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3 The appellants, who are father and son, are Sri Lankan nationals of Tamil background, appeal against the orders of a Judge of this Court made on 3 February 2003 dismissing an application made under s 39B of the Judiciary Act 1903 (Cth) seeking writs and orders in respect of a decision of the Refugee Review Tribunal (the Tribunal) made on 21 September 2001 and handed down on 16 October 2001. The decision of the Tribunal affirmed a decision of a delegate of the respondent Minister rejecting the appellants’ claims for protection visas.

4 It was common ground before the primary judge and on appeal that the application was governed by the amending legislation passed in 2001 and effective from 2 October 2001. In particular, the privative clause, s 474 of the Migration Act 1958 (Cth) (the Act) potentially applied.

NABC v Minister for Immigration and Multicultural and Indigenous Affairs [2

NABC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 317 (24 December 2003)
Last Updated: 24 December 2003

FEDERAL COURT OF AUSTRALIA


NABC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 317


MIGRATION – procedural unfairness – belief that delegates Part B documents had been sent to the RRT.


Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 474

FAI Insurances Limited v Winneke (1982) 151 CLR 342 referred to
Kioa v West (1985) 159 CLR 550 referred to
Muin v Refugee Review Tribunal (2002) 190 ALR 601 discussed
NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298 cited
National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 referred to
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 cited
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 referred to
R v MacKellar; Ex parte Ratu (1977) 137 CLR 461 referred to
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 discussed
Salemi v MacKellar [No 2] (1977) 137 CLR 396 referred to


















NABC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 147 of 2003

RYAN, FINKELSTEIN & ALLSOP JJ
24 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 147 of 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: NABC
APPELLANTS
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: RYAN, FINKELSTEIN & ALLSOP JJ
DATE OF ORDER: 24 DECEMBER 2003
WHERE MADE: SYDNEY


THE COURT ORDERS THAT:


1. The appeal be allowed.
2. The orders of the Court made on 3 February 2003 be set aside, and in lieu thereof it be ordered that:
(a) a writ of certiorari issue to quash the decision of the Refugee Review Tribunal made on 21 September 2001 and handed down on 16 October 2001 in respect of the applicants;
(b) an order that the respondent refrain from taking any step to act on the said decision;
(c) a writ of mandamus issue requiring the respondent to cause the Tribunal to determine the application of the applicants according to law; and
(d) the respondent pay the applicants’ costs.
3. The respondent pay the appellants’ costs of the appeal.





Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 147 of 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: NABC
APPELLANTS
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: RYAN, FINKELSTEIN & ALLSOP JJ
DATE: 24 DECEMBER 2003
PLACE: SYDNEY


REASONS FOR JUDGMENT


RYAN J:


1 I have had the advantage of reading in draft the reasons of Allsop J. I agree with those reasons and the orders proposed by his Honour.


I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.



Associate:


Dated: 24 December 2003


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 147 of 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: NABC
APPELLANTS
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: RYAN, FINKELSTEIN & ALLSOP JJ
DATE: 24 DECEMBER 2003
PLACE: SYDNEY


REASONS FOR JUDGMENT


FINKELSTEIN J:


2 I agree with the orders proposed by and in the reasons of Allsop J.


I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.



Associate:


Dated: 24 December 2003


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 147 of 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: NABC
APPELLANTS
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: RYAN, FINKELSTEIN & ALLSOP JJ
DATE: 24 DECEMBER 2003
PLACE: SYDNEY


REASONS FOR JUDGMENT


ALLSOP J

Introduction and background

3 The appellants, who are father and son, are Sri Lankan nationals of Tamil background, appeal against the orders of a Judge of this Court made on 3 February 2003 dismissing an application made under s 39B of the Judiciary Act 1903 (Cth) seeking writs and orders in respect of a decision of the Refugee Review Tribunal (the Tribunal) made on 21 September 2001 and handed down on 16 October 2001. The decision of the Tribunal affirmed a decision of a delegate of the respondent Minister rejecting the appellants’ claims for protection visas.

4 It was common ground before the primary judge and on appeal that the application was governed by the amending legislation passed in 2001 and effective from 2 October 2001. In particular, the privative clause, s 474 of the Migration Act 1958 (Cth) (the Act) potentially applied.

The application

5 The further amended application (the application) contained three grounds which were in the following terms:

1. The Tribunal erred in law amounting to jurisdictional error in determining whether the harm suffered by the applicant son amounted to persecution.
Particulars
(a) The Tribunal accepted that the applicant son, when arbitrarily detained on 14 January 2000, had been pushed against the wall, kicked and punched including in the genitals. The tribunal described the harm suffered by the applicant son during this detention as "serious mistreatment’.
(b) The Tribunal said (in fact, erroneously) that the applicant son had not in his written evidence claimed that he was "tortured" in January 2000.
(c) The Tribunal said that the independent country information did not suggest that persons detained in such situations are tortured or seriously mistreated.
(d) The Tribunal said that in independent reports before the Tribunal about the persons detained for 24 or 48 hours in January 2000, there was no suggestion that they were tortured or seriously mistreated.
(e) In finding that the harm suffered by the applicant son was not so serious as to amount to persecution, the Tribunal (i) equated persecution with serious mistreatment or torture, and (ii) failed to address the correct question, namely whether the applicant son’s well-founded fear was that he would suffer harm of some significance, as opposed to trivial or insignificant harm: Kanagasabai v MIMA [1999] FCA 205 at [21]-[30]; Gersten v MIMA [2000] FCA 855 at [42]-[48]; Kord v MIMA [2001] FCA 1163 at [15]-[37].
(f) The errors of law referred to in (e) above amount to jurisdictional errors: Craig v South Australia (1995) 184 CLR 163 at 179; MIMA v Yusuf (2001) 180 ALR 1 at [82].

2. The Tribunal erred in law amounting to jurisdictional error in finding that the incident in January 2000 was "the unsystematic and random act of a sadistic individual and was in that sense, non-selective or non-discriminatory" and as such did not amount to persecution within the meaning of the Convention.
Particulars
(a) The Tribunal expressly relied on the dissenting reasons for judgment of McHugh J in MIMA v Ibrahim (2000) 175 ALR 585 at [99] and Brennan CJ in Applicant A v MIEA (1997) 190 CLR 225 at 233.
(b) By focussing on questions whether the conduct was "unsystematic", "random", "non-selective" or "non-discriminatory", the Tribunal has failed to address the correct question, namely, whether his well-founded fear was for a Convention reason; cf Ibrahim at [147].
(c) The applicant son was detained because he was a Tamil. He suffered the serious harm which the Tribunal found he suffered because he was Tamil. It follows that his well-founded fear was for a Convention reason.

(f) The errors of law referred to above amount to jurisdictional errors: Craig v South Australia (1995) 184 CLR 163 at 179; MIMA v Yusuf (2001) 180 ALR 1 at [82].
3. The Tribunal’s decision is void, and respondent is estopped from contending otherwise, by reasons of the decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 and facts that, in this case:
(A) The Minister’s delegate did not send to the Tribunal the documents numbers 1-17 at RD 121 ("the Part B documents").
(B) The applicants believed that the Tribunal had before it the Part B documents when it was conducting its review.
(C) Had the applicants known that the Tribunal did not have the Part B documents they would have taken steps to bring the parts of those documents which favoured their case to the attention of the Tribunal.

The approach of the primary judge

6 The primary judge pronounced orders and published reasons for judgment on 3 February 2003. At that time, the disposition of the controversy, insofar as the application of s 474 of the Act was concerned, was governed by the Full Court decisions heard together and commonly cited by the title of the leading judgment: NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298. This was recognised by counsel in argument before the primary judge. The primary judge dealt with grounds 1 and 2 of the application as follows in [2] of her Honour’s judgment.

[2] ...The first two grounds were only formally relied upon as they are drawn on the assumption that NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 (‘NAAV v MIMIA’) is wrongly decided. The applicants, by their counsel, recognised that the Court is bound to dismiss the application to the extent that it is supported by these grounds. The applicants formally submitted that NAAV v MIMIA is wrongly decided, including on constitutional grounds. However, they recognise that sitting as a single judge, I am bound by the construction of s 474 of the Migration Act 1958 (Cth) (‘the Act’) adopted by the majority of the Full Court in NAAV v MIMA.

7 Thus, in conformity with the formal nature of counsel’s submission, grounds 1 and 2, raising asserted jurisdictional error, were not dealt with by the primary judge on their merits.

8 The third ground was dealt with by primary judge as primarily one raising a form of estoppel or abuse of process. Her Honour rejected this. There was no appeal referable to this part of her Honour’s reasons.

9 There was some dispute in the submissions on appeal as to whether, and the extent to which, the parties agitated before the primary judge, and the primary judge dealt with, an asserted claim, argued on appeal, that the Tribunal had not afforded the appellants procedural fairness, in a manner and in respects the same as, or similar to, that discussed by the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. In dealing with this debate, both the appellants and the respondent relied on the terms of [3] of the application and the terms of the written submissions on behalf of the appellants put to the primary judge and set out in [9] of the primary judge’s reasons, which were in the following terms:

8. But for the fact that the Tribunal, which having taken 17 months to determine the review, and despite having "made" its decision on 21 September 2001, delayed handing down its decision until 16 October 2001, this application would be on all fours with Muin.
9. Pursuant to Muin and MIMA v Bhardwaj (2002) 76 ALJR 598, the decision would have been void.
10. Moreover, by reason of his being bound by those decisions, the Minister would have been estopped and it would have been an abuse of process for the Minister to contend that this decision was other than void: cf Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198.

11. The central question then is in what manner if at all has the enactment of the amendments accompanying the insertion of s474 into the Act changed the position that would formerly have applied?

12. The repeal of former s476(2) precluding review by reason of a breach of natural justice confirms that the defect identified in Muin is one from which the Federal Court is not precluded.

13. Does s474 itself make any difference to this result? There is a short reason why it does not.

14. Section 474 is directed to the status of decisions, not to the conduct of parties to litigation. There is nothing in s474 to cure conduct by the Minister in defending litigation that would otherwise be an abuse of process or subject to an estoppel.

15. It may be suggested that this conclusion is inconsistent with several Full Court decisions namely VAAR of 2002 v MIMIA [2002] FCAFC 252, NADD of 2001 v MIMIA [2002] FCAFC 275 and NADR v MIMA [2002] FCAFC 293, to which the answer is:

(a) first, none of those decisions are decisions where the applicant adduced evidence bringing him or her within what was held by Muin;
(b) secondly, in none of those decisions does it appear that the foregoing argument was put.
10 Mr Leeming, who appeared on the appeal for the appellants, appeared for the applicants below. Mr Johnson, who appeared as junior counsel on the appeal, appeared for the respondent below.

11 It is clear from her Honour’s reasons, and the approach of counsel at the hearing below, that the hearing proceeded on the basis of the constraining effect of NAAV. Hence, it was fruitless to simply assert a lack of procedural fairness. It was clear from one of the decisions in the NAAV appeals that the Full Court had held that the privative clause protected or insulated a decision otherwise seen to be affected by a failure to afford procedural fairness. Thus, the pleader sought to add an element to [3] of the application: estoppel and abuse of process. Embedded within that claim, however, was an implicit assertion that there had been a denial of procedural fairness as explicated by paragraphs (A), (B) and (C) under [3] of the application.

12 The primary judge approached ground 3 of the application by first making factual findings in [4] to [8] of her Honour’s reasons as follows:

[4] I accept the evidence of the younger of the applicants that, as between him and his father, he was primarily responsible for the handling of their application for protection visas. I further accept his evidence that he received and read letters from the Tribunal dated 28 April 2000 and 3 January 2001. The letter dated 28 April 2000 invited the applicants to send to the Tribunal ‘new documents or written evidence’ but advised that they should not send any documents or written arguments already given to the Tribunal or the Department. The letter of 3 January 2001 advised the applicants that the Tribunal ‘has looked at all the material relating to your application but is not prepared to make a favourable decision on this information alone’. Having regard to this letter the applicant believed that there had been sent to the Tribunal all of the material upon which the delegate had relied.


[5] The respondent admits that certain documents (‘the documents’) referred to on page 2 of the decision record of the delegate of the respondent (‘the delegate’) were not sent by the delegate to the Tribunal. However, the respondent does not admit that the Tribunal did not have access to those documents or that the documents were not considered by the Tribunal.

[6] The respondent, by his counsel, challenged the evidence of the younger of the applicants that, had he known that the Tribunal had not been sent copies of the documents:

(a) he would have drafted the written submissions which he provided to the Tribunal differently; and

(b) he would have included additional documents in the material that he provided to the Tribunal including an Amnesty International Report ‘Sri Lanka: Wavering commitment to human rights’ and drawn attention to statements concerning the mistreatment of detainees.


