival in Sydney.
Mr Free submits that ground 4(i) of the amended application argues that the Tribunal was required by s.424A to provide the applicant with a copy of the document headed “Background” which was referred to in the letter of 1 March 2006. As noted above, s.424A requires disclosure of particulars of information in order to facilitate a meaningful response; it does not require disclosure of evidence or the source of the information. In the letter of 1 March 2006 the Tribunal indicated that it had gleaned from the “Background” document, information that the applicant claimed he had learnt of the dangers in Pakistan by speaking to his family by telephone after arriving in Sydney. This was a simple proposition of fact. The applicant did not need to be given the “Background” document itself in order to understand the factual proposition the Tribunal was referring to. Nor did the applicant need that document, as a matter of fairness, in order to comment on the information. The importance of the information was the timing of how the applicant found out about the risks he faced in Pakistan. How the Tribunal derived this information was inconsequential. The letter itself put the applicant on notice of the particulars of the information which the applicant was therefore able to comment on.
As noted above, the applicant was given a copy of the email from the shipping company that contained the allegation of exchanging US$5,000. Ground 4(ii) of the amended application argues that a breach of s.424A arises because part of that email was deleted.

Mr Free submits there is no substance to this suggestion. If the applicant needed to know the source of the information in order to comment on it, this was satisfied by the provision of the email. There is nothing to suggest that the applicant was kept in the dark about the nature of the information (the exchanging of money). The applicant could respond to the factual allegation by confirming, denying or explaining away the allegation. I accept the submission by Mr Free that the Tribunal complied with the requirements of s.424 by supplying the applicant with a copy of the email which indicated that the applicant had been provided with US$5,000 two days prior to the arrival of the MV Oriana ship in Sydney. The payment to the applicant of that amount was the issue of interest to the Tribunal, for which it sought explanation.
Mr Free further submits that ground 4(iii) of the amended application argues that the Tribunal breached s.424A because it failed to provide him with written notice of the information contained in his protection visa application. In particular, the information that his family was in danger as a result of incidents which occurred in December 2001.

I note that the first respondent assumed, given the passage in the Tribunal decision that was addressed by the applicant’s counsel in oral submissions, that the applicant intended to say December 2002 rather than December 2001. The amended application notes that this information was “presumably derived from” documents reproduced at Court Book 30, 49 and 50. The document reproduced at Court Book 49 to 51 is the statutory declaration provided by the applicant as part of the protection visa application. The statutory declaration details the history of harassment of the family forming the basis of the applicant’s claim, including reference to events which occurred in December 2002.
As explained above, the applicant expressly adopted the statutory declaration as part of his application for review when by advising the Tribunal in writing that he continued to rely upon the claims set out in that statutory declaration and accompanying submissions. Accordingly, the information contained in the statutory declaration, including information about the danger faced by the applicant’s family, was information given by the applicant for the purpose of his application for review and not information to which s.424A applied: s.424A(3)(b). The Tribunal was therefore under no statutory obligation to provide the applicant with written notice of the information contained in his visa application.
Mr Free submits that ground 4(iv) of the amended application argues that the Tribunal breached s.424A because it failed to provide him with written notice of the information that he had been warned by his family on arrival in Australia in February 2001 that he was in danger.

Mr Prince referred the Court to a passage in the Tribunal’s reasons for decision which he contends reflects the alleged error: CB 144.8, see [12] above.
The information about the time at which the applicant received a warning that he was in danger was information which the applicant had given the Tribunal for the purpose of the application for review, and so was not information to which s.424A applied: s.424A(3)(b).

As explained above, the applicant expressly adopted for the purposes of his Tribunal application the statutory declaration and submissions that he had provided in support of his visa application.

