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MIGRATION – application for a protection visa – whether country information was part of the reason for the decision – whether country information is non-disclosable information – whether failure to disclose country information resulted in a denial of procedural fairness

Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004]

Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264 (23 September 2004)
Last Updated: 12 October 2004

FEDERAL COURT OF AUSTRALIA


Minister for Immigration & Multicultural & Indigenous Affairs v NAMW

[2004] FCAFC 264



MIGRATION – application for a protection visa – whether country information was part of the reason for the decision – whether country information is non-disclosable information – whether failure to disclose country information resulted in a denial of procedural fairness


WORDS AND PHRASES – "information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member".


Migration Act 1958 (Cth) ss 57 and 424A


Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 – cited
Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 – cited
Kioa v West (1985) 159 CLR 550 – cited
MacAlister v The Queen (1990) 169 CLR 324 – cited
Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 – cited
Muin v Refugee Review Tribunal (2002) 190 ALR 601 – cited
NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 214 – cited
NANF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 292 – cited
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 – cited
NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494 – not followed
Re Minister; Ex parte PT (2001) 75 ALJR 808 – cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 – cited
Saraswati v The Queen (1991) 172 CLR 1 – cited
Stead v State Government Insurance Commission (1986) 161 CLR 141 – cited
VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 – cited
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 206 ALR 471 – applied
VEAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 678 – cited
VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 609 – not followed
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 – considered
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 – cited
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 – cited





































MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS V NAMW, NAMX AND NAMY
N 423 of 2004

BEAUMONT, MERKEL & HELY JJ
23 SEPTEMBER 2004
MELBOURNE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 423 OF 2004


ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPELLANT
AND: NAMW
FIRST RESPONDENT

NAMX
SECOND RESPONDENT

NAMY
THIRD RESPONDENT
JUDGES: BEAUMONT, MERKEL & HELY JJ
DATE OF ORDER: 23 SEPTEMBER 2004
WHERE MADE: MELBOURNE (HEARD IN SYDNEY)


THE COURT ORDERS THAT the appeal be dismissed with costs.



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 423 OF 2004


ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPELLANT
AND: NAMW
FIRST RESPONDENT

NAMX
SECOND RESPONDENT

NAMY
THIRD RESPONDENT
JUDGES: BEAUMONT, MERKEL & HELY JJ
DATE: 23 SEPTEMBER 2004
PLACE: MELBOURNE (HEARD IN SYDNEY)


REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

1 The first and second respondents, NAMW and NAMX, are citizens of Bangladesh and husband and wife. They entered Australia on 15 August 1999. The third respondent, NAMY, is their son, born on 4 December 1999 in Australia.

2 The first and second respondents lodged applications for protection visas on 27 September 1999. The first respondent claimed in his application that he had a well-founded fear of persecution, claiming to be a supporter and activist on behalf of the Bangladesh National Party (‘BNP’). He claimed that, from time to time, he was the subject of acts of violence carried out by supporters of the rival Awami League (‘AL’). He said that in February 1999, following one of these incidents, a false charge was filed against him for his involvement in the incident.

3 However, the applications were refused by the appellant Minister’s delegate on 26 October 1999. Review of that decision was sought from the Refugee Review Tribunal (‘the Tribunal’), who affirmed the delegate’s decision on 30 November 2001.

4 The respondents then sought judicial review of the Tribunal’s decision at the Federal Magistrates Court. On 5 March 2004, the Federal Magistrate allowed the application for judicial review. The appellant now appeals from the judgment of the Federal Magistrates Court.

THE TRIBUNAL’S DECISION

(a) The first respondent’s claims and evidence

5 The Tribunal noted the following claims:

• The first respondent’s father and two brothers had been killed by AL thugs in Bangladesh’s war of independence in 1971. These thugs had continued to terrorise the family. His mother died of resulting anxiety in 1971 – 1972.
• In 1982, the first respondent joined the BNP’s student wing at a polytechnic, becoming ‘organising secretary’ after three years. After leaving college and starting work, he became a ‘joint leader’ of a BNP unit in his village with 20 – 25 members. Because the first respondent was ‘very active in a political sense’, he had ‘sometimes been attacked by AL activists’.
• In August 1996, when the AL was in government, his home was ransacked, and his brother beaten up, by AL thugs.
• In September 1998, he was beaten up by AL thugs, but the police took no action. (At the Tribunal’s hearing, the first respondent could not identify his attackers.)
• In February 1999, this happened again. When the first respondent’s family had gone to the police to lodge a complaint, ‘they had found that a charge had been laid against the [first respondent]’. This caused him ‘to fear for his life’ and so the family left for Australia.
(b) The Tribunal’s comments on the first respondent’s response at the hearing

6 The Tribunal said that the first respondent became ‘vague and evasive’ when asked about the charge against him. When the question was repeated, the first respondent said that he ‘had been accused of involvement in violence at a rally from which he had, in fact, been absent’.

7 The first respondent said that ‘all this trouble’ had come from people in his village, who had known his family’s opposition to Bangladesh’s independence (in 1971) and ‘had been inimical to the [first respondent’s] political activities’. When asked why he could not move away from his village and from this ‘localised violence’, the first respondent said that ‘his village enemies had followed him even to Dhaka to try to harm him (he had a lot of property in his village and a shop in Dhaka)’.

8 When put to the first respondent that such sustained ‘targeting’ was ‘unlikely given his low political profile’, he said the ‘main problem’ was that he ‘did not believe in Bangladesh’s independence’.

9 The Tribunal asked the first respondent why, now that the BNP was in Government with a ‘healthy’ majority, a low-level BNP operative could feel ‘unsafe’ on account of his ‘political view’. The first respondent’s response was that he ‘did not believe that the BNP would be able to protect him from harm’ and that there were people in the BNP who were ‘violent’.

10 The Tribunal said:

‘Independent evidence on the BNP’s leader’s stand against political violence was discussed with the [first respondent] along with evidence on the situation as regards those plagued with manufactured charges. The [first respondent] said that even the AL had made statements about not engaging in violence and having to keep the peace, but that there had been violence during its rule (1996 to October 2001) and that a former AL Home Minister, Mr Rafiqul Islam, had had to be transferred out of his job because of the level of violence, which showed how the government could not be relied on to help people.’

11 The Tribunal noted that the first respondent had submitted two letters, from a BNP official and a former teacher, stating that the first respondent had been in the BNP and ‘had suffered at the hands of political rivals’.

(c) The Tribunal’s findings and reasons

12 The Tribunal accepted the following claims:

• That the first respondent’s father and two brothers had been killed in Bangladesh’s war of independence in 1971; and that his mother had shortly afterwards died of grief and of anxiety over AL harassment at the time.
• That, in his early years, the first respondent had experienced social discrimination over his father’s history.
• That the first respondent might, even now, feel disenchanted about Bangladesh’s independence, given that it cost the lives of his father and two brothers.
13 However, the Tribunal was not satisfied that he had been persecuted, or faced persecution, over such matters, for this reason –

‘There is no independent evidence that supports a claim that the descendants of those who were killed in the war for independence in Bangladesh in 1971 are persecuted. Indeed, the [first respondent] indicated that he was a man of substance, owning much property, and this does not suggest that his family suffered lasting discrimination or a significant level of social antagonism over its 1971 activities. Certainly, the [first respondent], who has enjoyed tertiary education, been in employment, accumulated much property, had an active and long-lived political career, and enjoyed freedom of travel, does not present as one who has suffered significant hardship or discrimination. I accept that if he were to be outspoken about his negative views on Bangladeshi independence he would be classed by associates as an eccentric, or as being out of step with the times, or ignorant, and treated accordingly, but I am not satisfied that he would be persecuted.’

14 The Tribunal accepted that the first respondent had joined the BNP and had risen to the position of joint secretary of his local village branch, but did not accept that he was regarded as ‘a significant political player’, given his position; or ‘considered important enough’ for people from his village to pursue him to Dhaka, or anywhere else in the country, if he were to relocate and so avoid localised trouble in his village.

15 The Tribunal said that the first respondent ‘might have been beaten up’ by thugs belonging to the AL ‘since political violence ... in Dhaka, is of a high level’. However, the Tribunal added:

uch violence, according to DFAT and American authorities, is mainly experienced by those activists who take part in the mafia-like, criminal vendetta-type activities indulged in by many in the student and youth wings of the political parties, or by those who take part in confrontational actions such as national strikes and major rallies which are prone to violence no matter which party is holding them and which ... party [is] in government at the time (Bangladesh: Profile of Asylum Claims and Country Conditions, Part II B, Student and Political Violence pub’d by United States Bureau of Democracy, Human Rights and Labor, February 1998, CX31417; DFAT CIS Country Information Report No. 497/96 of 7/6/98, CX17304; DFAT cable BGD14088 of 1/5/2000, CX41587).’

16 The Tribunal noted that the first respondent ‘presents as a sober gentleman’. The Tribunal was not satisfied that he would have been ‘active’ in those ‘wings’ of his party which are ‘bent’ on violence and which ‘interact’ with rival parties on a ‘physical rather than cerebral’ level. The Tribunal said:

‘Thus I am prepared to accept that [the first respondent] might have been attacked or hurt in melees once or twice in a sporadic manner, but I am not satisfied that he was the target ... of sustained violence by political enemies. I am of the opinion that he has fabricated claims to exaggerate the harm that he might have suffered. I find that the [first respondent] would be able to engage in the normal expression of his political opinion by avoiding the thuggish side of politics.

It might be that even if he engaged peacefully in politics and avoid[ed] rough elements, he might be harmed in sporadic and indiscriminate violent actions as Bangladeshi politics is played robustly. What is important here is whether he would be denied protection from such harm.

I am not satisfied that the [first respondent] would be denied protection over his political views in Bangladesh.’

17 The Tribunal gave the following reasons for this conclusion:

• Most ‘obviously’ and ‘importantly’, the first respondent’s party, the BNP (which ‘operated freely and robustly at all levels of politics while in opposition from 1996 – 2001’) is in power now, having secured an ‘overwhelming’ majority at the October 2001 election. It was ‘nonsensical’ to assert that a ‘low-level’ member of a party fears persecution in the expression of his political views when his party has ‘swept’ the polls in his country, and there were ‘no reasons individual’ to the first respondent which would make ‘his situation particularly vulnerable’.
• The new Government has announced that it will not tolerate political violence, as the BNP was voted in (as the new Prime Minister said) for ‘peace and security’.
• A new ‘Public Safety Act’ has been enacted to halt a rising level of crime.
• In general, the forces of law and order enforce the ‘anti-crime’ laws according to their stated non-discriminatory purpose.
• Even the former AL authorities were ‘determined to lower levels of crime and violence regardless of the political cost’.
18 The Tribunal concluded that the authorities were ‘willing and capable of protecting the [first respondent] from harm over his political views’, adding:

‘I note that the [first respondent] has stated that he did not obtain assistance from police when he had been attacked previously. As stated earlier, however, I consider that the [first respondent] had exaggerated the extent of the harm he had faced. I also note that he had been unable to identify his attackers at least once, which would make it impossible for police to make arrests. In all, I am not satisfied that police inability to arrest his attackers on two or three occasions during the 1990s is proof that the [first respondent] lacks protection in Bangladesh.’

19 Observing that the first respondent claimed to have had a ‘false’ charge laid against him by ‘political opponents’, the Tribunal said:

‘I have some doubts as to whether this claim is genuine given the [first respondent’s] evasiveness when asked for details. Even if he has had a false charge laid against him, I am not satisfied that he is unable to obtain recourse from such harassment within Bangladesh.’

20 The Tribunal observed that the laying of false charges by rival political activists was ‘a common tactic’ in Bangladesh, but that victims have protection, since the Public Safety Act specifically allows for charges to be brought against those ‘instigating false charges’; and this shows that the authorities were ‘well aware’ of the problem and were ‘determined’ to ‘stop it’. The Tribunal referred to independent evidence showing that the courts are ‘independent’ and can be ‘relied upon’ to provide protection for those falsely charged ‘even if a government party’s activists persist in filing false charges’.

21 The Tribunal noted a parliamentary committee report (January 2001), which found that 99 per cent of the 69,010 people arrested by governments of the day since 1974 on false charges under the Special Powers Act had been released because the grounds for detention had been judged by the courts to be ‘weak and vague’.

22 The Tribunal added that the ‘Public Safety Bill’ stipulates that appeals from lower court judgments have to come before the High Court within three weeks. The Tribunal added:

‘This can be important because on occasion judges of lower courts could be corrupt or vulnerable to pressure from the executive. It is, however, recognised that "[t]he higher levels of the judiciary display a significant degree of independence and often rule against the Government in criminal, civil, and even politically controversial cases" (Bangladesh/Country Reports on Human Rights Practices 2000, s. 1e, US State Department).’

23 In concluding that it was not satisfied that the first respondent had a well-founded fear of persecution, the Tribunal said:

‘In summary, I find that whether or not the [first respondent] had faced insurmountable problems over his political views before leaving Bangladesh, he would not face such problems now given that there is a new government, of his own party, which is determined to prevent political thuggery. I find that the [first respondent] can avail himself of the protection of the police in relation to any threat of harm, and that the courts would act fairly and strongly in protecting him from false charges.’

THE FEDERAL MAGISTRATES COURT DECISION

24 The first respondent was not represented before the Federal Magistrates Court. His grounds of appeal were inadequately prepared, but asserted procedural unfairness and breach of statutory procedures by the Tribunal. His Honour identified two issues as follows:

(a) Did the Tribunal breach the provisions of s 424A(1) of the Migration Act 1958 (Cth), or the rules of natural justice, in failing to disclose to the first respondent the country information cited in [15] above?

25 His Honour noted that the Tribunal was ‘prepared’ to accept that the first respondent ‘might have been beaten up’ by AL thugs, but that, according to DFAT and American authorities (the country information then cited), such violence is mainly experienced by mafia-like, criminal vendetta-type activists.

26 His Honour inferred first, that the country information ‘was used ... to reach an adverse conclusion on ... credibility ...’; and secondly, that the information was not disclosed to the first respondent.

27 The Federal Magistrate held that the material was ‘clearly adverse’ and ‘prima facie’ should have been disclosed under the general law, citing Kioa v West (1985) 159 CLR 550 per Brennan J at 629, who observed that ‘in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision ...’.

28 The Federal Magistrate further concluded that, under s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’), the information should also have been disclosed, so that the first respondent could comment upon it.

29 (Section 424A relevantly provides:

‘(1) Subject to subsection (3), the Tribunal must:

(a) give to the applicant ... particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision ... .
(2) ...
(3) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; ... .’)
30 The Federal Magistrate held that s 424A(1) applied as it ‘follows from the purpose for which the information was used, citing there Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 (per Gray J) who said at [33]:

‘If, as I have said, the Agence France Presse items in fact supported the applicant’s case, it appears strange to suggest that there was a failure to observe the procedure required by s 424A(1). It must have been the case, however, that the Tribunal considered that the Agence France Presse items would be the reason, or a part of the reason, for affirming the decision of the delegate of the Minister. It did rely on the items as part of the reason for affirming that decision. The fact that, in relying on them in this way, it misconstrued the items does not detract from the fact that its subjective view was that the items contained material that refuted the applicant’s case on this point. Section 424A(1)(a) is expressed in terms of the Tribunal’s subjective view: if the Tribunal "considers" that information would be the reason, or a part of the reason, for affirming the decision under review, it is obliged to give the applicant particulars of that information, ensure that the applicant understands why its [sic] relevant to the review and invite the applicant to comment on it. Once the Tribunal reached the state of mind that it considered that the Agence France Presse items could be relied on to refute the applicant’s claim that he had campaigned in a by-election that took place on 15 April, it was obliged to follow the procedure in s 424A(1). The material did not fall within the exclusion in s 424A(3)(a), because it was not about a class of persons of which the applicant or any other person was a member. It bore specifically upon the question of the applicant’s involvement in campaigning in a by-election.’

31 The Federal Magistrate further held that s 424A(3)(a) did not assist the Minister, citing there VEAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 678 (per Gray J) who said at [36] – [39]:

‘The greatest potential problems arise from the exception in subs 3(a). The subsection imposes a dual requirement. The first branch is negative. Only information that is not specifically about the applicant or another person is excluded. The second branch is, in a sense, positive. To be excluded, the information must be just about a class of persons of which the applicant or other person is a member. In a sense, however, the second branch is also negative. The word "just" must mean "only". The information concerned must not be about anything other than a class of persons of which the applicant or other person is a member.

It seems to have been supposed generally that the distinction drawn in s 424A(3)(a) is a distinction between information specifically about an applicant or a particular person whose circumstances bear upon that applicant’s case on the one hand, and general "country information" or "independent information" on the other. It seems to have been supposed that the Tribunal is not obliged to carry out the obligations imposed by s 424A in relation to the latter class of information. This dichotomy cannot be derived readily from the terms of the section. The words "just about a class of persons of which the applicant or other person is a member" do not lend themselves readily to that construction. If the legislative intention was to exclude general information about the country of origin of the relevant applicant, it is difficult to see why plain words to that effect could not have been chosen. Indeed, if that had been the intention, it is hard to see why the words after "the applicant or another person" were included at all. Plainly, the legislature intended to exclude a more restricted type of information than general country information from the operation of s 424A.’

32 The Federal Magistrate said:

‘This was not information about a class of persons including the [first respondent]. It was not information about any individual in particular. It was information about a class of persons that may or may not have included the [first respondent]. The information was used by the presiding member to reach a conclusion that the [first respondent] did not belong to the class of persons to whom the information related. In my view, information used for that purpose falls outside the exclusion in s.424A(3)(a).’

33 His Honour said that the opportunity lost by the respondents was ‘a real one’. They could have made relevant submissions to the Tribunal ‘on the issue of political violence in Bangladesh in response to the country information’.

34 The Federal Magistrate rejected the Minister’s submission that, even if the general law of procedural fairness, or s 424A(1), were breached, this ‘does not matter’ because the Tribunal went on to determine that the first respondent could avail himself of effective State protection, even if he was the subject of political violence. The Tribunal had noted that, immediately after its discussion of the country information, the Tribunal had observed that even if the first respondent engaged ‘peacefully’ in politics, he might be harmed ‘in sporadic and indiscriminate violent actions ...’. What is important ... is whether he would be denied protection ...’. Observing that the Tribunal had then found that protection would be available, the Federal Magistrate said:

‘It is clear to me that the harm to which the presiding member was referring was not serious and systematic harm that would constitute persecution under the Convention but sporadic and indiscriminate violent harm to which anybody could be subject. It follows that the presiding member did not consider the availability of State protection in relation to the more serious harm to which he had previously found the [first respondent] was not at risk of suffering.

I find that the decision of the [Tribunal] is infected by jurisdictional error in that the [Tribunal] breached its procedural fairness obligations under the general law and breached s.424A(1) of the Act in failing to disclose to the [first respondent] the country information at issue.’

(b) The false charge issue – a constructive failure to exercise jurisdiction?

35 Although not strictly necessary to do so, the Federal Magistrate proceeded to consider whether the Tribunal ‘constructively failed’ to exercise its jurisdiction in relation to the claim of persecution by reason of being subject to a false charge.

36 His Honour said that, although the Tribunal expressed some doubts about the genuineness of the claim, the Tribunal proceeded on the footing that it was genuine. The Federal Magistrate noted that the Tribunal had held that the first respondent could have such a charge dismissed and could take action under the Public Safety Act. But, his Honour held, the Tribunal did not consider whether the first respondent would be detained pending any court hearing of the charge against him or any appeal against a conviction; and did not consider the conditions under which detainees are kept in Bangladesh. It was, in the Federal Magistrate’s view, ‘extraordinary’ that ‘huge numbers’ of persons in Bangladesh have been the subject of false charges by successive governments and apparently detained pending the resolution of those charges. His Honour thought that the false imprisonment of a person on ‘trumped up’ political charges, particularly if the conditions of detention are ‘poor’, could constitute persecution, regardless of the ultimate fate of those charges or of the fate of the persons who instigated them. In the Federal Magistrate’s opinion, there was no consideration of that issue by the Tribunal, but there should have been. Accordingly, his Honour found that the failure to consider that issue constituted a constructive failure to exercise jurisdiction and for this reason also, the decision was infected by jurisdictional error.

THE MINISTER’S GROUNDS OF APPEAL

37 The Minister now appeals to this Court on the following grounds:

(1) The Magistrates Court should not have held that the Tribunal, in reaching its conclusion, relied on ‘country information’ which should have been, but was not, disclosed to the first respondent.
(2) The Magistrates Court should not have held that sufficient particulars of the country information had not been disclosed to the first respondent.
(3) The Magistrates Court should have held that the country information fell within the exclusion contained in s 424A(3) of the Act.
(4) The Magistrates Court should not have held that general law principles of procedural fairness required the disclosure of the particular country information.
(5) The Magistrates Court should not have held that there was jurisdictional error in the manner in which the Tribunal dealt with the first respondent’s claims in relation to the ‘false charge’ said to have been laid against the first respondent.
CONCLUSIONS ON THE APPEAL

38 It will be convenient to proceed, as the Federal Magistrate did, by subdividing the issues into two: first, the ‘country information’ issue; and secondly, the ‘false charge’ issue.

(a) The ‘country information’ issue

39 It will be convenient to consider the application of s 424A(1) first.

(i) Did s 424A(1) apply?

40 It will be recalled that subject to the operation of s 424A(3), the Tribunal must, by virtue of s 424A(1), give ‘particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision ...’; and that s 424A(3)(a) provides that the section does not apply ‘to information ... that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member ...’.

41 As counsel for the Minister observed, the interpretation of s 424A has been considered by Full Federal Courts recently, as now follows.

42 In VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 609 (a decision of the Full Federal Court on 15 August 2003), the Tribunal had found that the applicant, a citizen of Sri Lanka, had a current Italian work permit and a right to re-enter Italy. On the latter question, the Tribunal relied on an Italian statute. The Tribunal had not put this statute to the applicant. It was held, by a majority (Kenny and Downes JJ; Moore J dissenting) that this information satisfied both elements of s 424A(3)(a).

43 Kenny J held (at [45]) that it was ‘plain enough’ that the information was ‘not specifically about the applicant or another person’ (her Honour’s emphasis). The information, Kenny J held, concerned the effect of ‘a law of general application, and, in particular, the effect of the law on the rights of holders of current permits to enter Italy’. But, ‘... in this context ... it is less easy to say whether the information was ‘just about a class of persons of which the applicant or other person is a member’.

44 Kenny J observed that much of the difficulty stems from the ‘unorthodox’ use of the expression ‘just about’. Her Honour said (at [46]):

‘In the context of s 424A(3)(a), the expression "just about" is a limiting one, to be contrasted with the words "not specifically about" earlier in the paragraph. In this context, the expression signifies information concerning "no more than" a class of persons of which the applicant or other person is a member.’

45 In concluding (at [49]) that information about the law of another country concerning the entry rights of non-nationals who hold permits properly described was information ‘just about’ a class of persons of which, relevantly, one of the appellants was a member, her Honour said (at [50]) of ‘country information’:

‘It is usual for the tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant’s claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the tribunal’s decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information "just about" a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within s 424A(3)(a) of the Act: ...’

46 Kenny J then cited several decisions, Full Court and single Judge, of this Court, but contrasted the decision of Gray J in VEAJ which, as has been seen, was relied on by the Federal Magistrate in this case.

47 Her Honour also noted the contrast with the decision of Gray J in Baig, again relied on by the Federal Magistrate.

48 Her Honour held (at [55]) that the information in that case was about Italian law, but it was relevant only because it was also about holders of current Italian permits. Information does not cease to be information ‘just about’ a class of persons merely because it can be characterised in more than one way.

49 In holding that both elements of s 424A(3)(a) were satisfied, Kenny J said (at [55]):

‘For the purpose of s 424A(3)(a), information is just about a class of persons (even though for another purpose it could bear some other characterisation) if it is relevant to the tribunal’s decision only because it is about this class of persons. The information in this case was relevant only because it provided the basis for the tribunal’s conclusion that the appellants could enter Italy and reside there. ... Since there was evidence before the tribunal that the appellant husband had a current permit, then it was open to the tribunal to conclude that he was a member of the class of current permit holders who, by virtue of Italian law, could enter and reside in Italy. The information was not relevant to the tribunal’s decision-making on any other basis. The information was, therefore, "just about a class of persons of which the applicant ... is a member".’

50 Downes J agreed with Kenny J that the appeal should be dismissed.

51 His Honour said (at [72]) of s 424A(3)(a):

‘Whether or not the test is a composite one it is certainly true that the phrase "just about" is juxtaposed to the phrase "not specifically about". I do not read the phrase "just about" as defining the breadth or content of the information but as refining the object of the information or whom the information must be about ("a class of persons") in the same way as "specifically about" refines its object ("the applicant or another person"). Information that legislation confers rights of residence on a class of persons is information "just about" that class in the sense that it is not about individuals or persons who are not part of the class. It does not matter how broad the information is, so long as it relates only to the class.’

52 In NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494 (a Full Federal Court decision on 24 November 2003), the Tribunal relied on independent information concerning the prevalence of document fraud in Bangladesh, without informing the appellants. It was held by Ryan and Finkelstein JJ (Downes J dissenting) that s 424A(3)(a) did not apply.

53 After noting that s 424A(3)(a) has two limbs, both of which must be satisfied, Ryan and Finkelstein JJ said (at [30]), [31]):

‘According to the views of the majority in VHAJ it is mistaken to regard all information before the tribunal as falling into one or other of two mutually exclusive categories of information "specifically about the applicant or another person" or, information "just about a class of persons of which the applicant or other person is a member". The words "just about" have been included as words of limitation. Information which is "just about a class of persons" is information possessing only one characteristic, in the sense of being information solely about that "class of persons" and not going to another issue before the tribunal. The tribunal, for example, frequently has regard to reports produced by the Commonwealth Department of Foreign Affairs and Trade or the United States State Department on the level of protection of civil liberties afforded to various ethnic groups in a particular country. Such information usually has the single character of information solely about a class of persons.

However, information may come before the tribunal which, while perhaps relating to a class of persons, may also go to another issue which is relevant to the reasoning process of the tribunal. It is conceivable that information will not necessarily fit into either of the two categories contemplated by s 424A(3)(a). If the information is not specifically about the applicant or another person and is also not "just about" a class of persons of which the applicant is a member, then if the information would be the reason, or part of the reason, for affirming the decision that is under review, it ought to be disclosed.’ (Emphasis in original)

54 In VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 (a Full Federal Court decision on 31 March 2004), a question arose as to the significance of evidence as to the behaviour of the authorities in relation to exit procedures from China.

55 It was submitted for the appellant in this case that this information was not ‘just about a class of persons’ being general in nature, covering more than one class of persons, and thus did not satisfy the second criteria of s 424A(3)(a).

56 Gyles and Conti JJ said (at [14]):

‘In our opinion that argument must be rejected. The reference to the class of persons in subs 424A(3)(a) is not another criterion to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it. This construction of the subsection is consistent with the decisions in NANM and NANN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 99 at [17] and VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186 75 ALD 609 at [50] per Kenny J and [71] per Downes J with which we agree. The opinion of Ryan and Finkelstein JJ on this point in NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494 at [30]–[31] seems to be contrary to those authorities (whilst seeking to distinguish them) but, in any event, would not affect the conclusion of Finkelstein J in this case even if correct.’

57 In VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 (a Full Federal Court decision on 17 May 2004), a question arose as to the significance of information concerning abuse of the Chinese community in Indonesia.

58 In considering whether s 424A(3)(a) applied, Sundberg and Hely JJ referred to the judgments of Kenny and Downes JJ in VHAJ. Sundberg and Hely JJ also noted that Moore J had said (at [29]) that ‘country information generally concerning a class of which an applicant was a member (concerning, for example, the way members of a particular political party ... were treated) but not, in any respect, specifically about an applicant would have both of the characteristics relieving the Tribunal of the obligation which might otherwise arise under subs 424A(1)’.

59 Sundberg and Hely JJ held (at [22]) that the country information in VNAA was relevant to the Tribunal’s decision-making processes only because the male appellant was a member of a class of persons who, he claimed, shared an attribute which gave rise to a well-founded fear of persecution. For s 424A(3)(a) purposes, the information can only be characterised as ‘just about’ that class.

60 Their Honours said (at [23] and [24]):

‘We reject the appellants’ contention that information to the effect that a class of persons is not persecuted in a particular country is not "just about a class of persons" because [it] deals not only with the class but also with the attitudes of others to members of the class. This would mean that information about how to become a witch in Romania would be "just about a class of persons" but information that witches are not persecuted by the Romanian authorities would not be. The contention is inconsistent with the passages from [the judgment of Kenny J and of Moore J in] VHAJ we have set out ..., and with many country information cases decided since Tharairasa v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 281 at [8] and [16], which appears to have been the first to deal with s 424A(3)(a).

The appellants submitted that VHAJ is clearly wrong because it is in conflict with the "principle" contained in the Minister’s Second Reading Speech to the Act introducing s 424A. The Minister said the section imposes "a requirement that applicants must be given access, and time to comment, on adverse material relevant to them". That statement merely summarises the effect of sub-s (1), and is not directed to the exceptions in sub-s (3). The appellants submissions have not convinced us that VHAJ is clearly wrong.’

61 Noting also the opinions expressed in VHAP, Sundberg and Hely JJ said that they need not decide whether the cumulative or the composite construction of s 424A(3)(a) is to be preferred. Sundberg and Hely JJ held that, even on the cumulative construction, the information falls within the exemption; on the composite construction, it does so even more clearly. Sundberg and Hely JJ held that the information is not specifically about the appellant.

62 Gyles J affirmed the views he had expressed in VHAP.

63 In the light of these decisions, the appellant now makes two alternative submissions on the proper construction of s 424A(3)(a) as follows.

(1) The appellant’s primary submission

64 The provision, as was held in VHAP, imposes one test and does not contain two disjunctive elements; that is to say, the provision is referring to information that is not specifically about an applicant or another person (such as a witness) but is ‘by way of contradistinction about a class of persons of which an applicant or the other person is a member’.

65 The appellant accepts that such a construction is inconsistent with the judgments of Moore and Kenny JJ in VHAJ and with the decision of the majority in NARV. But the appellant contends that, even if logically there may be a third category, it would follow that almost all the types of material seen by a Tribunal can arguably be characterised as being ‘about’ an individual or ‘about’ a class of persons, and that this could not have been Parliament’s intention.

66 I accept the appellant’s submission, and agree with the reasoning in VHAP for the following reasons.

67 In VHAP, Gyles and Conti JJ observed (at [12]) that there (as here) the information which (but for the limitation in subs (3)(a) reserved by subs (1)) would otherwise fall within subs (1), did not ‘expressly’ refer to, and was not ‘expressly about’, the first respondent (or any other relevant person). In other words, the information is not ‘specifically’ about the first respondent unless it is regarded as being about every person who may fall into a class which is the subject of the information. Yet subs (3)(a) excludes information that is not ‘specifically’ about the first respondent. Nor, for reasons given by Gyles and Conti JJ cited above, does the statement ‘and is just about a class of persons’ provide another criterion (which would pick up general information) to be met, if subs 3(a) is to be satisfied. As their Honours said (at [14]), this is ‘designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it’ (my emphasis).

68 It is true that in subs (3)(a) the word ‘and’ is interposed between ‘that is not specifically about the applicant or another person’ and ‘is just about a class of persons of which the applicant or other person is a member’. Taken out of context, the insertion of the word ‘and’ could suggest that an additional ingredient is introduced. But one of the dictionary definitions of ‘and’ is ‘also’. In my view, it is used here in the sense of ‘even if’.

69 In my opinion, consistent with the views expressed in VHAP, it is this meaning which is consistent with the present context. Thus one would read subs (3)(a) as follows: ‘(3)(a) that is not specifically ... [even if] just ...’.

70 So construed, subs (3)(a) would have a purposive meaning which would preclude, as Parliament must have intended, a possible argument that reference to a class would be taken as a reference to all individuals falling within it.

71 In summary, I agree with the approach taken by the Full Court in VHAP and with the view expressed by Downes J in VHAJ.

72 Reverting to the facts of the present case, it will be recalled that the Federal Magistrate, having referred to the Tribunal’s being ‘prepared to accept’ that the first respondent ‘might have been beaten up by thugs belonging to the AL since political violence, like all violence in Dhaka, is of a high level’, noted that the Tribunal added that such violence, according to the DFAT and American authorities then cited, was ‘mainly experienced by those activists’ then described.

73 In my opinion, this last statement is not specifically about the first respondent. Indeed the Tribunal went on to distinguish the position of the first respondent from ‘those activities’. Nor is it a statement about a class of persons of which the first respondent or other relevant person was a member. It is country information about persons who had no connection with the first respondent specifically or by any particular relationship.

74 It follows, in my opinion, that s 424A(1) does not apply here.

(2) The appellant’s alternate submission

75 Alternatively, the appellant submits that so much of VHAJ and of NARV which holds that, in determining whether ‘information’ is ‘just about a class of persons’, regard is to be had to the use which the Tribunal makes of the information, should not be followed. It is submitted that a broad approach to characterising material as being about a class of persons, is to be preferred, citing Downes J in VHAJ and Sackville J in NANF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 292. However, it is not necessary that I deal with this alternative argument.

(ii) Procedural Fairness

76 It will be recalled that the Federal Magistrate also found that the Tribunal’s failure to inform the first respondent of the citations from the DFAT and American authorities contravened the rules of natural justice, citing the judgment of Brennan J in Kioa, above, at 629.

77 In Kioa, the Departmental submission to the Minister’s delegate first cast doubt upon the genuine character of Mr Kioa’s desire to seek a legitimate extension of his stay (par 21); and secondly, spoke of Mr Kioa’s ‘active involvement with other persons who are seeking to circumvent Australia’s immigration laws ...’ (par 22).

78 Mason J said (at 587):

f in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter: ...’

79 Brennan J said (at 629):

‘The allegation in par. 22 was apparently credible, relevant and damaging. The failure to give Mr. Kioa an opportunity to deal with it before making an order that Mr. and Mrs. Kioa be deported left a risk of prejudice which ought to have been removed. There was nothing in the circumstances of the case – neither in the administrative framework created by the Act nor in any need for secrecy or speed in making the decision – which would have made it unreasonable to have given Mr. and Mrs. Kioa that opportunity. The failure to give Mr. Kioa that opportunity amounts to a non-observance of the principles of natural justice.’

80 Deane J said (at 634):

‘Such an opportunity of being heard included, in the circumstances of the present case, the opportunity of dealing with any matters raised against them including the particular matters raised in each of pars. 21, 22 and 26 of the submission of 6 October 1983 which was placed before the delegate of the Minister.’
81 No question arises here whether any material personal to the first respondent was relied on by the Tribunal in respect of the DFAT or American material.