[7] However, I am satisfied, on the balance of probabilities, of the truthfulness of the evidence of the younger of the applicants in the above regards. I accept that, had he known that the Tribunal had not been sent copies of the documents, he would have drafted his submissions differently and would have sent a copy of the document ‘Sri Lanka: Wavering commitment to human rights’ to the Tribunal.

[8] I do not, however, draw the conclusion that the Tribunal did not consider the contents of the documents that were before the delegate. I see no reason to disbelieve the statement contained in the Tribunal’s letter of 3 January 2001 that it had looked at ‘all of the material’ relating to the applicants’ application. I note that the document ‘Sri Lanka: Wavering commitment to human rights’ is listed, along with other documents, under the heading ‘Part B Evidence Before Me’ in the decision record of the delegate. The assertion of the Tribunal that it had looked at ‘all the material’ relating to the applicants’ application is to be understood, in my view, to include the material so listed. The facts agreed in Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966 (‘Muin’s case’) led the majority of the High Court to a different factual conclusion in that case. There are no comparable facts agreed in this case. In this case I consider it appropriate to take into account the ready accessibility of documents such as ‘Sri Lanka: Wavering commitment to human rights’ on the internet.

13 After recording the submissions set out at [9] above, the primary judge dealt with the estoppel and abuse of process argument. Her Honour rejected this argument in part because of a view that this case and Muin were relevantly distinguishable. There was no express statement that there had been no denial of procedural fairness. That can be explained by her Honour’s application of NAAV. In [15] of her reasons, after referring to NAAV and like Full Court decisions after it on the question of procedural fairness and s 474, the primary judge said:

...Thus, even if I were satisfied that the applicants had been denied procedural fairness by the Tribunal, the decision of the Tribunal with respect to the applicants could not be set aside.

14 In my view, the question of an asserted denial of procedural fairness was raised in the application and the submissions, at least implicitly, if not explicitly. Ground 3 of the application and the submissions set out at [9] above raised the issue. It was the foundational premise of the estoppel and abuse of process claims. The primary judge made factual findings directed to the equivalence of the facts with Muin and, implicitly, the underlying assertion of a denial of procedural fairness. Though NAAV was seen to govern the disposition of the matter, the terms of [15] of her Honour’s reasons indicate that her Honour was not satisfied that there had been any denial of procedural fairness. In fairness to the primary judge, however, a detailed consideration of, and specific findings about, the topic were unnecessary by reason of the governing operation of NAAV.

S 157 is published

15 On the morning following the delivery of judgment by the primary judge, the High Court pronounced orders and published its reasons in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

16 The appellants promptly made an application for the primary judge to recall the orders and reasons and to hear further argument. That application was dismissed.

The appeal

17 There are five grounds in the notice of appeal, as follows:

1. Her Honour erred in finding (at [15]) that a denial of procedural fairness was unreviewable by reason of s 474 of the Migration Act.
2. Her Honour erred in finding (at [8]) that, despite findings that the appellants would have drafted their submissions to the Refugee Review Tribunal (RRT) differently and would have sent different material to the RRT had the material sent to them by the RRT been accurate, that there was no breach of procedural fairness.
3. Her Honour erred in finding (at [8]) that the RRT had looked at the document "Sri Lanka: Wavering commitment to human rights".
4. Her Honour erred in failing to recall her judgment in circumstances where she had not determined grounds 1 and 2 of the application and the High Court had determined, in Plaintiff S157/2002, that the approach she had taken to s 474 was incorrect.
5. Her Honour erred in failing to determine that the decision of the RRT should be set aside for the jurisdictional errors identified in grounds 1 and 2 of the application.

18 The reasons of the High Court in S157 dictate the success of ground 5. Grounds 1 and 2 of the application are yet to be considered. The appellant sought that these grounds be remitted to the primary judge if its primary point on appeal – as to the asserted denial of procedural fairness – was unsuccessful. The respondent submitted that this Court should hear them in the appellate jurisdiction on rehearing.

19 The proposition in ground 1 of the notice of appeal also flows from the view of s 474 expressed in S 157.

20 Grounds 2 and 3 of the notice of appeal raise the procedural fairness issue.

21 Ground 4 is a procedural complaint which has no operation independently of a decision as to how to dispose of grounds 2, 3, and 5 of the notice of appeal.

My view of the disposition of the appeal

22 For the reasons which follow, and on the basis of the facts as found by the primary judge and on the basis of the material otherwise available, I conclude that there was a denial of procedural fairness, thereby leading to the conclusion that the decision of the Tribunal was made without authority and in excess of jurisdiction.

My reasons

23 It is necessary to begin with the relevant surrounding factual circumstances.

24 The delegate’s decision listed various documents under the heading "Part B Evidence Before Me". These documents contained various reported and unreported decisions, texts, and importantly for the argument, a document entitled:

Amnesty International, Sri Lanka: Wavering commitment to human rights, August 1996, page 21

25 As can be seen, the reference of the delegate was to p 21 of the document. Later in the delegate’s reasons, there was reference to this page, together with other footnotes in the discussion of country information.

26 The evidence did not demonstrate whether the whole of the document was before the Tribunal or only page 21. Nor could the form of page 21 be discovered in the evidence, or by counsel otherwise. These matters are not without importance, because although the use made of the Amnesty document by the delegate were relatively uncontroversial, there were other parts to the Amnesty document significantly favourable to the appellants’ claims.

27 On 28 April 2000, the Tribunal sent a letter to the appellant son which included the following paragraph:

We have 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 your papers and decide whether it has jurisdiction to consider your application. If so, it will then look at your papers along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour.
[emphasis added]

28 On 3 January 2001, the Tribunal sent a letter to the appellant son which included the following paragraph:

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 invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons.
[emphasis added]

29 This correspondence was materially identical to the correspondence in Muin: see the reasons for judgment of McHugh J and Hayne J in Muin at [81] and [253], respectively.

30 It was common ground that the documents listed in Part B of the delegate’s decision were not sent by the Department to the Tribunal.

31 The evidence of the appellant son that was accepted by the primary judge was, relevantly, encapsulated in [4] and [6] to [8] of his affidavit, which were in the following terms:

4. I remember receiving and reading the letters from the Tribunal dated 28 April 2000 (RD 140) and 3 January 2001 (RD 165). When I read each of those letters, I believed that there had been sent to the Tribunal all of the materials on which the Minister’s delegate had relied.

...

6. When I was preparing those submissions and documentation, I believed that the Tribunal had copies of all of the documents on which the Minister’s delegate had relied.

