Muin v Refugee Review Tribunal

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

MUIN   PLAINTIFF

AND

REFUGEE REVIEW TRIBUNAL & ORS  DEFENDANTS

Muin v Refugee Review Tribunal
[2002] HCA 30
8 August 2002
S36/1999

ORDER

The questions reserved for consideration by the Full Court are answered as follows:

Question 1
Was there a failure to accord the Plaintiff procedural fairness?

Answer
Yes.

Question 2
Was there a failure to comply with s 418(3) of the Migration Act 1958 (Cth)?

Answer
Inappropriate to answer.

Question 3
Was there a failure to comply with s 424(1) of the Migration Act 1958 (Cth)?

Answer
Inappropriate to answer.

Question 4
If the answer to any of questions (1) to (3) is yes,

(a)   Was the decision of the First Defendant to affirm the refusal of the delegate to grant a protection visa for that reason invalid?

(b)   What declaratory, injunctive or prerogative writ relief, if any, should be ordered?

Answer
(a) Yes.
(b) Prohibition should issue to prevent the second and third defendants from acting on the Tribunal's decision; certiorari should issue to quash that decision; and mandamus should issue to the first defendant directing it to hear and determine the plaintiff's review application in accordance with law.

Question 5
By whom should the costs of the proceedings be borne?

Answer
The second and third defendants.

Representation:

M A Robinson with R Nair for the plaintiff (instructed by Adrian Joel & Co)

No appearance for the first defendant

J Basten QC with R T Beech-Jones for the second and third defendants (instructed by Australian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

NANCY LIE   PLAINTIFF

AND

REFUGEE REVIEW TRIBUNAL & ORS  DEFENDANTS

Lie v Refugee Review Tribunal
8 August 2002
S89/1999

ORDER

The questions reserved for consideration by the Full Court are answered as follows:

Question 1
Was there a failure to accord the Plaintiff procedural fairness?

Answer
Yes.

Question 2
Was there a failure to comply with s 418(3) of the Migration Act 1958 (Cth)?

Answer
Inappropriate to answer.

Question 3
Was there a failure to comply with s 424(1) of the Migration Act 1958 (Cth)?

Answer
Inappropriate to answer.

Question 4
If the answer to any of questions (1) to (3) is yes,

(a)   Was the decision of the First Defendant to affirm the refusal of the delegate to grant a protection visa for that reason invalid?

(b)   What declaratory, injunctive or prerogative writ relief, if any, should be ordered?

Answer
(a) Not answered.
(b) Prohibition should issue to prevent the second and third defendants from acting on the Tribunal's decision; certiorari should issue to quash that decision; and mandamus should issue to the first defendant directing it to hear and determine the plaintiff's review application in accordance with law.

Question 5
By whom should the costs of the proceedings be borne?

Answer
The second and third defendants.

Representation:

M A Robinson with R Nair for the plaintiff (instructed by Adrian Joel & Co)

No appearance for the first defendant

J Basten QC with R T Beech-Jones for the second and third defendants (instructed by Australian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Muin v Refugee Review Tribunal
Lie v Refugee Review Tribunal

Administrative law – Constitutional writs – Procedural fairness – Alleged failure to have regard to relevant documents – Alleged failure to provide reasonable opportunity to respond to adverse material – Jurisdictional error for denial of procedural fairness and natural justice.

Immigration – Refugee – Protection visa – Decision by Minister to refuse application for visa – Review of decision by Refugee Review Tribunal – Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Registrar of Tribunal for purpose of review – Nature and extent of obligation – Migration Act 1958 (Cth), ss 418(3), 424(1).

Constitutional law (Cth) – High Court – Federal Court – Review of administrative decision by officers of the Commonwealth – Migration – Refusal to grant protection visa to claimant for refugee status – Requirement of procedural fairness – Alleged failure to have regard to relevant documents – Alleged failure to provide reasonable opportunity to respond to adverse materials – Jurisdictional error – Availability of constitutional relief under s 75(v) and other relief for denial of procedural fairness and natural justice.

Constitution, s 75(v).
Migration Act 1958 (Cth), ss 418(3), 424(1).

1. GLEESON CJ. In both of these proceedings, the plaintiffs sue in a representative capacity, complaining of the procedures adopted by the first defendant, the Refugee Review Tribunal ("the Tribunal"), in reviewing adverse decisions of delegates of the Minister for Immigration and Multicultural Affairs relating to claims for protection visas. In both cases, the second and third defendants are the Commonwealth and the Secretary of the Department of Immigration and Multicultural Affairs. The Tribunal has filed a submitting appearance. It is the second and third defendants who have the carriage of the defence. Each proceeding was commenced in the Court's original jurisdiction. In each case, Gaudron J has referred questions to a Full Court. The specific questions will appear at the conclusion of these reasons. In brief, they ask whether, upon certain facts stated, and the inferences if any, to be drawn from those facts, there was a failure by the Tribunal to accord procedural fairness or a failure to comply with s 418(3) and/or s 424(1) of the Migration Act 1958 (Cth) ("the Act"). They also ask, in the event of an affirmative answer, what relief should be given.

2. The facts stated in the two proceedings are similar, but, as will appear, there is one significant difference.  A common element concerns the way in which certain documents, described as "Part B documents", referred to in the delegates' reasons for decision, were dealt with.

3. For the purposes of the referred questions, nothing turns upon the representative nature of the proceedings.  Argument has been confined to the cases of Mr Muin and Ms Lie.  They are both persons of Indonesian nationality and Chinese ethnicity.  The essence of their claim that they were owed protection obligations as refugees was that, if they returned to Indonesia, they would be persecuted on racial grounds.  In each case, the delegate was required to consider circumstances in Indonesia relating to the treatment of Chinese, including the willingness and ability of the Indonesian authorities to prevent ill-treatment.  The expression "adverse material" has been used to describe "relevant and significant material which is or may be adverse to [the plaintiff's] case". Similarly, "favourable material" is material that was or may have been favourable to the plaintiff's case.  The material with which we are presently concerned was not material personal to either plaintiff, or information about some particular circumstance relevant to either plaintiff as an individual.  It consisted largely of "country background" material, being information concerning political and social circumstances in Indonesia.

4. The Tribunal's decision in the case of Mr Muin was made on 25 November 1998.  The Tribunal's decision in the case of Ms Lie was made on 6 January 1998.

   The case of Mr Muin

5. It is convenient to begin with the alleged failure to comply with ss 418(3) and 424(1) of the Act in the form it took in November 1998, because the plaintiff's argument directs attention to the statutory context in which all the issues in the proceedings arise. I will refer only to the provisions of direct relevance.

6. Section 418 required that, when an applicant sought review by the Tribunal of a delegate's decision, the Registrar of the Tribunal was to notify the Secretary of the Department of Immigration and Multicultural Affairs ("the Department") of the making of the application. The delegate whose decision was the subject of the application was an officer of the Department. The section provides:

   "418(2)  The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:

   (a)sets out the findings of fact made by the person who made the decision; and

   (b)refers to the evidence on which those findings were based; and

   (c)gives the reasons for the decision.

   (3)The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision."

7. A review of such a decision is not an adversarial proceeding. There is no contradictor. No issue is joined. The applicant seeks to persuade the Tribunal that the unfavourable decision under review should be set aside. Typically, the primary decision will have taken into account country background information. Both the delegate, and the Tribunal member to whom the application for review is assigned, will be likely to have considered many cases involving conditions in, say, Indonesia, and will have access to official and other sources of information bearing upon political and social circumstances in an applicant's country of origin. As is often the case with administrative decision-makers, they are likely to accumulate knowledge from the repetitive nature of the matters with which they deal. They have available to them what is, in effect, a library of reference material to which they may resort for the purpose of making decisions. The Act (s 420) requires the Tribunal to do substantial justice, deciding each case on its merits and avoiding technicalities.

8. An applicant is entitled to provide information to the Tribunal in the form of a statutory declaration, and to provide the Registrar with written argument in relation to the decision under review (s 423).

9. The Act then provides for two possible stages.  Section 424 provides:

   "424 (1)If, after considering the material contained in the documents given to the Registrar under sections 418 and 423, the Tribunal is prepared to make the decision or recommendation on the review that is most favourable to the applicant, the Tribunal may make that decision or recommendation without taking oral evidence."

10. Section 425 provides that where s 424 does not apply, the Tribunal must give the applicant an opportunity to appear before it to give evidence and may obtain such other evidence as it considers necessary.

11. In the case of Mr Muin, the delegate's decision was made on 9 March 1998. She sent a written record of her decision to Mr Muin in a form that anticipated the requirements of s 418 if there was to be an application for review. In that record, she identified the "evidence" she used in making her decision. In Part B of her statement of reasons she referred to 31 "documents". The first was the Department's file concerning the plaintiff. It is relevant to note the nature of the remaining Part B documents. Item 2 was a reported decision of this Court, stated in the facts to have been available in the Tribunal library. Items 3 and 4 were a textbook on refugee law, and a UNHCR handbook on refugee law, both available in the Tribunal library. Items 5 and 6 were international reports of country background material, both available on the CISNET electronic database. Item 7 was a country profile on Indonesia, available in the Tribunal library. Items 8 and 9 were newspaper or magazine articles on Indonesia, both on CISNET. Item 10 was a directory extract, available in the Tribunal library. Items 11 and 12 were newspaper or journal articles, available on CISNET. Items 13 and 14 were news publications, available on the ISYS electronic database. Items 15 and 16 were newspaper or journal publications, available in the Tribunal library. Item 17 was a Department of Foreign Affairs and Trade cable available on CISNET. Item 18 was a press report, available on CISNET. Item 19 was a journal article, available in the Tribunal library. Item 20 was a book, available in the Tribunal library. Items 21 to 26 were newspaper or magazine articles, available on CISNET. Item 27 was a journal article, available on the Nexis electronic database. Items 28 and 29 were newspaper articles, available in the New South Wales State library. Item 30 was a Department of Foreign Affairs and Trade country profile on Indonesia, available in the Tribunal library. Item 31 was a newspaper article available in the New South Wales State library.

12. It will be apparent that the preparation of the list of Part B documents took a broad and non-technical approach to what constituted "evidence" and "documents".  The list included a law report, legal textbooks, governmental reports from within Australia and from overseas, and articles in magazines, journals and newspapers.  The stated facts compendiously describe them as "documents relevant to the position in Indonesia of Indonesian nationals of ethnic Chinese background and, also, to the ability and willingness of the Indonesian authorities to provide for their protection."  This approach is no doubt related to the matter earlier mentioned, that is to say, the repetitive nature of the work of delegates and Tribunal members, the accumulation by them of a store of knowledge and experience, the availability to them of a kind of reference library, and the need to disclose their sources of information.  The result is a description of documentary evidence of a kind that might surprise a lawyer accustomed to adversarial and technical procedures.  But it is a practical response to a practical problem.

13. The plaintiff complains that there was a failure to comply with the requirements of s 418 because of what was done, or not done, by the Secretary of the Department in relation to the Part B documents. In particular, it is said, there was a failure to "give" each "document" to the Registrar of the Tribunal.

14. The stated facts include the following:

    "15At the time of the making of [the delegate's] decision, the Part B documents were documents:

    (a)In the possession and control of the Secretary of the Department, the Third Defendant, or his delegate, at all material times; and

    (b)Considered by the Third Defendant to be relevant to the review of [the delegate's] decision by the Tribunal.

