Section 423A: “claim” = singular factual allegation?

Section 423A of the Migration Act 1958 (Cth) provided:

How Tribunal is to deal with new claims or evidence

(1)    This section applies if, in relation to an application for review of a Part 7-reviewable decision (the primary decision), the applicant:

(a)    raises a claim that was not raised before the primary decision was made; or

(b)    presents evidence in the application that was not presented before the primary decision was made.

(2)    In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

Section 424A(1) of the Act provided:

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: For the purposes of s 423A, is a “claim” to be equated with a singular factual allegation?

Question 2: Were the “clear particulars” the Tribunal was obliged to provide to the appellants under s 424A “clear particulars” of the "information that the Tribunal considered rightly or wrongly would be a reason or part of a reason for affirming the decision under review"?

The FCA answered those questions as follows: