ART
Handbook of ART Legal
the
Procedure
Chapter 2, Part 2: by
Part 5 Migration Act - Statutory
duty to disclose adverse
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PART 5 MIGRATION ACT
STATUTORY DUTY TO DISCLOSE ADVERSE
INFORMATION
1. Introduction
1.1 Amendments made by the Administrative Review Tribunal (Consequential and
Transitional Provisions No. (1)) Act 2024 (Cth)
2. The nature of the statutory obligation
2.1 Disclosing adverse information: s 3 by the ART
59A
2.2 Non-compliance with the statutory obligation to disclose adverse
information
3. Information that would be the reason, or part of the reason, for affirming the
decision
3.1 Thought processes
3.2 Inconsistencies, omissions, gaps
3.3 Infor under FOI
mation undermining the applicant’s claims vs inherently
‘neutral’ information
3.4 Role of the Tribunal’s reasons when determining relevance of the
information
3.5 All on 28 August 2025
egation of apprehended bias following compliance with s 359A
3.6 Legal opinions and legislation
Released
4. Exceptions to the obligation
4.1 Information just about a class of persons
4.2 Information given by the applicant for the purpose of the
application
4.2.1 Is the information given by ‘the applicant for review’?
4.2.2 Is the information ‘given for the purposes of the application’?
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4.3 Information given by the applicant, in writing, during the process
that led to the decision under review
4.4 Non-disclosable information
4.4.1 Dob-ins
4.4.2 Other restrictions on disclosure – ss 375A, 376, and 503A
5. Procedural requirements and issues
5.1 Giving ‘particulars’
5.2 Explaining the relevance and consequences
ART
5.3 Invitation to comment
5.3.1 Written invitations
the
5.3.2 Oral invitations
5.4 Combined applications for review by
5.5 Time periods for comm
5.6 Multi-Member Panels FOI
ent
2025
6. Disclosing information that does not fall within s 359A
under August
28
on
Released
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
STATUTORY DUTY TO DISCLOSE ADVERSE
INFORMATION1
1. Introduction
Section 359A of the
Migration Act 1958 (Cth) (the Migration Act) imposes a statut
t would be t ART
ory obligation
on the Tribunal when conducting a review under Part 5 of the Migration Act, to give applicants
‘particulars’ of certain information which is adverse (in the sense that i the he reason or
a part of the reason for affirming the decision under review) and to invite them to comment on
it. For the purposes of pt 5 of the Migration Act, references to ‘the applicant’ mean the person
who has made the application for review
.2
1.1 Amendments made by the Administrative Revie by
w Tribunal (Consequential
and Transitional Provisions No. (1)) Act 2024 (Cth)
Section 359A was significantly amended by the FOI
Administrative Revi 2025
ew Tribunal (Consequential
and Transitional Provisions No. (1)) Act 2024 (Cth) (the C&T No.1 Act). These amendments
apply to all review applications before the Tribunal on or after 14 October 2024, whether the
application for review was made before, on, or after 14 October 2024
.3 . These changes were
intended ‘to enable the Tribunal to undertake a flexible conduct of review, proportionate to the
matters before it.
’4 Some of the major changes included:
• repealing provisions rel under
ating to putting August
adverse information at the hearing (ss 359AA and
424AA), consequently s 359A(3) was also repealed as it referred to s 359AA;
• removing the provision in rel
28
ation to prescribed periods to comment on adverse information
and removing provisions relating to extensions of time of that prescribed period
; 5
• repealing s 359C whi
adding s 359A(4A) w on
ch set out the consequences for the applicant failing to comment on
s 359A information
;6
•
Released hich was inserted to clarify the relationship between s 359A obligations
and common law natural justice obligations;
1 Unless otherwise specified, all references to legislation are to the
Migration Act 1958 (Cth)
(the Migration Act) and
Migration
Regulations 1994 (Cth)
(the Regulations) currently in force, and all references and hyperlinks to commentaries are to materials
prepared by Legal Services.
2
SZPZH v MIAC [2011] FMCA 407 at [25]; upheld on appeal in
SZPZH v MIAC [2011] FCA 960.
3 For review applications which were lodged prior to 14 October 2024 but not finally determined, item 24(4), Schedule 16 of the
C&T No.1 Act.
4 Revised Explanatory Memorandum to the
Administrative Review Tribunal (Consequential and Transitional Provisions No. (1))
Bill 2024 (Cth) , at 90.
5 S 359B of the Migration Act which contained requirements as to what the written invitation must include was repealed by the
C&T No.1 Act. Accordingly, there is no longer a prescribed period or specific provision in relation to extending the time for
response.
6 Previous the repeal of s 359C if an applicant did not respond within the prescribed period or the time as extended, the applicant
would lose their right to a hearing.
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
• adding more exclusions to s 359A(4) for information that was included, or referred to, in the
primary decisi
on7 and information that is prescribed by regulation for the purposes of
s 359A(4)
;8
• removing the reference to ‘in writing’ from s 359A
;9
• removing “or respond to” from s 359A(1)(c) so that an applicant must ‘comment on’ the
information rather than having the ability to either comment on
or respond to the
information
;10 and
• repealing pt 7 of the Migration Act and consequently s 424A and s 424AA ART
of pt 7 were
repealed. These sections were the pt 7 equivalent to s 359A.
2. The nature of the statutory obligation
The obligation to disclose information that would be the reason, or the
by part of the reason, for
affirming the decision under review, contained in s 359A, may be discharged orally at the
hearing or in writing.
2.1 Disclosing adverse information: s 3 FOI
59A
Where s 359A applies, the Tribunal is required by s 359A(1) to:
2025
• give to the review applicant clear particulars of information that the Tribunal considers
would be the reason, or a part of the reason, for affirming the primary decision
; 11
• ensure, as far as is rea under
sonably practi
August
cable, that the review applicant understands why the
information is relevant to the review, and the consequences of it being relied on in affirming
the primary decision
;12 and
• invite the review applicant to
uired by s 28
comment on it.
The Tribunal is also req on 359A(2), if the information is given in writing,
to:
• give the information and invitation to the review applicant by one of the methods specified
in s 379A; or
Released
• if the review applicant is in immigration detention, by a method prescribed for the purposes
of giving documents to such a person
.13
7 s 359A(4)(d).
8 s 359A(4)(e). At the date of publication no information has been prescribed.
9 Before the amendments, s 359A read “Information and invitation given in writing by Tribunal”. The ability to give the information
orally was in s 359AA which was repealed by the C&T No.1 Act.
10 According to the revised EM, this was done to make it clear that comments, including considered remarks or observations are
invited and required, not merely a non-engaging answer or reply to the invitation, at 91
11 The word, ‘clear’, was inserted by the
Migration Amendment (Review Provisions) Act 2007 (Cth) and applies to review
applications lodged on or after 29 June 2007.
12 The words, ‘and the consequences of it being relied on in affirming the decision that is under review’, was inserted by the
Migration Amendment (Review Provisions) Act 2007 (Cth) and apply to applications lodged on or after 29 June 2007.
13 reg 5.02.
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
Where information is given to the review applicant in writing pursuant to s 359A, there is no
requirement that the written invitation be given prior to the hearing
.14
Section 359A(4) exempts certain categories of information from this requirement, namely:
• information which is not specifically about the review applicant, or another person, and is
just about a class of persons of which the review applicant, or another person, is a member; or
• information given by the review applicant for the purpose of the application; or ART
• written information that the applicant gave during the process that led to the decision under
review
;15 or
• non-disclosable information; or
• information that was included, or referred to, in the written stat
the
ement of the decision that is
under review; or
• information that is prescribed by regulation for the purpo by
ses of this paragraph.
Section 359A(5) specifically excludes from the general requirement to give adverse
information, decisions which are taken to be a FOI
ffirmed under s 36
2025
8C(6), i.e. confirmation of a
dismissal decision. It includes dismissal decisions made under s 99, 100 or 101 of the ART
Act.
Each of these aspects are discussed in more detail below.
2.2 Non-compliance wi under
th the statut
statutory August
ory obligation to disclose adverse
information
The Tribunal must comply with its 28 obligations, including those in s 359A. If it does not
comply, it may result in jurisdictional error even if that error is not material to the outcome of
the review. For example, in
MICMSMA v Antoon16
the Federal Court held that any breach of
s 359A constitutes a jurisdictional error, with the result that the Tribunal’s decision is invalid
on
.17
14
Mfula v MIBP [2016] FCCA 161 at [12].
15 For review applications made on, or after, 29 June 2007.
16
MICMSMA v Antoon [2023] FCA 717. An application for special leave to appeal in the High Court was refused on the basis it
was not a suitable vehicle to consider the points of principle raised:
Antoon v MICMSMA [2023] HCASL 172. Although the Court
Released
in
Antoon was considering s 359A as it was before the 14 October 2024 amendments, it still remains relevant as the obligation on
the Tribunal remains.
17
MICMSMA v Antoon [2023] FCA 717 at [92]. The Court considered itself bound by
SAAP v MIMIA [2005] HCA 24 which remains
authority for the proposition that a failure to comply with s 359A constitutes a jurisdictional error that results in the invalidity of the
Tribunal’s decision. However, the Court declined to grant relief because the error was not material to the outcome of the Tribunal’s
review (at [147]). The judgment overturned the lower court judgment of
Antoon v MICMSMA [2021] FedCFamC2G 224 at [55]–
[57], in which the Court also applied existing authority in
SAAP v MIMIA [2005] HCA 24 and
DYI16 v MICMSMA [2021] FCA 612
which held that compliance with ss 359A is mandatory. While the primary judge found that nothing the applicants could have said
or written in response would have affected the Tribunal’s consideration and would have made no difference to the overall outcome,
the primary judge erred because they did not consider whether to withhold relief before remitting the matter for reconsideration.
An application for special leave to appeal in the High Court was refused on the basis it was not a suitable vehicle to consider the
points of principle raised:
Antoon v MICMSMA [2023] HCASL 172. Similar to the Federal Court judgment of
MICMSMA v Antoon,
in
Rekha v MICMSMA [2022] FCA 956 at [17]–[20], the Court held that the Tribunal had erred, in a Student visa cancellation
matter, by not putting the appellant’s PRISMS record under s 359A which showed that they were not currently enrolled in a course,
but that at [21]– [24] the breach was not material to the outcome of the Tribunal’s decision. Accordingly, the Court did not grant
relief and upheld the Tribunal’s decision. At the hearing, the Tribunal had considered that the appellant’s lack of current enrolment
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
However, the Court held that Tribunal decision should not be quashed (that is, relief should be
withheld) on the basis that the breach of s 359A was immaterial to the outcome because, even
if the Tribunal has complied with s 359A, it would not have made a difference to the outcome.
This overturned the lower court’s judgment which had quashed the Tribunal decision on the
basis that the breach of s 359A was a jurisdictional error. The Federal Court held that the lower
court erred in failing to consider whether relief should be withhel
d.18 Therefore, while a breach
of s 359A will result in a jurisdictional error, if a court determines that the breach was a technical
one and would not have made a difference to the outcome, or there would be no utility in
remitting the matter, the Tribunal decision may not be quashed
.19
3. Information that would be the reason, or part of the reasoART
n, for
affirming the decision
To fall within the ambit of s 359A, the information must be ‘information’ the
by of a particular kind, and
it must be the ‘reason or part of the reason for affirming the decision under review’.
Generally speaking, the term ‘information’ is to be given its ordinary meaning, namely ‘that of
which one is informed’ or ‘knowledge communicated or received concerning some fact or
circumstance’
.20 ‘Information’ need not be cont FOI
ained in a written do 2025
cument. A photograph may
suffice
.21 Whether or not information is ‘the reason, or a part of the reason’ for affirming the
primary decision depends on the criteria for the making of that decision in the first place
.22
3.1 Thought processes
Thought processes, subj
under
ective appraisals
scretion to ca
August
and determinations of the Tribunal do not constitute
‘information’ and therefore do not fall within the scope of s 359A
.23 The Tribunal is also not
(obtained from PRISMS) was relevant to the di
its discretion28 ncel the visa because if the visa cancellation was set aside and the
visa was reinstated, they would be in immediate breach of condition 8516 to continue to be a person who would satisfy the primary
criteria (including, to be enrolled in a course). Not putting this information to the appellant meant the Tribunal had failed to comply
with s 359A. However, the Tribunal’s error was not material to the outcome as the Tribunal had relied only upon historical breaches
of visa conditions when exercisingon to cancel the visa.
18
MICMSMA v Antoon [2023] FCA 717 at [147].
19 See e.g.,
MICMSMA v Antoon [2023] FCA 717 at [126] where the Court refers to the breach being, in all the circumstances, no
more than a technical breach, which formed part of its reasoning to withhold relief, and not quash the Tribunal decision. See also
Singh v MICMA [2024] FedCFamC2G 18 at [94] and [98]–[102], a matter concerning an Employer Nomination (Class EN)
(Subclass 186) visa application refusal, where the Court found jurisdictional error in the Tribunal’s failure to comply with s 359A in
relation to its own records that there was no application for review of a nomination refusal connected with the visa application, but
Released
held there would be no utility in remitting the matter, as the Tribunal would have no choice but to again find the applicant did not
meet the criterion that the visa applicant be the subject of an approved nomination. The Court found that it was appropriate to
withhold relief on that basis. Cf
Dau v MICMA [2024] FedCFamC2G 413, which concerned Subclass 820/801 Partner visa
applications, in which the Court held the Tribunal breached s 359A in relation to an anonymous allegation on the Department’s file
(the first jurisdictional error), and the sponsor’s oral evidence about the cancellation of the visa applicant’s Student visa being the
reason they married when they did (the second jurisdictional error). The Court would have withheld relief in relation to the first
jurisdictional error, as the Tribunal could not have made a more favourable finding than stating it did not place weight on that
information, but remitted the matter for reconsideration on the basis that compliance with s 359A for the sponsor’s oral evidence
may cause a different Tribunal to take a different view of the materials, and new evidence and arguments could be made: at [91]–
[97].
20
SZASX v MIMIA [2004] FMCA 680 at [18]. The Court’s findings were undisturbed on appeal:
SZASX v MIMIA [2005] FCA 68
(application for special leave to appeal dismissed: SZASX v MIMIA [2005] HCATrans 946).
21
SZESF v MIMA [2007] FCA 6.
22
SZBYR v MIAC (2007) 235 ALR 609 at [17].
23
Tin v MIMA [2000] FCA 1109 at [54],
SZEEU v MIMIA (2006) 150 FCR 214 at [206]–[207]. See also
Paul v MIMIA (2001) FCR
396 at [95];
VAF v MIMA (2004) 206 ALR 471 at [24]; and
SZASX v MIMIA [2004] FMCA 680 at [19]. The Court’s findings were
6
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
required to reveal its thought processes or any of its provisional views on the merits of the
application. For example:
• In
MIAC v SZHXF, the Court found that the statement that the Tribunal placed ‘great weight’
on advice provided to it by a particular source because that source had been found in the
past to be careful and reliable was not ‘information’ for the purposes of s 424A [s 359A]
.24
The views of the Tribunal as to the reliability of certain information or sources of information
were found to be part of the evaluation or appraisal of the evidence itself and properly
characterised as part of the Tribunal’s reasoning or thought processe
s.25
• In
SZGIY v MIAC, it was held that the Tribunal’s drawing of an inference, fro ART
m the date of
the applicant’s arrival in Australia and the date of her visa application, that the applicant
had delayed in applying for protection was more appropriately the
described as part of the
Tribunal’s reasoning process than as ‘information’ for the purposes of s 424A(1)
[s 359A(1)]
.26
• In
MIAC v Brar,
the Court found that the inclusion of an by
inference or intermediate or final
finding of fact in a s 359A letter would not lead to a conclusion that the Tribunal had not
complied with s 359A
.27
• In
VAAM v MIMA, it was held that the Trib FOI
unal’s perception of l 2025
ack of detail and specificity
in the applicant’s earlier statements did not constitute ‘information’
.28
In
MZZZW v MIBP29 the Ful Federal Court found that the Tribunal’s adopting of substantial
parts of the first Tribunal’s decision (specifically, the reasons for decision) was ‘information’ for
the purpose of s 424A [s 359A] as it would have been a reason or part of the reason for the
decision to affirm the del under
egate’s decision
ngs to an
August
and it would be more than mere disclosure of a
proposed and prospective reasoning process. The Court’s finding appears to be an expansion
of the term ‘information’
.30 Even if the Tribunal puts findings of the previous Tribunal and its
proposed reliance on those findi
MIA (2005) 128
applicant under s 359A, the Tribunal is still required
undisturbed on appeal:
SZASX v MIMIA [2005] FCA 68. See also
NBKT v MIMA (2006) 156 FCR 419 at [30];
SZECF v MIMIA
(2005) 89 ALD 242;
SZBDF v MI
that it was ‘no more than an infereon 48 FCR 302 and
SZSOG v MIAC [2014] FCCA 769 at [108]; upheld on appeal:
SZSOG v MIBP [2014] FCA 1053 at [29]. In
VAAM v MIMA [2002] FCAFC 120, the Full Federal Court held that the Tribunal’s
perception of lack of detail and specificity in the applicant’s earlier statements did not constitute ‘information’. See also
Applicant
S301/2003 v MIMA [2006] FCAFC 155 at [19] in which the Court, applying
WAGP v MIMIA (2002) 124 FCR 276, held that the
word ‘information’ did not encompass a failure to mention a matter to the Tribunal. In
SXSB v MIAC [2007] FCA 319 at [22], the
Court found that differences between the applicant’s evidence at a first and second Tribunal hearing were not ‘information’, but
Released nce which the Tribunal drew from the way in which material, which is no doubt information, was
provided to it’. In
SZBJH v MIAC (2009) 231 FLR 148 at [119], the Court found that the Tribunal’s view of the contents of a forged
letter was not ‘information’. In
SZSWV v MIBP [2013] FCCA 2146 the Court found that information in the applicant’s student visa
application which conflicted with his claimed history of harm in Nepal was not in its terms a rejection, denial or undermining of the
applicant’s claims to be a person owed protection obligations, but was more in the nature of inconsistencies in his evidence, and
as such was not ‘information’ that enlivened any obligation under s 424AA [s 359A]. The Court’s findings were undisturbed on
appeal:
SZSWV v MIBP [2014] FCA 513.
24
MIAC v SZHXF (2008) 166 FCR 298 at [13].
25
MIAC v SZHXF (2008) 166 FCR 298 at [20]. See also
SZSCU v MIBP [2013] FCCA 2261, where the Court found that information
about the qualifications and experience of the authors of certain country information was not ‘information’ for the purposes of
s 424A [s 359A], as it was a part of the Tribunal’s evaluation or appraisal of the country information.
26
SZGIY v MIAC [2008] FCAFC 68 at [27].
27
MIAC v Brar [2012] FCAFC 30 at [73].
28
VAAM v MIMA [2002] FCAFC 120.
29
MZZZW v MIBP [2015] FCAFC 133 at [92]–[93].
30 Note that if a Tribunal were to put to an applicant the findings of an earlier Tribunal under s 359A, it would generally also need
to put the applicant on notice of its proposal to adopt those findings, as part of the Tribunal’s explanation of the ‘relevance and
consequences’ of it relying on the information.
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
to assess the evidence before it afresh in order to conduct a review (as required by s 348).
Reliance upon the reasoning of a previous Tribunal may in some instances undermine a finding
that the Tribunal has completed its task of conducting a review.
3.2 Inconsistencies, omissions, gaps
Inconsistencies, defects or a lack of detail or specificity in evidence identified by the Tribunal
in weighing up the evidence are also not, of themselves, ‘information’ for the purposes of
s 359A(1)
.31 The High Court in
SZBYR v MIAC held:
However broadly ‘information’ be defined, its meaning in this context is rel
existence
ART
ated to the
existence of evidentiary material or documentation, not the the
of doubts,
inconsistencies or the absence of evidence… the relevant ‘information’ was not to be
found in inconsistencies or disbelief as opposed to the text of statutory declaration itself
(emphasis added).32
This position was reiterated in
MIAC v SZGUR, where t by
he High Court concluded that the
existence of ‘inconsistencies’ and ‘contradictions’ in an applicant’s testimony and written
submissions to the Tribunal was not ‘information’ of the kind to which s 424A [s 359A] is
dir
ected.33 A similar view had been previously FOI
expressed in
WAGP 2025
v MIMIA said in regard to
the equivalent provision s 359A(1):
A conclusion on the part of the [Tribunal] that there is an inconsistency between two
pieces of information is not, of itself, ‘information’ for the purposes of s 424A(1). It is no
more than an observation made by the [Tribunal] in dealing with a conflict between
information given by the appellant, and a claim made by him in support of his application
(i.e. his assertion that
under
he had received r
ts as well August
epeated ultimatums to leave Iran).34
Subsequently, in
SZTGV v MIBP35 the Full Federal Court, after detailed consideration of a
number of Federal Court judgmen
hat had 28 as the High Court judgments of
SZBYR v MIAC36
and
MIAC v SZLFX,37 unanimously confirmed that ‘information’ is related to the existence of
evidentiary material or documentation and not the existence of doubts, inconsistencies or
an
absence of evidence. Won
not been said at a compliance interview, the assertion of a
forensic principle that if the applicant’s version were true then he would have mentioned it at
that time, and a deduction by the Tribunal that because it was not mentioned at that time the
account was false was found not to constitute information within the meaning of s 424A
Released
31
SZBYR v MIAC (2007) 235 ALR 609 at [18]. The Court endorsed the views of Finn and Stone JJ in
VAF v MIMIA (2004) 206
ALR 471 at [24] and cases there cited. See also
A125 of 2003 v MIAC (2007) 163 FCR 285;
SZGSI v MIAC (2007) 160 FCR 506;
SZKFQ v MIAC [2007] FCA 1432 at [24];
SZEZI v MIMIA [2005] FCA 1195;
SZGIY v MIAC [2008] FCAFC 68 at [29];
SZMAY v
MIAC [2008] FMCA 808 at [38];
SZLSM v MIAC (2009) 176 FCR 539 at [32] and
SZSOG v MIAC [2014] FCCA 769 at [113]; upheld
on appeal in
SZSOG v MIBP [2014] FCA 1053 at [34]. In
SZMWT v MIAC (2009) 109 ALD 473 at [29], the Court found that
omissions the delegate noted in the protection visa application were not ‘information’.