    …

    17At all material times all of the members of the First Defendant and the Registry and administration staff of the Tribunal had access, via desktop computers, to a computer database of source documents maintained by the Department in Canberra known as CISNET.  The Registry and administration staff of the Tribunal, which were based at the Registry offices in Sydney and Melbourne, also maintained its own library of source material ('the RRT Library').  Members could obtain documents from that Library and from the Library maintained by the Department's Country Information Service (CIS Library) in Canberra, other electronic databases such as Nexis (a database of international media articles) and utilise inter library loan arrangements with some other libraries in Australia.  Members could request research staff of the First Defendant to obtain documents from the same sources.

    18At all material times many of the members of the First Defendant and the Registry and administration staff of the Tribunal had access to a computer software program known as 'ISYS' allowing them to search electronic databases and retrieve country information and other documents relevant to the RRT's functions.  The databases capable of being searched by ISYS were set up and maintained by staff of the First Defendant.

    19All of the Part B documents listed in Schedule 1 as being held on the CISNET or ISYS databases comprised the full text of the original article except that with item 5, the report by the Minority Rights Group entitled the Chinese of South East Asia, the CISNET database only contained that section of the article which dealt specifically with Indonesia.  It did not contain certain 'boxed information'.  Entries to the said databases were added to and removed from the databases from time to time during the relevant period and different versions were recorded at different times.

    20Each of the Part B documents was available to Members and the Registry and administration staff of the Tribunal from the dates, and from the source, set out in Schedule 1 hereto in and to the extent that:

    (a)They could each go to their own desktop computer (if they had one) or a computer terminal or a computer somewhere at the Tribunal's offices, manually access the CISNET database, download the information to the Tribunal's computer screen, and then, view the relevant Part B documents on the computer screen;

    (b)They could each apply to the Department's CIS Library in Canberra for an inter-library loan or to be provided with a copy of the relevant Part B document;

    (c)They could each physically attend the Tribunal library to view or copy the relevant Part B documents by way of a computer terminal, a computer, or in hard copy form and they could each request the Tribunal library staff to obtain a copy for them; and,

    (d)They could each physically attend the New South Wales State library to view or copy the relevant Part B documents by way of a computer terminal, a computer, or in hard copy form and they could each request the Tribunal library staff to so obtain a copy for them.

    …

    24On or about 1 April 1998 the Department dispatched its file concerning the Plaintiff to the Registrar of the First Defendant.  The file did not include hard copies of any of the Part B documents or copies in electronic form.

    25The Part B documents or a part or parts of them were each capable of being printed or copied from the sources [the delegate] used in her consideration of them in the making of her decision and were each capable of being physically delivered to the Registrar of the First Defendant.

    26Those of the Part B documents that were contained on the CISNET database were each capable [of] being delivered or transmitted to the Registrar of the First Defendant by way of delivery of a floppy disk or by transmission as an internal email or as an attachment to internal email by use of a computer network.

    27Each document identified in Schedule 1 hereto as being available on CISNET was made available by the Department to the First Defendant by electronic transfer of the CISNET databases to each of two computers (known as servers) maintained by the First Defendant, one being located at each of its premises in Sydney and Melbourne.  The material available on CISNET was updated from time to time by officers of the Department in Canberra.  Documents were removed from the CISNET databases from time to time for various reasons.  The updated versions of the relevant database or databases of CISNET were usually electronically transferred to the First Defendant's servers in Sydney and Melbourne on each evening that the relevant part of CISNET was amended by the addition of a document, except for certain limited periods for reasons concerning computer, network or related technical difficulties which arose from time to time.  Material was usually transferred during the course of each week night.  In this process, the relevant updated CISNET database or databases were sent and the former relevant database or databases were overwritten on the servers maintained by the First Defendant.

    28On or about 1 April 1998 the Deputy Registrar of the Sydney office of the First Defendant received the Department's file.

    29On or about 1 April 1998, 2 April 1998, 6 April 1998, and 22 April 1998, the Plaintiff's migration agent wrote to the First Defendant in support of the Plaintiff's application and making submissions and enclosing, inter alia:

    (a)      a signed statement of the Plaintiff dated 2 April 1998; and

    (b)      various articles, newspaper clippings and reports printed from the Internet concerning racially motivated attacks upon ethnic Chinese in Indonesia.

    30On or about 1 October 1998 Ms Patricia Leehy was constituted as the relevant member of the First Defendant for the purpose of determining the Plaintiff's application.

    31At all material times, Member Leehy had a computer terminal allocated for her personal use which was connected to the computer server referred to in paragraph 27.

    32A review on the papers was purportedly conducted by Member Leehy and was completed on 13 October 1998.

    33On 13 October 1998 the Deputy Registrar of the First Defendant wrote to the Plaintiff in the following terms, inter alia:

    'The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone.  You are now entitled to come to a hearing of the Tribunal to give oral evidence in support of your claims.' "

15. Thereafter the Tribunal proceeded under s 425 of the Act and made a decision adverse to the plaintiff.

16. The plaintiff says that he was misled, and disadvantaged, by what occurred.  The stated facts recite:

    "42The Plaintiff believed that the Part B documents were sent to and looked at by the First Defendant in the making of the review on the papers and/or the final decision on the Plaintiff's protection visa application.

    43Had  the Plaintiff been aware of:  (i) the fact, if it be the fact, that the Department or the Third Defendant did not ever physically transfer to or send to the Tribunal all of the Part B documents at any time prior to the making of the Tribunal's decision on 25 November 1998; and (ii) the fact, if it be the fact, that adverse materials were not to be brought to his attention prior to the date of the review on the papers, prior to the hearing, or prior to the making of the Tribunal's decision then he would have:

    (a)arranged to have a migration agent or a solicitor/migration agent act for him in order to make further written submissions to the Tribunal and seek to appear at the oral hearing with him or on his behalf;

    (b)made submissions to the Tribunal going to the content of the Part B documents and the adverse materials highlighting the passages in those documents which assisted his case concerning the then bad situation of ethnic Chinese people in Indonesia and challenging the correctness or significance of that part of the Part B documents and materials which was adverse to his case before the Tribunal;

    (c)sought to bring forward before the Tribunal additional evidence to that which he did send to the Tribunal by way of documents, statements, further witnesses or country information which went to the question of the true position in his home country, Indonesia, to the effect that it was unsafe for him to return home and supporting his claims that his stated fears of persecution in Indonesia were reasonable at the time; and/or

    (d)would have undertaken research or further research and submitted to the Tribunal additional information or documents of the type or kind referred to or contained in the following examples of Tribunal decisions which were favourable to ethnic Chinese persons from Indonesia seeking refugee status in Australia and which contain references to other material dated before the date of the delivery of the Tribunal's decision of 25 November 1998:

    (i)Decision of the Tribunal in relation to RRT Reference V97/07405 dated 21 May 1998 by Tribunal Member Dr Rory Hudson;

    (ii)Decision of the Tribunal in relation to RRT Reference V97/07946 dated 17 July 1998 by Tribunal Member Dr Rory Hudson;

    (iii)Decision of the Tribunal in relation to RRT Reference V97/07944 dated 28 July 1998 by Tribunal Member Dr Rory Hudson;

    (iv)Decision of the Tribunal in relation to RRT Reference N97/17437 dated 21 September 1998 by Tribunal Member Roque C Raymundo;

    (v)Decision of the Tribunal in relation to RRT Reference N97/17646 dated 22 September 1998 by Tribunal Member Roque C Raymundo; and/or,

    (vi)Decision of the Tribunal in relation to RRT Reference N97/19726 dated 18 December 1998 by Tribunal Member Bruce Haigh."

17. Those allegations are also relevant to the claim of failure to accord procedural fairness, but I will deal first with the argument concerning the suggested failure to comply with the statutory requirements.

18. The delegate's statement of reasons was prepared in the light of s 418 of the Act. The statement was required to set out the findings of fact, refer to the evidence on which the findings were based, and give reasons for the decision. The law report, and the legal texts on refugee law, were not evidence, and there was no need to refer to them at all. The other material in Part B was, in the broadest sense, evidentiary. Section 418 imposes a requirement to "give" to the Registrar certain "documents". What constitutes sufficient compliance with such a requirement depends upon the nature of the documents in question, the form in which they were available to the delegate, and the purpose for which they are to be made available to the Tribunal. The purpose of the requirement is to enable the person reviewing the decision to know, and have access to, the material upon which the delegate relied, so as to be able to conduct the review. If the material is in the nature of general reference material, stored for convenience in a library, or on an electronic database, then provided the library, or the database, is accessible to the Tribunal, I see no reason to interpret the requirement literally so as to require physical delivery of paper by the Secretary to the Registrar of the Tribunal.

19. The expression "other document" in s 418(3) means a document other than the documents referred to in s 418(2), that is, other than the copies of the statement about the decision under review containing the information referred to in pars (a), (b) and (c) of sub-s (2). The nature of those other documents may vary. In the present case there was a file of papers relating specifically to Mr Muin, and those papers were physically transferred from the possession of the Secretary to the possession of the Registrar of the Tribunal. The only other relevant documents were what I have described as the reference library. Having regard to the nature of that material, and the form in which it was available to the delegate when she made her decision, I would regard it as sufficient compliance with a requirement to give the material to the Tribunal for the purpose of reviewing the delegate's decision if the material was identified, and made available to the Tribunal in the same manner and form as it was available to the delegate. The statutory provision is concerned with access to information, not with possession of paper. The object is to make available to the Tribunal member who reviews the delegate's decision the "evidence" (in the broadest sense) that was before the delegate. In the case of the Part B documents, the Act did not require that they be gathered together in hard copy form and delivered to the Tribunal. No legislative purpose would have been served by such a requirement, and the statutory language does not compel such a conclusion.

20. The contention that there was a failure to comply with s 418 has not been sustained.

21. However, as both Gaudron J and Gummow J have explained, even if there had been a failure to comply with s 418, it does not follow that Mr Muin is entitled to the relief he seeks. And, this being a case where the Tribunal proceeded, not under s 424 but under s 425, the allegation of a failure to comply with s 424 is misdirected.

22. The claim that there was a failure to accord procedural fairness, insofar as it is based upon the material so far referred to, involves a factual issue.  The plaintiff asserts that he was misled about the documents that were received and considered by the Tribunal.  In that respect, it is common ground that some of the information contained in the Part B documents was favourable to the plaintiff in that it referred to ill-treatment of Chinese in Indonesia.  The plaintiff was told by an officer of the Tribunal that the Department's documents concerning his case would be sent to, and considered by, the Tribunal.  Later, the Tribunal wrote to the plaintiff, at the stage of the review on the papers, saying that the Tribunal had looked at "all the material relating to [the] application", as amended.

23. There is no agreed or stated fact as to whether the Tribunal member who dealt with the matter actually read all the Part B documents, on the occasion of considering this particular case, or at any time.  It is clear that she did not physically receive the documents in hard copy from the Department but, in terms of fairness to the plaintiff, nothing turns on that.  There was no disadvantage to the plaintiff in the Tribunal member having electronic, as distinct from physical, access to the material.  Underlying the plaintiff's complaint is the allegation that the Tribunal was not telling the truth when it said that the member had "looked at all the material relating to your application".  That is an inference I am not prepared to draw.

24. Once again, it is important to bear in mind the nature of the material in question.  It is not particular to the plaintiff.  It is a reference library of background country information.  The newspaper and journal reports were dated between 1992 and 1995.  None of the documents except one bore a date less than three years before the Tribunal's decision, and that one document was produced two years and 11 months before.  To say that the Tribunal member had "looked at", or had regard to, or taken notice of, that material does not mean that, every time she dealt with a case about Indonesia, she read the entire library from beginning to end.  If, as may well have been the case, (and there is no reason to assume it was not), the Tribunal member had dealt with many cases concerning Chinese applicants claiming to be refugees from Indonesia, she was likely to have become familiar with the reference material referred to in Part B, and fairness did not require her to read it all again every time a new case came before her.  The plaintiff bears the onus of making out a case of failure to accord procedural fairness.  I would not find as a fact that what the Tribunal did or said was misleading, or that the plaintiff was disadvantaged by what occurred in relation to the Part B documents.

25. It was argued for the plaintiff that Jones v Dunkel[1] supported an inference that the Tribunal member had not read, and had regard to, the Part B documents.  Relating Jones v Dunkel to a case stated procedure has its own difficulties; but there is a more fundamental problem about the argument. It is based upon a false premise as to the role of the Tribunal. Section 435(1) of the Act and s 60(1) of the Administrative Appeals Tribunal Act 1975 (Cth), read together, provide that Tribunal members enjoy the same protection and immunity as a Justice of this Court. It places a Tribunal member in a false position, inconsistent with that immunity, to expect a member, in proceedings challenging his or her decision, to go outside the published reasons for decision and explain the process of research and consideration leading up to the making of the decision. Furthermore, this Court has taken pains to discourage tribunals and members from endangering their impartiality by assuming the role of protagonist in proceedings challenging their decisions[2].  Consistently with that approach the Tribunal has entered a submitting appearance in these proceedings.  The process of factual inference considered in Jones v Dunkel involves an expectation that the party against whom the inference is drawn would call the absent witness.  There was no proper basis in the present case for an expectation that the Tribunal member would be called to give an account of the process of decision making beyond that which is set out in her published reasons for her decision.

    [1](1959) 101 CLR 298 at 321.

    [2]R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 36.

26. In the case of Mr Muin, there is a separate ground upon which it is contended that there was a failure to accord procedural fairness.  It relates to certain material received by the Tribunal after the delegate's decision; material that was adverse in the sense that it was capable of supporting a view that the Indonesian government was willing and able to protect Chinese citizens from ill treatment.

27. The stated facts in relation to this aspect of the matter include the following:

    "44In the making of the final decision on the Plaintiff's protection visa application, the First Defendant took into account an attachment to a written submission styled 'Submission to the Refugee Review Tribunal on the Effectiveness of the Protection Provided by the Indonesian Government For Ethnic Chinese Indonesian applicants for Australian Protection Visas' made by the Third Defendant to the Tribunal made pursuant to section 423(2) of the Act which contained a number of attachments ('the section 423 submissions'). The said attachment was 'Attachment A' to the section 423 submissions and was a Department of Foreign Affairs ('DFAT') Cable dated 18 June 1998.

    45The section 423 submissions and/or the said Attachment A:

    (a)Were relevant to the question whether the Indonesian authorities were willing and able to provide protection for Indonesians of ethnic Chinese background; and

    (b)Were received by the First Defendant on 24 June 1998 and distributed to those Tribunal Members dealing with protection visa applications made by nationals of Indonesia, including Member Leehy.

    46A copy of any part of the section 423 submissions was not provided to the Plaintiff at any time prior to the making of Member Leehy's decision of 25 November 1998.

    47The Plaintiff was not made aware of the existence or the substance of the section 423 submissions or any part of them by anyone at any time prior to the making of Member Leehy's decision of 25 November 1998.

    48Had the Plaintiff then possessed the knowledge that the section 423 submissions would be before the Tribunal and would be taken into account by it (if that be the case) then in addition to the things stated in paragraph 43 above he would have:

    (a)Made submissions and/or sought to call or adduce evidence or further evidence to the Tribunal specifically going to the section 423 submissions in seeking to highlight those parts of the submissions (including its attachments) which assisted his case and challenging or going against those parts which were clearly adverse to his case; and,

    (b)Relied upon those parts of the Tribunal cases referred to in paragraph 43(d) above which argue against the legal correctness, validity or substance of the section 423 submissions."

28. The plaintiff also complains that the member of the Tribunal who dealt with his case took into account other adverse material (in the sense described above) which came into the possession of the Tribunal after the delegate's decision, that is to say, between March and November 1998.  The stated facts record that the documents in question contained information capable of supporting the conclusion that the Indonesian authorities were willing and able to provide protection for Indonesians of ethnic Chinese background and that the plaintiff was not made aware of the substance of any of the documents. 

29. Counsel for the second and third defendants pointed out that Mr Muin was given an oral hearing a week before the Tribunal's decision was made, that he was aware from the delegate's decision, and from what was said to him by the Tribunal member, that the critical question was whether the Indonesian authorities were willing and able to protect him, in the light of current circumstances in that country, and that he was given an opportunity to say whatever he wanted to say about that issue.  Even so, the fact stated is that the plaintiff was not made aware of the substance of the documentary information which was received between the time of the delegate's decision and the Tribunal's decision and which contained adverse material.  It is also stated as a fact that, had the plaintiff been made aware of the substance of that material, he would have taken certain steps which he failed to take.  We are obliged to deal with the case upon the basis that the facts so stated are true.

30. The plaintiff, in argument, referred to a Practice Note of the Tribunal which said that a person in his position would be given an opportunity to respond to any relevant and significant material by being provided with the substance of the material.  This was said to create a legitimate expectation; one of the kind which may arise even where a person is unaware of the source of the expectation[3].  It is unnecessary to enter into that area of debate.  The Practice Note does not add anything to the common law requirement of procedural fairness.  On the facts stated, the case is not relevantly distinguishable from Re Minister for Immigration and Multicultural Affairs; Ex parte Miah[4].  It is not the submissions of the Department, but the information referred to in them, or accompanying them, and the other adverse documentary material produced after the delegate's decision, that is significant.  The stated fact that there was a failure to bring the substance of that material to the attention of the plaintiff, and the disadvantage that followed, entitles the plaintiff to succeed on this ground.

    [3]See Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273.

    [4](2001) 75 ALJR 889; 179 ALR 238.

31. In the case of Mr Muin, there was a failure to accord procedural fairness.  The appropriate remedies are certiorari, prohibition and mandamus.

    The case of Ms Lie

32. In this matter the plaintiff's case is narrower.  In relation to the procedures adopted in respect of the Part B documents it is the same as that of Mr Muin.  However, it does not involve reliance by the Tribunal upon adverse material coming to the Tribunal between the time of the delegate's decision and the decision of the Tribunal.

33. The delegate's decision was made on 13 March 1997.  There was a hearing before the Tribunal on 16 December 1997.  The Tribunal affirmed the delegate's decision on 6 January 1998. 

34. Leaving aside the matter of the adverse material which, in the case of Mr Muin, came into the possession of the Tribunal after March 1998, the stated facts and arguments in the case of Ms Lie were the same. For the reasons given in relation to the case of Mr Muin, I consider that no failure to accord procedural fairness, and no relevant failure to comply with the requirements of the Act, has been shown.

    Questions and Answers

35. In the case of Mr Muin the questions, and my answers to them, are as follows:

    1.Q.       Was there a failure to accord the Plaintiff procedural fairness?

    A.       Yes.

    2.Q. Was there a failure to comply with s 418(3) of the Migration Act?

    A.       Inappropriate to answer.

    3.Q. Was there a failure to comply with s 424(1) of the Migration Act?

    A.       Inappropriate to answer.

    4.Q.       If the answer to any of questions (1) to (3) is yes,

    (a)Was the decision of the First Defendant to affirm the refusal of the delegate to grant a protection visa for that reason invalid?

    (b)What declaratory, injunctive or prerogative writ relief, if any, should be ordered?

    A.

    (a)      Yes.

    (b)Certiorari to quash the decision of the first defendant and prohibition to prohibit further proceeding on it and mandamus to the first defendant to hear and determine the plaintiff's review application according to law.

    5.Q.       By whom should the costs of the proceedings in this Court be borne?

    A.       The second and third defendants.

36. In the case of Ms Lie the same questions are asked.  My answers to them are as follows:

    1.        No.

    2.        Inappropriate to answer.

    3.        Inappropriate to answer.

    4.        Does not arise.

    5.        The plaintiff.

37. GAUDRON J.   The facts, the relevant legislative provisions and the questions reserved for the consideration of the Full Court are set out in other judgments.  I shall repeat them only to the extent necessary to make clear the reasons for my answers to the reserved questions.

    Transmission of documents to the Refugee Review Tribunal and their consideration

38. In each of these cases, the second question reserved for the consideration of the Full Court asks whether there was a failure to comply with s 418(3) of the Migration Act 1958 (Cth) ("the Act"). Section 418 sets out administrative procedures to be taken when an application is made for review of a decision by the Refugee Review Tribunal ("the Tribunal"). By sub-ss (2) and (3), the Secretary of the Department of Immigration and Multicultural Affairs ("the Secretary") is required to give to the Registrar of the Tribunal ("the Registrar") various documents including, by sub-s (3), "each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision".

39. The decisions of the original decision-maker in each of the present cases referred to written materials which were not physically handed to the Registrar.  Those materials have come to be known as "the Part B documents".  Much of the material consisted of background reports and articles, including newspaper articles, with respect to the position in Indonesia of Indonesian nationals of Chinese background and the ability and willingness of Indonesian authorities to provide for their protection.

40. At the time of the decisions by the Tribunal, some of the Part B documents were in electronic form on databases available both to the Department and to the Tribunal.  However, the databases were changed from time to time with the consequence that a different or abridged version of some of the material was on the relevant database when, in each case, the Tribunal was conducting its review.  Other material was in the Country Information Service Library of the Department of Immigration and Multicultural Affairs ("the Department") in Canberra or in the Tribunal's own library.  In the case of Mr Muin, a few other documents were available only in the State Library of New South Wales.

41. In each case it is agreed that the Part B documents were documents that were in the possession and control of the Secretary or his delegate and were considered by him to be relevant to the decision of the original decision-maker. There are difficulties with the parties' agreement to this effect. First, there is a question whether the materials in question are documents for the purposes of s 418(3) of the Act. It is not obvious that, given the context and purpose of s 418, the documents referred to in sub-s (3) extend beyond departmental documents which relate to the particular applicant seeking review. Certainly, it is not clear that the sub-section refers to background reports and articles concerned with the political or other situation in the applicant's country of origin. Moreover, it is difficult to see on what basis it could be said that the material that was available only in the State Library of New South Wales was in "the Secretary's possession or control".

42. It was argued on behalf of the second and third defendants that s 418(3) of the Act does not require that documents be made available by the Secretary to the Registrar by any particular means. If s 418(3) of the Act refers to documents in electronic form (and I see no reason why it should not), there seems no reason why such documents should not be given to the Registrar electronically, including by making them available on the databases to which he or she has access. At least that is so if the Registrar is informed that they have been so transmitted.