The information that the applicant had been warned by his family on arrival in Australia that he was in danger was contain in those documents. The statutory declaration states:
I left Pakistan for the last time on 9 September 2000. At the time I intended to return to my family as I always had in the past. However, around the time the ship arrived in Australia in February 2001 I learned that my father had been accused of killing Shamsul Kamal the son of Siad Kamal a member of Jamaat I Islami and had been attacked and badly injured as a result.”(CB 49, paragraph 10)
The submission similarly states:
[NAWZ] arrived in Australia on the P&O ship Oriana on 20 February 2001. He decided to leave the ship and seek protection after receiving news that he and other family members had been threatened as a result of his father’s political activities and alleged involvement in the death of the son of a local Jamaat 1 Islami leader.”(CB 39 – submission prepared by Rozlyn Smidt, Registered Migration Agent, 2 January 2006)
Mr Free submits that by the express adoption of the information contained in these documents, the information became information given by the applicant for the purpose of the application for review. Accordingly, this was not information to which s.424A applied: s.424A(3)(b).
Mr Free submits that the Tribunal found that “manifestly most of his family have been in the locality throughout his stay in Australia”: CB 144. This information was relied upon by the Tribunal as reason for doubting the veracity of the applicant’s claims about the danger faced by him and his family in his home town. Although the Tribunal did not explain the exact source, it is apparent that it drew the factual inference that the applicant’s family remained in the same place from the information given to it by the applicant for the purpose of the application, including the statutory declaration. It is not information to which s.424A applies: s.424A(3)(b).
Mr Free submits it was implicit in the family history set out in the applicant’s statutory declaration that the applicant’s family had remained in the same place in Pakistan. For example, the applicant referred to a grenade being thrown at his house in June 2002 and shots being fired at his brother’s house. The applicant referred to the intention of Said Kamal to “destroy our family as an act of revenge and as part of his plan to remove all influence of the PPP and other political parties from the area.” and his son trying unsuccessfully to relocate his family.(CB 50)
Mr Free submits that from these statements, as well as the fact that the family did not move away from the area, it was open to the Tribunal to conclude that the family had remained in the same place since the applicant arrived in Australia. As the “information” that the family had not moved away was part of the information given by the applicant for the purpose of the application for review, it was not “information” to which s.424A applied.
Mr Free submits that ground 4(vi) of the amended application argues that pursuant to s.424A, the Tribunal was required to give the applicant written notice of the information concerning the family’s involvement in a political murder. This was contained in documents provided as part of the applicant’s second visa application. Accordingly, this was not information to which s.424A applied (s.424A(3)(b)) and the applicant’s argument must fail.
Mr Free submits that ground 4(vi) of the amended application also contends that pursuant to s.424A, the Tribunal was obliged to provide the applicant with written notice of the “information” that the documents submitted to the Department were prepared to assist the applicant’s application and therefore should be given no weight.

Mr Free submits that this ground must fail because it proceeds on the false premise that the Tribunal’s view about the authenticity of documents was “information” to which s.424A applied. As noted above, “information” in the context of s.424A means “knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal”: SZEEU at [205] per Allsop J (with whom Weinberg J agreed). Such information “does not encompass the Tribunal’s subjective appraisals, thought processes or determinations SZEEU at [206] (citing Tin at [54], VAF at [24] and Paul at [95]). The Tribunal’s view about the authenticity of documents provided by the applicant is not knowledge of a fact or circumstance “communicated to, or received by, the Tribunal”. Rather, it can be described as an aspect of the Tribunal’s subjective appraisal of the evidence. Section 424A does not require the Tribunal to give the applicant written notice of such appraisal.
I accept the submissions provided by Mr Free in respect of grounds 4(i), (iii) and (iv), that the documents themselves were documents given by the applicant for the purpose of his application for review. There was no obligation for the Tribunal to give the applicant written notice of the information contained in the documents themselves: s.424A(3)(b).
Mr Free submits that the fifth ground of the amended application involves an appeal to the common law principle of procedural fairness, namely that the Tribunal was obliged to put to the applicant its views that certain documents were not authentic. The applicant argues that this common law principle is “not dealt with in s.422B of the Act”.
Mr Free contends that for the same reasons as set out in response to ground two, this argument is misconceived. Following Lay Lat and SZCIJ, it is not open to an applicant to argue that the Tribunal breached procedural fairness by appealing to common law principles. In order to establish a breach of the natural justice hearing rule, an applicant must show that one of the statutory requirements in, Part 7, Div 4 of the Act has been breached.
I accept the submissions made by Mr Free that there is nothing in that Division of the Act which supports the argument in the fifth ground that the Tribunal was obliged to put to the applicant that it considered the documents provided by the applicant were not authentic.

The argument that the Tribunal breached the requirements of procedural fairness by failing to do so cannot be sustained.

Conclusion

I acknowledge the detailed submissions made by representatives for both parties. I also acknowledge the difficult circumstances that

Mr Prince finds himself in in respect of these proceedings. As the applicant was in detention at the time of the hearing, I permitted the proceedings to proceed on the scheduled hearing date, although the parties had yet to file an amended application or final submissions. The prompt filing of these documents subsequent to the final hearing was a condition of my allowing the hearing to proceed on the scheduled date. I thank both counsel for so doing. However, I do not believe that any of the grounds claiming jurisdictional error on the part of the Tribunal can be sustained. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.

I order the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 24 November 2006