32
SZBYR v MIAC (2007) 235 ALR 609 at [18].
33
MIAC v SZGUR (2011) 273 ALR 223 at [9], [77]. See also
SZSRG v MIBP [2014] FCCA 173. Upheld on appeal in
SZSRG v
MIBP [2014] FCA 550 at [8]–[9].
34
WAGP of 2002 v MIMIA (2002) 124 FCR 276 at [33].
35
SZTGV v MIBP (2015) 318 ALR 450. Note, this matter concerned three appeals from judgments dismissing applications for
judicial review of Tribunal decisions which affirmed refusals to grant protection visas. As each appeal raised similar issues about
the operation of ss 424A and 424AA [s 359A], they were heard together.
36
SZBYR v MIAC (2007) 235 ALR 609.
37
MIAC v SZLFX (2009) 238 CLR 507.
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
[s 359A]
.38 Similarly information relating to the absence of any threat to an applicant or his
family from a drug dealer was also found not to constitute information within the meaning of
s 424A [s 359A]
.39
Nonetheless where the Tribunal perceives an inconsistency, omission or other deficiency in
the evidence, consideration is given to whether there is some underlying information that may
be relied on to support that conclusion
.40 In
Paul v MIMA, Allsop J observed that the distinction
between information gained by the Tribunal and the subjective thought processes of the
Tribunal could become a fine one if the subjective thought processes were
ART
as they were
because of the perceived importance of some piece of knowledge
.41 Those thought processes
may reveal the relevance of the material, requiring the Tribunal to give particulars of the
information underpinning the thought processes
.42
While inconsistencies, gaps and omissions are not of themselves ‘infor the
mation’ for the purposes
of s 359A, there are some circumstances in which they may give rise to the underlying
information falling within s 359A(1).
Prior to the High Court’s judgment in
SZBYR, a view was ta by
ken in lower courts that where there
was a significant failure to mention a claim (i.e. an omission), the fact that the applicant had
said so much but not more on a prior occasi FOI
on, could be ‘inform 2025
ation’ for the purposes of
s 359A
.43 In other words, while the perception of an omission could not be information, the
Tribunal’s knowledge of what the applicant did in fact say, and the fact that it did not include
the particular claim, could be regarded as information. This was explained by Allsop J in
SZEEU
v MIMIA in regard to the equivalent provision to s 359A(1)(b):
The information is the knowledge imparted to the Tribunal of a prior statement in a
particular form. The si under
gnificance given August
to it by considering it in the light of evidence is
the product of mental processes. This significance and those mental processes are not
information, but rather, are why the information is relevant for s 424A(1)(b) (emphasis
added).44
38
SZTGV v MIBP (2015) 318 ALR 450 at [102],
R 450 at [134].28
[103].
39
SZTGV v MIBP (2015) 318 AL
that the information went to the un on
40 See
SZJZB v MIAC [2008] FMCA 848 at [53] where the Court found that while any appraisal of inconsistency between evidence
of the applicant and his wife would not constitute information, consideration had to be given to whether any aspect of the evidence
given by the wife (as distinct from inconsistencies between her evidence and that of her husband) was such as to give rise to the
obligation under s 424A(1) [s 359A(1)]. Whilst at first instance the Court found that the information went to an inconsistency and
was not information for the purposes of s 424A [s 359A], the Federal Court on appeal in
SZJZB v MIAC [2008] FCA 1731 found
Released derlying claim. However, the proposition in the case remains the same- namely that any appraisal
of inconsistency between evidence of a husband and wife would not constitute information for the purposes of s 424A [s 359A]
except where it goes to the underlying claim.
41
Paul v MIMA (2001) 113 FCR 396 at [95].
42
Paul v MIMA (2001) 113 FCR 396.
43 In
SZECF v MIMIA (2005) 89 ALD 242 the Tribunal found the applicant had fabricated a claim on the basis that there was no
reference to it in the applicant’s detailed statement given to the Department. Justice Allsop held that the relevant information, for
the purposes of s 424A [s 359A], was that the applicant has said so much
and no more in his statement to the Department. His
Honour distinguished
NAIH of 2002 v MIMIA (2002) 124 FCR 223, where Branson J held that the reason for the Tribunal’s decision
was not any information derived from the written statements in the Protection Visa application but rather the unconvincing nature
of the applicant’s oral evidence at the hearing in contrast with the persuasive nature of the cohesive account in his earlier written
statement. Importantly, in
SZECF, the Tribunal’s conclusion in reliance on the information in the Protection visa application was
not simply a lack of satisfaction as to the applicant’s claims, but rather that the claim had been fabricated. See also
SZDKK v
MIMIA [2005] FCA 1203,
SZBUS v MIMIA [2005] FCA 1223;
NAZY v MIMIA (2005) 87 ALD 357. In
SZIKG v MIAC [2007] FMCA
337, Raphael FM expressed the view that lack of evidence from internet searches carried out by the Tribunal was ‘information’ for
the purposes of s 424A [s 359A] which did not fall within the exceptions specified in s 424A(3) [s 359(4)]. Essentially the information
was the fact that there was no information. The Court’s findings were undisturbed on appeal:
SZIKG v MIAC [2007] FCA 788.
44
SZEEU v MIMIA (2006) 150 FCR 214 at [221].
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In
MIAC v A125 of 2003, the Court noted that the High Court in
SZBYR did not expressly
overrule this reasoning in
SZEEU, but stated that there was ‘real question’ as to whether the
High Court’s description of ‘information’ had the effect of impliedly overruling at least part of
that earlier judgment
.45 Subsequent case law suggests that it may still have application
.46
It has been suggested that whether omissions or gaps in evidence enliven s 359A obligations
will depend on the way they are used by the Tribunal
.47 In
SZGSI v MIAC, Justice Marshall
(with Moore J generally agreeing) endorsed the view of Weinberg J in
NBKS v MIMA in which
his Honour stated in regard to the equivalent provision s 359A:
…each case must depend upon its own particular circumstances. There is no ART
reason in
principle why an omission (which the Tribunal views as important, and which is plainly
adverse to the applicant’s case) should be treated any differentl
case. It the
y, when it comes to
s 424A, than a positive statement. This is particularly so when, as the Tribunal’s seems
to have done here, it treats the omission as though it provides implicit support for a
positive assertion that is detrimental to an applicant’s by
makes no difference
whether the omission is to be found in a prior statement of an applicant, or as in this case,
in a statement provided by a third party.48
The Federal Court in
SZMKR v MIAC took t FOI
he view that
NBKS v 2025
MIMA remained good law
following
SZBYR v MIAC49 and found that as was the case in
NBKS v MIMA, the absence of
evidence from someone who would have been expected to be able to provide such evidence,
was treated by the Tribunal as an implicit positive statement, not merely as a gap
.50 The Court
held in regard to the equivalent provision s 359A(1):
The Tribunal’s statement that nothing in the DFAT reports confirmed the appel ant’s
claims that he was a me under
mber of the Free
mant in B August
dom Party or its joint Secretary in the Narsingdi
district from 1994 to 1995 is a conclusion drawn from a reasoning process that relies on
a number of implicit positive propositions.51…The result is that, because the Tribunal
relied on the failure of the infor
n respect 28
angladesh to confirm the appel ant’s membership
or office-holding in the Freedom Party as an implicit assertion that the appellant was not
a member or office-holder of that party, the Tribunal was obliged to comply with s 424A(1)
of the Migration Act i
45
MIAC v A125 of 2003 (2007) 16on
of that information.52
Released 3 FCR 285 at [73].
46 In
SXSB v MIAC [2007] FCA 319 at [25], for example, Besanko J noted that ‘I have not attempted to express the distinction in
precise terms and it seems to me to be a somewhat elusive one.’ See e.g.,
ARF18 v MICMA [2023] FedCFamC2G 621 at [32]–
[45] where the Court found that information given at hearing by the applicants’ son, which was inconsistent with an earlier
submission of the son’s to the delegate, was information for the purpose of s 424A(1) [s 359A]. The Tribunal referred to the
inconsistency when rejecting the applicants’ claim. The Court held that ‘the effect of the information considered by the Tribunal,
taken together, led the Tribunal to express disbelief’ as to the claims, and the information played a part in the reasoning of the
Tribunal. The Court reasoned that the cumulative effect of the information did not alter the true character of the information as
‘information’. The information given by the son at hearing did not fall within the exceptions, as it was not given by the applicants
(at [45]). In concluding that it was ‘information’, the Court relied primarily on authorities prior to
SZBYR, including
SZEEU.
47
SZGSI v MIAC (2007) 160 FCR 506 at [6], [43].
48
NBKS v MIMA (2006) 156 FCR 205 at [39]. In
NBKS the Tribunal had done a search for the applicant’s name using internet
search engines and found that it did not appear in any context. This ‘information’ was used to conclude that the chance the
applicant’s AAT decision would come to the attention of Iranian authorities was remote.
49
SZMKR v MIAC [2010] FCA 340 at [37].
50
SZMKR v MIAC [2010] FCA 340 at [33].
51
SZMKR v MIAC [2010] FCA 340 at [33].
52
SZMKR v MIAC [2010] FCA 340 at [39].
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The Ful Federal Court’s comments in
SZTGV v MIBP53 that the reasoning of the High Court in
SZBYR and
SZLFX is not readily reconcilable with that of the Full Federal Court in
SZEEU and
NBKS in relation to what constitutes ‘information’ for the purposes of s 424A [s 359A]
,
illustrates the
difficulties the Tribunal faces when complying with its obligations under these
provision
s.54
3.3 Information undermining the applicant’s claims vs inherently ‘neutral’
information
In considering whether statements in a statutory declaration, which were found
ART
by the Tribunal
to be inconsistent with the applicant’s oral evidence, were the reason, or a part of the reason,
for affirming the decision, the High Court in
SZBYR v MIAC noted:
…Those portions of the statutory declaration did not contain in t
sons to the
heir terms a rejection,
denial or undermining of the appel ant’s claims to be perby
whom Australia owed
protection obligations. Indeed, if their contents were believed, they would, one might have
thought, have been a relevant step towards rejecting, not affirming the decision under
review.55
Courts applying
SZBYR have therefore found FOI
that information whi 2025
ch directly and in its terms
contains a rejection, denial or which inherently undermines the review applicant’s claims may
be subject to s 359A, but information which is on its face neutral will not fall within s 359A(1)
.56
Likewise, information that merely assists the Tribunal to make assessments of the applicant’s
credibility
,57 or in some cases, information which underpins an expert’s opinion
,58 does not fall
within the purview of s 359A.
under August
53
SZTGV v MIBP [2015] FCAFC 3 at [18].
54 In
Springs v MICMSMA [2021] FCA 197 at [2
(i.e. explicitly, 28
3]–[28], while acknowledging and applying the existing authority in
SZBYR v MIAC
(2007) 235 ALR 609, the Federal Court raised its apparent difficulties with the High Court’s reasoning in
SZBYR, including that
information must go ‘in its terms’
[25];
SZMFI v MIAC [2008] FCA 1 on to the criteria) which seemed difficult to reconcile with the words ‘or part of the
reason’ in s 359A. The Court considered that those words ‘or part of the reason’ indicated that the concept of information must
include integers of evidence conceptually below the level of a visa criterion. An application for special leave to appeal to the High
Court was refused:
Springs v MICMSMA [2022] HCATrans 17.
55
SZBYR v MIAC (2007) 235 ALR 609 at [17].
56
SZICU v MIAC (2008) 100 ALD 1 at [26];
MZXBQ v MIAC (2008) 166 FCR 483 at [29];
SZGIY v MIAC [2008] FCAFC 68 at [23],
Released 894.Information that merely assists the Tribunal to make assessments of the applicant’s general
credibility or believability does not fall within the purview of ss 424A/424AA [s 359A]: see, for example,
SZNPJ v MIAC [2010]
FMCA 410 at [64]–[66]; upheld on appeal:
SZNPJ v MIAC [2010] FCA 1233, application for special leave to appeal dismissed:
SZNPJ v MIAC [2011] HCASL 47.
57
SZNPJ v MIAC [2010] FMCA 410 at [66] The Court noted the fact that some information might cast doubt on the applicant’s
credibility, whether generally or in relation to a specific issue, was not to the point. Undisturbed on appeal:
SZNPJ v MIAC [2010]
FCA 1233 application for special leave to appeal dismissed:
SZNPJ v MIAC [2011] HCASL 47.
58
Wu v MIAC [2011] FMCA 14. The Tribunal sought advice of an independent expert as to whether the applicant had suffered
domestic violence, providing him with the applicant’s claims and ‘confidential documents’. It was held that in the context of referrals
to an independent expert under reg 1.23(1B)(b), the Tribunal will not fall foul of s 359A for not providing to an applicant information
given to the expert because it is the expert’s opinion rather than the information underpinning that opinion that would be the reason
for affirming the decision. In contrast, in
Mohsin v MIBP [2019] FCCA 3731 at [44]–[47] the Court found that the Tribunal had erred
by not putting to the applicant dob-in information provided by his sponsor that alleged, among other things, that he was acting in
a fraudulent manner to remain in Australia. The Court held that this was information for the purposes of s 359A as it impacted
upon the Tribunal’s preliminary finding that the applicant had not suffered relevant family violence. As this finding is what bound
the Tribunal to refer the applicant to an independent expert under reg 1.23(1)(c), the Court considered it was part of the reason
for affirming the decision. Although the Court characterised this as s 359A information, it could also potentially be inferred to be a
breach of the Tribunal’s s 360 obligation.
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The following cases are illustrations of this distinction:
• In
SZICU v MIAC the relevant ‘information’ was said to be contained in the applicant’s
passport, which showed that he left India legally on a passport in his own name. The Court
found that that information did not in its terms contain a rejection, denial or undermining of
the appel ant’s claim to be a person owed protection obligations. On that question, the
passport was found to be neutral. What was said to undermine the applicant’s claims was
country information which was not obliged to be disclosed because it fell within s 424A(3)(a)
[s 359A (4)(a)]
.59
• In
MZXBQ v MIAC the Court found that information going to the appli
ART
cant’s general
credibility did not fall within s 424A [s 359A]. The Court noted that lack of credibility in itself
does not necessarily involve rejection, denial or undermining of an
424A(1) [the
applicant’s claims
.60
• In
SZGIY v MIAC the Court agreed that information about the appel ant’s date of arrival in
Australia was in itself neutral and so could not fall within s by s 359A(1)], even though
the information was used by the Tribunal to conclude that the applicant had delayed in
lodging her protection visa applicatio
n.61 The Tribunal’s use of those dates were part of the
Tribunal’s reasoning process.
• In
SZJBD v MIAC,62 the Court consider FOI
ed whether informatio 2025
n about the founding and
banning of Falun Gong was information which inherently undermined the applicant’s claims
to be a Falun Gong practitioner. The Court held that the Tribunal’s conclusions that the
applicant lacked knowledge of Falun Gong did not involve any ‘information’ but were part
of the Tribunal’s thought processes. The factual statements were neutral as they did not
tend for or against affirmation or rejection of the decision of the delegate as pieces of
information in their ow under
n right. They only August
had that significance when matched with answers
given by the applicant
.63 Accordingly, the Tribunal was not obliged to disclose the
information under s 424A [s 359A].
• In
Bhandari v MIAC, the Court
nted to a 28
found there was nothing in the additional information from
the education provider about the circumstances leading to the issue of a non-compliance
certificate that amou
In
Poonia v MIBP, t
on rejection, denial or undermining of the applicant’s claim
s.64
Rather there was an absence of information supporting his contentions as to whether there
were exceptional circumstances leading to the non-compliance with the visa condition.
•
he Court found that a PRISMS record, which documented an applicant’s
Released
history of undertaking educational courses, did not constitute or contain a rejection, denial
or undermining of the applicant’s claims to meet the requirement to be a genuine applicant
for entry and stay as a student, which was the criteria in review
.65 The Court held that the
59
SZICU v MIAC (2008) 100 ALD 1 at [26].
60
MZXBQ v MIAC (2008) 166 FCR 483 at [29]. See also
BVE16 v MIBP [2018] FCA 922 at [43]–[44] in which the Court agreed
with
MZXBQ and held that information which is relevant only to credibility is not information for the purposes of s 424A(1)
[s 359A(1)]. It considered that the position is different though where information has a dual character, that is it goes to general
credibility but also undermines particular claims.
61
SZGIY v MIAC [2008] FCAFC 68 at [23], [25].
62
SZJBD v MIAC (2009) 179 FCR 109.
63
SZJBD v MIAC (2009) 179 FCR 109 at [104].
64
Bhandari v MIAC [2010] FMCA 369 at [53].
65
Poonia v MIBP [2016] FCCA 908 at [47]. Upheld on appeal:
Poonia v MIBP [2016] FCA 1120 at [18].
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
information may be relevant in determining whether the applicant satisfies the relevant
criteria, but that does not mean that the PRISMS record, it its terms, undermined the
applicant’s claim. Rather it would be the Tribunal’s deliberations on what the record meant
in relation to the applicant’s intentions. However, where enrolment in a course is the
relevant criteria under review, the PRISMS record may be ‘information’ for the purposes of
s 359A(1)
.66
• In
Almomani v MIBP, which concerned a Partner (Temporary) (Class UK) (Subclass 820)
visa matter, the Court found that inconsistencies in evidence between the app ART
ellant and his
sponsor as to why their relationship was not registered was not information that would
attract the obligation in s 359A. The Tribunal when considering the social aspect of the
claimed relationship had doubts as to why the appellant did not persuade the sponsor to
register the relationship and whether, at the time, the sponsor was
inform
the
of the opinion that there
was not yet a basis for registering the relationship. The Court found that these doubts arose
from a synthesis of the evidence arising from the differences perceived in the appellant’s
and the sponsor’s explanations and that the inconsistent by ation from the sponsor only
acquired significance because of this synthesis. The Court held that there is no obligation
to give particulars of information that acquires significance only as a result of the Tribunal’s
subjective synthesis of the evidence
.67
• In
Le v MICMSMA, the Court held that the FOI
appel ant’s sponsor’s 2025
movement records, which
disclosed that he was not in Australia for extended periods of time, on their own and without
reference to any other material undermined her claim to a genuine and continuing
relationship with him, which was relevant to her claim that there were compelling reasons
to waive the Schedule 3 criteria. The Court found that the Tribunal should have put the
information in the movement records to the appellant under s 359A
.68
• In
MIMA v Qazizada, w under
hich related to a
not say an August
Subclass 116 Carer visa application, the Court held
that information in a department file for a different visa application by the same visa
applicant, which indicated that she and her claimed sister shared the same mother and
were at least half-sisters, did 28 ything in its terms to suggest that the two women
were not sisters, relevant to the criterion for the visa that the applicant be the carer of an
Australian relative. Consequently, the information was not ‘information’ to which s 359A
applied
.69
In
Springs v MICMSM
reasoning in
SZBYR tha on
A, the Federal Court highlighted its apparent difficulties with the
Released t the information must ‘in its terms’ undermine an applicant’s claims.
The Court reasoned that the idea that information must go ‘in its terms’ (i.e. explicitly, to the
visa criteria) was difficult to reconcile with the words of s 359A that the information can be ‘part
of the reason’ for affirming the decision under review
.70 The Court considered that the wording
of s 359A explicitly accepts that information need not resolve the review application in its
entirety and that the concept of information must include integers of evidence conceptually
66
Poonia v MIBP [2016] FCCA 908 at [43]. Upheld on appeal:
Poonia v MIBP [2016] FCA 1120 at [18].
67
Almomani v MIBP [2020] FCA 264 at [47].
68
Le v MICMSMA [2023] FCA 1547 at [31]–[32].
69
MIMA v Qazizada [2024] FCA 989 at [6].
70
Springs v MICMSMA [2021] FCA 197 at [25]. An application for special leave to appeal to the High Court was refused:
Springs
v MICMSMA [2022] HCATrans 17.
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
below the level of a visa criterio
n.71 In the Court’s opinion, the consequence of the reasoning
in
SZBYR is that it ignores this aspect of the provision. While the Court in
Springs applied the
existing authority in
SZBYR, it provides a useful demonstration of the conceptual difficulties
associated with determining what is information for the purpose of s 359A(1).