43. Whether s 418(3) refers to documents in electronic form and whether it permits of their electronic transmission to the Registrar are not questions which need be answered because, in my view, there is a more fundamental issue which must be addressed, namely, whether this Court should answer the question whether the Secretary complied with s 418(3) of the Act. In this regard, it was argued on behalf of the second and third defendants that, if there was a failure by the Secretary to comply with s 418(3), it was neither a matter about which the plaintiffs have standing to complain nor a matter which rendered the Tribunal's decision invalid.

44. The present proceedings are brought in this Court's original jurisdiction. So far as concerns s 418(3) of the Act, the plaintiffs seek relief by way of declaration that the Secretary's practice of not giving all or substantially all of the relevant documents was unlawful, alternatively, that the Secretary breached s 418(3). Additionally, they seek an injunction to prevent the second and third defendants from acting on the Tribunal's decisions upholding the decisions of the original decision-makers, or, alternatively, the issue of constitutional writs preventing them from acting on the Tribunal's decisions, quashing those decisions and requiring the Tribunal to determine their review applications in accordance with law.

45. So far as the Tribunal's decisions are concerned, relief by way of constitutional writ pursuant to s 75(v) of the Constitution is available only if the decision in issue involves jurisdictional error, including constructive failure to exercise jurisdiction[5]. It is conceivable that a failure by the Secretary to comply with the requirements of s 418(3) of the Act might, in some cases, result in or contribute to jurisdictional error on the part of the Tribunal. However, that is not to say that the Secretary's non-compliance with s 418(3), of itself, will necessarily result in jurisdictional error on the part of the Tribunal.

    [5]See Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889; 179 ALR 238.

46. Section 418 of the Act imposes an administrative duty on the Secretary, the evident purpose of which is to enable the effective and efficient exercise by the Tribunal of its review functions. But there is nothing in the Act to suggest that the Secretary's compliance with s 418(3) is either a precondition to the Tribunal's conduct of review proceedings or to its making of a decision on review. Accordingly, it does not, of itself, constitute an error which would entitle the plaintiffs to relief by way of constitutional writ either prohibiting the defendants from acting upon the Tribunal's decisions or quashing those decisions. And if neither of those steps is taken, there is no basis for the issue of mandamus.

47. The plaintiffs' claim to injunctive relief raises somewhat different considerations. There is, in my view, no reason why injunctive relief pursuant to s 75(v) of the Constitution should be confined by notions of jurisdictional error[6]. Thus, for example, were an applicant for review to seek an injunction restraining the Tribunal from proceeding to a decision until the documents referred to in s 418(3) of the Act were provided, it would be unnecessary to establish that the making of a decision would, in the absence of those documents, constitute jurisdictional error. Rather, it would be sufficient to establish that the documents had not been provided, that they might affect the decision and, perhaps, that they could not otherwise be obtained. However, that is not what the plaintiffs seek. Rather, they seek an injunction to restrain the Secretary and the Commonwealth from acting on the Tribunal's decisions by reason of the Secretary's non-compliance with s 418(3).

    [6]See in relation to injunctive relief under s 75(v) of the Constitution, Abebe v Commonwealth (1999) 197 CLR 510 at 552 [107]-[108] per Gaudron J.

48. To obtain injunctive relief based solely on the Secretary's non-compliance with s 418(3) of the Act the plaintiffs must establish that the Tribunal's decisions were, on that account, without legal effect. Once it is accepted, as, in my view it must be, that the Secretary's compliance with s 418(3) is not a precondition to the Tribunal's exercise of its review functions, it is necessary, at the very least, to show that the Tribunal was required to consider the documents described in s 418(3) of the Act as part of the review process before it could be said that the Tribunal's decisions were without legal effect.

49. The question whether the Tribunal was required to consider the documents referred to in s 418(3) of the Act necessitates consideration of s 424(1) of the Act which, in each of these cases, is the subject of the third question reserved for the consideration of the Full Court. That question asks whether there was a failure to comply with s 424(1) of the Act.

50. At the relevant time, s 424(1) of the Act provided:

    " If, after considering the material contained in the documents given to the Registrar under sections 418 and 423, the Tribunal is prepared to make the decision or recommendation on the review that is most favourable to the applicant, the Tribunal may make that decision or recommendation without taking oral evidence."[7]

    It was contended on behalf of the plaintiffs in each of these cases that s 424(1) was not complied with in that the Tribunal failed to consider the Part B documents.

    [7]Section 424 of the Act was repealed by the Migration Legislation Amendment Act (No 1) 1998 (Cth) and a new s 424 substituted.

51. The relief sought by the plaintiffs by reference to s 424(1) of the Act is similar to that sought in relation to s 418(3). It is convenient to set out the primary declaration sought in relation to s 424(1) because it identifies the way in which the plaintiffs contend that sub-section should be construed. The proposed declaration is that:

    "the practice of the first defendant in failing to receive and/or consider material given to it or which ought to have been given to it under section 418(3) of the Migration Act 1958 as it is required to do under section 424(1) of the said Act was unlawful"[8].

    [8]In the alternative, the plaintiffs seek declarations that the Tribunal breached s 424(1) of the Act.

52. Section 424(1) of the Act conferred a discretionary power on the Tribunal to make a decision in favour of an applicant for review without taking oral evidence. The exercise of that discretion was, in terms, predicated on the Tribunal's consideration of the material given to the Registrar, not, as the plaintiffs assert, the material that ought to have been given to him or her. However, that is not the real issue.

53. The premise on which injunctive relief and relief by way of the issue of constitutional writs is sought in relation to s 424(1) of the Act is that, before conducting a review involving the taking of oral evidence, the Tribunal was obliged to consider whether, by reference to the documents provided pursuant to ss 418 and 423, it could make the decision or recommendation that is most favourable to the applicant in question. If it was not so required, it is inappropriate to speak in terms of "non-compliance with" or "breach of" s 424(1) of the Act. Moreover, and more fundamentally, if it was not so required, there was nothing in that sub-section that could, of itself, provide the foundation for injunctive relief or relief by way of any of the constitutional writs.

54. In terms, s 424(1) of the Act permitted of a method of review which might result in administrative efficiency by obviating the need for oral evidence. However, only if the word "may" in s 424(1) is treated as "shall" or "must", could that sub-section be read as requiring the Tribunal to consider the material contained in documents provided by the Secretary and to decide whether or not it was then prepared to make the decision or recommendation that was most favourable to the applicant in question.

55. If the plaintiffs' construction were correct, the Tribunal would have been required to consider all the material provided to it by the Secretary, even if it had no bearing on an issue which might result in a decision in favour of an applicant for review.  Such a construction cannot be accepted.  Moreover, as explained in Samad v District Court of New South Wales, the word "may" means "may", although circumstances may arise or findings may be made such that the discretionary power in question must be exercised[9]. Once that is accepted, it follows that s 424(1) imposed no obligation on the Tribunal to consider whether it was prepared to make a favourable decision without taking oral evidence and, thus, imposed no obligation on the Tribunal to consider the Part B documents as part of the review process.

    [9](2002) 189 ALR 1 at 17-18 [66]-[68]. See also Ward v Williams (1955) 92 CLR 496 at 505-506 per Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ; Re Carl Zeiss Pty Ltd's Application (1969) 122 CLR 1 at 5 per Kitto J; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 133-134 per Windeyer J; Mitchell v The Queen (1996) 184 CLR 333 at 345-346 per Dawson, Toohey, Gaudron, McHugh and Gummow JJ; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274 per Brennan CJ, Toohey, McHugh and Gummow JJ; Lowndes v The Queen (1999) 195 CLR 665 at 671 [14].

56. Because s 424(1) did not impose an obligation on the Tribunal to consider the Part B documents as part of the review process, the Secretary's failure to comply with s 418(3) of the Act, if such there was, would entitle the plaintiffs neither to the injunctive relief nor the relief by way of constitutional writs which they seek. Further, a bare declaration of non-compliance with s 418(3) would not determine any right or liability put in issue in these proceedings and would be of no practical value to the plaintiffs. That being so, it would not be appropriate to make the declarations in relation to that provision which the plaintiffs seek[10].

    [10]See with respect to declaratory relief, Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188 per Mason J (with whom Jacobs and Murphy JJ agreed) and 189 per Aickin J; 18 ALR 55 at 69, 71; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 579 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 613 [52] per Gaudron J. See also Ainsworth v CJC (1992) 175 CLR 564 at 582 per Mason CJ, Dawson, Toohey and Gaudron JJ.

57. Because it would not be appropriate to make the bare declarations sought by the plaintiffs with respect to s 418(3) of the Act, it is inappropriate to answer the question whether there was a failure to comply with that sub-section. And because the third question, that being the question with respect to s 424(1) of the Act, proceeds on a false premise, it is also inappropriate to answer that question.

    Procedural fairness

58. The first of the questions asked in each case is whether there was a failure to accord procedural fairness to the plaintiff.  That question raises slightly different considerations in each case and it is convenient to deal first with the case of Mr Muin.

59. The Tribunal informed Mr Muin that it had asked the Secretary "to send a copy of its documents" and that when they were received, it would "look at them along with any other evidence on the Tribunal file to determine whether it [could] make a decision in [his] favour immediately".  Later, the Deputy Registrar informed him that the Tribunal had looked at "all the material relating to [his] application" but was not prepared to make a favourable decision based solely on it.  It is agreed that Mr Muin believed that the Tribunal had received the Part B documents and that if he had known otherwise, he would have taken steps to correct that situation.

60. The first issue that arises is whether the Tribunal, in fact, had the Part B documents.  In this regard, it is sufficient to note that the documents were not physically sent to the Registrar; there is nothing to suggest that the Registrar was informed where the documents could be located; and only three of the documents were referred to in the Tribunal's decision.  Accordingly, I would infer that, save for the documents referred to in its decision, the Tribunal did not have and did not have regard to the Part B documents.

61. It is now settled that, notwithstanding the limited grounds upon which an aggrieved person may seek review of a Tribunal decision in the Federal Court, the Tribunal is bound by the rules of natural justice and is, thus, bound to proceed in a manner that is procedurally fair[11].  Procedural fairness requires, in relation to a review application by a person who has been refused a protection visa, that he or she be given a reasonable opportunity to present a case that he or she is a refugee as defined in the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Refugee Convention") and to answer any material or information in the possession of the Tribunal which suggests otherwise.

    [11]See Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889; 179 ALR 238. See also Abebe v Commonwealth (1999) 197 CLR 510 at 553-554 [111]-[113] per Gaudron J.

62. The agreed statement of facts makes it clear that Mr Muin was misled into thinking that it was unnecessary for him to draw the information in the Part B documents that favoured his application to the attention of the Tribunal and that, had he not been misled in that regard, he would have taken steps to correct that situation.  That, of itself, does not mean that there was a want of procedural fairness.  As already indicated, all that was relevantly required was that Mr Muin be given a reasonable opportunity to present his case.  It can only be said that he was denied procedural fairness if a reasonable person in his position would also have been misled and, in consequence, would have acted as Mr Muin did.

63. In my view, a reasonable applicant for review who had been informed that the Tribunal would look at the Department's documents along with other evidence on the Tribunal file and, later, that the Tribunal had looked at "all the material relating to [the] application" would have been misled into thinking that it was unnecessary to draw the Tribunal's attention to the material that favoured his or her application in the Part B documents referred to in the original decision and would have refrained from so doing.  Accordingly, it follows that, by reason of the Tribunal's failure to have regard to all of the Part B documents that favoured Mr Muin's case, he was denied procedural fairness.