7. Had I known that the Tribunal had not been sent copies of those documents, I would have drafted the written submissions differently. I would also have included additional documents in the materials I provided to the Tribunal, including some of the important documents which the Minister’s delegate had referred to. For example, I would have drawn to the Tribunal’s attention the statements in the Amnesty International Report "Sri Lanka: Wavering Commitment to Human Rights: that confirmed that detainees were mistreated by the authorities.

8. I provided further submissions and documents to the Tribunal after the hearing on 20 February 2001. Again, had I known that the Tribunal did not have copies of the documents on which the Minister’s delegate had relied, I would have provided copies of some of those documents to her.
[emphasis added]

32 It can be seen that the appellant son referred both to the sending of the documents to the Tribunal: [4] and [7], of his affidavit and to the Tribunal "having" the documents: [6] and [8] of his affidavit.

33 This distinction was drawn by the cross-examiner in the questioning of the appellant son at the hearing before the primary judge. It was put to the appellant son that it did not matter to him whether any document (in particular the Amnesty document) had been physically sent by the Department to the Tribunal or whether the document was in fact on the internet and so available to the Tribunal, and in that sense, before or with, the Tribunal. For reasons that are not entirely clear, but which were partly apparently intuitive, and based on his view that the Tribunal was independent, the appellant son was adamant that he would have taken steps as set out in [7] of his affidavit if he had known the documents, but in particular the Amnesty document, had not been sent to the Tribunal. When questioned about the particular matters that he would have addressed, the appellant son said that he "could actually give further examples" (transcript p 32 corrected by agreement on appeal) beyond the Amnesty document. The cross-examiner neither challenged nor explored this evidence. There was no re-examination on this point.

34 It was in this context that the primary judge made the findings in [7] of her Honour’s reasons. The finding reflects the importance that the appellant son placed on knowing that the documents had been sent.

35 Implicit in the findings in [7] of the primary judge’s reasons was a conclusion that the appellant son acted reasonably in drawing from the letters a conclusion that all documents before the delegate would be, or had been, sent to the Tribunal. A fair reading of the letters supports that.

36 Before dealing with the balance of the primary judge’s reasons and the submissions of the parties, it is necessary to examine the decision in Muin.

The decision in Muin

37 I will restrict myself to the parts of the case that deal with the relevant procedural fairness argument, concerning "Part B" documents. There were two cases: that of Mr Muin and of Ms Lie. I will deal with that of Mr Muin first.

38 The correspondence to Mr Muin was described in the reasons of McHugh J and Hayne J at [81] and [253] as follows:

[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'."


...

[253] In Mr Muin's case, he was told by the deputy registrar of the tribunal that the tribunal had asked the department "to send a copy of its documents about your case to the tribunal" and that when the tribunal "receive[d] the Department's documents [it would] look at them along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour immediately". Later, [by letter dated 13 October 1998] the deputy registrar wrote to Mr Muin saying that:
"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."


39 The agreed facts included the following:

(b) The Part B documents were considered by the Secretary of the Department, through his delegate, to be relevant to the review of the delegate’s decision by the Tribunal (for the purpose of s 418(3) of the Act). (See [15] of the agreed facts in [14] of Gleeson CJ’s reasons.)
(c) All the Part B documents listed by the delegate were available to members of the Tribunal, either on computer or at various libraries. (See [17]-[20] and [27] in the agreed facts set out in [14] of Gleeson CJ’s reasons.)
(d) The Department did not send hard copies, or copies in electronic form, of the Part B documents to the Tribunal, as could have been done. (See [24]-[26] in the agreed facts in [14] of Gleeson CJ’s reasons.)
(e) The Tribunal member had a computer allowing access to the server with CISNET stored documents. (See [31] of the agreed facts in [14] of Gleeson CJ’s reasons.)
(f) The plaintiff believed that the Part B documents were sent to and looked at by the Tribunal in the making of the review on the papers and/or the final decision. (emphasis added) (See [42] of the agreed facts in [16] of Gleeson CJ’s reasons.)

40 Further agreed facts as to Mr Muin’s belief were contained in [43] of the agreed facts. (See [16] of Gleeson CJ’s reasons.) I will, because of their importance, set out the relevant parts in full, without paraphrase. I have excluded material from [43] which was adjacent to (ii). This related to another, and entirely distinct, complaint of a denial of procedural fairness that is not relevant here.

43 Had 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) ... 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."

[emphasis added]

41 It was common ground that some of the information in the Part B documents was favourable to Mr Muin.

42 Importantly, it should be noted that it was an agreed fact that Mr Muin would have acted as set out in (a) to (d) of [43] of the agreed facts if he had been of the view that the documents had not been transferred to, or sent to, the Tribunal. So, it was agreed, that this alternative body of conduct would have been undertaken irrespective of whether the Tribunal found, extracted and considered the Part B documents for itself. It is true, however, that Mr Muin believed that the Tribunal had looked at the documents: [42] of the agreed facts; but the agreed facts, as drafted, accepted that Mr Muin would have undertaken a significant course of conduct if the letters in question had informed him of the true position as to the documents not being sent to, or transferred to, the Tribunal.

43 The distinction between lack of despatch of the documents and the question of whether the Tribunal had or had regard to or looked at the documents otherwise must be borne in mind in considering the reasons of the Court in Muin.

44 Gleeson CJ saw the two elements of transfer and consideration as critical. His Honour summarised the position at [22]:

[22] The claim that there was a failure to accord procedural fairness, in so far 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.

[emphasis added]

45 Gleeson CJ was not prepared to conclude that the Tribunal had not "looked at all the material relating to [Mr Muin’s] application". Important to Gleeson CJ’s approach was that the representation that the "material relating to [the] application" had been "looked at" did not necessarily mean that the Tribunal member had the document in question before him or her or that he or she read it for this decision. The notion of "looking at all the material" was wider and encompassed the distinct possibility that the Tribunal member had looked at or had regard to or taken notice of the material on other occasions. It had not been demonstrated that the Tribunal member had not done this. The Chief Justice said at [23] and [24]:

[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 3 years before the tribunal's decision, and that one document was produced 2 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.


46 The distinction between the Tribunal "having" the documents or the documents being before the Tribunal, implicitly, in the course of, or for the purposes of, the review in question, or the Tribunal having reasonably contemporaneous regard to the documents, on the one hand, and being aware of or looking at or having regard to the material in the documents, though not necessarily specifically for this particular review, is central to understanding the differences between the Chief Justice and some of the justices in Muin.