3.4 Role of the Tribunal’s reasons when determining relevance of the
information
The High Court in
SZBYR also made clear that whether information would be the ART
reason or a
part of the reason for affirming the primary decision does not turn on ‘the reasoning process of
the Tribunal’, or ‘the Tribunal’s published reasons’. The Court found that the use of the future
conditional tense (‘would be’) rather than the indicative, strongly sug the
gested that the operation
of s 424A(1)(a) [s 359A(1)(a)] was to be determined in advance, and independently, of the
Tribunal’s reasoning on the facts of the case
.72
Following the High Court’s decision in
SZBYR v MIAC, so by
me courts found that even if the
Tribunal’s decision record made no mention of the information, it could be found to fall within
s 359A. In
MZXBQ v MIAC, the Federal Court, relying on the comments in
SZBYR, found that
it is not correct to determine whether particular information would fall within s 424A [s 359A] by
reference to the Tribunal’s reasons for decisi FOI
on
.73 Instead, the Cou 2025
rt found that consideration
should be given to the information’s dispositive relevance to the claims advanced by the
applicant
.74
Nevertheless, in
MIAC v SZLFX the High Court found that there was no evidence or necessary
inference that the Tribunal had ‘considered’ or had any opinion about the information in
question, which was co
under
ntained in a file no
ilable w
August
te on the Tribunal file but not referred to in the
Tribunal’s decision. As the Tribunal’s reasons showed that what counted against the first
respondent were internal inconsistencies in his evidence, and did not refer to the information
in question, the only inference ava
FCA 197 a th 28
as that the Tribunal did not consider the information
would be the reason or part of the reason for affirming the decision
.75 The High Court effectively
71 In
Springs v MICMSMA [2021]
the requisite thought process of on ird party witness for the applicant gave evidence that they were of the opinion that
the applicant, who had applied for a Distinguished Talent (Subclass 858) visa, had had an internationally recognised record of
outstanding achievement, although the witness also stated that they were not familiar with the applicant or his work prior to his
audition. The Court, with some hesitancy, accepted that the information that the witness was not familiar with the applicant did not
fall within s 359A(1) as it did not ‘in its terms’ undermine the visa criteria that the applicant was seeking to satisfy (at [24]). While it
implied that the applicant did not have an internationally recognised record, her evidence did not undermine the visa criteria without
Released deduction that if she was not familiar with the applicant, then he did not have the requisite
internationally recognised record. This required deduction meant her evidence did not ‘in its terms’ undermine the visa criteria. An
application for special leave to appeal to the High Court was refused:
Springs v MICMSMA [2022] HCATrans 17.
72
SZBYR v MIAC (2007) 235 ALR 609 at [17]. See also
Awadallah v MIBP [2015] FCCA 3126 at [39] where the Court applied
SZBYR v MIAC and found that the relevant
information fell within s 359A(1) solely on the basis of the hearing record, although it
did not ultimately form part of the Tribunal’s reasons.
SZBYR overturned the reasoning in a range of cases preceding the High
Court judgment, such as
SZEEU v MIMIA (2006) 150 FCR 214 at [208]–[215], [155], [165], which indicated that, in determining
whether s 359A(1) was engaged, the question was whether the information was at least ‘a part’ (that is, any part) of the reason for
affirming the decision under review, even if only a minor or subsidiary part.
73
MZXBQ v MIAC (2008) 166 FCR 483.
74
MZXBQ v MIAC (2008) 166 FCR 483 at [27]. In
SZRRX v MIAC [2013] FMCA 84 the Court accepted that third party evidence
regarding whether the applicant’s girlfriend had become pregnant, or even had had abortions, was not information that the Tribunal
considered would be a reason or a part of the reason for affirming the decision under review where the Tribunal’s decision record
revealed no mention of the pregnancies or abortions and it was the applicant’s claim to fear persecution because of his sexual
orientation, not because he had a girlfriend who had been pregnant and had three abortions. The basis on which the question of
the applicant’s sexual orientation was settled was with reference to information that, contrary to his claim to have only had
relationships with men, the applicant had had a girlfriend: at [60], [66]–[68].
75
MIAC v SZLFX (2009) 238 CLR 507 at [24]–[26].
SZLFX was applied in
SZNBE v MIAC (2009) 112 ALD 114 at [39]–[40].
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upheld the approach taken by the Full Court of the Federal Court in
SZKLG v MIAC which
found, having regard to the word ‘considers’ in s 424A(1) [s 359A(1)], that the obligation to
proceed pursuant to s 424A [s 359A] arises only if
the Tribunal forms the opinion that particular
information would be the reason, or part of the reason, for affirming the relevant decision
.76 The
conditional nature of the obligation indicated that the Tribunal must consider the question in
advance of its decision, considering the information upon which it would act, should it decide
to affirm the relevant decision.
Similarly, in
SZLPJ v MIAC, the Federal Court found that the question of whet ART
her s 424A(1)
[s 359A(1)] is engaged requires an examination of the Tribunal’s state of mind, not at the time
of the Tribunal’s decision, but rather at some anterior point, at which the Tribunal turns its mind
to the particulars which must be provide
d.77 In determining what the Tribunal’s state of mind
was at that anterior point, the Court accepted that the statement ab
earlier tim the
out the Tribunal’s present
state of mind made when it delivered its reasons for decision was sufficient to permit the
drawing of an inference that the same state of mind existed at an earlier time. Accordingly, the
Court drew an inference that the Tribunal did not at that
by e or those earlier times,
consider that information about another applicant who had made similar protection claims
would be the reason or a part of its reason for affirming the decision that was under review.
In
SZMPT v MIAC, consistently with the High C FOI
ourt’s decision in
MIA2025
C v SZLFX, the Court was
prepared to infer from the complete absence of any mention of the relevant information in the
hearing, in the decision record or at any other stage in the course of the review, that the Tribunal
did not consider the information to be relevant
.78 The Federal Court observed that it does not
follow from
SZBYR v MIAC that in making an assessment of whether s 424A(1) [s 359A(1)]
was engaged, a Court can never have regard to the reasons of the Tribunal. While the
Tribunal’s reasons are not to be the starting point, the Court, in making its assessment, may
draw inferences from the under
Tribunal’s rea
P80 the
August
sons as to whether the Tribunal considered the
information to be a reason for affirming the decision
.79
More recently, in
SZTGV v MIB
son for af28 Full Federal Court, unanimously confirmed that
‘information’ for the purposes of s 359A does not extend to the ‘prospective reasoning process’
of the Tribunal, that ‘information’ must be information that ‘would’, not ‘could’ or ‘might’, be the
reason or part of the rea
76
MIAC v SZLFX (2009) 238 CLR on firming the decision and that such ‘information’ necessarily
involves a rejection, denial or undermining of the applicant’s claims.
Released 507 affirming the reasoning of the Full Federal Court in
SZKLG v MIAC (2007) 164 FCR 578 at
[33].
77
SZLPJ v MIAC (2007) 164 FCR 578 at [15]–[16].
78
SZMPT v MIAC [2009] FCA 99. See also
SZMNP v MIAC [2009] FCA 596 at [52].
79 See also
SZLJF v MIAC [2009] FCA 158 at [18] where the Court drew an inference from the Tribunal’s reasons for decision,
that an adverse conclusion drawn by a previous Tribunal about similar protection claims made by other applicants did not form
part of the second Tribunal’s thinking In
MZYLC v MIAC [2011] FMCA 925 the Court held that in all the circumstances and reading
the Tribunal’s decision as a whole it was clear that the Tribunal had no regard to, and in all probability no awareness of, material
about the applicant’s identity. Further, even if it had some awareness of this material, it was plain that the Tribunal paid it no regard.
The Tribunal’s decision was arrived at on the basis of materials to which it had referred to. Upheld on appeal:
MZYLC v MIAC [2012] FCA 213 at [6]. In
SZQMZ v MIAC [2012] FCA 1005 the Court at [67] found that the fact the Tribunal did not consider the
influence of statements made by the applicant’s sister during her application for review upon the applicant’s credibility during his
own application for review showed that the Tribunal did not consider the issue to be a part of the reason for affirming his decision.
Although the Tribunal in the applicant’s sister’s case doubted her credibility because she did not know critical facts about the
applicant’s alleged detention, and while the Tribunal ultimately determined in the applicant’s case that his claimed detention never
occurred, the Tribunal reached that conclusion in relation to the applicant on independent grounds and not based upon any
evidence from his sister ([62]–[63]).
80
SZTGV v MIBP (2015) 318 ALR 450. See also
MIBP v SZTJF [2015] FCA 1052.
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Following these authorities, where the Tribunal determines that it would not place weight on
particular information that could, if accepted, undermine an applicant’s claims, the Tribunal
generally takes care to ensure that all the material, including the recording of the hearing, the
decision record and review-related correspondence, do not suggest a different attitude in
relation to the material. If some material indicated that the Tribunal might have placed weight
on the information, it may undermine the position that it had not placed weight on the material,
and lead to a finding that the information should have been put to the applicant under s 359A.
The following judgments are examples of situations where the Court has found the Tribunal
has, and has not, placed weight on information:
• In
SZJOU v MIAC,81 the Tribunal stated that it had placed ‘little weight’ on evi ART
dence given
by the applicant’s wife which undermined his claims. This statement suggested that the
Tribunal had placed some weight on the information and t
the
he Court found that the
information was caught by s 424A [s 359A] after considering objectively whether the
information could, at the stage it was given, undermine the applicant’s cas
e.82
• In contrast, in
SZOMJ v MIAC, the Federal Magistrate by
s Court, applying
SZLFX, found it
impossible that s 424A [s 359A] applied in circumstances where the Tribunal’s decision
statement expressly disclaimed giving any weight to particular information, and the Tribunal
foreshadowed at hearing with the appli
FOI
cant that it would not2025
be giving weight to the
information
.83 The Tribunal had also set out in its reasons why it gave no weight to the
information
.84
• In
Mazumdar v MIAC the Federal Magistrates Court, also applying
SZLFX, found that
s 359A was not engaged where Tribunal did no more than address the applicant’s
application for review upon a factual assumption regarding non-compliance with a visa
condition which the ap under
plicant had invit
plicant, an August
ed the Tribunal to adopt. The Court found that the
Tribunal’s reasoning showed it did not base its decision upon any information inconsistent
with the case as presented by the applicant, and that it was the Tribunal’s evaluation of the
information given by the ap
MA,86 the 28 d not the PRISMS records which recorded his
enrolment as cancelled, which provided the reason for affirming the delegate’s decision
.85
• In
Quadri v MICMS on Federal Court held that the Tribunal’s reasons indicated that
its decision was informed, not by the contents of the PRISMS records on the Tribunal file,
but by the appel ant’s own evidence given at the Tribunal hearing that he had discontinued
Released
81
SZJOU v MIAC [2009] FMCA 24.
82
SZJOU v MIAC [2009] FMCA 24 at [21]
83
SZOMJ v MIAC [2010] FMCA 707. The Court stated that an inference that the Tribunal held a state of mind prior to the decision
will almost always be drawn from an examination of the reasons subsequently given by the Tribunal, and that if the subsequent
reasons show that it arrived at a decision without giving any attention or weight to the adverse information, then usually the Court
will be unable to conclude that it answered the description of information giving rise to an obligation under s 424A(1) [s 359A(1)]:
at [57].
84
SZOMJ v MIAC [2010] FMCA 707 at [58]–[59]. See also
SZTKN v MIBP [2014] FCCA 2213, where the Tribunal accepted that
an applicant was unaware of the contents of a previous visitor visa application and was therefore unaware that information put
forward in that application was ‘false’. The Court found the Tribunal had ‘made plain’ that its adverse credibility finding against the
applicant was derived from matters ‘extensively set out’ earlier in the decision record which contained no reference to the visitor
visa application. It held there was no basis to draw an inference the Tribunal considered that the information in the visitor visa
application formed part of the reason for affirming the decision under review: at [52]–[54]. Undisturbed on appeal:
SZTKN v MIBP [2015] FCA 212.
85
Mazumdar v MIAC [2012] FMCA 1170 at [58]–[59]. See also
Poonia v MIBP [2016] FCCA 908 at [53]–[55], which was upheld
on appeal:
Poonia v MIBP [2016] FCA 1120.
86
Quadri v MICMSMA [2020] FCA 246.
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his course of study and his failure to produce any evidence, such as a certificate of
enrolment, to indicate that he was currently enrolled in a course of study. The Tribunal
referred to the PRISMS records during the hearing but told the appellant it was unnecessary
to take him to the PRISMS records because there was nothing in it which was different from
what he had informed the Tribunal about his lack of enrolment. In this instance, the Court
interpreted the Tribunal’s reasons to mean that it did not consider that the information in
the PRISMS records would inform its decision or any part of its decision to affirm the
decision under review (rather it was the appel ant’s own evidence that informed its
decision)
.87
• In
MZYIA v MIAC88 while the Tribunal did not rely on notes of interview from t ART
he applicant’s
student cancellation file, it made specific reference, in its reasons for decision relating to
the applicant’s protection visa application, to some of the informatio
ate of mi the
n contained in the notes.
The Federal Court held the Tribunal had made use of the information as part of its reasoning
in refuting an important aspect of the appel ant’s claims. The Court found it followed that
there was a point at which the Tribunal had reached the st by nd whereby it considered
that the information in the notes of interview would be part of the reason for affirming the
decision under review
.89
• In
SZRRN v MIAC90
while the Court accept FOI
ed the Tribunal’s stat 2025
ement of reasons referred
at length and in detail to the applicant’s oral interview with the delegate, in circumstances
where the applicant did not appear at the hearing as scheduled and the Tribunal was
ultimately not satisfied as to the applicant’s claims on the evidence before it, it found the
statement of reasons did not disclose with any clarity that the Tribunal was minded to affirm
the delegate’s decision because of that information in the oral interview. The Tribunal’s
statement that it missed ‘…
the opportunity to discuss [those] issues in considerably greater
detail’ was not langu
under
age that suggest
ation of s 42 August
ed the Tribunal had relied on those issues for its
decision, rather that there were gaps and defects in the applicant’s evidence.
In relation to the scope of oper
that the 28 4A(1) [s 359A)(1)], the Court in
SZTPW v MIBP91
held that to engage s 424A(1) [s 359A)(1)], the Tribunal must have had information in its mind
as part of a chain of reasoning, the conclusion of which would be the affirmation of the
delegate’s decision, and on Tribunal intended to affirm the decision on the basis of that
reasoning.
Despite this more recent emphasis on the Tribunal’s state of mind, there has been some
Released
varying applications of the High Court’s interpretation of when s 359A is engaged. In the
judgment of the Full Federal Court in
Khan v MIAC it was held that if the information in question
87 Quadri v MICMSMA [2020] FCA 246 at [27]. The Court also noted that the appellant’s own evidence is not information for the
purposes of s 359A because of the exception in s 359A(4).
88
MZYIA v MIAC [2011] FCA 642.
89 The Court’s reasoning suggests that if the Tribunal’s decision refers to information obtained from a 3rd party (in this case the
Department), in the absence of any indication that it was not considered to be relevant, there is a risk that a Court might infer that
the information comes within s 424A [s 359A].
90
SZRRN v MIAC [2013] FMCA 3 at [34]–[48]. Undisturbed on appeal:
SZRRN v MIBP [2014] FCA 77.
91
SZTPW v MIBP [2015] FCCA 259. Upheld on appeal in
SZTPW v MIBP [2015] FCA 564 at [24]. See also the related judgment
of
SZTPY v MIBP [2015] FCCA 260. Upheld on appeal in
SZTPY v MIBP [2015] FCA 565.
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is such that it could not have been rejected at the outset as irrelevant, omission of any reference
to it in the Tribunal’s reasoning wil not operate to exclude the obligation under s 359A
.92
In
MIAC v Saba Bros Tiling Pty Ltd93 the Federal Court commented (in
obiter) that the
information, at the time that it is given to the applicant under s 359A, must be rationally capable
of being seen as information that would affect the decision under review. If, at the time the
invitation is issued, the information is not rationally capable of being seen as information that
would affect the decision under review, then the Tribunal’s obligation under s 359A may not
arise
.94
To ensure there is a clear understanding of the Tribunal’s state of mind, the Tribun ART
al may make
a clear and unequivocal statement in the decision record as to why it did or did not consider
the information would be the reason, or a part of the reason, for affir
ompliance w the
ming the decision under
review
.95
3.5 Allegation of apprehended bias following c
by
ith s 359A
An allegation of apprehended bias arising from the Tribunal putting adverse information to the
applicant under s 359A will not necessarily be successful where the Tribunal put that
information to the applicant using the statutor FOI
y process and in doi 2025
ng so made clear it hadn’t
made up its mind about the material at that point in time, and addressed the material in its
decision. For example, in
BMT19 v MICMSMA, the appellant contended that the Tribunal was
affected by apprehended bias because it had put adverse information under s 424A [s 359A]
about the appel ant’s convictions and fingerprinting information, and was therefore affected by
the information
.96 The Tribunal made clear in its s 424A [s 359A] letter that it had not made up
its mind about the inform under
ation. It went on
suant to August
to find that the information was ‘irrelevant and
prejudicial’ and gave it no weight. The Court rejected the appel ant’s argument, holding that
there would be ‘some level of incoherence with the statutory scheme if particulars of information
disclosed to a visa applicant pur
he informa28 an obligation of procedural fairness under s 424A
[s 359A] would lead the fair-minded lay observer to think that the Tribunal could not thereafter
change its mind about the relevance of the information’
.97 The Court concluded that the way
the Tribunal dealt with t
it wished to cancel its sponsorsh on tion was in accordance with its obligations and did not give
rise to an apprehension of bi
as.98 The Court also noted that the Tribunal member was a
92
Khan v MIAC (2011) 192 FCR 173, where the appellant’s sponsoring restaurant sent a letter to the Department indicating that
Released ip of the appellant and alleging fraudulent behaviour by him and subsequently informing the
department that his employment with them had ceased. Notwithstanding the absence of any reference to the letter in the Tribunal’s
decision record, the Full Federal Court held that this information was necessarily something which would be part of the reason for
affirming the decision of the delegate. The information was relevant in this case and its absence from the Tribunal’s reasoning did
not exclude the Tribunal’s obligation to comply with s 359A.
93
MIAC v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11; [2011] FCA 233.
94
MIAC v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11 at [41]–[43]; [2011] FCA 233. The Tribunal had issued an invitation under
s 359A to comment on a sanction barring the applicant from nominating persons in relation to temporary visas for three months.
However, the sanction had expired by that time, and as such was no longer relevant to the criteria for the grant of the visa. The
Tribunal had, in its reasons, acknowledged that the information was not relevant to the decision.
95 See also the comments of the High Court in
Applicant VEAL of 2002 v MIMIA (2005) 225 CLR 88 at [12]: ‘The Tribunal said, in
its reasons, that it did not act on the letter or the information it contained. That is reason enough to conclude that s 424A [s 359A]
was not engaged.’
96
BMT19 v MICMSMA [2022] FCA 328 at [55]–[65].
97
BMT19 v MICMSMA [2022] FCA 328 at [65].
98 The Tribunal had dealt with the information in the provisional way under s 424A [s 359A] by stating it hadn’t made up its mind
about the material, stating in its decision the content of the letter and the appellant’s response, and also the Tribunal’s reasoning
on the material.
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professional decision-maker, and that a Tribunal member will be expected to be capable by
reason of training and experience of separating the relevant from the irrelevant in coming to a
decision, such that the fair-minded lay observer would view a professional decision-maker such
as a member of the Tribunal differently to a lay decision-maker
.99
3.6 Legal opinions and legislation
Legal opinions or views on the proper interpretation of a statutory provision are not generally
regarded as ‘information’ for the purposes of s 359A
.100 Legislation and jud
ART
gments cited in
Tribunal decisions have also been held not to constitute ‘information’
.101
4. Exceptions to the obligation
Section 359A(4) provides statutory exceptions to the obligation in s 35
aking, the the
9A(1). These exceptions
are discussed in more detail below, however generally spe
by Tribunal is not obliged to
invite the applicant to comment on information that: is just about a class of persons of which
the applicant or another person is a member; the applicant gave for the purposes of the review
or during the process that led to the decision that is under review (other than information
provided orally to the Department); that is ‘nonFOI
-disclosable informat2025
ion’ within the meaning of
that definition in s 5 of the Migration Act; that was included, or referred to, in the written
statement of the decision under review, or that is prescribed by regulation for the purposes of
s 359A(4)
.102
Section 359A(4A) provides that the Tribunal is not required to give particulars of those
categories of exempt information before making its decision on the application under s 105
ART Act (to affirm, vary or under
set aside the pri
decision
.103 August
mary decision) or s 349 (to remit a matter). This is
intended to exhaustively displace the common law natural justice hearing rule by putting it
beyond doubt that the Tribunal is not required to put information excluded by s 359A(4) to the
applicant at all before making its
they de 28
Section 357A, which is the exhaustive statement
of the natural justice hearing rule provides that the ‘relevant provisions’, which includes s 359A,
are taken to be an exhaustive statement of the requirements of the natural justice hearing rule
in relation to the matterson
al with. Furthermore, to the extent of any inconsistency with
s 55 ART Act
,104 s 359A prevails. The Tribunal by complying with s 359A, whether in writing or
at a hearing, will have discharged its procedural fairness obligations in relation to ‘adverse
information’. Note also that s 357A(3) requires the Tribunal in applying s 359A, to act in a way
Released
that is fair and just. This is not to be construed as reintroducing the common law, but requires
the Tribunal
to apply the statutory provisions in a way that is fair and just.
99
BMT19 v MICMSMA [2022] FCA 328 at [65].
100
Carlos v MIMIA (2001) 113 FCR 456 in which the Court held that advice merely reiterates the facts of the case and comments
on the legal issues. Applied in
Reynolds v MIAC (2010) 237 FLR 7 at [146].