64. As already indicated, there is a second aspect to procedural fairness in relation to Tribunal hearings, namely, a requirement that an applicant for review be given a reasonable opportunity to answer any material in the possession of the Tribunal which suggests that he or she is not a refugee as defined in the Convention. In reaching its decision in relation to Mr Muin, the Tribunal took into account information in a Department of Foreign Affairs and Trade cable dated 18 June 1998 which was attached to submissions made by the Secretary pursuant to s 423(2) of the Act[12].  Mr Muin was not made aware of the submissions or of the cable.  He was, thus, not given a reasonable opportunity to answer material in the possession of the Tribunal which suggested that he was not a refugee as defined in the Convention.  In this regard, also, he was denied procedural fairness.

    [12]Section 423(2) provides:

    "         The Secretary may give the Registrar written argument relating to the issues arising in relation to the decision under review."

65. So far as concerns Ms Lie, her claim to have been denied procedural fairness relates solely to the Part B documents relevant to her case.  The facts relevant to her case are similar to but not identical with those involved in Mr Muin's.  On the question whether the Tribunal, in fact, had the Part B documents there is a difference in that six such documents were referred to in its decision and some of the material contained in those documents favoured her case.  This notwithstanding, I would infer, for the same reasons given in relation to Mr Muin, that the Tribunal did not have all the Part B documents relevant to Ms Lie's review application and, in particular, did not have all the documents that contained material favourable to her case.

66. As with Mr Muin, it is agreed between the parties that Ms Lie was misled into thinking that the Tribunal had the Part B documents and, in consequence, did not take steps to bring to its attention those parts of the documents or other similar material which favoured her case.  The question whether a reasonable person would have been misled in the same way and, thus, acted in the same way requires consideration of correspondence that is in slightly different terms from that forwarded to Mr Muin.

67. The correspondence forwarded to Ms Lie by the Deputy Registrar of the Tribunal informed her that the Tribunal had asked the Department to send a copy of its documents about her case to it.  She was later informed that the Tribunal had "looked at all the papers relating to [her] application" but, as it could not make a favourable decision on that information alone, she was entitled to a hearing and to give oral evidence.

68. In Ms Lie's case, the Tribunal did not say that it would look at the Department's documents.  It did, however, say that it had asked for a copy of them and, later, that it had looked at all the papers relating to her application.  In a context in which the original decision referred to Part B documents, the correspondence was such, in my view, as to lead a reasonable applicant for review to consider that all Part B documents had been looked at and that it was unnecessary to do anything to bring the material in them that favoured his or her case to the attention of the Tribunal.  Accordingly, in my view, Ms Lie was also denied procedural fairness.

    Answers to questions reserved

69. In each case the questions reserved for the consideration of the Full Court should be answered as follows:

    Question 1:Was there a failure to accord the plaintiff procedural fairness?

    Answer:Yes.

    Question 2:Was there a failure to comply with s 418(3) of the MigrationAct?

    Answer:Inappropriate to answer.

    Question 3:Was there a failure to comply with s 424(1) of the MigrationAct?

    Answer:Inappropriate to answer.

    Question 4(a):          Was the decision of the First Defendant to affirm the refusal of the delegate to grant a protection visa for that reason invalid?

    Answer:Unnecessary to answer.

    Question 4(b):          What declaratory, injunctive or prerogative writ relief, if any, should be granted?

    Answer:Prohibition should issue to prevent the second and third defendants from acting on the Tribunal's decision; certiorari should issue to quash that decision and mandamus should issue to the first defendant directing it to hear and determine the plaintiffs' review applications in accordance with law.

    Question 5:By whom should the costs of the proceedings in this Court be borne?

    Answer:By the second and third defendants.

70. McHUGH J.   The issue in these proceedings is whether decisions of the Refugee Review Tribunal should be set aside because the Tribunal failed to comply with its statutory duties and the duty to accord natural justice.

    The general background

71. Mr Muin and Ms Nancy Lie have commenced separate actions in the original jurisdiction of this Court.  They are Indonesian nationals of Chinese ethnicity who claim refugee status[13] and seek the grant of protection visas under s 36 of the Migration Act 1958 (Cth) ("the Act").

    [13]For the purpose of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ("the Convention").

72. In each case, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa.  Each delegate set out the reasons for the decision and itemised, under "Part B" of the statement of reasons, the documentary material or "evidence" relied on in reaching the decision.

73. Both plaintiffs applied to the first defendant, the Refugee Review Tribunal, to review the decision to refuse a protection visa.  In each case, once notified by the Tribunal that an application for review had been made, the Secretary of the Department of Immigration and Multicultural Affairs provided the Tribunal with certain documents concerning the plaintiff's case[14].  Mr Muin and Ms Lie were both unsuccessful in the Tribunal.

    [14]As required by s 418.

74. In this Court, the plaintiffs rely on s 75(v) of the Constitution to quash the decisions and to order a re-hearing of their applications. They claim that in the review process there have been breaches of statutory duties and a failure to accord procedural fairness. To support their claim, they have applied for discovery and interrogatories[15]. To facilitate the litigation, the parties agreed on a Statement of Agreed Facts. On 3 November 2000, Gaudron J reserved the following questions for the consideration of the Full Court under s 18 of the Judiciary Act 1903 (Cth):

    [15]See for example judgments of Gaudron J in Muin v Refugee Review Tribunal (2000) 74 ALJR 698; Muin v Refugee Review Tribunal [No 2] (2000) 74 ALJR 703; Muin v Refugee Review Tribunal [No 3] (2000) 74 ALJR 1398.

    "Upon the facts set out in the agreed statement of facts and the inferences, if any, to be drawn from those facts …

    1)Was there a failure to accord the Plaintiff procedural fairness?

    2)Was there a failure to comply with s 418(3) of the Migration Act?

    3) Was there a failure to comply with s 424(1) of the Migration Act?

    4)       If the answer to any of questions (1) to (3) is yes,

    (a) Was the decision of the First Defendant to affirm the refusal of the delegate to grant a protection visa for that reason invalid?

    (b) What declaratory, injunctive or prerogative writ relief, if any, should be ordered?

    5) By whom should the costs of the proceedings in this Court be borne?"

75. In my opinion, only Mr Muin has made out a claim for relief.  Before considering the grounds of relief sought, it is useful to set out some background details about each of the plaintiffs and their claims.

    Mr Muin's case:  Background

    Application for a protection visa

76. Mr Muin applied for a protection visa in August 1996.  In March 1998, a delegate of the Minister refused to grant him the visa[16].

    [16]Section 496 of the Act gives the Minister power to delegate his powers. Under s 65 the Minister has the power to refuse a visa. The prescribed criterion for a protection visa, under s 36, is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention.

77. In refusing the application, the delegate relied on 31 items of evidence that were listed under the heading "Part B Evidence Before Me" in the delegate's reasons.  They included the Departmental file relating to Mr Muin, a judgment of this Court, the UNHCR Handbook, reports from government bodies and non-governmental organisations and articles in the print media.

78. The delegate found that Mr Muin feared that, if he was returned to Indonesia, he would be persecuted for reasons of race.  He feared discrimination and racism and also extortion by corrupt government officials.  The delegate found that such conduct could constitute persecution.  But, after considering the Part B material, the delegate found that the fear was not "well-founded" because Mr Muin did not face a real chance of Convention based persecution on return to Indonesia.

    Application for review

79. Late in March 1998, Mr Muin applied to the Tribunal to review the delegate's decision. When an applicant applies to the Tribunal, the Act requires the Tribunal to inform the Secretary of the Department of Immigration and Multicultural Affairs of the application. The Secretary is required to give to the Registrar of the Tribunal the statement of reasons for the delegate's decision. In addition, s 418(3) requires the Secretary as soon as is practicable, after being notified of the application, to give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered to be relevant to the review of the decision.  A principal issue in these proceedings is whether the Secretary complied with this requirement.  In the Agreed Facts, the parties have agreed that the items in the Part B material were in the "possession or control" of the Secretary at all material times and were "considered by the Secretary to be relevant to the review of the decision".  But they dispute whether the Part B materials were documents and, if so, whether they were given to the Registrar.

80. In April 1998, after being notified of the application, the Secretary dispatched the Department's file concerning Mr Muin to the Registrar of the Tribunal.  According to the Agreed Facts, the file "did not include hard copies of any of the Part B documents or copies in electronic form".  The Agreed Facts reveal that it was possible for the Secretary to have created hard copies of the Part B documents and for the Tribunal to have accessed the documents itself:

    "Each of the Part B documents was available to … the Tribunal from the dates, and from the source … to the extent that:

    (a) They could ... go to ... a computer ... [and] manually access the CISNET database, download the information to the ... screen, and then, view the relevant Part B documents on the computer screen [this was the case for items 5, 6, 8, 9, 11,12, 17, 18, 21, 22, 23, 24, 25 and 26 or use other computer software programs and databases for items 13, 14 and 27];

    (b) They could ... apply to the Department's CIS Library in Canberra for an inter-library loan or to be provided with a copy of the relevant Part B document [this was the case for items 3, 4, 7, 10, 15, 16, 20 and 30 all of which were also available from the Tribunal's own library];

    (c) They could ... physically attend the Tribunal library to view or copy the relevant Part B documents by way of a computer terminal, a computer, or in hard copy form and they could ... request the Tribunal library staff to obtain a copy for them [this was the case for items 2, 3, 4, 7, 10, 15, 16, 19, 20 and 30].

    (d) They could ... physically attend the New South Wales State library to view or copy the relevant Part B documents ... and they could ... request the Tribunal library staff to so obtain a copy for them [this was the case for items 28, 29 and 31 (newspaper articles from 1994 and 1995)]."

81. In the meantime, on 30 March 1998 the Tribunal sent a letter to Mr Muin acknowledging his application.  The letter included the following statements:

    "The Tribunal has asked the Department to send a copy of its documents about your case to the Tribunal.

    When we receive the Department's documents the Tribunal will look at them along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour immediately.  This is known as 'review on the papers'." (emphasis added)

82. According to the Agreed Facts, after reading the Tribunal's letter, Mr Muin:

    "was then under the clear belief that the Tribunal would be sent all the documents about his case which were then held by [the Department] including;

    (a) the decision of the delegate dated 9 March 1998; and

    (b)      a copy of each of the Part B documents;

    and that the Tribunal would look at all that material in the making of its review on the papers."

83. Further, par 42 of the Agreed Facts declares that the parties have agreed that:

    "The Plaintiff believed that the Part B documents were sent to and looked at by the First Defendant in the making of the review on the papers and/or the final decision on the Plaintiff's protection visa application."

84. Under s 423 of the Act, an applicant may give the Tribunal a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider and any written arguments relating to the issues arising in relation to the decision under review. Accordingly, Mr Muin's agent wrote to the Tribunal on several occasions in April 1998 referring the Tribunal to news items and reports describing violence and discrimination against the ethnic Chinese in Indonesia. Mr Muin also submitted a personal statement to the Tribunal. He referred to his background as a Chinese Indonesian Buddhist, the kinds of discrimination that ethnic Chinese Indonesians suffer and his own experiences of discrimination, blackmail and extortion and the fear that he had of persecution if returned to Indonesia. He declared that he had no confidence in the Indonesian government's ability to protect him:

    "My government cannot protect me should I return to my country of origin due to worsening racial discrimination and racially instigated physically violent attacks on a particular race which is ethnic Chinese.  There is no freedom of speech on political issues and no freedom on religion practices, in particular Buddhism.

    I also wish to add further in this statement that the Indonesian government is badly corrupted, racist, restricts the right of individual citizen in terms of freedom in expressing political views, cultures and religions as well as detention without trial.  Ethnic Chineses are suffering everyday and many are innocently killed as a result of racial-instigated and hatred violent attacks which have resulted in many deaths not reported by government-controlled medias."

85. Section 423 also permits the Secretary of the Department to give the Tribunal "written argument relating to the issues arising in relation to the decision under review". In June 1998, the Secretary sent written submissions to the Tribunal to be distributed to its members dealing with protection visa applications made by nationals of Indonesia. One of the Tribunal members was Ms Patricia Leehy who heard Mr Muin's application for review. The s 423 submission contained information relevant to the question of whether the Indonesian authorities were willing and able to provide protection for Indonesians of ethnic Chinese background. Mr Muin never received a copy of any part of the s 423 submissions sent by the Secretary. Nor was he made aware of its existence at any time prior to the making of the Tribunal's decision.

    Review "on the papers"

86. Section 424 of the Act, before its repeal, permitted a "Review 'on the papers'":

    "(1) If, after considering the material contained in the documents given to the Registrar under sections 418 and 423, the Tribunal is prepared to make the decision or recommendation on the review that is most favourable to the applicant, the Tribunal may make that decision or recommendation without taking oral evidence."

87. The Tribunal, constituted by Ms Patricia Leehy, decided in October 1998 that:

    "After considering all the material relating to the application, I am not prepared to make a decision most favourable to the applicant on this information alone …"

88. When review on the papers was not favourable, the Tribunal had to give an applicant the opportunity to appear before it to give evidence and could obtain such other evidence as it considered necessary[17]. Consequently, the Tribunal sent Mr Muin a notice under s 426 of the Act informing him of the decision "on the papers" and inviting him to attend an oral hearing. Mr Muin accepted the invitation.

    [17]Section 425(1).

    The Tribunal hearing

89. Mr Muin attended a hearing of the Tribunal in November 1998.  In the course of explaining the Tribunal's role to Mr Muin, Ms Leehy said:

    "So what I must do is to consider your evidence and information that I've got from other sources to decide whether there is a real chance that you will be persecuted if you return to your country. …

    I must also be satisfied that protection from that persecution is not available to you from the Indonesian authorities."

90. Throughout the hearing, Ms Leehy questioned Mr Muin about his personal experiences in Indonesia. Mr Muin recounted an incident in July 1998 involving damage to his aunt's house by people in the neighbourhood at about the same time as riots were occurring. There was a brief discussion about the riots of July 1998, his family not being seriously hurt in those riots, and Mr Muin hearing from his uncle that the situation in Indonesia was getting worse. At no stage did Ms Leehy ask Mr Muin directly about the degree of government protection his family was afforded. She did not mention the material in the s 423 submission of the Secretary, nor did she ask him to comment on its substance.

    The decision and reasons of the Tribunal

91. On 25 November 1998, the Tribunal affirmed the delegate's decision to refuse Mr Muin a protection visa.  After identifying the evidence and some of the factual background, the Tribunal noted that it "had before it independent information relevant to the applicant's claims".  Much of that information confirmed the existence of discrimination towards ethnic Chinese in Indonesia.  The Tribunal referred to a number of news articles and reports of government organisations to describe the riots that had occurred in early 1998 and which ultimately brought down the Suharto government.  The Tribunal said that those riots, while they did affect ethnic Chinese, in particular wealthy Chinese, were mainly spurred by political objectives but also partially by economic frustration.

92. Mr Habibie replaced General Suharto as President in May 1998. Ms Leehy cited 1998 news reports that stated that President Habibie had announced policy changes that would address the plight of ethnic Chinese. She also quoted Department of Foreign Affairs and Trade ("DFAT") information – published in March 1998 – that expressed DFAT's belief that Indonesian security forces have the ability and inclination to provide protection to all citizens. She also referred to a June 1998 DFAT cable that was part of the s 423 submission. That cable suggested that "Chinese-Indonesians would ... have reasonable grounds to fear for their property and physical safety if they were to be caught up in the type of rioting that occurred in Jakarta, Solo and Medan". Nevertheless, Ms Leehy held that it "seems reasonable to conclude that Indonesia's 'official' attitude during the Suharto regime was one of strong discouragement of hostilities directed at ethnic Chinese and indeed religious minorities".

93. Ms Leehy found Mr Muin to be a credible witness and accepted his factual account of several demeaning and at times frightening experiences that he suffered because of his ethnicity and his religion.  She accepted everything that he said had happened to him and his family.  But she held that it did not constitute persecution in a Convention sense.  She said:

    "Given the country information on the long-term discrimination against ethnic Chinese in Indonesia and the credibility of the applicant's own account, the Tribunal finds that the applicant's claims of discriminatory acts against him are valid.  However, the actions complained of by the applicant are not, in the Tribunal's view, sufficiently serious as to amount to persecution in a Convention sense, as described in Applicant A by Gummow J". (emphasis added)

94. Ms Leehy accepted that there had been violence against ethnic Chinese.  But she held that the violence did not have an "official quality" about it.  Ms Leehy referred to the statements by President Habibie about his policy of non-discrimination which culminated in new legislation, the public condemnation of anti-Chinese prejudice by General Wiranto and official inquiries into the behaviour of the military.  Ms Leehy also referred to the attempts by the Indonesian government to control the violence and the preventative measures that it had put in place.  She concluded:

    "Given that the violence against ethnic Chinese is neither official, nor officially tolerated, nor uncontrollable, the Tribunal is not satisfied that it can be described as persecution in a Convention sense."

    Mr Muin's case:  Analysis

95. Upon these facts, Mr Muin contends that the decision of the Tribunal constitutes jurisdictional error that calls for the exercise of this Court's power under s 75(v) of the Constitution.

96. First, Mr Muin claims that, because the Secretary did not physically transfer the Part B documents to the Tribunal, he failed to comply with his statutory duties under s 418. Consequently, the Tribunal failed to comply with s 424 of the Act. Second, Mr Muin alleges that he was led to believe that the Tribunal member had considered the Part B materials when in fact she did not, and he was thus deprived of an opportunity to bring favourable material to the attention of the Tribunal. He argues that this was a breach of procedural fairness and that the decision was ultra vires.  Third, he argues that by taking into account adverse material (about the events of 1998 and the new government's capacity to protect him from persecution) without giving him an opportunity to comment on that material, the Tribunal breached its common law duty to accord him procedural fairness.

    The legal framework

288. The Tribunal, in its discretion, is not, however, obliged to confine oral evidence to that of an applicant or a person named in a notice given pursuant to s 426. This appears from s 427, which sets out the powers of the Tribunal in undertaking a review as follows:

     "(1)For the purpose of the review of a decision, the Tribunal may:

     (a)take evidence on oath or affirmation; or

     (b)adjourn the review from time to time; or

     (c)subject to sections 438 and 440, give information to the applicant and to the Secretary; or

     (d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.

     (2)The Tribunal must combine the reviews of 2 or more RRT‑reviewable decisions made in respect of the same non-citizen.

     (3)Subject to subsection (4), the Tribunal in relation to a review may:

     (a)summon a person to appear before the Tribunal to give evidence; and

     (b)summon a person to produce to the Tribunal such documents as are referred to in the summons; and

     (c)require a person appearing before the Tribunal to give evidence either to take an oath or affirmation; and

     (d)administer an oath or affirmation to a person so appearing.

     (4)The Tribunal must not summon a person under paragraph (3)(a) or (b) unless the person is in Australia.

     (5)The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true.

     (6)A person appearing before the Tribunal to give evidence is not entitled:

     (a)to be represented before the Tribunal by any other person; or

     (b)to examine or cross-examine any other person appearing before the Tribunal to give evidence.

     (7)If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter."

289. Section 430 requires the Tribunal to give a written decision.  It provides as follows:

     "(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

     (a)sets out the decision of the Tribunal on the review; and

     (b)sets out the reasons for the decision; and

     (c)sets out the findings on any material questions of fact; and

     (d)refers to the evidence or any other material on which the findings of fact were based.

     (2)The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made.

     (3)Where the Tribunal has prepared the written statement, the Tribunal must:

     (a)return to the Secretary any document that the Secretary has provided in relation to the review; and

     (b)give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based."

290. What a tribunal must do, by contrast with what it may do, is very much affected by the functions it has to perform and the statute under which it operates.  Gibbs J in Salemi v MacKellar[No 2][160] put the matter this way:

     "The question whether the principles of natural justice must be applied, and if so what those principles require, depends on the circumstances of each case.  In the case of a statutory power, the question will depend on the true construction of the statutory provision in light of the common law principles (cf Durayappah v Fernando[161])."

     [160](1977) 137 CLR 396 at 419.

     [161][1967] 2 AC 337 at 350.

291. There are also these aspects of the jurisdiction of the Tribunal. There is no contradictor in the ordinary sense. As I have observed, the proceedings are essentially inquisitorial. The Tribunal is not bound by the rules of evidence. As this case shows, it goes to many sources of information and acts upon material that courts would not ordinarily receive and use. The Tribunal is a specialist tribunal: its members hear many cases and can be expected to have accumulated a great deal of knowledge, so far as it is ascertainable, about other peoples and other countries. And the Act makes clear distinctions, in the ways to which I have referred, between what the Tribunal must do and what it may, in its discretion, do in relation to the gathering, hearing and use of evidence.

     The plaintiff's submissions

292. The basic submissions of the plaintiff are three in number.  First, the plaintiff contends that the Tribunal took into account material adverse to the plaintiff's case without the knowledge of the plaintiff, thereby depriving him of an opportunity to meet that adverse material by evidence and submissions.  This failure, it is said, was a breach of procedural fairness.

293. Secondly, the plaintiff contends that the Tribunal failed to receive or consider relevant material (Part B documents) in documentary form that contained information favourable to the plaintiff's case.  Had the Tribunal properly received and considered this information, the plaintiff would have had better chances of obtaining a favourable decision.  It was submitted that this failure was also a breach of procedural fairness.  Related to that submission was a contention that the plaintiff was misled by letters written to him on behalf of the Tribunal.

294. Thirdly, the failure identified in the preceding paragraph constituted a breach of ss 418(3) and 424(1) of the Act, rendering the decision ultra vires.

295. I will refer in these reasons to the "Part B documents".  Because of the view I take of this case, it is unnecessary for me to go into the detail of them.  These comments may, however, be made about them.  Part B documents were 31 in number.  They consisted largely of commentaries by journalists and others on public affairs in Indonesia and the position of ethnic Chinese in that country, including the disposition and capacity of the Indonesian authorities to protect those people.  Another document, the departmental file on the plaintiff, assumes no relevance in this case.  Some of the matters contained in the Part B documents were adverse to the plaintiff's case, some favourable.  The Tribunal made some findings, both adverse and favourable to the plaintiff's case, that were not expressly referable to the Part B documents, but were to the same effect as matters contained in them.  And some matters contained in the Part B documents, both helpful and unhelpful to the plaintiff, were not referred to in the Tribunal's reasons.  It would be impossible to say whether this was because the Tribunal was not provided with the documents, or because it knew of, but was not persuaded or influenced by, those matters.

296. The plaintiff submits that he has established that, in making its decision, the Tribunal did not have before it and therefore had no regard to many of the Part B documents which were in the possession of the Secretary and were relevant to the plaintiff's case.  I interpolate that I do not think that this case depends upon whether material stored in and transmissible by a computer can be regarded as a document.  The sense intended here in the letters to which I will refer was clearly of a document or documents being matter written on paper.  Without so deciding, I would not readily conclude that in some situations in modern times a "document" might not take an electronic form.  The documents were certainly not sent to the Registrar of the Tribunal before the making of the delegate's decision.  This is a matter of Agreed Fact.  That the Tribunal did not have regard to the documents follows, it is submitted, from the absence of reference in the Tribunal's decision to most of them, and from the fact that discovery and inspection which have since taken place in this case have not revealed any note or memorandum suggesting that the Tribunal did have regard to the documents.

297. In these proceedings the Court is sitting in its original jurisdiction. This is no impediment to the finding of facts by the Court: indeed the contest between the parties as to the inferences open on the Agreed Facts makes it necessary for the Court to make inferential findings. So too, the Court may grant any relief of the kind for which s 75(v) of the Constitution makes provision and which is better adapted to the case than the relief originally sought (here, an injunction)[162].

     [162]See Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.

298. It seems to me that the plaintiff has at least established, as a matter of inference, that the Tribunal in all likelihood did not receive and did not have separate and reasonably contemporaneous regard to the documents in making its decision.  The plaintiff has not, however, established that the Tribunal did not know and did not take into account the matters to which the documents referred.  The Tribunal may well have done so because of the Tribunal's general and specialised knowledge of such matters.

299. I would reject the plaintiff's submission that the contrary should be inferred from a failure on the part of the Tribunal to adduce evidence, either as to what was taken into account, or even as to what documents the Tribunal had in its possession, electronically or on paper, then or on other occasions. On the one hand, the plaintiff's submission would seek to require the Tribunal to act as if it were a court sitting in conventional adversarial proceedings; on the other, the plaintiff would require the Tribunal to participate in these proceedings as if it were a partisan body. The notion that it would be appropriate that the Tribunal should take these contradictory stances at the same time should be rejected. The entire, general, protective immunity of a Justice of the High Court is conferred on the member of the Tribunal by s 435(1) of the Act[163].  The rationale for immunity from compulsory disclosure is the assurance that judges should be free in thought and independent in judgment.  That rationale naturally extends to an immunity from disclosing any or all aspects of the decision-making process itself[164].

     [163]"A member has, in the performance of his or her duties as a member, the same protection and immunity as a member of the Administrative Appeals Tribunal."

     [164]Herijanto v Refugee Review Tribunal (2000) 74 ALJR 698; 170 ALR 379.

300. To the extent that Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia[165], ARM Constructions Pty Ltd v Commissioner of Taxation[166], Prasad v Minister for Immigration, Local Government and Ethnic Affairs[167], Xiang Sheng Li v Refugee Review Tribunal[168], and other cases cited by the plaintiff might suggest otherwise, I would, with respect, disagree with them.  If it were otherwise, the Tribunal would risk an appearance of partisanship.  To find for the plaintiff on this argument would inhibit the performance of the Tribunal's functions.  Additionally, it could have the capacity to inhibit the use, that is, the proper use, by a specialist tribunal of the special knowledge that it has accumulated in carrying out its functions.  It would encourage the active participation of a defendant of the Tribunal in collateral challenges to its decisions in this Court and the Federal Court[169]. It would effectively compel the Tribunal to do more than what it is required to do under the Act, which is, in substance, to make a decision in accordance with the procedures prescribed by the Act and to commit that decision to writing. And it would mark a departure from the well-established principle that, in general, a court or tribunal is taken to have exposed its thinking and reasoning, or indeed has failed to do so when it should have, in its reasons for decision.

     [165](1996) 67 FCR 40.

     [166](1986) 10 FCR 197 at 205 per Burchett J.

     [167](1991) 101 ALR 109 at 123.

     [168](1994) 36 ALD 273.

     [169]See R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36.

301. I would reject the first two basic submissions of the plaintiff.  In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah, McHugh J described totally new material bearing on the applicant's case which heavily influenced the decision-maker's adverse decision, and which the applicant was given no opportunity to deal with, as "decisive"[170].  His Honour added that the material there was not of such a kind that the applicant could reasonably have expected it to be used.  In my view, neither feature is necessarily present in this case.

     [170](2001) 75 ALJR 889 at 912-913 [142]; 179 ALR 238 at 270.

302. Nonetheless, the plaintiff's subsidiary submission with respect to the way in which he was misled and his conduct was affected should be accepted.  This case has features in common with Re Refugee Review Tribunal; Ex parte Aala[171].  There the Tribunal had caused the applicant to believe that a particular state of affairs relating to the manner in which he might choose to conduct his case existed, when in fact that state of affairs did not exist[172].  This case is relevantly indistinguishable.  By the Deputy Registrar's letter of 30 March 1998, the plaintiff was advised that the Tribunal would look at the documents about the plaintiff's case along with any other evidence on the Tribunal file.  Because the documents were not sent to the Tribunal, I infer that that did not in fact happen. 

     [171](2000) 204 CLR 82.

     [172](2000) 204 CLR 82 at 152 [206] per Callinan J.

303. There are Agreed Facts about the belief that the letter engendered in the mind of the plaintiff as follows:

     "After reading the Tribunal's letter dated 30 March 1998, the Plaintiff was then under the clear belief that the Tribunal would be sent all the documents about his case which were then held including:

     (a)the decision of the delegate dated 9 March 1998; and

     (b)a copy of each [of] the Part B documents;

     and that the Tribunal would look at all that material in the making of its review on the papers.

     On or about 1 April 1998 the Department dispatched its file concerning the Plaintiff to the Registrar of the First Defendant.  The file did not include hard copies of any of the Part B documents or copies in electronic form."

304. In view of the letter, I would conclude that the plaintiff's belief was an entirely reasonable one.

305. The Deputy Registrar of the Tribunal, on 13 October 1998, advised the plaintiff as follows:

     "The Tribunal has looked at all the papers relating to your application but it is not prepared to make a favourable decision on this information alone.  You now have an opportunity to come to a hearing of the Tribunal to give oral evidence in support of your claims."

     For the reasons I have given, the Tribunal had not looked at all the papers relating to the application.  Once again, therefore, the plaintiff was misled.

306. It was further agreed that the plaintiff received the Tribunal's letter dated 13 October 1998 and that, after the plaintiff had read, completed and signed an accompanying "Response to Hearing Offer" form, he was under the clear belief that the Tribunal had already conducted a review on the papers in relation to his application and had looked at all of those papers referred to in the preceding paragraph.  That too was a reasonable belief for the plaintiff to have held.  Further, it is agreed that, had the plaintiff known that the Tribunal had not been provided with all of the documents, he would have prepared and conducted his case before the Tribunal differently.

307. The fact that some of the documents would undoubtedly have been on a database to which both the Department and the Tribunal had electronic access, and that the Tribunal resorted to the database from time to time does not, in the circumstances of this case, including the misleading statements in the letters to the plaintiff, the fact that not all of the Part B documents were on that database at the relevant time, and the fact that the Tribunal's decision does not disclose whether all of the Part B documents were before it in any form, avail the defendants.

308. I adhere to what I said in Aala and would adopt the same approach here as I did there[173]:

     "In some respects this case is also similar to R v Muir; Ex parte Joyce[174] which was decided before the doctrine of legitimate expectation had evolved to the extent that it now has.  In Muir the respondent Board had, by its actions, led the prosecutor to believe that certain measures might be adopted in relation to his application, which in fact it had no intention of adopting.  In the circumstances the prosecutor was unable to present his case in full[175].  In a case of such a kind, of which this is an example, it is probably not even necessary to invoke and apply a principle of legitimate expectations.  McHugh J was in dissent in Teoh, but his Honour's observations, regarding procedural fairness, are not, I think, affected by that.  His Honour said[176]:

     'I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials.  In the absence of a clear contrary legislative intention, those rules require a decision‑maker "to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it"[177].  If that approach is adopted, there is no need for any doctrine of legitimate expectations.  The question becomes, what does fairness require in all the circumstances of the case?'

     The case may be contrasted with Abebe[178] and Eshetu[179].It is not one in which the Tribunal may have failed to record some factual findings in reaching its conclusions.  And, the case is far removed from Abebe in which, even though the Tribunal was not bound to do so, it repeatedly stressed matters that might be of importance to the plaintiff in the determination of her entitlement to a visa[180]."

     [173](2000) 204 CLR 82 at 155-156 [213]-[214].

     [174][1980] Qd R 567.

     [175][1980] Qd R 567 at 579 per Dunn J.

     [176](1995) 183 CLR 273 at 311-312.

     [177]Kioa v West (1985) 159 CLR 550 at 587.

     [178](1999) 197 CLR 510.

     [179](1999) 197 CLR 611 at 629 [54]-[55] per Gleeson CJ and McHugh J, 656-657 [143]-[145] per Gummow J.

     [180](1999) 197 CLR 510 at 607-608 [294]-[296] per Callinan J.

309. The plaintiff was misled.  He not unreasonably acted on the basis of what he had been told.  In the circumstances, he was not accorded natural justice.

310. It follows that I would answer the questions as follows:

     (1)Was there a failure to accord the Plaintiff procedural fairness?

     Yes.

     (2)Was there a failure to comply with s 418(3) of the Migration Act?

     Unnecessary to answer.

     (3)Was there a failure to comply with s 424(1) of the Migration Act?

     Unnecessary to answer.

     (4)If the answer to any of questions (1) to (3) is yes,

     (a)Was the decision of the First Defendant to affirm the refusal of the delegate to grant a protection visa for that reason invalid?

     Yes.

     (b)What declaratory, injunctive or prerogative writ relief, if any, should be ordered?

     Certiorari to quash the decision.  Mandamus requiring the first defendant to hear the plaintiff's application according to law.  Prohibition to prevent the second and third defendants from acting on the Tribunal's decision.

     (5)By whom should the costs of the proceedings in this Court be borne?

     The second and third defendants.

     Lie

311. This case was argued at the same time as Muin and, as with that case, there are said to be other applicants in the same position as Ms Lie.  The issues raised are, in several respects, the same as in Muin.  There is no suggestion here, however, that material adverse to the interests of the plaintiff was taken into account without her being given an opportunity to respond to it, and it is known that every one of the items identified in Part B of the delegate's discussion record was available to the Tribunal, either electronically or in hard copy.

312. Some other differences in the detail are also relevant and important.  The delegate explained his practice and the system in this way:

     "I [the delegate] have on earlier occasions attached to the file copies of the information I had regard to in making decisions.  I did so thinking it would assist rejected applicants to understand my decision if they made an FOI application, and that it would assist auditors to understand my decisions when I approved applications.  When I did so, the file would invariably become very thick with paper, and this would sometimes also necessitate the creation of a second file to hold all the information.  It often became a laborious, time consuming and cumbersome administrative exercise to manage such a large volume of material on departmental files to which all such material was attached.  As a result I was discouraged by management from including such information on file, especially if such information was readily available 'public domain' information or was contained in the CISNET computer system.