47 Like Gleeson CJ, McHugh J was of the view that there was no denial of procedural fairness. McHugh J at [114] posited the issue in the following terms:

[114] For Mr Muin to succeed in this argument, the court must accept as a matter of fact that the tribunal had not considered the Part B material. The onus is on the plaintiff to make out the contention that the tribunal member did not " have before her; consider; and/or have regard to (most of) the Part B documents". I am not prepared to make that factual finding.
[emphasis added]
48 At [115] McHugh J set out how Mr Muin put his case:

[115] The plaintiff relies on several matters to support his submission. First, the decision refers only to four of the Part B documents, (the departmental file, and three standard legal references). Second, the file notes and working papers of the member [obtained on discovery] contain no reference to the Part B materials. Third, the failure of the tribunal member to participate and give evidence in these proceedings to explain the true position.
[interpolation supplied]

49 At [116]-[118] McHugh J rejected these submissions and concluded at [119] that Mr Muin had not discharged the onus of proof. Though McHugh J does not specifically refer to the possibility of the Tribunal considering the material on other occasions, that is perhaps implicit in his Honour’s reasoning, in particular in the following reference in [116]:

Tribunal members are expected to develop and build upon a body of expertise and general knowledge to the cases that come before them.

50 All the other justices (in Mr Muin’s case) found there to be an absence of procedural fairness in connection with the Part B documents. Gaudron J at [59] expressed Mr Muin’s belief in terms substantially reflective of (i) in [43] of the agreed facts. Her Honour said at [59]:

[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.

[emphasis added]

51 The belief of Mr Muin that the Tribunal had "received" the documents, involves a belief that they were received from the Department, that is that they were sent or transferred.

52 That expression of the matter left to one side the relevance of looking at or considering the material or information in the documents, or indeed, looking at or considering the documents themselves. Nevertheless, in the following paragraph ([60]), Gaudron J appears to accept the relevance of whether or not the Tribunal otherwise had the documents. Gaudron J was (unlike McHugh J) prepared to find that the Tribunal did not have, and did not have regard, to the Part B documents. At [60] Gaudron J said:

[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.

[emphasis added]

53 This was a factual conclusion, in part based on the terms of the decision of the Tribunal, in part based on the material before the Court. The material before the Court was comprised of the agreed facts, and included the results of discovery and inspection as referred to by McHugh J (and also by Callinan J).

54 At [62] and [63] of Gaudron J’s reasons, her Honour expressed herself both in terms of despatch of the documents ([62]) and in terms of despatch and consideration of the documents ([63]).

[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.

55 Gummow J at [171] expressed agreement with Hayne J on the questions concerned with procedural fairness.

56 Hayne J dealt with the effect of the agreed facts on the question of what the Tribunal had before it at [250] of his reasons, where his Honour said:

[250] The parties have agreed that, in each of the present cases, the secretary sent to the registrar the departmental file relating to the plaintiff but did not send any of the Part B documents. Further, facts are agreed from which it would be open to infer, in each case, that, neither before the tribunal conducted its review "on the papers", nor before it made its decision to affirm the decision refusing the grant of a protection visa, did it examine those Part B documents. In each case it is agreed that, if the plaintiff had known that the tribunal had not considered all the Part B documents to which the delegate had referred, the plaintiff would have taken various steps to place the information in the Part B documents and submissions about its significance before the tribunal.
[emphasis added]
57 With respect, the last sentence of [250] overstated the agreed facts. The agreed facts did not state that Mr Muin would have taken various steps if he had known that the Tribunal had not considered the documents; the agreed facts in [43] stated that these steps would have been taken by Mr Muin had he known that the documents had not been despatched, (transferred or sent by the Department to the Tribunal).

58 In [255], Hayne J again referred to the beliefs of Mr Muin in terms likewise not strictly in accordance with [43] of the agreed facts:

[255] In each case it was agreed that the plaintiff believed that the tribunal had the Part B documents and it was also agreed (as I have earlier mentioned) that if the plaintiff had known that the tribunal did not have them, he ... would have acted to correct that. The statements made to each plaintiff by a deputy registrar of the tribunal, when understood in the light of the express references to the Part B documents in the written reasons for decision by the minister's delegate, provided the foundation for each plaintiff holding the belief which it is agreed was held.
[emphasis added]

59 In [256], Hayne J referred to the agreement of the parties obviating the difficult factual and evidential issues that could arise in respect of the knowledge and beliefs of a party and how he or she might have otherwise acted, and then said the following:

[256] ... In particular, given what has been agreed between the parties, it is not necessary to consider whether the differences in the statements made by the tribunal to Mr Muin or Ms Lie about what it had received, and what it would consider, might be significant. The consequence of what has been agreed between the parties to each of the present actions is that each plaintiff was led to believe, by what the tribunal said, that it had material relevant to that plaintiff's claim which it did not.
[emphasis added]
60 The last four words of [256] contained a finding, not just that the Part B documents were not sent, but that the Tribunal did not "have" them. This is to be compared with the conclusion which Hayne J said at [250] "would be open to infer" – that the Tribunal did not "examine" the documents.

61 At [257] Hayne J said the following:

[257] The agreed facts are silent about whether the tribunal was aware of the information and opinions contained in the Part B documents. It may have been, but more importantly, it may not. It follows, therefore, that in each case, the plaintiff was denied procedural fairness. Neither plaintiff was given an opportunity to place before the tribunal the material and submissions which, on the agreed facts, it is accepted that he or she would have submitted if not mistaken about what was before the tribunal (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82). Moreover, it also follows from the parties' agreement that each plaintiff would have made further submissions and sought to adduce further evidence that the tribunal did not comply with the statutory provisions governing its conduct of the reviews of the plaintiffs' cases. It did not give each plaintiff the opportunity to make the submissions (s 423(1)(b)) or give the evidence (ss 423(1)(a), 425(1)(a)) which the plaintiff wished to make and give. For these reasons, question 1 of the questions reserved should, in each case, be answered "yes".
[emphasis added]

62 A number of things should be noted from [257]. The fact that it was not known whether the Tribunal knew of the information within the documents assisted in the conclusion ("It follows...") that there was an absence of procedural fairness. Further, it is not clear from the next sentence that even if it had been shown that the Tribunal was so aware of the information in the documents, that that would have made any difference to his Honour’s conclusion. Mr Muin was misled as to what was "before" the Tribunal and would have acted differently had he not been so mistaken. It would seem that the knowledge, otherwise, in the Tribunal member of the information and opinions within the documents would, or may, be foreign to how Mr Muin was misled.

63 Thus, Hayne J did not see as essential that Mr Muin had not proven that the Tribunal was not otherwise aware of the contents of the documents; rather the procedural unfairness arose from the fact that Mr Muin would have conducted his case differently had he not mistakenly believed that the documents were "before" the Tribunal (a finding of fact being made that they were not).