101
SZASX v MIMIA [2004] FMCA 680 at [23]. The Court’s findings were undisturbed on appeal:
SZASX v MIMA [2005] FCA 68.
An application for special leave to appeal was also dismissed:
SZASX v MIMIA [2005] HCATrans 946.
102 At the date of publication, no exclusions have been prescribed. Sections 359A(4)(d) and (e) are exemptions added by the C&T
No. 1 Act 2024.
103 Revised EM to the C&T No.1 Bill, at [625].
104This provision details the right of the applicant to present their case.
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4.1 Information just about a class of persons
The requirement to provide particulars of information does not apply to information that ‘is not
specifically about the applicant or
another person and is just about a class of persons of which
the applicant or other person is a member’
.105
The majority in
MIMIA v NAMW held that the reference in s 424A(3)(a) [s 359A(4)(a)] to a class
of persons is not another criterion to be met, but is designed to underline the specificity required
by precluding any argument that reference to a class could be taken as a r
ART
eference to all
individuals (including for example, an applicant) falling within it
.106 The majority considered that
this interpretation gave effect to the intention of the legislature when s 424A [s 359A] was
en
acted.107
One kind of information which may fall within this exception is gener
son for affirthe
al country information
,108
although it is clear that not
all country information would be exempted. Country information
about a specific person, if it is the reason or a part of the rea by ming the decision under
review, will need to be disclosed unless another exception applies. For example, in
Schwallie
v MIMA, the Federal Court found that s 424A [s 359A] was applicable to country information
about a former government minister for whom the applicant claimed to have worked
.109
In
SZRDX v MIAC, the Federal Magistrates CouFOI
rt considered the ter 2025
m ‘person’ for the purposes
of s 424A(3)(a) [s 359A(4)(a)] and rejected an argument that it included the Republic of India
and, by extension, a body politic or corporate. The Court held that as the paragraph refers to
information that is not specifically about the applicant ‘or another person’, the context and
particularly the use of the word ‘other’ indicated that ‘person’ was intended to mean a natural
person
.110 However, a contrary approach was taken in
BBX17 v MIBP in which the Federal
Circuit Court held that a c under
ompany was a ‘per August
son’ for the purpose of s 424A(3)(a) [s 359A(4)(a)].
The Court rejected the Minister’s argument that information about a company (specifically its
corporate structure and activities) was information about a class of persons, namely the
105 s 359A(4)(a).
106
MIMIA v NAMW (2004) 140 FCR 572 at [13 28
Memorandum made it quite clear on 8]. See also
SZQSP v MIAC [2012] FMCA 890 where the Court, following
NAMW,
observed that s 424A(3)(a) [s 359A(4)(a)] did not posit separate criteria but, essentially, the reference to ‘class of person’ required
the information not to be ‘specifically about the applicant’, and that the double negative at s 424A(3) [s 359A(3)] and s 424A(3)(a)
[s 359A(4)(a)] meant that the obligation in s 424A(1) [s 359A(1)] was subjected to the exemption of ‘general’ country information,
that is, that it is not
in personam information at [50].
107
MIMIA v NAMW (2004) 140 FCR 572, at [139]. Justices Merkel and Hely noted at [130] that although the Explanatory
Released that the information that must be provided under s 424A [s 359A] was intended to be equivalent
to the information required to be given under s 57, s 424A [s 359A] is drafted differently and requires that particulars of the
information described in s 424A(1) [s 359A(1)] be provided unless they are excluded under s 424A(3) [s 359A(4)]. In their view
that exclusionary approach resulted in the literal meaning of ss 424A(1) and (3)(a) [s 359A(1) and (4)(a)] not being equivalent to
s 57(1)(b) because a literal interpretation of s 424A(3)(a) [s 359A(4)(a)] requires that both of the two criteria stipulated in the sub-
section be met for the exclusion to apply. After reviewing relevant authorities, their Honours held that having regard to the intention
of the legislature, which was for s 424A [s 359A] to replicate the effect of s 57(1), it was open to the Court to depart from the literal
meaning of s 424A(3)(a) [s 359A(4)(a)]: at [132]–[139].
108
W252/01A v MIMA [2002] FCA 50;
NACL v RRT [2002] FCA 643;
Tharairasa v MIMA (2000) 98 FCR 281;
NARV v MIMIA
(2004) 203 ALR 494 at [54];
SZNIU v MIAC [2009] FMCA 573 at [22]. See also
VHAJ v MIMIA (2004) 75 ALD 609 at [50], [71]. In
SZJJD v MIAC [2008] FCAFC 93 at [13] the Court found that country information which was obtained by the Tribunal as a result
of an enquiry prompted by the applicant’s claims did not mean the information was about the applicant. Rather the information
was about groups of persons (unionists, leftists, activists and members of the Movimiento de Participación Popular) of which the
applicant was a member. Similarly, in
MIAC v SZLSP (2010) 187 FCR 362 at [27], Kenny J found that a text about Falun Gong
practices that was relied on by the Tribunal in evaluating the applicant’s knowledge was excluded from the Tribunal’s s 424A [s
359A] disclosure obligations despite not being identified.
109
Schwallie v MIMA [2001] FCA 417 at [24].
110
SZRDX v MIAC [2012] FMCA 838 at [26]–[28].
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employees of the company which included the applicant
.111 The Court did not consider the
earlier authority of
SZRDX.
In
SZRZX v MIAC112 the Federal Circuit Court found that the results of an internet search for a
particular hospital, which showed that the hospital didn’t exist, fell within the ambit of
s 424A(3)(a) [s 359A(4)(a)]. The applicants had submitted discharge slips from the particular
hospital in support of their claims. The information for the purposes of s 424A(1) [s 359A)(1)]
was that there was no record of the particular hospital. Due to the exception in s 424A(3)(a)
[s 359A(4)(a)] the Tribunal was not required to disclose it pursuant to s 424A [s
ART
359A]
.113
A decision maker’s own personal knowledge or experience may constitute ‘country information’
and fall within the exception. In
DDX16 v MIBP114 the Federal Court considered a Tribunal
member’s comment at hearing that he had holidayed safely with family
n
.115
the
in Beirut and other parts
of Lebanon. The Court held that the information revealed by the Member during the hearing
was ‘country information’ which concerned the security of persons living in those places and
accordingly fell within the s 424(3)(a) [s 359A(4)(a)] exceptio
If the information which the Tribunal considers is the rea by
son, or a part of the reason, for
affirming the decision only obliquely or tangentially refers to a specific person, it may still fall
within the exception
.116 In
MIAC v SZHXF, FOI
a Full Court of the 2025
Federal Court found that
references to religious leaders or figures such as Mirza Ghulam Ahmad, Jesus Christ and the
prophet Muhammad, were not information specifically about another person and so fell within
the exception in s 424A(3)(a) [s 359A(4)(a)]
.117 The references to these figures and material
about how they were perceived by the Ahmadi faith, were said to be information about how
others perceive those figures and the role that such a perception plays in the lives of those who
under
111
BBX17 v MIBP [2019] FCCA 59 at [43].
112
SZRZX v MIAC [2013] FCCA 54.
113 Note that the Court did not consider the decision of the
the internet August
Full Federal Court in
NBKS v MIMIA [2006] FCAFC 174. However that
case would appear to be distinguishable in that
bout the appli 28 search in
SZRZX v MIAC was not specifically about the applicant, or
about any particular person. In contrast in
Shrestha v MHA [2019] FCCA 1782 at [69]–[70] the Court found that the results of the
Tribunal’s internet search for a non-existent accounting firm which had vouched that the applicant was employed as claimed, did
not fall within the exception in s 359A(4)(a) (equivalent provision as considered in
SZRZX). The Court acknowledged that the
internet search information was not specifically about the applicant but as it supported the proposition that the information provided
by the accountants specifically a
115
DDX16 v MIBP [2018] FCA 83 on cant’s employment was false, it did not fall within the exception. The Court also
confirmed that it was ‘information’ for the purposes of s 359A(1) because it was about a state of affairs (i.e. that the accounting
firm where the applicant had purported to work did not exist in the external world, and this would be a part of the reason for affirming
the decision).
114
DDX16 v MIBP [2018] FCA 838. An application for special leave to appeal to the High Court was dismissed:
DDX16 v MIBP [2018] HCASAL 250.
Released 8 at [49]. An application for special leave to appeal to the High Court was dismissed:
DDX16 v
MIBP [2018] HCASAL 250.
116 See
SZCCA v MIAC [2008] FMCA 1362 at [29]–[30]. In that case, the Tribunal rejected claims about the applicant’s political
activities in Bangladesh by reference to independent evidence that the BNP was in power from 1979 until General Ershad seized
power in March 1982, that General Ershad remained in power until 1990 and that he formed the Jatiya Party in 1986. See also
MZYPL v MIAC [2012] FMCA 563, where the Tribunal used information from Google Maps and other internet searches (an article
from The Guardian and information from blog sites) to assess the applicant’s credibility. The Court found that the information did
not enliven s 424A(1)(a) [s 359A(1)(a)] as it was exempt under s 424A(3)(a) [s 359A(4)(a)]. In respect of the Google Maps and the
blog site information, the Court found that it was clearly not related to the applicant or any other person. In relation to the information
from The Guardian, the Court found that the information related to an unnamed detainee at a prison camp, and was not about the
applicant or any other person with direct association or relevance to the applicant. See also
SZVCZ v MIBP [2016] FCCA 2840
where the Tribunal referred to ‘Pakistan’s most prominent leaders’ having attended Christian schools, and then referred to leaders
such as the current Prime Minister and two out of Pakistan’s five provincial governors. The Court found that the Tribunal had
referred to these individuals as examples of members of a class of persons. On this basis, the reference was not specifically about
the individual leaders in question and would fall within the exception in s 424A(3)(a) [s 359A(4)(a)]. Upheld on appeal:
SZVCZ v
MIBP [2017] FCAFC 130 at [5], [67, [69], where the Court held that the information in question was clearly information that was
not specifically about the appellant or another person, but was referred to as examples of ‘prominent leaders’.
117
MIAC v SZHXF (2008) 166 FCR 298.
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hold it
.118 Further, in
ANN15 v MIBP the Federal Circuit Court found that information about a
Presidential candidate fell within the exception in s 424A(3)(a) [s 359A(4)(a)] because the
Tribunal’s reasons indicated that the candidate’s significance was not in his achievement as
an individual but was an example of the success of the political party
.119
4.2 Information given by the applicant for the purpose of the application
Section 359A does not apply to information that the applicant for review gave for the purpose
of the applicatio
n.120 There are two elements to consider when determining wh
ART
ether information
comes within this exception: (a) whether the information is given by ‘the applicant’; and (b)
whether it was ‘given for the purposes of the application’.
4.2.1 Is the information given by ‘the applicant for review’?
For information to fall within the exception contained in s 359A(4)(b the
by ), it must be information
given to the Tribunal by the
review applicant or his/her agent on his/her behalf
.121 This includes
information given by a migration agent acting under the applicant’s instruction
s,122 an ‘advisor’
or friend acting with the consent or authority of the applicant
,123 or a parent in their role as
guardian for an applicant child
.124 However, it FOI
may not include infor 2025
mation which is given by a
third party to the Tribunal which incidentally passes through the review applicant’s hands as a
mere conduit
.125
Whether such information is given by the relevant person is a question of fact. In
Khan v
MIAC,126 the applicant claimed that the Tribunal had failed to give him particulars of the
attendance record issued by the education provider pursuant to s 359A. Although the
attendance record was not under
provided to the T August
ribunal by the review applicant, the Court held that
the gravamen of the information contained in the attendance record, being his attendance rate
of less than 30%, had been separately provided by the applicant at the hearin
g.127 In
Le v
118
MIAC v SZHXF (2008) 166 FCR 298 at [22].
asoning in
S 28
This reasoning was considered by a differently constituted Full Court in
SZJBD v
MIAC (2009) 179 FCR 109. The information in that case concerned the dates Falun Gong was founded and subsequently banned
in China and the date that a warrant for the arrest of Master Li Hongzhi was issued. The majority judges thought
SZHXF was
indistinguishable. The majority re
121
SZEEU v MIMIA (2006) 150
on
ZJBD sits conformably with
NBKC v MIAC [2008] FMCA 1043 in relation to the
Tribunal’s reference to country information, including the reference to Li Hongzhi. The Court applied
SZHXF but also found that
the Tribunal relied on the applicant’s own answers and its conclusion that her knowledge of Falun Gong was incommensurate with
her claims. The Tribunal’s appraisal of the evidence was not ‘information’ for the purposes of s 424A(1) [s 359A(1)].
119
ANN15 v MIBP [2018] FCCA 2345 at [15].
120 ss 359A(4)(b)
Released FCR 214.
122
SZIOQ v MIAC [2007] FMCA 1292 at [16].
123
SZGSG v MIAC [2008] FMCA 452.
124
SZLND v MIAC [2008] FMCA 1047.
125 In
SZOMT v MIAC [2011] FMCA 3 at [29], documents obtained with the assistance of the review applicant’s spouse were found
to have been given for s 424A(3)(b) [s 359A(4)(b)] purposes because it was the review applicant who relied on them to support
his claims and who provided them to the Tribunal. The Court commented that there may be circumstances in which information is
given by a third party to the Tribunal which incidentally passes through an applicant’s hands as a mere conduit but this was not
such a case.
126
Khan v MIAC [2009] FMCA 1185.
127
Khan v MIAC [2009] FMCA 1185 at [22]. Also of note is
SZGQF v MIAC [2008] FMCA 1042 at [32] where the Court took the
view that the use of a NAATI translation obtained by the Tribunal of a Chinese language document submitted by the applicant did
not invoke s 424A [s 359A] because the information in the document was provided by the applicant. In
SZQKO v MIAC [2011]
FMCA 821, the applicant claimed at hearing his name appeared on a Falun Gong website. On invitation by the Tribunal the
applicant provided details of three websites, stating that he could not recall in which one he was named. On investigating these
sites, the Tribunal concluded the applicant was not named in any of them. The Court found that as the applicant directed the
Tribunal to search these websites, this was ‘information’ given by him and therefore it fell within the exemptions under s 424A(3)(b)
[s 359A(4)(b)] and the Tribunal was not required to put the absence of his name from these sites to him for comment.
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
MIAC,128 the Court considered
Khan and the earlier judgment of
Khergamwala v MIAC129 and
found that there is a fine technical distinction between cases where the Tribunal relies on
information obtained from a third party, and cases where it relies on the applicant’s agreement
or acceptance of such information. It was made clear that in the former category of cases, the
Tribunal must comply with s 359A whereas in the latter category, the provision will not be
engaged.130
A further MOC opinion that has been provided to the Tribunal will not engage this exemption
as it is the Tribunal who obtains the opinion, not the review applicant even if it is t ART
he applicant
who is required to pay the relevant fee
s.131
Evidence from a visa applicant who is not the review applicant
Information from a visa applicant, who is not also the review applicant,
ation Act the
will not usually fall within
this exception. This situation can commonly arise in reviews under pt 5 of the Migration Act
involving offshore visa applications. In such cases, the Migr by generally requires that an
Australian sponsor, nominator or relative be the
review applicant. However, the Tribunal will,
in most cases, be required to consider whether the
visa applicant satisfies certain regulatory
criteria. The case law suggests that if the Tribunal takes
oral evidence from the visa applicant,
and that information would be the reason, or aFOI
part of the reason f 2025
or affirming the delegate’s
decision, it would not fall within the exception and must be disclosed to the review applicant
unless another exception applies
.132
The exception would apply if
written evidence from the visa applicant is provided to the Tribunal
by the review applicant or his or her agent. For example, if the visa applicant completes a
statutory declaration and t under
his is submitted t August
o the Tribunal by the review applicant, it may be
said to be ‘given by the applicant for review’
.133 However, if the same statutory declaration was
forwarded directly to the Tribunal by the visa applicant, it would not fall within this exception.
Evidence from an applicant’s wit
b). In
S 28
ness
Oral evidence given by a witness called by a review applicant does not appear to fall within the
exception in s 359A(4)(
129
Khergamwala v MIAC [2007] on
ZEWL v MIAC, Rares J firmly expressed the view that
information given orally by a witness, other than an applicant for review, cannot be information
128
Le v MIAC [2010] FMCA 460.
Released FMCA 690.
130
Le v MIAC [2010] FMCA 460 at [10]. See also
Mazumdar v MIAC [2012] FMCA 1170 where the Federal Magistrates Court at
[60]–[62] suggested, in
obiter, that an applicant’s acceptance of PRISMS records indicating that his enrolment had ceased
characterised those records as information falling within ss 359A(4)(b) in circumstances where the applicant had already given
evidence to both the delegate and the Tribunal that he was not in fact enrolled at the relevant time.
131
Antoon v MICMSMA [2021] FedCFamC2G 224 at [43]. This judgment was overturned on appeal, however, the Court did not
consider the point about whether it engaged the exception:
MICMSMA v Antoon [2023] FCA 717.
132
SZECG v MIMIA [2006] FCA 733. Although the Court in that case considered evidence of a witness, the reasoning would be
applicable where the ‘witness’ is the visa applicant. The decision of Branson J in
SZECG confirmed the
obiter comments of Lee J
(Tamberlin J agreeing) in
Applicant M164 of 2002 v MIMIA [2006] FCAFC 16 that the exemption in s 424A(3)(b) [s 359A(4)(b)]
does not apply to oral advice given by witnesses called by an applicant. See also
SZCNG v MIMIA (2006) 230 ALR 555 at [64],
and the comments of Kenny and Lander JJ in
MIMIA v Maltsin (2005) 88 ALD 304 at [36] that ‘
it is the Tribunal not the applicant
who ‘obtains’ or ‘acquires’ the evidence for the purposes of the review, whether or not that evidence is volunteered or compulsorily
acquired’. Note, however, that there exists a competing line of authority which suggests that where the witness evidence is called
by the review applicant the exception would apply. See for example,
SZAQI v MIMA [2006] FCA 1653 at [24];
VBAM of 2002 v
MIMA [2003] FCA 504 at [44];
SZIAT v MIAC [2008] FCA 766 at [39];
Chan v MIMIA [2006] FMCA 1841 at [82] and
SZFYW v
MIAC [2008] FMCA 813 at [61].
133
SZCNG v MIAC (2008) 230 ALR 555 at [48].
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
that the applicant gave for the purposes of the application for review and that the Tribunal erred
in not putting adverse information from a witness to the applicant
.134 In reaching this position,
Rares J considered that information given by a witness, from whom the applicant has requested
the Tribunal take evidence, cannot be considered to be information given by the applicant to
the Tribunal because it is the Tribunal who calls witnesses (not the applicant) and that ‘self-
evidently, the witness gave the information’ and ‘any other construction of the section would
make no sense’
.135 The same view (that evidence given by a witness is not likely to be
information given by the applicant) was expressed by Branson J in
SZECG v MIMIA,136 which
confirmed the
obiter comments of Lee J (Tamberlin J agreeing) in
Applicant M
es Court in ART
164 of 2002 v
MIMIA.137 There exists a line of authority which predates
SZEWL and suggests that where the
witness evidence is called by or at the request of the review applicant and taken with his or her
consent the exception would appl
y.138 However, the Federal Magistrat
applicant t the a more recent
judgment considering this issue,
Garcevic v MIAC,139 found ‘much force’ in the reasoning of
Rares J in
SZEWL and followed the position that oral evidence provided by a witness, who in
this instance was put forward as a possible witness by the by o appear at the hearing,
did not fall within the exception in s 359A(4)(b). Therefore, a more conservative and cautious
approach to treating oral evidence from a witness, irrespective of whether the applicant
requested the Tribunal to take evidence from that witness, would be to follow
SZEWL and
consider that the exception in s 359A(4)(b) does not apply to such evidence.
It is generally accepted that
written evidence FOI
or a prepared stat
2025
ement of a witness which is
submitted by a review applicant or his or her agent to the Tribunal, in circumstances where the
review applicant must be taken to have advance knowledge of the precise contents of such
evidence, would come within the exemption
.140
under August
134
SZEWL v MIAC (2009) 174 FCR 498 at [44]
IA [2006] FC 28
.
135
SZEWL v MIAC (2009) 174 FCR 498 at [45].
136
SZECG v MIMIA [2006] FCA 733 at [19]–[23].
137
Applicant M164 of 2002 v MIM
though the applicant initially may on AFC 16 at [99]–[102]. See also
SZCNG v MIMIA (2006) 230 ALR 555 at [64], and
the comments of Kenny and Lander JJ in
MIMIA v Maltsin (2005) 88 ALD 304 at [36] that
it is the Tribunal not the applicant who
“obtains” or “acquires” the evidence for the purposes of the review, whether or not that evidence is volunteered or compulsorily
acquired. In
SZHRD v MIMIA [2006] FMCA 551 at [22]–[23] the Court held that evidence taken by the Tribunal over the telephone
could not be regarded as evidence provided by a witness called or sought by the applicant to bring the information within
s 424A(3)(b) [s 359A(4)(b)] when it was obtained in the absence of the applicant and which was not known by the applicant even
Released have provided the statement by the witness to the Tribunal with an invitation to confirm it.