     As noted above, my practice was that the information relied upon, and its source, was listed in Part B of the decision record.  I understood that the RRT would have a copy of my decision and had access to all the country information sources that I did including library resources and the CISNET computer system.

     By contrast, I recall that information which was specific or personal to the protection visa applicant or which was supplied by them was usually to be retained on that applicant's file.

     …

     I cannot specifically recall preparing the Departmental file in the Plaintiff's case for transfer to the 'Onshore Refugee (NSW) Put Away Area' and possible RRT review.  However, from reading exhibit 'ANH-1', I believe that I acted in accordance with the practice and understanding outlined in the previous paragraphs of this affidavit."

313. It was an Agreed Fact that members of the Tribunal could easily obtain access to the Part B documents:

     "Each of the Part B documents was available to Members and the Registry and administration staff of the Tribunal from the dates, and from the source, set out in Schedule 1 hereto in and to the extent that:

     (a)They could each go to their own desktop computer (if they had one) or a computer terminal or a computer somewhere at the Tribunal's offices, manually access the CISNET database, download the information to the Tribunal's computer screen, and then, view the relevant Part B documents on the computer screen;

     (b)They could each apply to the Department's CIS Library in Canberra for an inter-library loan or to be provided with a copy of the relevant Part B document;

     (c)They could each physically attend the Tribunal library to view or copy the relevant Part B documents by way of a computer terminal, a computer, or in hard copy form and they could each request the Tribunal Library staff to obtain a copy for them; and

     (d)They could each physically attend the New South Wales State Library to view or copy the relevant Part B documents by way of a computer terminal, a computer, or in hard copy form and they could each request the Tribunal Library staff to so obtain a copy for them."

314. Sometime between 17 April 1997 and 21 April 1997 the Department dispatched its file concerning the plaintiff to the Registrar of the Tribunal.  The file did not include copies on paper of any of the Part B documents or copies in electronic form that were transmissible from one computer to another.

315. The Deputy Registrar wrote a somewhat different letter to this plaintiff from the one written to Mr Muin following the decision of the delegate:

     "The Tribunal has asked the Department of Immigration and Multicultural Affairs to send a copy of its documents about your case to the Tribunal.

     We will get in touch with you when the Tribunal is ready to deal with your case."

316. The plaintiff said that her state of mind was as follows:

     "After reading the Tribunal's letter dated 17 April 1997, the Plaintiff was under the clear belief that the Tribunal would be sent all the documents about [her] case which were then held by the Department including:

     (a)the decision of the delegate dated 13 March 1997; and

     (b)a hard copy of the Part B documents

     and that the Tribunal would look at all that material in the making of its review on the papers."

     That may not have been an unreasonable belief.  It was not, however, a necessary or an inevitable one, and it reads a great deal into the letter.

317. It was an Agreed Fact that the plaintiff would have acted in the following way:

     "Had the Plaintiff been aware of the fact, if it be the fact, that the Department or the Third Defendant did not ever physically transfer to or send to the Tribunal all of the Part B documents at any time prior to the making of the Tribunal's decision on 6 January 1998 then she would have:

     (a)arranged to have a migration agent or a solicitor/migration agent act for her in order to make written submissions to the Tribunal and seek to appear at the oral hearing with her or on her behalf;

     (b)made submissions to the Tribunal going to the content of the Part B documents highlighting the passages in those documents which assisted her case concerning the then bad situation of ethnic Chinese people in Indonesia and challenging the correctness of that part of the Part B documents which was adverse to her case before the Tribunal;

     (c)sought to bring forward before the Tribunal additional evidence to that which she sent to the Tribunal by way of documents, statements, further witnesses or country information which went to the question of the true position in [her] home country, Indonesia, to the effect that it was unsafe for [her] to return home and supporting her claims that her stated fears of persecution in Indonesia were reasonable at the time; and/or

     (d)would have undertaken research or further research and submitted to the Tribunal additional information or documents of the type or kind referred to or contained in [various identified] examples of Tribunal decisions which were favourable to ethnic Chinese persons from Indonesia seeking refugee status in Australia and which contain references to other material dated before the date of the delivery of the Tribunal's decision of 6 January 1998 …"

318. For reasons that will appear, the failure of the plaintiff to do what she said she would do did not result in either procedural or substantive unfairness. Any breaches of s 418 and s 424 were, at most, extremely technical and insignificant. The Part B documents were clearly identified to both the Tribunal and the plaintiff. The delegate had thought them relevant and had identified them as such in his decision. The plaintiff knew that. The documents were also readily accessible to the Tribunal. Whether the Tribunal actually physically received or was sent them is thus beside the point. It would not have been difficult for the plaintiff, or an agent on her behalf, to obtain copies of the documents had she wished and to make submissions on them.

319. There was nothing misleading about the Tribunal's conduct.  The Deputy Registrar's letter of 17 April 1997 did not state that the Tribunal would review, read or necessarily rely on the Department's documents.  There was, unlike in the case of Muin, only one letter.  It said that the Tribunal had asked the Department for copies of the documents, and that it would be in touch.  That was all.  It hardly amounted to a misleading representation. 

320. The plaintiff knew what the issues were.  It was obvious from the reasons of the delegate that the current and future situation in Indonesia with respect to Chinese people would be a relevant matter in the Tribunal's decision.  The delegate had accepted that there had been both discrimination and violence towards people of Chinese ethnicity in Indonesia, but that the Indonesian government had acted to contain such violence and had prosecuted the perpetrators.  The plaintiff could not fail to know that this was what the Tribunal would focus upon and that she could respond to it as she saw fit.  She was given a full opportunity to bring forward to the Tribunal whatever material she wished on that issue.  The Tribunal was not obliged to give the plaintiff notice in advance of all or any particular matters to which it might have regard.  The plaintiff could not point to anything in the material that was decisive or critical, and to which she could have usefully responded.  No breach of natural justice has therefore occurred.

321. This case is quite different from Re Minister for Immigration and Multicultural Affairs; Ex parte Miah[181] in significant respects.  Miah was concerned with the decision of the delegate.  The information there was directly relevant to the applicant; it was new; it was critical; and it could, and should, readily have been brought to the applicant's attention so that it could be dealt with.

     [181](2001) 75 ALJR 889; 179 ALR 238.

322. In this case, the Tribunal summarized the claims put forward by the plaintiff in documents prepared by her migration agent under the heading "Claims and Evidence".  Those claims were to a considerable extent abandoned by her in the course of the hearing by the Tribunal.  Her evidence was described by the Tribunal in this way:  she was a Buddhist, not a Christian; she was a street seller, not a secretary; and she had not suffered any violence causing personal injury.  The Tribunal concluded that she had "suffered neither discrimination nor persecution" on the basis of her religion, and had been subject "at the most to discrimination, not persecution" on the basis of her Chinese ethnicity.  The Part B documents dealt with the public situation and there was nothing in them that had a particular bearing on her personal history.

323. The Tribunal went even further.  It considered whether there was independent information available which suggested that, as a Buddhist of Chinese background, she had a well-founded fear of persecution.  In considering that matter, the Tribunal made factual findings which were favourable to the plaintiff:

     "There is no question that Chinese in Indonesia have been subject to periodic episodes of violence over a long span of time."

     The Tribunal also considered "whether there [was] a real chance that at some time in the foreseeable future she could experience violence of sufficient seriousness to be classified as persecution".  The Tribunal's conclusion on that was as follows:

     "Therefore, while acknowledging the very real threats under which some Chinese in Indonesia evidently live, the Tribunal concludes that the present Indonesian Government is not itself anti-Chinese, and is willing and able to act to protect Chinese when they come under threat from private individuals or groups.  It is true that they may not always be 100% effective in doing so.  However, no government is able to offer a 100% guarantee of protection to all its citizens.  On the evidence available to the Tribunal, the Indonesian Government is willing and able to offer the level of protection to Chinese which a citizen is entitled to expect from his or her government."

     As I noted earlier, the relevance of the situation of Chinese people in Indonesia was apparent from the delegate's reasons.  The plaintiff could not fail to know that the Tribunal would deal with it.  She lost no opportunity to present her case in such a way as to meet that issue.

324. The Tribunal expressly referred to documents that supported the plaintiff.  Reference need be made to one document only:  an article by David Jenkins in the Sydney Morning Herald of 2 May 1994, which dealt both with anti-Chinese riots and with anti-Chinese feeling in the Indonesian armed forces.  This was a clear example of a document in the plaintiff's favour.  That the Tribunal took it into account is evident from the fact that it was referred to on no fewer than four occasions in the Tribunal's reasons.

325. In relation to inferences, I would say this.  It is very difficult to accept that applicants or their advisers would fail to understand that there would readily be available to decision-makers a quantity of country information, regularly updated, to which access would be made.  The major pieces of information, such as country profiles prepared by the Department of Foreign Affairs and Trade, country reports prepared by the US State Department, the Minority Rights Group International report, "The Chinese of East Asia", the Human Rights Watch–Asia report, "Indonesia:  The Medan Demonstrations and Beyond", together with some of the ephemeral media articles, are the very sorts of materials to which decision-makers would look.

326. I summarize my reasons in this way.  The letter in this instance was not misleading; unlike in Muin, there were not two explicitly misleading letters. Accepting as I do that the plaintiff believed that she would have acted differently but for the letter, I cannot accept that she would have been acting reasonably in doing so. The plaintiff did not identify any critical or decisive matters in any of the documents. Indeed, the defendants have effectively established the contrary. The matters with which the documents dealt were matters in no way peculiar to the plaintiff. They were matters within the first defendant's general and specialized knowledge. The plaintiff at all material times knew what the issues were and knew that it was open for her to address them. And a number of claims made by the plaintiff to the first defendant were not accurately made. There was therefore no failure to accord the plaintiff procedural fairness, and she suffered no substantive unfairness. Because of what I have said, it is unnecessary for me to decide whether any breaches of ss 418 and 424 occurred. If they did, it would be because "documents" within the meaning of the Act (as opposed to what the authors of the letters may have been describing or referring to) must always mean matter written on paper (an issue which I do not decide one way or another); and if, in consequence, the plaintiff had an arguable case for relief under s 75(v) of the Constitution, for the reasons summarized in the paragraph, I would still, on discretionary grounds, refuse relief.

327. Accordingly I would answer the questions as follows:

     (1)Was there a failure to accord the Plaintiff procedural fairness?

     No.But if there were relief it should be refused on discretionary grounds.

     (2)Was there a failure to comply with s 418(3) of the Migration Act?

     Unnecessary to answer but if there were its extreme technicality would not provide a ground for relief in the circumstances of this case.

     (3)Was there a failure to comply with s 424(1) of the Migration Act?

     Unnecessary to answer but if there were its extreme technicality would not provide a ground for relief in the circumstances of this case.

     (4)If the answer to any of questions (1) to (3) is yes,

     (a)Was the decision of the First Defendant to affirm the refusal of the delegate to grant a protection visa for that reason invalid?

     No.

     (b)What declaratory, injunctive or prerogative writ relief, if any, should be ordered?

     None.

     (5)By whom should the costs of the proceedings in this Court be borne?

     The plaintiff.