64 Kirby J framed the relevant question at [192]. His Honour called it the "misleading communication issue" and expressed himself as follows:

[192] Three critical issues: As appears from the questions referred, and from the analysis of them in other reasons, there are three categories of issue that must be decided. In the order of the questions asked, they are:


(1) Whether the plaintiffs, and each of them, were denied natural justice (procedural fairness) because they were misled by official communications into believing that the Part B documents that had been before the delegate would be given to the tribunal whereas it is now shown that they were not so given. (The procedural fairness – misleading communication issue).

...

[emphasis added]


65 The use of the verb "given" focused upon despatch, not upon whether the documents were before the Tribunal, or whether the Tribunal had the documents or whether the documents were considered by it or upon whether the Tribunal was aware, otherwise, of the information and opinions within the documents.

66 Kirby J dealt with the "misleading communication issue" at [194] to [204].

67 At [194] and [200] Kirby J agreed with the conclusion of Hayne J that, on the basis of the agreed facts, Mr Muin was misled into refraining from putting material to the Tribunal. At [200] Kirby J said that he would draw the same inferences as drawn by Hayne J at [256] and [257]. (Kirby J does not appear to have agreed with [250] in the reasons of Hayne J.)

68 Callinan J expressed Mr Muin’s case at [296] as follows:

[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. ... 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.
69 Callinan J made the following findings at [298]:

[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.
[emphasis added]

70 Callinan J, at [302], referred to his reasons in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 152 [206] and said:

[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 ((2000) 204 CLR 82). 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 ((2000) 204 CLR 82 at 152 [206] per Callinan J). 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.
[emphasis in original]

71 Thus, Callinan J saw as central to the unfairness caused by the first letter the representation that the Tribunal would look at the documents in a separate and contemporaneous manner in the conduct of the review, and also the fact, as found by his Honour, that it did not do so. Likewise, the second letter from the deputy registrar that the Tribunal had looked at all the material relevantly misled Mr Muin. See generally [302], [305] and [309].

72 Callinan J expressed himself in terms of both despatch and the separate and contemporaneous regard to the documents; both these matters were important because that was how the procedure had been represented to Mr Muin. It was not important to Callinan J (see [298]) that Mr Muin had not established that the Tribunal did not know of, and did not take into account, the matters to which the documents referred. What was important to his Honour was that Mr Muin had been led to believe that certain procedures would be adopted in relation to his application and they were not: see [302] to [309].

73 The following, relevant to this appeal can be stated about Muin. First, a matter of some importance in connection with the fact finding by the majority in Muin is the fact that the material before the High Court included the results of discovery and inspection which did not reveal any note or memorandum indicating that the Tribunal examined or had regard to the documents. McHugh J and Callinan J expressly referred to these matters: see [115], [116] and [296]. What was disclosed by discovery and inspection was relied on by Mr Muin in his submissions to the High Court. There was no such material before the primary judge here.

74 Secondly, the Chief Justice saw as fatal to Mr Muin’s case his inability to show that the Tribunal had not looked at the material relating to the application, which might have been done at times other than the undertaking of this specific review. This approach did not see as critical the question of the despatch of the documents or the documents being "before" the Tribunal or the Tribunal "having" the documents or having separate and reasonably contemporaneous regard to the documents.

75 Thirdly, McHugh J saw as fatal to Mr Muin’s case his inability to show certain facts: that the Tribunal did not have before it, consider or have regard to the documents. Thus, the approach of McHugh J was narrower than that of Gleeson CJ. McHugh J focussed on the documents, not the "material relating to the application" in the wider sense discussed by the Chief Justice.

76 Fourthly, the balance of the Court made findings as to the lack of regard paid to the documents as follows:

(i) Gaudron J (at [60]) found that the Tribunal did not "have regard" to them;
(ii) Hayne J (Gummow J agreeing, though quaere Kirby J) expressed the view (at [250]) that it would be open to infer that the Tribunal did not examine the documents.
(iii) Callinan J (at [298]) found that the Tribunal did not have separate and reasonably contemporaneous regard to the documents and in that sense (see [302] and [305]) did not look at the documents.

77 Fifthly, four of the justices (Hayne J, agreed with by Gummow J and in this respect by Kirby J; and Callinan J) expressed the view that the fact that Mr Muin could not prove that the Tribunal was not aware of (Hayne J at [257]) or did not know and did not take into account (Callinan J at [298]) the contents of the documents was not fatal to his claim. This was because Mr Muin had been misled in the way found by their Honours. On the agreed facts of Muin, and inferences therefrom, this misleading was as to what was before the Tribunal or as to what the Tribunal had (Hayne J) or as to what it received and had separate and reasonably contemporaneous regard to (Callinan J) or as to what it was given (Kirby J) There was nothing in the reasons of Gaudron J inconsistent with these expressions of view.

78 Sixthly, only one justice, Kirby J expressed the question as to the misleading statement as to despatch ("given" in [192]).

79 Seventhly, the reasons of Callinan J emphasise the crucial question of the misleading of Mr Muin as to the procedure to be adopted. The reasons of Hayne J can be seen as similarly informed. Nevertheless, only Kirby J saw the operative misleading of Mr Muin, on the agreed facts, as other than involving what was before the Tribunal, or what it had or what it received and had regard to.

80 Eighthly, as Hayne J said at [256], what was believed and understood by a person in Mr Muin’s position, and what would motivate him or her to act differently, and if so, how and in what respects, and whether that would amount to practical injustice or procedural unfairness in any particular case, might be a matter of some complexity. In Muin, there were agreed facts which included [43], and also the results of discovery and inspection were before the Court.

81 Ninthly, the essential difference between the approach of Gleeson CJ and the majority (and perhaps between Gleeson CJ and all the justices of the Court) was the nature of the representation perceived to have been made to Mr Muin. Gleeson CJ was of the view that the central representation was the statement (in the second letter) that the Tribunal had "looked at all the material relating to [the] application" and that fulfilment of that representation did not require reference to the documents in question at the time of the review or that the documents be "before" the Tribunal physically or electronically at the time of the review. On the other hand, at least the majority saw the practical injustice or procedural unfairness arising from a differently framed representation in the letters which misled Mr Muin – that the documents would be or had been despatched to the Tribunal, that they would be or were before the Tribunal and that the Tribunal would have or had the documents, in the course of or for the purposes of this review, and, in the case of Callinan J, there would be or had been separate and contemporaneous regard to the documents in the course of, or for the purposes of, this review.

82 It is unnecessary to deal separately with Ms Lie’s case except to note that Callinan J was of the view that the letters to her were materially different to those in Mr Muin’s case such that there was no misrepresentation upon which to found an assertion of a failure to afford procedural fairness.

The appeal

83 Mr Leeming submitted that in the light of the approach of the majority in Muin and having made the findings in [7] of her Honour’s reasons, the primary judge should have found that the appellants had been denied procedural fairness. Further, Mr Leeming submitted that the findings in [8] were wrong, and thus such findings did not preclude this Court concluding that there was a denial of procedural fairness.

84 Mr Leeming submitted that the conclusion of a lack of procedural fairness from the failure to send the documents and the findings in [7] of the reasons of the primary judge was not impeded by an inability to prove that the Tribunal had, or had regard to, the documents, or by any lack of clarity in the evidence about those matters. Mr Leeming conceded that there would be no procedural unfairness if it could be "comfortably concluded" that the Tribunal "had" the documents, most particularly the Amnesty document, before it at the time of undertaking its review.

85 Mr Leeming sought to support these submissions by reference to the majority in Muin. With respect, his submissions did not pay due regard to the distinction in the reasons of the members of the High Court between having the documents before the Tribunal for the review in question (and for Callinan J having separate and reasonably contemporaneous regard to the documents), on the one hand, and being aware of or having looked at the contents of the documents, otherwise. Mr Leeming sought to use, in particular, the reasons of Hayne J to support the proposition that the fact that the appellants could not prove that the Tribunal did not have the documents was not fatal to their case. Hayne J’s reasons do not support that conclusion directly. In Muin, on the material before the Court, Hayne J found that the documents were not before the Tribunal and that the Tribunal did not have the documents, implicitly in the course of, or for the purposes of, Mr Muin’s review. What was left unclear was whether the Tribunal was otherwise aware of the contents of the documents. It was this that was not determinative for Hayne J ([257]) or Callinan J (at [298]). It was this that was determinative for Gleeson CJ ([23] and [24]).

86 At this point, it is necessary to deal with the factual findings in [8] of the primary judge’s reasons.

87 The first and second sentences of [8] contain one finding or, possibly, two findings:

(a) a refusal to draw the conclusion that the Tribunal did not consider the contents of the documents that were before the delegate; and
(b) arguably, a finding that the Tribunal (as its letter of 3 January 2001 said) had "looked at all the material relating to [the appellants’] application".

88 These might be seen as cumulative, and so the positive finding in (b) overtaking the refusal to make a negative finding in (a); or, the letter of the Tribunal referred to in the second sentence of [8] might be seen simply as the foundation for (a). I prefer the latter reading of [8]: that the primary judge was only expressing a refusal to make the finding referred to in the first sentence of [8].

89 Both findings, (if there be two) concern the contents of the documents. Neither is a finding dealing with the documents themselves. More particularly, neither is a finding that the Tribunal had the documents or that the documents were before the Tribunal, in the course of, or for the purposes of, the review, or that the Tribunal had separate and contemporaneous regard to the documents for the review.

90 Also, importantly, there was no finding by the primary judge (as there was by five justices in Muin) that the Tribunal did not have the documents before it in the sense that I have referred to.

91 I agree with the primary judge that the material before her Honour was not such as to allow one to conclude that the Tribunal did not consider the contents of the documents. I also conclude that the material before her Honour was not such as to allow one to conclude that the documents were not before the Tribunal. The facts here are different to those in Muin. There was no discovery here. The Tribunal’s and delegate’s reasons are different. The delegate referred to the Amnesty document and it is distinctly possible that the Tribunal looked at the document so referred to, if it was not already aware of it. Also, the Amnesty document was on the internet.

92 If there is a positive finding in [8], its terms are in accordance with the letter of 3 January 2001. It is necessary to understand what was meant by the terms of the letter, in particular the meaning of the phrase "all the material" within the letter. The word "material" could refer to physical material, such as documents. I think it has a wider meaning, including information, knowledge and facts. The Tribunal was stating that it had looked at all relevant material. Like Gleeson CJ, I would read this as a statement capable of referring to what had happened over a broader expanse of time than the undertaking of this particular review. Thus read, as I think the second letter should be, I do not see any error in a positive conclusion (if the primary judge drew such a conclusion) that all material relevant had been looked at. That is what the letter said, and there really is nothing to contradict it, so read. The letter is also capable of being read as only referring to all material that the Tribunal considered relevant, or that it happened to have in its possession. In the context of an existing delegate’s decision which listed the "evidence used in making my decision" I think the phrase has a wider objective connotation than these self limiting meanings.

93 The appeal, however, was argued on the basis that what the primary judge found in [8] was that, as a positive fact, the Tribunal did in fact have the Part B documents before it in the course of, or for the purposes of, the review: that is the direct converse of the fact found by five justices in Muin. In my view, the primary judge made no such finding. If her Honour did (or if what her Honour found in [8] is to be so understood) I would respectfully conclude that her Honour erred. The second letter does not say that. It has a wider meaning. At best, it is equivocal about what the Tribunal had before it in the course of, or for the purposes of, the review. It is not, in my view, open to conclude on the evidence that the Tribunal "had" the documents, or that they were "before" it, in the course of, or for the purposes of, the review, or that the Tribunal gave separate and contemporaneous regard to them.

94 No aspect of Muin assists in this fact finding. In Muin there were particular agreed facts; the material before the Court included the results of discovery and inspection; and the terms of the decisions of the delegate and the Tribunal were different. What is relevant from Muin, however, is the approach of the majority, not as a matter of binding legal principle, but as persuasive guidance as to the application of underlying fundamental principle that what is procedurally fair depends on the terms and framework of the statute concerned, including the nature and purpose of the power in question, the issue involved, the nature of the decision, the posited approach of the Tribunal, the consequences to the parties and any other surrounding circumstance: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, 552-53; Salemi v MacKellar [No 2] (1977) 137 CLR 396, 419, 444; R v MacKellar; Ex parte Ratu (1977) 137 CLR 461, 476; Kioa v West (1985) 159 CLR 550 at 584-85, 594, 612-614, 633; National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296, 311; FAI Insurances Limited v Winneke (1982) 151 CLR 342, 350. Whilst in most cases the concern is whether, in the given circumstances, the person the subject of the decision is aware of the issues relevant to the making of the decision, of any adverse material concerning those issues and whether he or she has a reasonable opportunity in all the circumstances to put what he or she wishes about those matters, another reason to conclude that there has been unfairness will be if the person the subject of the decision has been misled into not putting material to the decision maker that he or she otherwise would have put by reason of what the decision maker has said to him or her.