138
SZAQI v MIMA [2006] FCA 1653 at [24];
VBAM of 2002 v MIMA [2003] FCA 504 at [44];
SZIAT v MIAC [2008] FCA 766 at [39];
Chan v MIMIA [2006] FMCA 1841 at [82];
SZFYW v MIAC [2008] FCA 1259 at [18]–[19]; and
SZLNU v MIAC [2008] FMCA 1200
at [38]–[39]. See also the
obiter comments in
SZECG v MIMIA [2006] FCA 733 at [23] where Branson J also considered that
specific information given by a witness at the request of an applicant may be information given by the applicant (e.g. where the
applicant requests a witness to give specific information on a particular topic at the hearing such as evidence about the political
affiliation of a particular person). However, her Honour doubted that s 424A(3)(b) [s 359A(4)(b)] discloses an intention that every
piece of information that the Tribunal gleans from evidence of a witness called at the request of the applicant would fall within the
exception and was not required to reach a concluded view on this question.
139
Garcevic v MIAC [2012] FMCA 931 at [32]. See also [29]–[31] for a summary of authorities.
140
SZCNG v MIMIA (2006) 230 ALR 555 at [48]. See also
Halkic v MIMA [2006] FMCA 1646,
SZILK v MIMA [2006]
FMCA 1318,
SZFYW v MIAC [2008] FMCA 813 at [57] and
SZMXN v MIAC [2009] FMCA 509 at [25] where information in the form of factual
allegations made to a psychologist and contained in his report, fell within the exception in s 424A(3)(b) [s 359A(4)(b)] as the report
was supplied by the applicant to the Tribunal. Compare
MZXJA v MIAC [2007] FMCA 375 where the Court held that a psychiatrist’s
report attached to a response to a s 424A [s 359A] letter by the adviser did not fall within the exception in s 424(3)(b) [s 359A(4)(b)]
as it was information not from the applicant but from the psychiatrist and thus was not information given by the applicant. However,
this judgment appears contrary to the weight of authority which indicates such information would fall within the exception in
s 424A(3)(b) [s 359A(4)(b)].
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
Evidence from a parent/guardian
Evidence given by a parent or guardian, on behalf of an infant child, is distinguished from that
given by a witness. In those circumstances, the evidence is taken to be given by the infant and
would come within the exception
.141
Evidence from review co-applicants
Where multiple review applicants make a combined application for review, ea
o be given toART
ch applicant
individually has the benefit of s 359A and adverse material emanating from a co-applicant is
not treated differently from adverse material from a non-applicant witne
ss.142 That is,
information given to the Tribunal by one review applicant may have t the another co-
applicant under s 359A if it is part of the reason for affirming the decision relating to the co-
applicant. However, a single invitation issued to all applicants will generally suffi
ce.143
4.2.2 Is the information ‘given for the purposes of the a by
pplication’?
The exception in s 359A(4)(b) extends only to information given for the purposes of the
review applicatio
n.144 There is no distinction between i FOI
nformation given to t
2025
he Tribunal which is central
or peripheral, important or tangential to an application for review
.145 For example, documents
provided to confirm identity may be tangential to an application for review but would still be
given for the purposes of the review application. For the exception to apply, the applicant should
have given the information to the Tribunal voluntarily, and not at the Tribunal’s deman
d.146
under
141 See
SZLSM v MIAC (2009) 176 FCR 539. See also
SZE
view in
SZG August
AM v MIMIA [2005] FMCA 1367.
142
SZGSI v MIAC (2007) 160 FCR 506 at [51]. Justice Marshall expressly acknowledged that he no longer adhered to the contrary
view expressed in
MZWMQ v MIMIA [2005] FCA 1263 (followed in
SZBYH v MIMIA (2005) 196 FLR 309 or that of Young J in
Applicant M47/2004 v MIMIA [2006] FCA 176).
MZWMQ had been followed in
SZGTH v MIMA [2006] FCA 1801 and in
SZCNG v
MIMIA (2006) 230 ALR 555. The Full Court’s
ant wife had c28
SI effectively follows comments made in
obiter by the Full Court in
SZBWJ v MIMIA [2006] FCAFC 13, to the effect that where visa applications are made by members of a family unit under
s 36(2)(b), that family member is making a separate application. Consequently, the Court suggested that where a secondary
applicant who is a member of a family unit provides evidence to the Tribunal, that information is not given for the purpose of the
application under s 424A(3)(b) [s 359A(4)(b)]. Similarly, in the case of
MZXGB and MZXGC v MIAC [2007] FCA 392, the Court
held that even though the applic
143
SZKDP v MIAC [2007] FCA 1 on onsented to the Tribunal using the evidence the applicant husband had already
provided in his separate application for review in assessing her claims, that information obtained from the applicant husband at
his hearing was not information given by the applicant wife in her separate application for review. The Court noted that as the
applicant wife was not present at the hearing, she could not have known what information she was consenting to the Tribunal
using.
SZGSI was distinguished in
SZCOV v MIAC [2008] FMCA 1171 on the basis that the evidence from the other applicant did
not constitute a rejection, denial or undermining of the applicant’s claims: at [71]–[75].
Released 487 at [36]–[38]. See also
SZKDB v MIAC [2007] FMCA 1036 at [30] and
SZIHI v MIAC [2007]
FMCA 1332 at [9].
144 In
Kaur v MIBP [2015] FCCA 3037 at [20] the Court found that a delegate’s decision provided via the online lodgement system
was given for the purposes of the review application.
145 See
Alsaidat v MICMSMA [2022] FedCFamC2G 381 at [20] where the Court held that ‘application for review’ in the construction
of ss 359A(4)(b) means the set of actions that consist of, or which are or may be associated with, the making of an application for
review under s 347 and does not distinguish between actions which are central or peripheral, important or tangential to an
application for review. In this instance, in a Partner visa matter the applicant had provided an address on a consent form for a
s 362A request and an ID card at the hearing which had the same address. The address on the consent form and ID card was
different from the address the applicant claimed to live at with the sponsor. The Tribunal relied on the difference in address to find
that the applicant and sponsor did not live together. The Court was satisfied that the applicant had given the address details (in
the consent form and ID card) to the Tribunal and that the Tribunal was not required to put it to the applicant under s 359A .
146 See
Alsaidat v MICMSMA [2022] FedCFamC2G 381 at [26] where the Court held that the applicant had provided an address
in a consent form for a s 362A request (before 14 October 2024, s 362A requests were made to the Tribunal rather than the
Department) and on an ID card on his own initiative, and therefore they were given for the purposes of the review. The Court
reasoned that the Tribunal did not require the applicant to request his agent have access to documents under s 362A (which is
where the address was first given), nor was there evidence the Tribunal demanded the applicant prove his identity by submitting
the ID card, it being open to the applicant to prove his identity by some other way.
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
The exception does not include information given in the visa application
.147 Nor does it cover
any other application the applicant may have made to the Tribunal. For example, an application
for a fee waiver does not come within the exemption
,148 nor would information given in
connection with an application for review of a different decision.
An additional exception, that contained in s 359A(4)(ba), operates to exempt
written information given by the review applicant during the process that led to the decision under
review. See
below for further discussion.
‘Adoption’ or ‘republication’ of prior statements
If information is given
directly to the Tribunal by the review applicant, it will clea ART
rly fall within
this exception.
A review applicant may also
indirectly give the Tribunal information
d to have ‘the
by referring to it to bring it
within the exception in s 359A(4)(b). An applicant can be sai by given’ information to the
Tribunal for the purposes of the review application by ‘adopting’, ‘incorporating’ or ‘republishing’
the information
.149
There is nothing in the text of s 359A(4)(b) whi
FOI
ch supports any disti 2025
nction between information
proffered by an applicant to the Tribunal of the applicant’s own volition or elicited from an
applicant by the answering of the Tribunal’s questio
ns.150 Nevertheless, not every answer by
an applicant to a question from the Tribunal will involve the applicant giving information to the
Tribunal. The nature of the information, the question asked and the answer will all be relevant
to determining whether these provisions are engage
d.151 The question is ultimately one of fact.
There is also no principle under
that complex i
sputed factAugust
nformation or information about controversial facts
cannot be given by an applicant to the Tribunal by a mere affirmation in response to a question
by the Tribunal
.152 The complexity or simplicity of the information and whether the information
relates to a controversial or undi
ll Court of 28 are circumstances that inform the answer to the
question of whether s 359A(4)(b) will be engaged
.153
In
NBKT v MIMA,154 a Fu
147
MIMA v Al Shamry (2001) 110 on the Federal Court found that it was possible for an applicant
to adopt a prior statement in oral evidence at a Tribunal hearing. However, the Court
emphasised the importance of giving careful consideration to the nature of the information and
Released FCR 27 followed in
SZEEU v MIMIA (2006) 150 FCR 214.
148 Information provided to the Tribunal as part of a fee waiver application is not information provided for the purpose of the review
application, and if the Tribunal wishes to use any information provided in such an application as part of the reason to affirm the
delegate’s decision, the s 359A obligation arises:
Rokolati v MIMIA (2006) 203 FLR 258 .
149 See
MIAC v You [2008] FCA 241 at [13]. In
Bhandari v MIAC [2010] FMCA 369 at [32]–[35], the Court found that evidence of
an education provider’s certification, was information given to the Tribunal by the applicant as it was referred to in the delegate’s
decision and was therefore outside the obligation in s 359A(1). In
CAR15 v MIBP [2019] FCAFC 155 at [70]–[72] the Full Court in
comments made in
obiter noted that, in circumstances where, the appellant had made extensive references to the previous
Tribunal decision (following remittal by a Court of the review application) in submissions to both the delegate and the Tribunal, the
exceptions in ss 424A(3)(b) and (ba) [s 359A(4)(b) and (ba)] applied to the previous Tribunal decision. This was because the
appellant had in effect ‘given’ the previous Tribunal decision to both the delegate and Tribunal (despite not giving the complete
decision record). The Court did not reach a conclusion on whether the previous Tribunal decision was in effect information for the
purposes of s 424A(1) [s 359A(1)].
150
SZTGV v MIBP (2015) 318 ALR 450 at [24].
151
SZTGV v MIBP (2015) 318 ALR 450 at [24].
152
SZTGV v MIBP (2015) 318 ALR 450 at [25].
153
SZTGV v MIBP (2015) 318 ALR 450 at [25].
154
NBKT v MIMA (2006) 156 FCR 419.
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
the circumstances in which it is communicated to, or elicited by, the Tribunal. The Court found
that an applicant must do more than merely affirm the accuracy of a previous statement
,155 but
artificial distinctions should not be drawn between information provided by way of ‘evidence in
chief’ and answers to questions posed by the Tribunal
.156
Prior to
NBKT, a number of cases had suggested that information would only be ‘given’ for the
purposes of the review application if it was volunteered or given without promptin
g.157 However,
in
SZDPY v MIMA,158 Kenny J rejected the appellant’s contention that the information in
question was not subject to the exemption in s 424A(3)(b) [s 359A(4)(b)] beca
ART
use it had been
given in response to questions in the nature of ‘cross examination’ by the Tribunal
.159 Her
Honour held that the Tribunal’s questions were specific and arose, naturally enough, from the
appel ant’s visa application, and the appel ant gave direct answers.
Similarly, Allsop J in
SZHFC v MIMIA said in regard to the equivalent
cation to t the
provision s 359A(4)(b):
If the Tribunal, as here, puts an earlier statement or appli by
he applicant and asks
questions about it, … the answers given to those questions wil be information for the
purposes of s 424A(3)(b). If the Tribunal then takes that information, that is, for want of a
better expression, that raw information or data into account, nothing would prevent the
operation of s 424A(3)(b). If, however, the FOI
importance placed 2025
by the Tribunal on the
information previously given to the Department (which may have been repeated in
answers to the Tribunal) is not merely the facts disclosed, but arises from the context or
circumstances of it being given earlier, then s 424A(3)(b) may not prevent the
requirement of a notice under ss 424A(1) and (2).160
The Tribunal’s task is to determine whether the applicant has republished the whole or only
part of a prior statement.
under
For example:
• In
SZGGT v MIMIA, Rares J held that the
ion of obAugust
test of what has been republished should be what
a reasonable person in the posit
8] FMCA 113 28 serving what is in the review application would
understand has been interchanged
.161 The Court found that in that case such a person would
155 See also
SZHWF v MIAC [200
avow or disavow the information on 6.
156
NBKT v MIMA (2006) 156 FCR 419 at [59]. Also in S
ZCJD v MIMIA [2006] FCA 609, Heerey J held that the exception in
s 424A(3)(b) [s 359A(4)(b)] would apply to information which is affirmed by an applicant for the purposes of the review, even if the
information might also have been obtained by the Tribunal from another source. In
Kanagul v MIBP [2014] FCCA 1219, Barnes J
held at [77]–[78] that the applicant did not ‘give’ the information, namely two items of evidence from the sponsor, to the Tribunal
and the exception in s 359A(4)(b) did not apply because, in contrast to the facts in
NBKT v MIMA, the applicant did not positively
Released when the information was put to him at hearing, the nature of the information was not simply
uncontentious factual material and the applicant had not previously provided the information.
157
NAZY v MIMIA (2005) 87 ALD 357;
SZBMI v MIMIA (2006) 150 FCR 214 at [20], [219],
SZBUU v MIMIA [2006] FMCA 197 at
[74], [77]–[78]. See also
SZCNG v MIMIA (2006) 230 ALR 555 where the Court found that the mere adoption of a statement of a
third party by the applicant during the review process is not such as to result in the information being given by the applicant for the
purposes of the review application at [66]. A similar conclusion was reached in
SZGMI v MIMA [2006] FMCA 284. Compare
SZCJY
v MIMIA [2005] FMCA 1917, in which the applicant expressly referred to his protection visa application in his application to the
Tribunal. The exception in s 424A(3)(b) [s 359A(4)(b)] was held to apply in this case. Upheld on appeal in
SZCJY v MIMIA [2006]
FCA 556; and
SZFKL v MIMIA [2005] FCA 931, where inconsistencies between the claims submitted with the visa application and
oral evidence was brought to the applicant’s attention at the hearing and he confirmed to the Tribunal that he was satisfied of the
accuracy of the information in his visa application. In this case it was held that the information came within s 424A(3)(b)
[s 359A(4)(b)]. See also
SZERV v MIMIA [2005] FCA 1221 at [10]–[11];
SZDVO v MIMIA [2005] FMCA 1703 at [25]; and
SZFIM
v MIMIA (2005) 197 FLR 362 at [38] in which the Court held that the provision of the Department of Immigration file number on the
review application form did not constitute ‘republication’ of the visa application for the purposes of the review.
158
SZDPY v MIMA [2006] FCA 627.
159
SZDPY v MIMA [2006] FCA 627 at [36]; approved by the Full Court in
NBKT v MIMA (2006) 156 FCR 419.
160
SZHFC v MIMIA [2006] FCA 1359.
161
SZGGT v MIMIA [2006] FCA 435 at [36].
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have understood the applicant to have been referring only to his earlier explanation as to his
circumstances in his country and not to his explanation of his Australian
sur place claim on
which he elaborated in different words. There was no incorporation of the entirety of the
information contained in the departmental file and that defect in procedure was not cured by
the fact that the Tribunal told the applicant that it would be in receipt of the departmental fil
e.162
• In
SZGIY v MIAC163 the applicant said in her review application form that the delegate had
not read her visa application carefully. A Full Court of the Federal Court found that a reasonable
reader would have understood that the applicant was inviting detailed attentionART
to her visa
application. Information contained in the visa application about the applicant’s date of arrival in
Australia was therefore said to be information the applicant gave for the purposes of the review
applicatio
n.164
• In
Gajjar v MIAC165 the High Court considered what amounted to i
that by the
nformation ‘given by the
applicant for the purpose of the application’ in s 57(c) [the Department’s equivalent to
s 359A(4)(b) in the context of IELTS test results and held by providing an IELTS test
reference number in answer to a question on the application form, the applicant has ‘given’ the
information about his/her test results even though the actual results were accessed through a
third party
.166
• In
SZTGV v MIBP167 the Full Federal C FOI
ourt found the appli
2025
cant had elected to provide
submissions to the Tribunal dealing with issues set out in the delegate’s decision and in so
doing, that he gave to the Tribunal information relevant for the purposes of s 424A(1)
[s 359A(1)], being his admissions of the falsity of the information he supplied as part of his
tourist visa application. As the applicant gave the information to the Tribunal in accordance with
s 424A(3)(b) [s 359A(4)(b)], s 424A(1) [s 359A(1)] was found not to apply.
Even if a person can be under
said to have ‘rep
given in i August
ublished’ information so as to bring it within the
exception in s 359A(4)(b), following the High Court judgment in
SZBYR v MIAC,168 the Tribunal
considers whether the information
ay not need28 ts original form must be disclosed. Accordingly, if
the Tribunal does not consider its decision, or any part of its decision, was informed by the
information in its original form, and rather its decision was informed by the applicant’s provision
of that information, it m
on to be disclosed under ss 359A. This will arise if the Tribunal
clearly does not rely on the original information and instead relies only on the information that
has been republished by the applicant, and this information would be exempted from disclosure
on the basis of the exception in s 359A(4)(b)
.169 Further, it is possible that an applicant’s
Released
reproduction of information and the exception in s 359A(4)(b) operate to disengage the
162
SZGGT v MIMIA [2006] FCA 435 at [50]–[51].
163
SZGIY v MIAC [2008] FCAFC 68.
164
SZGIY v MIAC [2008] FCAFC 68 at [24].
165
Gajjar v MIAC (2010) 240 CLR 590.
166 The Court’s reasoning would appear to be equally applicable in similar situations for the purposes of s 359A(4) and arguably
also to ss 359A(4)(b) more broadly, at least where the purpose of the answers provided on the application form is apparent, and
the applicant is aware of the particulars and evidentiary purpose, or relevance, of the associated information in question. However,
it is important to note that the Court was considering s 57 and a specific factual scenario.
167
SZTGV v MIBP (2015) 318 ALR 450.
168
SZBYR v MIAC (2007) 235 ALR 609.
169 See for example
Quadri v MICMSMA [2020] FCA 246 at [27] where, in the context of PRISMS records for a student refusal,
the Court held that s 359A was not engaged because the Tribunal’s reasons indicated that its decision was informed not by the
contents of the PRISMS records, but by the appellant’s own evidence that he had discontinued his course of study, and the
appellant’s own evidence is not information for the purposes of s 359A: s 359A(4).
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
presently existing obligation in s 359A(1) with regard to the original information
.170 Whether the
obligation under s 359A is engaged wil turn on the Tribunal’s reasons for its decision, the
factual circumstances of the matter and the content of the reproduced information.
4.3 Information given by the applicant, in writing, during the process that led to
the decision under review
Written information given by the review applicant during the process that led to ART
the decision
under review is not information that must be given to an applicant under s 359A. Such
information would include information given for the purposes of the visa application, or
sponsorship application, or in the course of the visa cancellation proces
s.171 Written information
given in connection with an earlier application, or cancellation, w
o the D the
ould not fall within the
exemption
.172
This exemption does not extend to information given orally tby epartment
.173 Recordings
of interviews with departmental officers or written records of interviews or telephone
conversations, for example, would not be exempt.
It is only information given by the
review applicant that is exempted. Written information given
by another visa applicant, sponsor, nominato FOI
r, witness, third part 2025
y or information obtained
independently or generated by the Department would not be exempted. Similarly, information
generated by the Tribunal itself, such as a decision on a related application, would not be
exempted
.174
4.4 Non-disclosable information
Information which meets under
the definition of
on Act incl August
‘non-disclosable’ information under s 5 of the
Migration Act is explicitly exempted from the obligation in s 359A. ‘Non-disclosable information’
as defined in s 5(1) of the Migrati
P [2019] FCA 28 udes information ‘whose disclosure would found an
170 See for example
Naikar v MIB
material as the appellant had noon 502 at [36]–[38] which rejected the finding at first instance in
Naikar v MIBP [2018]
FCCA 2689 at [100] which had held that once the obligation in s 359A(1) is engaged, it would be contrary to the objects and
purposes of the Migration Act to read the exception in s 359A(4)(b) as disengaging what is a presently existing mandatory
obligation. The Federal Court held that the Tribunal was correct to find that based on the appellant’s concession about his criminal
history at hearing, it was unnecessary to put the same information from his criminal history which was on the file to the appellant
under ss 359A. The Court went on to find that even if the Tribunal had failed to comply with s 359A, the error would not have been
Released t complied with the evidentiary requirements for a non-judicially determined claim of family
violence.
171 See
ADA15 v MIBP [2016] FCCA 291 at [5] where the Court held that the visa application was quintessentially part of the
process that led to the decision under review, such that information contained within the visa application did not need to be given
to the applicant under s 424A [s 359A]. Upheld on appeal:
ADA15 v MIBP [2016] FCA 634.
172 See
SZMOO v MIAC [2008] FMCA 1581 at [36] where the Court rejected an assertion by the Minister’s representative that
information in earlier visitor visa applications could fall within s 424A(3)(b) or 424A(3)(ba) [ss 359A(4)(b) or 359A(4)(ba)] in relation
to an application for review of a decision on a protection visa application.
173 See, for example,
FRA17 v MICMA [2022] FedCFamC2G 999 at [26] where the Court held that oral evidence given by one of
the applicants to the delegate that he had no problems on account of his religion in his home country on its terms undermined both
his claim and his wife’s claim to be at risk on account of their religion, and that it was information that was required to be put to the
applicant and his wife under s 424A [s 359A]. The information given orally to the delegate did not fall within an exception to s 424A
[s 359A]. At [19] the Court noted that a copy of the delegate’s decision (which referred to the applicant’s concession to the delegate)
had not been provided to the Tribunal and so the exception in s 424A(3)(b) [s 359A(4)(b)], which covers information the applicant
gave for the purposes of the application for review, was not enlivened.
174 See, for example,
Singh v MIAC [2010] FMCA 813 at [42]–[46] where the Court held in a case involving related visa refusal and
sponsorship refusal review applications that s 359A imposed an obligation on the Tribunal to put to the applicants the information
that it had affirmed the delegate’s decision in relation to the application by the sponsor.
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
action by a person, other than the Commonwealth, for breach of confidence’ and information
or matters whose disclosure may be contrary to the national or public interest.
4.4.1 Dob-ins
The proper application of this exception was considered by the High Court in
MIAC v Kumar175
in the context of dob-in material provided to the Tribunal. The High Court observed that the
definition of ‘non-disclosable information’ invites attention to the body of doctrine in private law
concerned with the protection of confidential information, but expressed the need f ART
or caution in
translating into public law such private law concepts. The translation must accommodate the
scope and purpose of the Migration Act
.176
The Court found that s 359A is designed to afford, to applicants, a
ormance the
measure of procedural
fairness and, to informants, protection, lest without that protection, information be withheld and
the Tribunal be denied material which assists the perf by of its functions
.177 The
preservation of the informant’s disclosures in that case tended to advance, not obstruct, the
operation of the Migration Act. Accordingly, it was sufficient compliance with s 359A(1) for the
Tribunal to inform the applicant that it had received information, in confidence, which stated
that his marriage was contrived for the sole purpose of his migration to Australia, and inviting
his response without disclosing the identity of t FOI
he informant
.178
It flows from the judgment in
MIAC v Kumar, that it is appropriate for 2025
the Tribunal to have some
regard to private law principles in determining whether the disclosure by the Tribunal of
information would found an action by a person for breach of confidence. But the mere fact that
the private law would not protect some information, will not necessarily deny to that information
the character of ‘non
-di
under
sclosable inform
d it is not August
ation’, if the protection of that information would
advance the operation of the Migration Act.
The judgment in
MIAC v Kumar offers little practical guidance as to how to apply the definition
of ‘non-disclosable information’ an 28 possible to define with precision the categories of
information that will be caught by it. However, the requirements for an action for breach of
confidence may be summarised as follows
:179
• a plaintiff must be ablon
e to identify with specificity, and not merely in global terms, that which
is said to be the information in question;
Released
• the information must have the necessary quality of confidentiality (and is not, for example,
common or public knowledge);
175
MIAC v Kumar (2009) 238 CLR 448.
176
MIAC v Kumar (2009) 238 CLR 448 at [19]–[21].
177
MIAC v Kumar (2009) 238 CLR 448 at [23].
178
MIAC v Kumar (2009) 238 CLR 448 at [34]. In
WZANC (No 2) v MIAC [2012] FMCA 504 the Court applied
Kumar and found
that sufficient particulars of the confidential information were provided to applicant to enable him to properly answer allegations
that he was a Sunni Muslim and not an Ahmadi as claimed, and it was not necessary for the Tribunal to disclose the informant’s
identity. Upheld on appeal in
WZANC v MIAC [2012] FCA 1461. See also
Lam v MIAC [2009] FMCA 1231 at [67] although the
Court held that the failure on the part of the Tribunal to provide the applicant with a specific allegation that the review applicant
and visa applicant had married gave rise to a breach of s 359A as the applicant should have been provided with clear particulars
of all of the information that the informant provided: at [77].
179
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434.
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
• the information must have been received by the defendant in such circumstances as to
import an obligation of confidence
;180
• actual or threatened misuse of that information must have occurred; and
• it is a possible requirement that the unauthorised use would need to be to the detriment of
the plaintiff.
When presented with this issue, the Tribunal considers whether the information i
accommod
ART
n question is
in fact confidential, or properly the subject of a national or public interest claim. In
Singh v
MIBP181
the Court in
obiter noted that the identity of an informer was the type of information
that would ordinarily be the subject of public interest immunity, and the statutory regime
provided for the Tribunal to act in a way that is fair and just
portant pu the
ated preserving
appropriate public interest immunity in accordance with the provisions of ss 375A and 376. The
Court commented that the disclosure of an informant would ordinarily not be appropriate and
would require special circumstances that outweighed the im by blic interest in protecting
informants.
If the information clearly cannot be characterised as non-disclosable information, the Tribunal
discloses particulars of the information to the review applicant in accordance with s 359A(1)
.182
If the information
may be characterised as ‘nonFOI
-disclosable’, consi 2025
deration is given to whether
it is possible to nonetheless disclose the substance or gist of the matter. This approach assists
in affording the applicant procedural fairness while at the same time protecting any relevant
public interest, including the interest in protecting informants
.183
If sensitive information is r under
eleased to an appl
osure – sAugust
icant or adviser, the Tribunal may consider making
a written direction under s 70 ART Act that the information not be published or disclosed.
4.4.2 Other restrictions on discl
unal.
28
s 375A, 376, and 503A
Sections 375A, 376, and 503A of the Migration Act place restrictions on the disclosure of
information by the Trib
Sections 375A, 376 and on
restrictions
Released
Under s 375A the Minister (or their delegate) may certify that certain information is only to be
disclosed to the Tribunal.
180 Note that in
Park v MIAC [2009] FMCA 7 the Court found that information obtained from an informant in circumstances where
that person neither sought nor was offered the protection of confidentiality was not imparted in circumstances importing an
obligation of confidence: at [25]. However it is not clear that this reasoning has survived the High Court’s decision in
MIAC v Kumar (2009) 238 CLR 448; see also
Lam v MIAC [2009] FMCA 1231, where the Court considered at [56] whether, in the circumstances,
it was not an unreasonable inference to be asked to be drawn that the request for confidentiality was implicit where the call was
anonymous and made to the ‘dob-in’ line at the Department but no specific request for confidentiality was made.
181
Singh v MIBP [2015] FCCA 3095 at [14]–[15].
182 A failure to address this question may have the effect of denying the applicant procedural fairness: see
NAVK v MIMA (2004)
135 FCR 567 at [108].
183
NAVK v MIMA (2004) 135 FCR 567 at [107].
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The effect of such a certification is that the Tribunal is prohibited from disclosing the document
and/or information in it to the applicant. In
MIBP v Singh, the Federal Court found that where
the obligations in ss 359A and 375A come into conflict, s 375A is the leading provision but that
the aims of both ss 375A and 359A can usually be served without conflict
.184 In
Burton v MIMIA,
Wilcox J held that a valid s 375A certificate does not override the obligation to provide
particulars of information under s 359A(1)
.185 In doing so the Tribunal is
not required to disclose
specific documents that it may have in its possession; rather the obligation is to disclose only
enough of the substance of the claim that may be the reason or part of the reason for affirming
the decision so that the applicant can seek to answer the claim
.186 In
Burton, ART
Wilcox J also
commented that the ‘provision of particulars about information need not reveal the information
itself, and certainly need not involve access to any particular document’.
In practice, it may be difficult in some circumstances to comply with s
t inform the
359A without disclosing
the information which is the subject of a s 375A certificate. There may be cases in which the
Tribunal can do no more than provide information already disclosed by repeating what is set
out in the delegate’s decision
.187 However, the fact tha by ation is summarised or
paraphrased will not necessarily mean that it is not clearly particularise
d.188
If the Tribunal concludes that a s 375A certificate is invalid or has been wrongly issued, it
cannot rely on it to prevent disclosure of the m FOI
aterial under s 359A.
The Tribunal has a discretion regarding disclosure in respect of do 2025
cuments or information that
is certified under s 376 , and as such it is generally more straightforward to comply with both
ss 376 and 359A
.189
Section 503A restrictions
Under s 503A, confidential iunder
nformation that
ged or coAugust
has been communicated to an ‘authorised migration
officer’ by a gazetted agency, which is relevant to the exercise of a power under s 501, 501A,
501B or 501C, must not be divul
190 Depart 28 mmunicated to another person except in limited
circumstances. ‘Authorised migration officer’ in this context means a Commonwealth officer
whose duties consist of, or include, the performance of functions, or the exercise of powers,
under the Migration Act
.
or that there is no obligation to dis on
ment and Tribunal officers fall within this definition. Gazetted
184 See
MIBP v Singh [2016] FCAFC 183 at [56]. It was also held that
Davis v MIMIA [2004] FCA 686 was not correct to the extent
it suggested that if there is a s 375A certificate, it has the effect that s 359A never gives rise to an obligation to provide particulars,
Released close the existence of the certificate to an applicant. An application for special leave to the High
Court was dismissed:
MIBP v Singh [2017] HCATrans 107.
185
Burton v MIMIA (2005) 149 FCR 20 at [40]–[42]. Wilcox J noted that if Parliament had intended to make the obligation in
s 359A(1) subject to s 375A one would have expected it to have done so but that it had not.
186
NATL v MIMIA [2003] FCAFC 112 at [14];
SZGUP v MIMA [2006] FMCA 1130 at [34].
187 In
Shah v MIAC [2011] FMCA 18 at [57] the court commented that given that the Tribunal was unable to provide to the applicant
any information contained in a statement (subject to a s 375A certificate) which had not already been disclosed, it could do no
better than to repeat information from the statement which the delegate had considered dispositive and refer to information which
the applicant had provided as indicating the context in which the evidence in the statement had significance.
188
Shah v MIAC [2011] FMCA 18 at [57].
189 See
WZANC (No 2) v MIAC [2012] FMCA 504 where the Court found no error in the Tribunal putting the gist of confidential
information to the applicant under s 424A [s 359A], but not the identity of the informant, in circumstances where a notice had not
been given by the Secretary under s 438(2) [s 376(2)] to the Tribunal. The Court held that, even if there was a technical breach of
s 438(2) [s 376(2)] by reason of the Secretary’s failure to notify the Tribunal of the confidential information, there was not, and
could not have been, any practical injustice arising from the Secretary’s failure or the Tribunal’s failure to provide the informant’s
identity. What happened was what the Tribunal would have been entitled to do had notice under s 438(2) [s 376(2)] been given by
the Secretary to the Tribunal. Upheld on appeal in
WZANC v MIAC [2012] FCA 1461.
190 s 503A(9). ‘Commonwealth officer’ has the same meaning as in s 70 of the
Crimes Act 1914 (Cth): s 503A(9).
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Agency means, in the case of an Australian law enforcement or intelligence body, a body
specified in a Gazette Notice; or in the case of a foreign law enforcement body, a foreign
country specified in the Gazette Notice; or a war crimes tribunal established by or under
international arrangements or international law
.191 A wide range of agencies have been
gazetted for this purpose.
The Minister may declare in writing that the information may be disclosed to a specified
tribunal
.192 However, a member must not divulge or communicate the informatio
n193 and must
not be required to divulge or communicate the information to, or give the i ART
nformation in
evidence before, the Federal Court or Federal Magistrates Court
.194
5. Procedural requirements and issues
5.1 Giving ‘particulars’
the
Section 359A(1)(a) requires the Tribunal to give the applby
icant particulars of the relevant
information.
This involves the applicant being supplied FOI
with sufficient parti 2025
culars to enable them to
meaningfully comment on the information
.195 In
SZMKR v MIAC,196
for example, the Court was
considering an omission which was found to be information for the purposes of s 424A [s 359A]
and held that merely passing on the full text of the reports from DFAT failed to comply with
s 424A(1) [s 359A(1)] as this did not convey to the applicant the implicit assertion on which the
Tribunal relied. The applicant’s response to the letter was also seen to demonstrate that he
was unaware he had to deal with the proposition arising from the omission in the material.
Where the context or cum under
ulative consider
ation to theAugust
ation of the adverse information would be the reason
for affirming the review, the significance of the information might only be conveyed by providing
the entirety of the adverse inform
sor’s det 28 applicant for comment. For example:
• In
Bani Hani v MIBP197 the Court held that it was not sufficient to comply with s 359A to only
give extracts of the sponon ailed letters to the Department regarding the withdrawal and
reinstatement of her sponsorship of the applicant for a Partner visa. It was clear from the
Tribunal’s reasons that the information it considered would be part of the reason for affirming
the decision was contained in those letters and extended beyond the given extracts. The Court
Released
found that the Tribunal treated all of the sponsor’s letters as her evidence and that the entirety
of the letters needed to be provided so as to give the applicant a meaningful opportunity to
comment.
191 s 503A(9). The applicable Gazette Notice is Notice Under Section 503A of the Migration Act 1958 - 2016/028, GAZ 16/001,
dated 22 March 2016.
192 s 503A(3).
193 s 503(4A).
194 s 503A(5A).
195
Nader v MIMA (2000) 101 FCR 352.
196
SZMKR v MIAC [2010] FCA 340.
197
Bani Hani v MIBP [2016] FCCA 483.
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• In
SZGUJ v MIAC198 the Court held that despite a general suggestion in the s 424A [s 359A]
invitation that the Tribunal had concerns about letters submitted because of identical
letterhead, s 424A(1)(a) [s 359A)(1)] required particulars of each of the documents which might
be found to have used that letterhead. The Court found that the sufficiency of a s 424A [s 359A]
invitation should be found by reference to its content when considered in its context of
contemporaneous circumstances, and not by hindsight reference to the response of its
recipient.
• In
Khan v MIAC199 the applicant’s sponsor wrote to the Department requestin ART
g cancellation
of the sponsorship due to his ‘fraudulent behaviour’ and advised that his employment had
ceased. There was no mention in the Tribunal’s decision record of the accusations of fraud.
The Full Federal Court unanimously held that if information in question is such that it could not
have been rejected at the outset as irrelevant, omission of any refere the
nce to that information in
the Tribunal’s reasoning wil not operate to exclude the obligation under s 359A. Accordingly,
the Tribunal fell into error by not providing the applicant with ‘clear particulars’ of the contents
of the sponsor’s letter.
• In
Vyas v MIAC200 the Court found that the Tribunal fell i by
nto error as the particulars provided
by it were not sufficient for the applicant to understand and usefully respond to an allegation of
fraud, which was the unstated basis of the
FOI
Tribunal’s invitation to 2025
comment. The Court held
that the applicant needed to understand that the information or inference she was being asked
to respond to was that her IELTS test results had been fabricated and not simply that someone
had examined the test and had formed a subjective opinion that she did not merit the test
results that she had in fact achieved.
The fact that information may have been summarised or paraphrased does not mean that it
has not been clearly pa under
rticularise
d.201 H August
owever, if the Tribunal’s summary of relevant
information is inaccurate in a significant respect, there is a risk a Court will find there has been
a failure to provide ‘clear particul
ars’.202
When putting to an applicant part
her Tribun 28
iculars of information obtained in another Tribunal review,
there is generally no obligation to provide an entire evidentiary record of the information being
relied upon from the ot on al review, provided that an accurate representation of the
information contained in the other file has been clearly particularise
d.203 For example, in
Singh
v MIBP the Tribunal put adverse information which included evidence from a witness in another
Released
198
SZGUJ v MIAC [2007] FMCA 134.
199
Khan v MIAC (2011) 192 FCR 173.
200
Vyas v MIAC [2012] FMCA 92.
201
Shah v MIAC [2011] FMCA 18 at [57].
202 See e.g.
SZONE v MIAC [2011] FMCA 420 in which the Court found the manner in which the Tribunal recorded that it put
information from the Department to the applicant under s 424AA [s 359A] did not accurately reflect the relevant information and
the fact that the Tribunal subsequently sent a copy of that information to the applicant’s advisor, did not rectify the failure as the
information was not put to the applicant under s 424A [s 359A]. By way of contrast in relation to a typographical error, in
SZGSG
v MIAC [2008] FMCA 452 the Court held that notwithstanding the error in the country name in the Tribunal’s s 424A [s 359A] letter,
the Tribunal did not fail to give correct particulars as the applicant’s response to the s 424A [s 359A] letter demonstrated that he
clearly understood why the information was relevant to the review and there was no indication that the error confused or in any
way misled the applicant when he responded.
203
Singh v MIBP [2021] FCCA 416 at [74]–[75]. Upheld on appeal in
Singh v MICMA [2022] FCA 1543.
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Tribunal matter
.204 The Tribunal had not listened to the evidence of the witness but rather relied
upon the reproduction of their evidence in the other Tribunal’s decision record. The Court
considered that as there was no material difference between what was reproduced in the
s 359A letter and what was said by the witness at hearing (having regard to the audio recording
of what was said in the other Tribunal review and the decision record for the other review), that
the Tribunal had not erred in its approach to discharging its obligation under s 359A
.205 In
addition, in relation to conducting a review and considering the material more broadly, the way
the Tribunal dealt with the information from the other review, including how it provided it under
s 359A and its consideration of the applicant’s response, reflected that it had acti
ART
vely engaged
with the material and had not adopted the findings from the other Tribunal decisi
on206207
The Tribunal is also not generally required to produce documents to the applicant, or identify
the source of the information
.208 However, some circumstances m
employer of t
the
ay arise where additional
detail, such as the source of the information, is required to be disclose
d.209 For example, this
was the case in
SZIJU v MIAC where the Tribunal relied on an account of a telephone
conversation between a Tribunal officer and a former
by he applicant which was
emailed to the member by the officer. The Tribunal’s s 424A [s 359A] letter quoted part of the
email without revealing the source. The Court found that the withholding of the full contents of
the email deprived the applicant of knowledge of some of the particulars of information relied
upon by the Tribunal
.210 This can be contrast
FOI
ed however with
Kaur 2025
v MIBP in which the Court
found no error in the Tribunal not enclosing copies of documents referred to in its s 359A
invitation in circumstances where the applicant had already been provided with copies by the
Department and it was clear that those were the documents that the invitation was referring
t
o.211
under
204
Singh v MIBP [2021] FCCA 416 at [30], [36]–[37]. The a
included thatAugust
pplicant provided a skills assessment and a letter from a ‘Mr K’ who
confirmed that the applicant had undertaken more than 900 hours of work at Bakers Hut. The Tribunal put adverse information to
the applicant; the particulars of the information
a long time, 28 Mr K gave evidence in another Tribunal proceeding (the reference
number for that review was given), to the effect that he was aware false Bakers Hut references were circulating, but that only two
volunteers completed 900 hours’ work experience at his bakery whom he named and the applicant was not one of those named.
The judgement was upheld on appeal in
Singh v MICMA [2022] FCA 1543.
205
Singh v MIBP [2021] FCCA 416 at [75]. In coming to this finding, the Court also considered that the applicant had been on
notice of the witness’ evidence for
208
MIMIA v SZGMF [2006] FCA on that he had provided detailed submissions about the witness’ evidence in the lead
up to the hearing, was given the opportunity to answer questions about the evidence at the Tribunal hearing and had had the
opportunity to request the Tribunal summon the witness. The judgement was upheld on appeal in
Singh v MICMA [2022] FCA
1543.
207
Singh v MIBP [2021] FCCA 416 at [59]–[64]. Upheld on appeal in
Singh v MICMA [2022] FCA 1543.
Released FC 138 at [27];
Nader v MIMA (2000) 101 FCR 352;
SXRB v MIMIA [2006] FCAFC 14;
NATL v
MIMIA [2002] FCA 1398,
SZOMB v MIAC [2010] FMCA 742 at [22] and
SZOCE v MIAC [2010] FMCA 1007 at [60] - upheld on
appeal:
SZOCE v MIAC [2011] FCA 133.
209 In
Nader v MIMA (2000) 101 FCR 352, it was held that the name of the source of the information was required for the applicant
to adequately respond. In
SZKCQ v MIAC (2008) 170 FCR 236, Buchanan J found that the Tribunal was required by s 424A(1)(a)
[s 359A(1)(a)] to disclose the questions asked of the High Commission in Pakistan, as well as the responses received, in
circumstances where what was not said in response to the questions was significant to the Tribunal’s reasoning. The other
members of the Court found this was just a breach of s 424A(1)(b) [s 359A(1)(b)], and it is not clear that Buchanan J’s reasoning
would be followed by other Courts.
210
SZIJU v MIAC [2008] FMCA 51. Similarly, in
SZJDY v MIAC [2007] FMCA 1760 the Tribunal was required to provide particulars
of the context in which adverse information was obtained by the Tribunal from a third party. See also
Park v MIAC [2009] FMCA 7
where the Court found that the identity of an informant and detail of the information received by that person should have been
disclosed pursuant to s 359A. Note, however, that this finding was contingent on the Court’s related finding that such information
was not ‘non-disclosable information’ for the purposes of s 359A(4)(c) and s 5(1) of the Migration Act. This reasoning is probably
overtaken by the High Court’s subsequent decision in
MIAC v Kumar (2009) 238 CLR 448.
211
Kaur v MIBP [2016] FCCA 741. The Court at [16] also held that the fact that the applicant had been provided with those
documents by the Department two years prior to the Tribunal hearing did not put any extra obligation on the Tribunal in respect of
its s 359A invitation.
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‘Information’ cannot necessarily be clinically divorced from the context in which it appears, and
how much of the surrounding context must also be disclosed will depend upon the facts and
circumstances of each individual case
.212 For example:
• In
MZZVI v MIBP,213
the second applicant husband claimed that letters of financial support
from his parents in relation to his student visa were not genuine and that his parents had
cut him off financially, but the Tribunal found that the letters were genuine. This finding was
critical to the Tribunal’s disbelief of the primary applicant wife’s claims. The Court held that
a meaningful opportunity to comment on the information required the Tribu ART
nal to provide
the applicants with copies of the letters.