95 Though, Hayne J expressed himself in terms which incorporated the findings that the documents were not before the Tribunal and that the Tribunal did not have them, and though Callinan J expressed himself in terms which incorporated the finding that the Tribunal did not have separate and reasonably contemporaneous regard to the, documents, both Hayne J at [257] and Callinan J at [302] to [309] directed themselves to the fact that Mr Muin had been misled about the procedures to govern the review in material respects. (See (a) to (d) in [43] of the agreed facts.) Both Hayne J and Callinan J referred to Re Refugee Review Tribunal; Ex Parte Aala. Aala was a case in which the applicant was misled by a statement to him by the Tribunal that it had read all the papers from previous applications and Federal Court hearings. It had not. It did not have certain unsworn statements by the applicant. The applicant was thereby deprived of the opportunity to deal with an issue in circumstances where it could not be concluded that the denial of the opportunity made no difference to the outcome: see 88 [3] and [4] (Gleeson CJ), 113-117 [70]-[81] (Gaudron and Gummow JJ), 130 [128] (Kirby J) 155-56 [213]-[214] (Callinan J).

96 Here, if there was a denial of procedural fairness, it is to be understood to have occurred not because it could be proved that the documents were not "before" the Tribunal or that the Tribunal did not "have" the documents in the course of, or for the purposes of, the review, or that the Tribunal did not have separate and contemporaneous regard to the documents. Those matters were not proved. Nor, however, were the converse facts of those facts proved. Rather, the letters sent to the appellants when read together, or the second after the first, led the appellant son to believe that the documents had been sent to the Tribunal. The appellant son also believed that the Tribunal had the documents. Importantly, however, the primary judge found that the appellant son would have taken steps, including drafting his submissions differently, had he known that the Tribunal had not been sent copies of the documents. He was cross-examined about this at some length, and his evidence was accepted. The cross-examiner put to him that it was what the Tribunal had before it, in whatever form, that was important; and the appellant son adamantly denied that. He said that he would have acted differently in how he approached the Tribunal had he known that the documents had not been transferred. His evidence was accepted by the primary judge.

97 Mr Basten QC, who, with Mr Johnson, appeared on the appeal for the respondent, said that this was insufficient to show "practical injustice", especially where it could not be shown what was favourable about any document other than the Amnesty document, where it could not be shown what was or what was not before the Tribunal and where it could not be shown what the Tribunal otherwise had regard to.

98 This, as I have said, is a different factual situation to Muin. There, according to the majority, the Tribunal did not have the documents before it. The Court is not bound to conclude, however, that this different factual circumstance means that the appellants here fail. The question as to whether procedural fairness has been afforded depends on the circumstances of each case. The significance of the relationship between the relevant belief and what would have been done, and the identity and nature of the relevant unfairness or practical injustice, are to be assessed in every case by reference to the individual circumstances. These are the "difficult factual and evidentiary issues" referred to by Hayne J in Muin at [256].

99 Here, after full agitation in cross-examination, the primary judge accepted the evidence of the appellant son that he would have conducted his approach to the review differently had he not been misled, in the way he identified. Neither the facts as found in [8] of the primary judge’s reasons, nor the surrounding circumstances, including the equivocal and uncertain nature of the evidence about what the Tribunal did have regard to at the time of the review or beforehand, lead me to conclude that the misleading of the appellants (which did take place) was not unfair and did not cause "practical injustice" or that (if it be the correct approach) the outcome would not have been different.

100 The gist or gravamen of what the appellant son said in cross-examination was that if he knew that the independent Tribunal was not fully briefed by the Department with the papers, he would have directed different submissions to the Tribunal, presumably about the favourable material, and, at least, he would have sent the favourable material to the Tribunal. The inability to demonstrate what was or was not before the Tribunal is relevant to an attempt to show (here unsuccessful) that there was no unfairness consequent upon a misleading of the appellant son in an apparently material way, or to an attempt to show (here unsuccessful) that the outcome would not have been different; it does not gainsay the conclusion that the appellant son was misled in an apparently material way.

101 In all the circumstances, a reasonable person in the position of the appellant son (on the basis of the truthfulness of his evidence and on the basis of the findings in [7] of the primary judge’s reasons) would be entitled to think that there had been operative unfairness in his or her treatment by the Tribunal. I do not put that forward as the relevant legal test, but it helps, I think, in coming to an assessment as to whether (equating natural justice with fairness) there was operative procedural unfairness.

102 The position would be importantly different if the factual finding as to the operative belief of the appellant son was (as the cross-examiner put to him) that the appellant son thought that the Tribunal had before it, or had access to, (in paper or electronic form) all the documents. In those circumstances, the failure to prove that the Tribunal did not have the documents before it or that it did not have access to them would, in all likelihood, be fatal. Equally, in a case where an operative belief is found to be that the Tribunal would look at all relevant material a failure to prove that the Tribunal had not done so (something directly contrary to the assertion of the Tribunal in this case as to what it had in fact done) would, in all likelihood, be fatal. These are not matters concluded by the incantation of a formula of evidence. Context, primary evidence and cross-examination will be crucial in any process of fact finding.

103 For these reasons, I conclude that there was a denial of procedural fairness. No such conclusion was reached by the primary judge. The ratio of her Honour’s judgment was the binding effect of NAAV. To that extent it was unnecessary for the primary judge to draw any detailed or specific conclusions as to procedural fairness. The primary judge’s reliance on NAAV to insulate a decision affected by a denial of procedural fairness cannot stand after S157. In those circumstances, I would allow the appeal. Thus is no need to deal with grounds 1 and 2 of the application.

104 I would make the following orders:

1. The appeal be allowed.
2. The orders of the Court made on 3 February 2003 be set aside, and in lieu thereof it be ordered that:
(a) a writ of certiorari issue to quash the decision of the Refugee Review Tribunal made on 21 September 2001 and handed down on 16 October 2001 in respect of the applicants;
(b) an order that the respondent refrain from taking any step to act on the said decision;
(c) a writ of mandamus issue requiring the respondent to cause the Tribunal to determine the application of the applicants according to law; and
(d) the respondent pay the applicants’ costs.
3. The respondent pay the appellants’ costs of the appeal.

I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop .



Associate:

Dated: 24 December 2003


Counsel for the Appellants: M Leeming



Counsel for the Respondent: J Basten QC with G Johnson



Solicitor for the Respondent: Blake Dawson Waldron



Date of Hearing: 12 August 2003



Date of Judgment: 24 December 2003
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