• In
DCP17 v MICMSMA the Court held that the phrase ‘clear particulars’ is capable of
incorporating source documents, and in some circumstan
on of w the
ces disclosure of source
documents may be the only way of giving such particulars
.214 In this matter, the source
documents were identity documents (provided by a third party informant) which the Court
considered to be critical to the Tribunal’s determinati by hether the applicant had
provided incorrect answers in his Protection visa application. As the genuineness of the
documents were both an impetus and a determinative factor in the Tribunal’s decision, the
Court reasoned that they needed to be provided to the applicant
.215 Without them the
applicant was not able to provide direct FOI
evidence that disput2025
ed their authenticity. For
instance, they could not have the documents independently examined and put that
information to the Tribunal in response, and therefore were not able to meaningfully
respond to the information
.216 This judgment illustrates the type of material (e.g. source
documents provided by a third party which form the primary basis for the decision) which
may need to be provided to the applicant for clear particulars to be put to the applicant.
• In
BYT20 v MHA the under
Court held that
hemsel
August
while the obligation is to provide ‘information’, an
artificial distinction should not be drawn between a document and the information contained
in it such that where photographs are in question, the requirement to give clear particulars
may require the photographs t
28 ves to be given to the applicant
.217 An applicant may
only be able to meaningfully respond by looking at the photographs in issue and then
reviewing or comparing them
.218
• In
SZNKO v MIAC219 on
the Tribunal had given the appellant particulars of the substance of a
letter provided in connection with a different review that was similar to a letter provided by
the appel ant in support of his claims. The Court held that giving ‘clear particulars’ would
Released
212
SZNKO v MIAC (2010) 184 FCR 505 at [29].
213
MZZVI v MIBP [2014] FCCA 2538.
214
DCP17 v MICMSMA [2021] FCA 290 at [59].
215
DCP17 v MICMSMA [2021] FCA 290 at [49].
216
DCP17 v MICMSMA [2021] FCA 290 at [51].
217
BYT20 v MHA [2020] FCCA 2191 at [63],[65]. This matter relates to an obligation under s 129(1)(b) to give particulars of
information. The Court found at [63] that the obligation in s 129 is analogous to the obligation in s 359A. The applicant had been
granted a Protection visa on the basis of being an Afghan national and the delegate cancelled the applicant’s subsequent Subclass
155 visa under s 128 (relying on the ground in s 116(1)(d)) on the basis that the correct information was that the applicant was a
citizen of Pakistan relying on, in part, a Pakistani Computerised National Identity Card (CNIC) which contained a photograph which
bore a strong resemblance to photos of the applicant that the Department held. The s 129 notice did not include the photographs.
218
BYT20 v MHA [2020] FCCA 2191 at [68]. The Court reasoned that ‘the person the subject of an allegation that a person has a
photograph that they think is a photograph of the other person could only usefully respond by looking at the photographs in issue
and comparing them’.
219
SZNKO v MIAC (2010) 184 FCR 505 at [25].
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require the Tribunal to also disclose details of who wrote the other letter and its date and
that an opportunity to comment would only be a meaningful opportunity if there had been
disclosure of such particulars as to enable the appellant to put that other letter into context.
• However, in contrast, in
Sandhu v MIMAC220 the Court found the failure of the Tribunal to
identify the source of adverse information when giving ‘clear particulars’ for the purposes
of s 359A did not deprive the applicant of the ability to comment meaningfully to the
information in question.
Whether the information has been identified with sufficient specificity to satisfy s ART
359A(1)(a) is
a matter of fact, degree and context depending on the circumstance
s.221 The test is an objective
one for which the surrounding circumstances must be taken into account
.222
5.2 Explaining the relevance and consequences
In addition, s 359A(1)(b) imposes on the Tribunal an obligation t the
by o ensure, as far as is
reasonably practicable, that the applicant understands why the adverse information is relevant
to the review and that the applicant understands the consequences of the information being
relied upon in affirming the decision under review. The Tribunal is required to give an applicant
an adequate indication of why the information FOI
adversely affects the2025
ir case such that they are
in a position to respond to the invitation to comme
nt.223 Where the Tribunal is putting more than
one piece of information to an applicant at the same time, the Tribunal generally separates the
various strands of information and is careful to explain what, in relation to each of them, is the
relevance of and would be the consequence of the Tribunal relying on eac
h.224
In explaining the relevance and consequences, the Tribunal is not required by s 359A(1)(b) to
provide a translation of its under
letter to an appli August
cant who does not understand English. However,
the Tribunal should be careful to use appropriate language and detail, bearing in mind the
220
Sandhu v MIMAC [2013] FCA 842.
221
Shah v MIAC [2011] FMCA 18 at [56], follow
y that followe 28
ing
MZXKH v MIAC [2007] FCA 663 at [18]. In
Kaushal v MIAC [2012] FMCA 1234
the Court found the substance and relevance of the information being put to the applicant by the Tribunal under s 359A was clear
in circumstances where matters in dot point format in the s 359A letter relating to the issue of a false work experience claim were
read together with the commentar
man was clearly explained later in on d in the letter. The Court further held that the fact that a legislative instrument, IMMI
11/068, had only recently come into operation, and whether TRA was a relevant assessing authority at the time of the delegate’s
decision, was not information required to be put: at [113].
222 In
MZYWJ v MIAC [2012] FMCA 660 the Court held at [23] that a s 424A [s 359A] invitation which erroneously particularised
‘…a man named Mr Nitin…’ instead of Mr Nitan Patel did not result in the letter failing to meet the requirements of s 424A [s 359A]
as there had been extensive discussion about Mr Nitan Patel during the hearing; the difference between Mr Nitan Patel and another
Released the letter; and where the applicant in fact responded to the invitation with reference to information
regarding Mr Nitan Patel. Upheld on appeal:
MZYWJ v MIAC [2012] FCA 1384 at [25]. An application for special leave to appeal
was dismissed:
MZYWJ v MIAC [2013] HCASL 68.
223 See for example
MZYFH v MIAC (2010) 115 ALD 409 at [60], [62] and [65], where the Tribunal was found to have not met the
equivalent obligation in s 424AA(1)(b) [s 359A(1)(b)]. For the Tribunal to simply state that information undermined an applicant’s
case was too general. Further, telling the applicant that the information ‘could’ form part of the reason for affirming the decision
failed to ensure that he understood the view that the Tribunal had arrived at and misled him as to the gravity of the consequences.
It is incumbent on the Tribunal to tell the applicant that the information particularised ‘would’ be the reason or part of the reason
for affirming the decision, unless it is persuaded not to do so by the applicant’s response. See also
SZONE v MIAC [2011] FMCA
420 at [112] where the Court found that the Tribunal did not comply with s 424AA [s 359A] as it put to the applicant that the
information ‘may be’ the reason or part of the reason for affirming the decision under review instead of ‘would’. Further, in
Shaikh
v MIBP [2014] FCCA 1011, while finding that the error was not fatal to the Tribunal’s decision, the Court noted at [28] that the
Tribunal had not properly applied s 359AA [s 359A] by using the words ‘likely to be’ to convey the relevance and consequence of
the information to the applicant. In particular, the Court commented that the words ‘likely to be’ lacked the imperative sense of
‘would be’. This may be compared with
Singh v MIAC [2012] FMCA 1005 where the Court at [27] held that the Tribunal’s use of
the word ‘will’, rather than ‘would’, was sufficient to ensure that the applicant was aware of the gravity and relevance of the
information and the consequence of its acceptance by the Tribunal.
224
SZNYL v MIAC [2010] FCA 1282 at [25], [28].
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
particular circumstances of the applicant including, for example, any disability
.225 In
SZJOH v
MIAC, the s 359A invitation was criticised by the Federal Court, which noted that it was a letter
written to a non-lawyer and a person not fluent or conversant in the English languag
e.226 The
Court commented that at a minimum the letter should have clearly identified the source of the
requirements being set forth and either extracted the relevant provisions or annexed a copy of
the relevant regulations
.227
The context of a case (for example, the prominent issues in the case and matters an applicant
should be aware of from the delegate’s decision record or a notice of intention ART
to consider
cancelling a visa), have been found to be relevant in determining the adequacy of the Tribunal’s
explanation of relevance. In
Louis-Jean v MIAC228 the Court considered that although the
Tribunal did not expressly state that the information put under s 359A might be used to support
a particular conclusion, the issue was prominent in the case and i the
mplicit in the delegate’s
decision record, such that the Tribunal had adequately explained the relevance of the
information.
Furthermore, the clarity and detail of information provided by
pursuant to s 359A(1)(a) may be
sufficient to establish compliance with s 359A(1)(b) without giving further explanation. There
may be circumstances where the relevance of the information is self-evident from the
information itself, even if the Tribunal has
FOI
not taken independent
2025
steps to ensure that an
applicant understands why particularised information is relevant to the review
.229
Sending the text of information relied upon will not generally be sufficient to discharge the
Tribunal’s obligations
.230 This is because the Tribunal is required to ensure that the written
invitation itself adequately explains the relevance and consequences of the information being
relied up
on.231 For example. in
SZQQA v MIAC232 the Court found the Tribunal erred when it
failed to ensure that the under
applicant had an
ace of the i August
understanding of the relevance of his younger
brother’s claim and the consequences of such information being relied on by the Tribunal. The
Court held that whilst the inconsistency between the applicant’s and his younger brother’s
evidence was apparent on the f
nconsist 28 nformation the Tribunal put under s 424A [s 359A],
in explaining the relevance of the information the Tribunal only referred to inconsistencies in
the applicant’s own evidence. It was not clear that the Tribunal was seeking comments on
matters other than the i
226
SZJOH v MIAC [2008] FCA 27 on
encies in the applicant’s own evidence and the fact that the
Tribunal discussed the younger brother’s evidence with the applicant at the hearing did not
225
Elrifai v MIMIA (2005) 225 ALR 307 at [34]–[44].
Released 4.
227
SZJOH v MIAC [2008] FCA 274 at [14].
228
Louis-Jean v MIAC [2010] FMCA 710 at [30], [33]. The Court found that although the Tribunal had not expressly stated in its
s 359A letter that the information provided in the letter might be used to support a conclusion that the applicant had behaved
deceitfully towards the Department, it was clear that this was what the Tribunal had meant, given that the question of whether the
applicant told the truth to the Department, or lied to the Department, was obviously a prominent issue in the case.
229 See
Shah v MIAC [2011] FMCA 18 at [67]. The Court in that case observed at [68] that the applicant’s response indicated that
he was under no misapprehension as to why the information notified to him was relevant to the review. Further, in
Pham v
MICMSMA [2022] FedCFamC2G 487 at [42]–[52] in considering a Partner visa matter the Court found that the Tribunal made an
error in not accurately putting to the applicant the consequences and relevance of the information (which related to an allegation
that the relationship was contrived) when it purported to use s 359AA [s 359A]. However, in the circumstances it did not amount
to a jurisdictional error because it was self-evident why the information was relevant, and there was no evidence that there was
anything different that the applicant would have done, or would have said, if there had been strict compliance with s 359AA
[s 359A]. The error was that the Tribunal did not state that the information was relevant because it might cast doubt on whether
the applicant and sponsor were committed to a genuine and continuing relationship, but only told the applicant of the allegation.
230
SZMKR v MIAC [2010] FCA 340.
231
SZQQA v MIAC [2013] FMCA 231.
232
SZQQA v MIAC [2013] FMCA 231.
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
obviate the need to comply with the requirement to give written notice in accordance with
s 424A [s 359A].
However, a typographical error will not necessarily lead to a conclusion that the relevance and
consequences of the information has not been adequately explaine
d.233 For example, in
Dhiman v MIAC234 the Court found that an erroneous reference to cl 485.226 in the Tribunal’s
s 359A letter was no more than a typographical error and it could be inferred that it was clearly
intended to be a reference to cl 485.224. The Court held that the error was a minor and
insignificant departure in the context of all of the other information put to the ap ART
plicant. It did
not go to the substance of the information or the relevance of the information or to the practical
consequences of reliance on the information which were accurately specified in the s 359A
letter.
Further, it is not assumed that because the matter was discussed at t the
he hearing, for example,
the applicant already understands the relevance and consequences of the information
.235
The obligation does not impose a subjective test; that is the by
Tribunal is not required to ensure
that an applicant actually does understand the contents of the letter, or its consequences
.236
What is required of it is to ensure that, as far as is reasonably practicable, this occurs
.237
Depending on the circumstances, it may be
FOI
necessary to give the 2025
applicant some additional
contextual information in order to ensure as far as reasonably practicable that he or she
understands the relevance and consequences of it being relied on by the Tribunal. This is
particularly likely to be necessary where the information is obtained through the Tribunal’s own
inquiries. For example, in
SZKCQ v MIAC, a Full Court unanimously held that s 424A(1)(b)
[s 359A(1)(b)] required the Tribunal, in explaining the relevance of information obtained from
the High Commission in P under
akistan, to put to August
the applicant not only the responses but also the
questions posed
.238 In that case, what the relevant persons had
not said in response to the
particular questions asked was significant in the Tribunal’s reasoning
.239 A similar approach
233
Dhiman v MIAC [2012] FMCA 646. Undistur
AC [2013] H 28
bed on appeal in
Dhiman v MIAC [2012] FCA 1254 9 (application for special leave
to appeal dismissed:
Dhiman v MI
considering a contention that the on
CASL 25).
234
Dhiman v MIAC [2012] FMCA 646.
235 See
SZLWA v MIAC [2008] FMCA 952 at [45]. This may be compared with
SZMTJ v MIAC (2009) 109 ALD 242 at [55], where
the Court made
obiter comments that the requirement imposed by s 424A(2) [s 359A(2)] only fastens upon s 424A(1)(a) and
s 424A(1)(c) [s 359A(1)(a) and 359A (1)(c)], whereas the obligation in s 424A(1)(b) [s 359A(1)(b)] can be discharged both in writing
and at the course of discussion at the hearing. While these comments are non-binding, they may be persuasive for lower courts
Released Tribunal failed to adequately explain the relevance and consequences of adverse information
being relied upon by the Tribunal. See also
SZTNL v MIBP [2015] FCA 463 where the Court followed
SZMTJ v MIAC in finding
that regard may be had to circumstances beyond the content of the s 424A [s 359A] letter when considering compliance with
s 424A(1)(b) [s 359A(1)(b)].
236
SZNOL v MIAC [2009] FMCA 721 at [42]. Undisturbed on appeal:
SZNOL v MIAC [2010] [2010] FCA 574. In
SZOCC v MIAC [2010] FMCA 282 at [43], the Court noted that this obligation does not compel the Tribunal to continue to make sure that an
applicant actually does understand in circumstances where an applicant refuses to accept any such understanding. However, in
Shah v MIAC [2011] FMCA 18, the Court suggested at [66] that, subject to the condition of practicability, the Tribunal’s duty to
ensure that an applicant understands the information’s relevance imports a subjective element which is not present in s 359A(1)(a).
Whether a letter complied with s 359A(1)(b) accordingly required consideration of whether the applicant in fact understood the
relevance of the information and, if not, whether the Tribunal had done all that was reasonably practicable to ensure they he or
she did. Although in
Thirikwa v MIBP [2016] FCCA 1501 the Court expressed a view that, it may be incumbent on and reasonably
practicable for the Tribunal when utilising s 359AA [s 359A(1)] to ask the applicant directly if they understood why the information
was relevant and the consequences of it being relied upon and to seek a response, the reasoning of the Court’s decision did not
turn upon this view and it appears contrary to the Federal Court in
SZNOL v MIAC discussed above.
237
SZJHJ v MIAC [2008] FMCA 1044 at [90].
238
SZKCQ v MIAC (2008) 170 FCR 236 .
239
SZKCQ v MIAC (2008) 170 FCR 236 at [3]-[4], [79].
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has been taken in the Federal Magistrates Court in
SZJDY v MIAC240 and
SZIJU v MIAC,241
where the Tribunal was required to give the applicant contextual information, including details
of the source or derivation of the adverse information and favourable information to ensure that
the relevance of the adverse information was clearly explained.
In the case of invitations given orally, there is some suggestion that correspondence sent after
the hearing may assist in ensuring that the applicant understands the relevance and
consequences of the information
.242
The Tribunal is under no obligation to issue a second s 359A invitation where the ART
response to
a s 359A is inadequate or incomplet
e.243
5.3 Invitation to comment
Section 359A(1)(c) requires that the applicant be invited to comment the
on the information
.244
There is no requirement in the Migration Act to specify the by
provision under which an invitation
is sent
.245 Nor is there any requirement that the notice must be given in a review applicant’s
native language
.246
The invitation to comment may be given orally FOI
(at hearing) or in wr 2025
iting.
Further guidance on
each option is given below.
5.3.1 Written invitations
A written invitation under ss 359A(1) must be given to the applicant by one of the methods
specified in ss 379A or w
under
here the applicant August
is in immigration detention by one of the methods
prescribed for the purposes of giving documents to such a person. This requires the invitation
to be in writing
.247
240
28
SZJDY v MIAC [2007] FMCA 1
242 In
SZNOL v MIAC [2009] F
on
760 at [28].
241
SZIJU v MIAC [2008] FMCA 51 at [14]–[15]. See also
SZMCB v MIAC [2008] FMCA 951. In that case s 424A(1)(b) [s 359A(1)(b)]
was found to require that the Tribunal give a fuller description of its possible observations of the applicant’s demeanour and
probably also a copy of the relevant parts of the tape, in order to explain the relevance of information that the applicant at the
department interview ‘appeared hesitant’, particularly when compared with his oral evidence given at the Tribunal hearing.
Released MCA 721 the Court considered that a letter sent after the hearing at which the Tribunal invoked
s 424AA [s 359A(1)] assisted in compliance with s 424AA(b)(i) [s 359A(1)]. The Court’s approach is consistent with
obiter comments made in
SZMTJ v MIAC (2009) 109 ALD 242 at [55] suggesting the equivalent obligation in s 424A(1)(b) [s 359A(1)(b)]
can be satisfied through a combination of discussion at hearing and the letter itself.
243
SZNTE v MIAC (2009) 113 ALD 522 at [27].
244 In
Kaur v MIAC [2012] FMCA 438 the Court applied the decision in
MIAC v Saba Bros Tiling Pty Ltd v MIAC (2011) 194 FCR
11 to s 359AA [s 359A] to find that the Tribunal failed to invite the applicant to ‘respond to’ adverse information for s 359AA(b)(ii)
[s 359A(1)]. While the Court’s reasons make it clear that the question of compliance will depend on the facts, and that the absence
of the words ‘respond to’ from the Tribunal’s invitation at the hearing will not, in itself, be fatal, to avoid doubt it will usually be
desirable to expressly invite a comment or response. In
Sandhu v MIAC [2013] FMCA 140 the Court held nothing in
MIAC v Saba
Bros Tiling Pty Ltd v MIAC (2011) 194 FCR 11 supported the applicant’s proposition that the Tribunal has to explain to an applicant
the meaning of ‘comment’ or ‘respond’ and any difference between those terms. Undisturbed on appeal in
Sandhu v MIMAC [2013]
FCA 842.
245
Bakshi v MIBP [2015] FCCA 2092.
246
BZAGU v MIBP [2015] FCA 920 at [18] (application for special leave to appeal dismissed:
BZAGU v MIBP [2015] HCASL 214).
247
SAAP v MIMIA (2005) 228 CLR 294. McHugh J at [71] stated that the term ‘must’ in s 424A(1) [359A(1)] compels the Tribunal
to provide the information in writing and that this is so, even if the Tribunal puts the information to the applicant at an interview or
when the applicant appears before the Tribunal to give evidence and present arguments.
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General principles of procedural fairness imply that an invitation can specify:
• the way in which the comments are to be given by the applicant; and
• the period of time within which the comments are to be given; or if to be given at hearing
or interview, the time and place the comments are to be given.
The Tribunal member, who is constituted as the Tribunal for the purposes of conducting the
review, takes responsibility for the letter and its contents
.248
The timing of a s 359A letter may depend on whether the information is recei
hich the i
ART
ved before or
after the hearing, and also whether apprising the applicant of the information prior to attending
the hearing might assist them to be able to respond to the issues w
e is no
the nformation may
rai
se.249 Justices McHugh, Kirby and Hayne in
SAAP v MIMIA held that s 424A [s 359A] applies
before, during and after the applicants appear before the Tribunal
.250 Further, in
SZKLG v
MIAC, a Full Court of the Federal Court confirmed that ther by express statutory basis for
inferring any temporal requirements on the giving of an invitation under s 359A
.251 The Court
rejected the contention that the Tribunal should have issued its s 424A [s 359A] letter prior to
the hearing as the information was available to it at that tim
e.252
5.3.2 Oral invitations
If the Tribunal chooses to discharge its stat FOI
2025
utory obligation under s 359A by inviting the
applicant orally at hearing to comment on the information, procedural fairness must still be
complied with by the Tribunal, including whether the applicant has had a reasonable
opportunity to make submissions and adduce evidence in response to the invitation
.253
An applicant may request f under
urther time to r
have regaAugust
espond to the oral invitation. Whether and how much
time is granted is an exercise of the Tribunal’s discretion. In considering what period might
be reasonable, the Tribunal is to 28 rd to the general direction in s 357A(3) to act in a
way that is ‘fair and just’
.254 The Court in
MIBP v SZTJF255 found that the period was reasonable
in light of the information that was in fact put to the applicant, and not other information that
249 Although note the observations on
248
SZUCH v MIBP [2015] FCCA 3030 at [23]. In that case the Court did not take issue with the fact that the letter was signed by
a Tribunal officer and not the Tribunal member. Upheld on appeal:
SZUCH v MIBP [2016] FCA 185 although this issue was not
raised in the appeal.
Released of the Court in
SZDGB v MIMIA [2006] FMCA 341 at [26] which suggest that the Tribunal should
adopt the practice of sending s 424A [s 359A] letters to applicants at the time of hearing invitation if the Tribunal considers that it
has adverse information before it which falls within s 424A [s 359A]. This view has not been adopted elsewhere.
250
SAAP v MIMIA (2005) 228 CLR 294 at [60]–[63], [154]–[158], [185]–[202]. The contrary suggestion in
SZHLM v MIAC [2007]
FCA 110 does not appear correct.
251
SZKLG v MIAC (2007) 164 FCR 578 at [34].
252
SZKLG v MIAC (2007) 164 FCR 578 at [32]–[36]. See also
SZIOZ v MIAC [2007] FCA 1870 at [67];
SZMUO v MIAC [2008]
FMCA 1671 at [9]–[10] and
Singh v MIBP [2014] FCCA 1778. In
Singh, although the Court found that the Tribunal was not required
to put information to the applicant in writing prior to the hearing, some of its comments suggest there
may be circumstances in
which the Tribunal’s obligation to ‘act in a way which is fair and just’ (as per s 357A(3)) would require it to disclose certain
information before a hearing, but the Court did not consider what those circumstances might be: at [105] and [112].
253 S 55(1)(c)
Administrative Review Tribunal Act 2024 (Cth).
254 In
MIAC v SZMOK (2009) 257 ALR 427 the Full Federal Court found that s 422B(3) [s 357A(3)] was an exhortative provision
and does not contain a free standing obligation, but simply draws content from the other provisions of Division 4. See also
SZNPU
v MIAC [2009] FMCA 963 at [70]–[71] and
SZNSI v MIAC [2009] FMCA 1027 at [65] where the Court commented that if there is a
lengthy list of information, caution may direct, in the appropriate circumstances, that a letter should be sent to the applicant under
s 424A(1) [s 359A(1)] instead of using the oral power in s 424AA [s 359A].
255
MIBP v SZTJF [2015] FCA 1052 (application for special leave to appeal dismissed:
SZTJF v MIBP [2016] HCASL 60).
41
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
was not directly related to the respondent’s claims or her credibility. In
SZLSX v MIAC,256 the
applicant sought an adjournment of three months to respond to adverse information disclosed
orally. The Tribunal declined this request and instead adjourned the hearing for approximately
one month. The Court found that the length of time given was reasonable in all the
circumstances. Similarly, in
SZMFY v MIAC the applicant sought additional time to submit
documentary proof from India in response to matters raised under s 424AA (s 359A). The Court
found no error in the Tribunal’s refusal to grant the additional time on the basis that the relevant
documentation would have had no bearing on the Tribunal’s decision and the applicant did not
suffer any practical unfairne
ss.257
5.4 Combined applications for review
ART
Where the Tribunal has before it a combined review application, obliga
applicant
the
tions under s 359A may
be owed to each applicant in the combined applicatio
n.258 In
DZAER v MIBP,259 for example,
the Court found the Tribunal did not properly provide the by wife an opportunity to
comment on three pieces of adverse information from a Compliance Client Interview with the
applicant husband. The Court noted that the mere fact that the applicant wife was not present
during the interview did not necessarily mean that she could not provide meaningful comment
on what was said during the interview. By way of another example, in
CJZ21 v MICMA,260 the
Court found that the Tribunal erred by not putFOI
ting information gi
2025
ven by the applicant wife at
hearing to the applicant husband, which undermined the claim that the family were in hiding. .
The Tribunal carefully considers the relevance of any ‘adverse information’ to each review
applicant’s claims and the consequence of the Tribunal relying on it and ensures that this is
explained in the letter, bearing in mind that these may be different for different applicants in the
combined application.
In some cases, such as t under
hose where the r
convenient August
eview applicants have made different claims, the
Tribunal may find that it is more
that the 28 to comply with its s 359A obligations by sending
separate letters to each applicant. However, this is not
required by the Migration Act.
The Tribunal may send a single letter to all applicants. In
SZKHV v MIAC, the Federal
Magistrates Court found
257
SZMFY v MIAC [2009] FCA 13 on
Tribunal complied with its statutory obligations by sending a
256
SZLSX v MIAC [2008] FCA 1357 at [11]–[15]..
Released 9 at [19]–[21].
258 In
SZONZ v MIAC [2011] FMCA 490 the applicants’ submitted that the oral evidence of each applicant constituted ‘information’
which had to be put to the other applicants for comment. The Court found that, insofar as matters from each applicant that
amounted to ‘information’ which had to be put to the other applicant for the purposes of s 424A [s 359A], those matters were put
to each of the applicants at [174]. However, in
SZSOG v MIAC [2014] FCCA 769, the Court found no basis to distinguish
inconsistencies in evidence given by co-applicants from internal inconsistencies in the evidence given personally by one applicant.
Such inconsistencies did not constitute ‘information’, and the Tribunal was not obliged to invite either co-applicant to comment on
the evidence from which the inconsistencies arose at [108]. On appeal, the Federal Court confirmed that the Tribunal’s conclusion
that the accounts of the co-applicants lacked consistency or did not corroborate each other did not amount to a ‘rejection, denial
or undermining’ of either applicant’s claims and therefore did not amount to ‘information’ for the purposes of s 424A(1) [s 359A(1)]:
SZSOG v MIBP [2014] FCA 1053.
259
DZAER v MIBP [2015] FCA 568.
260
CJZ21 v MICMA [2022] FedCFamC2G 747 at [17]–[19]. The applicant wife gave oral evidence that she had attended the
Imanbargah at a time when she, her husband and her child had claimed to be in hiding. They had claimed the applicant wife had
foiled a bomb attack and the applicant husband had been assaulted in the street, and so they were fearful of being attacked and
so had gone into hiding. The applicant wife’s evidence undermined the claim that the family of three (applicant wife, applicant
husband and their child) were in hiding, and therefore fearful of attacks. The Tribunal did not comply with s 424A [s 359A] as it did
not put the information to the applicant husband.
42
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
single letter which was clearly expressed to be an invitation to comment to both review
applicants in a combined application
.261 The Court commented that it would be absurd if the
Tribunal was required to write a separate letter in respect of each applicant identifying,
essentially, the same information in circumstances where the applicants nominated the same
authorised recipient and the Tribunal’s concern was in respect of the same information
.262
5.5 Time periods for comment
The time given for the applicant to comment on the s 359A invitation in writing will
hat any peri ART
depend upon
the circumstances, including those of the applicant and the nature and extent of the information
on which comment is sought. While s 359A is part of the exhaustive statement of the natural
justice hearing rule, the absence of minimum periods does not mean t the od will suffice.
Section 357A(3) requires the Tribunal, when applying s 359A, to act in a manner that is fair
and just. Whilst untested by the Court, it follows that the Tribunal should ensure that the
timeframe given to the applicant is reasonable.
It is open to the Tribunal to extend the initial period of time gi by
ven to an applicant to provide their
comment on the information, either on the applicant’s request or of its own volition. The
extended period of time granted will be dependent on what is reasonable in the circumstances.
5.6 Multi-Member Panels
In reviews where the Tribunal is constituted by FOI
2025
more than one Member, different considerations
arise in relation to the conduct of the review compared to cases where the Tribunal is
constituted by a single member
.263 While there is no judicial consideration of this issue, it is
likely that references to ‘t under
he Tribunal’ in
August
various sections in pt 5 of the Migration Act would
generally be construed by a Court as references to each Member constituting the Tribunal for
the purposes of the review.
On this construction, a s 359A obli
even if
28
gation may arise if any one Member on the panel considers
that information before the Tribunal would be the reason, or part of the reason, for affirming the
decision under review, on another Member on the panel takes a different view of the
information.
6. Disclosing information that does not fall within s 359A
Released
Section 359A(4A) provides that the Tribunal is not required to give particulars of those
categories of exempt information before making its decision on the application under s
105264
(to affirm, vary or set aside the primary decision) or s 349 (to remit a matter). This is intended
to exhaustively displace the common law rules of the natural justice hearing rule by putting it
beyond doubt that the Tribunal is not required to put information excluded by s 359A(4) to the
261
SZKHV v MIAC [2009] FMCA 264. An appeal was dismissed:
SZKHV v MIAC [2009] FCA 823.
262
SZKHV v MIAC [2009] FMCA 264 at [54].
263 Multi-member panels can be convened by the President of the Tribunal pursuant to ss 37 and s 39 of the Administrative Review
Tribunal Act 2024 (Cth).
264s 105, Administrative Review Tribunal Act 2024 (Cth).
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Handbook of ART Legal Procedure– Part 5 Migration Act – Statutory duty to disclose adverse information
applicant at all before making its decision
.265 This is reinforced by s 357A which provides that
the ‘relevant provisions’, which include s 359A, are taken to be an exhaustive statement of the
requirements of the natural justice hearing rule
in relation to the matters they deal with, and
that to the extent of any inconsistency with s
55266 (right to present case), s 359A prevails.
An invitation to comment on material which is not ‘information’ for the purposes of s 359A is
not an ‘invitation’ issued or made under those section
s.267 Nevertheless, the Tribunal may, on
occasion, wish to write to the applicant and invite comment on information which would fall
within the exceptions in s 359A(4). Such information may include information that t ART
he applicant
has given the Tribunal at hearing or general country information. While the Tribunal is not
required to disclose such information in writing, nor is the Tribunal precluded from doing so if it
so determines. The Tribunal may, in the exercise of its discretion, invite an applicant for review
to make supplementary submissions in relation to apparent inconsist
process will not
the
encies, contradictions or
weaknesses in his or her case which have been identified by the Tribunal
.268 The High Court
has indicated that once the Tribunal proceeds to issue such an invitation, this may amount to
a binding indication by the Tribunal that the review
by be concluded until the
applicant has had an opportunity to respond
.269
This type of material may be incorporated into a s 359A letter or disclosed in a separate letter.
The procedural obligations that attach to inf FOI
ormation falling withi 2025
n s 359A do not apply to
information which is exempted by s 359A(4). The Tribunal may purport to disclose orally
particulars of information under s 359A but if such information would not in fact be required to
be disclosed under those sections or s 359A, no jurisdictional error would arise from the
Tribunal’s use of the process in these provisions
.270
Last updated/reviewed: under
7 April 2025
August
28
on
Released
265 Administrative Review Tribunal (Consequential And Transitional Provisions No.1) Bill 2023 Explanatory Memorandum at [598].
266 s 55, Administrative Review Tribunal Act 2024 (Cth).
267
MIAC v SZGUR (2011) 273 ALR 223 at [9] per French CJ and Kiefel J and [77] per Gummow J, Heydon and Crennan J agreeing
(in respect of perceived inconsistencies and contradictions).
268
MIAC v SZGUR (2011) 273 ALR 223 at [9]. See also
SZLTG v MIAC [2008] FMCA 835 at [32],
SZJHJ v MIAC [2008] FMCA
104 at [81] and
SZNZT v MIAC [2010] FMCA 478 at [126] where the Court found no error in putting to the applicant for comment
in writing information which would not fall within s 424A [s 359A].
269
MIAC v SZGUR (2011) 273 ALR 223 at [9].
270
SZNLS v MIAC [2009] FMCA 908 and
SZSBR v MIMAC [2013] FCCA 847. Upheld on appeal:
SZSBR v MIBP [2013] FCA
1208.
44
Last updated/reviewed:7 April 2025
Document Outline
- Copyright cover page
- MRD Procedural Law Guide - Ch 1 - visa applications
- Chapter 2.1 - Part 5 Migration Act - Statutory duty to disclose adverse information
- Copyright cover page.pdf
- MRD Procedural Law Guide - Ch 1 - visa applications
- Chapter 1 - visa applications
- 1. VISA and related applications
- 1.1 Introduction
- 1.2 The role of the visa application
- 1.3 The requirements for making a valid visa application
- Overview of visa application requirements
- Visa application fees and charges
- When a payment is taken to have been made
- Approved form
- ‘Substantial compliance’ with the form
- Forms completed by a person other than the visa applicant
- Applications made on behalf of a minor
- Protection visas
- Other visa classes
- Oral visa applications
- Where visa applications must be made
- Applications made outside Australia
- Applications made in Australia
- What is an ‘office of Immigration’?
- Applications for certain specified visas
- Applications for bridging visas in immigration detention
- Time of making Internet applications
- Additional requirements for specific visas
- Alternate requirements for specific visas
- Adding family members to existing visa applications
- Newborn children - r.2.08
- Other children and partners - rr.2.08A, 2.08B
- Permanent visas
- Temporary visas
- Deemed and further applications
- Specific circumstances in which a visa application will be invalid
- Restrictions on certain persons making visa applications
- Persons who have had visa refused or cancelled - ss.48 and 501
- Visa refused or cancelled other than on character grounds - s.48
- Persons who have had visas refused or cancelled on character grounds - s.501E
- Persons who have had a protection visa refused - s.48A
- Previous application made on a person’s behalf
- Further application made on or after 28 May 2014
- Further application made before 28 May 2014
- Valid refusal of valid application
- When can a further protection visa application be made after an initial refusal application?
- Valid further application
- Persons covered by the CPA and ‘safe third country’ agreements - s.91E
- Temporary safe haven visa holders - s.91K
- Dual nationals and persons with access third country protection - s.91P
- Criminal justice visa holders - s.161
- Enforcement visa holders - s.164D
- Detainees - s.195
- Unauthorised maritime arrivals and transitory persons - s.46A and s.46B
- Unauthorised maritime arrivals
- Transitory persons
- Conversion of certain visa applications
- Conversion regulations
- Conversion of certain protection visa applications
- 1.4 The consequences of an invalid visa application
- ‘Curing’ an invalid visa application
- How and when an invalid application may be ‘cured’
- Can an application be cured after the review application is lodged?
- 1.5 Applications for sponsorship and nomination
- MRD Procedural Law Guide - Ch 2 - notification of primary decisions
- Chapter 2 - notification of primary decisions
- 2. NOTIFICATION OF PRIMARY DECISIONS
- 2.1 Overview of notification of primary decisions
- 2.2 Decisions to refuse to grant a visa
- Notifications given on or after 10 August 2001
- Content of the Notice
- Specifying the criterion on which the visa was refused
- Giving written reasons why criterion not satisfied
- Stating the time in which the review application may be made
- Stating the person who can apply for the review
- Stating where the review application may be made - relevant Tribunal addresses
- Must all the information be contained in the notification letter itself?
- Decision record and notification letter need not be signed
- The effect of non-compliance with content requirements
- Lodgement of a review application prior to the commencement of the relevant period
- Second notification of primary decision
- Method of Notification
- Time of Receipt of Notification
- Notifications prior to 10 August 2001
- 2.3 Decisions to cancel visas
- Content of Notice
- Method of Notification
- Time of Receipt of Notification
- 2.4 Decisions not to revoke an automatic visa cancellation
- Content of the Notice
- Method of Notification
- Time of Receipt of Notification
- 2.5 Other Decisions
- Notification where no specific method is identified
- 2.6 Common issues - method of dispatch and receipt
- Prepaid post dispatched within 3 working days
- What constitutes prepaid post?
- Meaning of ‘dispatched’
- Within 3 working days
- Time of receipt
- Transmitting by fax, email, other electronic means
- Meaning of ‘by transmitting’
- Transmitting by fax
- Transmitting by email
- Time of receipt
- Calculating the time
- Meaning of ‘working days’
- Calculating the working day period
- Correct address
- Must the address be provided in writing?
- Source of the address
- Identifying the relevant address
- Multiple forms of addresses
- Misstated address
- Correcting misstated address
- Errors in postcode, street number and suburb
- Postal address, address for correspondence and address for service
- Addresses provided incidentally
- Correct recipient
- Aliases
- Errors in name
- Sending notices ‘care of’ a recipient
- Where the applicant is a minor
- Language requirements
- 2.7 Notification to authorised recipient
- Nomination of authorised recipient
- Exemptions to requirement to notify the authorised recipient
- Role of the authorised recipient
- Issues relating to authorised recipients
- Determining whether an authorised recipient has been appointed
- Must an authorised recipient be a natural person?
- Must the authorisation take a particular form?
- Can an authorised recipient be appointed orally?
- Withdrawing or varying an authorised recipient and varying an address
- Who can withdraw/vary the appointment of a person?
- Who can vary an authorised recipient’s address?
- Is an oral variation/withdrawal acceptable?
- What constitutes a withdrawal/variation of appointment?
- Appointment, variation or withdrawal on the applicant’s behalf
- Addressing correspondence to an authorised recipient
- When is a document sent to an authorised recipient received?
- 2.8 Curing errors made when giving the notification
- 2.9 Effect of invalid notification of primary decisions
- Table 1 - Requirements for valid notification of primary decision
- MRD Procedural Law Guide - Ch 3 - Powers and functions of the Tribunals
- Chapter 3 - powers & funtions of the Tribunal
- 3. POWERS AND FUNCTIONS OF THE TRIBUNAL
- 3.1 Introduction
- 3.2 Part 5–reviewable decisions
- Tribunal’s powers with respect to Part 5-reviewable decisions
- The remittal power
- Permissible direction and recommendations
- The scope of the remittal power
- Remittal directions for secondary visa applicants
- 3.3 Part 7-reviewable decisions
- Tribunal’s powers with respect to Part 7-reviewable decisions
- The remittal power
- Permissible directions - pre 16 December 2014 applications
- Permissible directions post 16 December 2014
- Permissible recommendations
- The criterion in dispute
- 3.4 Curing defects in the primary decision
- Power of the Tribunal where delegate lacked delegation
- 3.5 The scope of the review
- MRD Procedural Law Guide - Ch 4 - Application for review by the Tribunals
- Chapter 4 - review applications
- 4. REVIEW APPLICATIONS
- 4.1 Introduction
- 4.2 Requirements for a valid Part 5 review application
- Part 5-reviewable decisions
- Approved form
- Time limits
- Prescribed fee
- Who may apply?
- Location of review applicant
- At time of lodgement of review application
- At time of primary decision and time of lodgment of review application
- Combining review applications
- When can review applications be combined
- Other requirements for combining review applications
- Separate review applications
- Combining visa applications
- 4.3 Requirements for a valid Part 7 review application
- Part 7-reviewable decisions
- Approved form
- Time limits
- Who may apply?
- Location of review applicant
- Combining review applications
- 4.4 How and when is a review application given to the Tribunal?
- Review applications made on or after 1 July 2015
- Review applications made prior to 1 July 2015
- Primary decision made on or after 1 July 2013
- Primary decision made before 1 July 2013
- Common issues
- What is a ‘registry’ for the purposes of applications sent by pre-paid post?
- When is an application received electronically?
- 4.5 Substantial compliance with the application form
- 4.6 When do the time limits commence?
- 4.7 No power to extend time limits
- 4.8 No power to review same decision again
- 4.9 Procedures that apply if application for review is invalid
- 4.10 Adding family members to the visa application
- Newborn children - r.2.08
- Other children and partners - rr.2.08A, 2.08B
- Permanent visas
- Temporary visas
- Other matters
- 4.11 MIRO/IRT applications made before 1 June 1999
- MIRO applications - Tribunal’s jurisdiction
- IRT applications - Tribunal’s jurisdiction
- 4.12 Table 1 - Time limits / standing / location requirements
- MRD Procedural Law Guide - Ch 5 - Fees for reviews
- Chapter 5 - Fees for reviews
- 5. FEES FOR REVIEW
- 5.1 Introduction
- 5.2 In what circumstances are Part 5 review fees payable?
- Payment of Part 5 review fees by credit card
- 5.3 When can a Part 5 review fee be waived or reduced?
- Form of the request
- Request for fee reduction and compliance with review application requirements
- What is a ‘reasonable time’?
- Assessment of severe financial hardship
- Can the Tribunal review / reconsider a decision not to reduce the fee?
- 5.4 Refund of the Part 5 review fee
- 5.5 In what circumstances is the Part 7 review fee payable?
- 5.6 Refund of the Part 7 review fee
- 5.7 What happens if the Part 7 review fee is not paid?
- 5.8 No jurisdiction decisions
- 5.9 Invalid visa applications
- 5.10 Refund of fees where Minister has intervened
- 5.11 Can fees be refunded or waived in any other circumstances?
- 5.12 Refund of fees for combined applications
- 5.13 To whom should a refund be paid?
- MRD Procedural Law Guide - Ch 6 - Constitution and reconstitution
- Chapter 6 - constitution & reconstitution
- 6. CONSTITUTION AND RECONSTITUTION
- 6.1 Constitution of A review Under Part 5 and Part 7 of the migration Act
- 6.2 Constitution process
- Requirement for a written direction?
- 6.3 Power to reconstitute a review
- Reconstitution before hearing commences
- Reconstitution after hearing commences
- Reconstitution - unavailability of Member
- Reconstitution - Member directed not to take part
- Reconstitution - Expeditious and efficient conduct of a review
- Interests of justice and consultation with member concerned
- General requirements
- Effect of error in the reconstitution process
- Reconstitution following Court remittal
- Source of power to reconstitute on remittal
- Must the review be reconstituted to a new member on remittal?
- 6.4 Effect of reconstitution on review proceedings
- Findings of fact of previous tribunal
- Procedural requirements under the Migration Act
- Invitations to comment on adverse information
- Hearing obligation
- Summary
- Reasons for remittal
- 6.5 Considerations where Tribunal constituted by multi-Member panel
- 6.6 Timeliness of decision making
- Timeliness requirements under the Migration Act and Regulations
- Timeliness requirements under Presidential directions