82 On behalf of the appellant, it is submitted that the Federal Magistrate should have considered the reasoning in Re Minister; Ex parte Miah (2001) 206 CLR 57 and in Muin v Refugee Review Tribunal (2002) 76 ALJR 966.

83 In Miah, the Tribunal relied on information concerning a change in government after lodgement of the protection visa application, upon the footing that the applicant could not have reasonably perceived that the material would be relevant. Failure to inform the applicant of the substance of this information was held to be a breach of the rules of natural justice.

84 In Miah, the applicant claimed that if he returned to Bangladesh, he would be persecuted on the ground of his political and religious beliefs. The Minister’s delegate accepted the applicant’s account of his treatment in Bangladesh, but, without informing the applicant, determined that the applicant did not have a real chance of persecution if he returned to Bangladesh because a change of government had occurred since the applicant filed his application and because of other reports of conditions in Bangladesh since the date of the application.

85 McHugh J said (at [142]) that ‘the new material was undoubtedly decisive of the [applicant’s] claim’.

86 Kirby J noted (at [193]) that there were ‘special considerations’ which suggested that the delegate was obliged to call the information on which he acted to the applicant’s notice. Of five considerations, his Honour referred to ‘the fact that it was judged of crucial importance, even determinative, for the outcome of the application’.

87 Gaudron J said (at [98]) that the delegate did not simply reject the applicant’s claims; ‘Indeed, he barely considered them’. Rather, he had regard to the recent elections and change of government in Bangladesh and ‘drew inferences from limited, and to some extent, equivocal information which he seemed to think rendered [the applicant’s] claims virtually irrelevant’.

88 The present case cannot, in my view, be so characterised.

89 It will be recalled that the Tribunal said that it was ‘prepared to accept’ that the first respondent ‘might’ have been beaten up by thugs belonging to AL, but went on to determine that it was not satisfied that the first respondent was being ‘targeted’ by ‘sustained violence by political enemies’. It was in this context that the Tribunal referred to the DFAT and American material, not to reject a fundamental aspect of the first respondent’s claim (as occurred in Miah) but as information which indicated that this political violence is ‘mainly’ experienced by mafia-like (etc.) activists. Moreover, it did not involve any sudden alteration in the security situation (see Re Minister; Ex parte PT (2001) 75 ALJR 808 per Kirby J at 813).

90 In Muin, McHugh J distinguished Miah, holding (at [131]) (inter alia) that the issue of the Indonesian Government’s protection against anti-Chinese violence was ‘obvious’; that the new information was ‘less critical’ than it was in Miah; and that not all of the country information material was (unlike in Miah) new.

91 Nonetheless McHugh J upheld Mr Muin’s claim on a different footing (at [137]):

‘Did procedural fairness require the Tribunal member to tell Mr Muin that she was considering the policies of President Habibie and the assurances of the Army as evidence that the government would offer protection? It is an issue on which reasonable minds might differ. But I think that she should have told him. Although the general issue of government protection was at the forefront of the case, the policies of the new President and the assurances of the Army were not issues in the case. I do not think that it was obvious that these two matters – particularly the assurances of the Army – would be decisive of the outcome of the review, as arguably they were. The change of government occurred after Mr Muin had made his submissions. At the hearing he had not been asked whether a change of government might make a difference. Nor was he asked about the assurances of the Army. If he had been asked, he might have pointed to material that suggested that the policies of the new President and the assurances of the Army had failed or were likely to fail. Moreover, the Agreed Facts suggest that he could have provided evidence, material or submissions that would have caused the Tribunal to reach a different view.’

92 Gleeson CJ (at [30]) and Kirby J (at [236]) were of the same view, although three Justices dissented: Gummow J (at [171]), Hayne J (at [276]) (who considered that ‘the change of government and circumstances in which the change occurred were very well known’), and Callinan J (at [301]) distinguishing Miah on the basis that there the material was not of such a kind that Mr Miah could reasonably have expected it be used).

93 In my opinion, the Federal Magistrate should not, in the absence of the Tribunal’s transcript, have made a positive finding that disclosure was required, for the several reasons submitted by the appellant as follows.

• Unlike Muin, the first respondent had an oral hearing.
• It cannot be assumed that the extent to which the first respondent had been, or would be, specifically targeted for sustained violence by his political enemies, was not raised with him. It will be recalled that in its reasons, the Tribunal put to the first respondent that he could have moved away from his village to avoid ‘localised violence’; and that, in response to the first respondent’s suggestion that even if he moved to Dhaka, then his enemies would follow him, the Tribunal put to the first respondent that ‘such sustained targeting was unlikely given his low political profile.
94 In my opinion, the country information now in question was not personal to the first respondent; nor was it of critical significance to the claim he made. In my opinion, natural justice did not require its disclosure.

(iii) Finding that information not put

95 Given my earlier conclusions, I need not pursue this ground of appeal.

(b) The ‘false charge’ issue

96 It will be remembered that the Federal Magistrate found that the Tribunal constructively failed to exercise its jurisdiction by not considering whether the first respondent would be ‘detained pending any court hearing of the charge against him or any appeal against a conviction’. His Honour noted that the Tribunal ‘did not consider the conditions under which detainees are kept in Bangladesh’.

97 It appears that the error now attributed to the Tribunal was not the risk of an improper determination resulting from false charges being laid, but with the possibility of detention pending their determination.

98 However, as the appellant submitted, in the case of the first respondent there is an element of speculation here. Although detention may occur upon laying of a false charge, there was no real likelihood that the first respondent would himself be so detained.

99 In his statement, the first respondent claimed that he had learned of the charges against him after his brother went to the police station in February 1999 to file a case and the police told the brother that ‘a case has been filed against [the first respondent] already’. The first respondent arrived in Australia in August 1999. But there was nothing to suggest that, in that period, any attempt was made by the authorities or by the first respondent’s political opponents to incarcerate the first respondent between those dates. This is consistent with the Tribunal’s finding that the first respondent could not identify his attackers. It is also consistent with the Tribunal’s findings that an independent judiciary will, by virtue of the provisions of the Public Safety Act, provide protection.

100 It follows, in my opinion, that, in the absence of any appropriate factual foundation, there was no basis upon which a constructive failure to exercise jurisdiction could be demonstrated.

ORDERS

101 It must follow, in my view, that the appeal should be allowed.

102 I propose the following orders:

1. That the appeal be allowed.

2. That the orders made by the Federal Magistrate on 5 March 2004 be set aside.

3. In lieu thereof, order that the application be dismissed.

4. That the first and second respondents pay the appellant’s costs of the appeal and in the Federal Magistrates Court.


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 Beaumont.



Associate:

Dated: 23 September 2004



IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 423 OF 2004


ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
APPELLANT
AND: NAMW
FIRST RESPONDENT

NAMX
SECOND RESPONDENT

NAMY
THIRD RESPONDENT
JUDGES: BEAUMONT, MERKEL AND HELY JJ
DATE: 23 SEPTEMBER 2004
PLACE: MELBOURNE (HEARD IN SYDNEY)


REASONS FOR JUDGMENT

MERKEL and HELY JJ:

Background

103 The respondents are citizens of Bangladesh. The first respondent claims that because of his political profile with the Bangladesh Nationalist Party ("BNP") he was subjected to violence and false charges laid by political activists from the rival Awami League ("AL"). As a consequence, the first respondent says that he has a well founded fear of political persecution if he were to return to his country of nationality, Bangladesh and, accordingly, he and his wife and child (who are the second and third respondents) are entitled to be granted protection visas.

104 The Refugee Review Tribunal ("the RRT") affirmed the decision of the delegate to refuse to grant protection visas to the respondents. The main aspect of the RRT’s decision that is relevant to the present appeal is the rejection by the RRT of the first respondent’s claim to have been the target of sustained violence prior to his departure from Bangladesh because of his political profile with the BNP. The relevant findings of the RRT were as follows:

"I accept that the applicant had joined the BNP and that he had risen to the position of joint secretary of his local village branch. I am not satisfied that he was regarded as being a significant political player, given his position. I am not satisfied that he was considered important enough for people from his village to pursue him to Dhaka, as he claims they had done, or anywhere else in the country if he were to relocate and so avoid localised trouble in his village.

I am prepared to accept that the applicant might have been beaten up by thugs belonging to the AL since political violence, like all violence in Dhaka, is of a high level. However, such violence, according to DFAT and American authorities, is mainly experienced by those activists who take part in the mafia-like, criminal vendetta-type activities indulged in by many in the student and youth wings of the political parties, or by those who take part in confrontational actions such as national strikes and major rallies which are prone to violence no matter which party is holding them and which [is] the party in government at the time (Bangladesh: Profile of Asylum Claims and Country Conditions, Part II B, Student and Political Violence, pub’d by United States Bureau of Democracy, Human Rights and Labor, February 1998, CX31417; DFAT CIS Country Information Report No. 497/96 of 7/6/98, CX17304; DFAT cable BGD14088 of 1/5/2000, CX41587). The applicant presents as a sober gentleman and I am not satisfied that he would have been active in those wings of his party which are bent on violence and which thus interact with rival parties on a physical rather than cerebral level. Thus I am prepared to accept that he might have been attacked or hurt in melees once or twice in a sporadic manner, but I am not satisfied that he was the targeted [sic] of sustained violence by political enemies. I am of the opinon that he has fabricated claims to exaggerate the harm that he might have suffered. I find that the applicant would be able to engage in the normal expression of his political opinion by avoiding the thuggish side of politics.

It might be that even if he engaged peacefully in politics and avoid [sic] rough elements, he might be harmed in sporadic and indiscriminate violent actions as Bangladeshi politics is played robustly. What is important here is whether he would be denied protection from such harm?"
105 The RRT doubted, but did not reject the first respondent’s claim in respect of the false charges laid against him. However, in respect of that claim, as well as the claim of political violence, the RRT concluded that the first respondent could rely on the courts and the authorities in Bangladesh to provide him with effective protection in respect of any harm he might suffer if he returned to Bangladesh.

106 The respondents were not represented in the Federal Magistrates Court on their application to review the decision of the RRT. However, the Magistrate declared that the decision of the RRT was invalid and issued writs of certiorari and mandamus quashing the decision and requiring the RRT to redetermine the matter according to law. The Magistrate concluded that the RRT’s decision was vitiated by jurisdictional error for two reasons:

• the RRT did not give to the first respondent particulars of certain country information upon which it relied in rejecting the first respondent’s claims of political violence against him and, as a consequence, the RRT failed to comply with s 424A(1) of the Migration Act 1958 (Cth) ("the Act") and also failed to accord procedural fairness to the respondents;

• as the RRT did not consider the harm the first respondent might suffer if he were to be detained or imprisoned pending any court hearing of the false charges against him, it constructively failed to exercise its jurisdiction.

107 The Magistrate did not regard the RRT’s finding that the first respondent had effective protection in respect of any harm he might suffer if he returned to Bangladesh as precluding the respondents’ claim for relief as his Honour concluded that the finding did not relate to the "serious and systematic" harm the first respondent claimed to be at risk of suffering.


The Appeal

108 The appellant ("the Minister") has appealed against the judgment of the Magistrate. The grounds of appeal are:

"1. His Honour erred in holding that the Tribunal in reaching its conclusion relied on country information which should have been disclosed to the first respondent, but was not.
2. His Honour erred in holding that sufficient particulars of the country information had not been disclosed to the first respondent.
3. His Honour erred in failing to hold that the country information fell within the exclusion contained in s.424A(3) of the Migration Act 1958 (Cath).
4. His Honour erred in holding that general law principles of procedural fairness required the disclosure of the particular country information.
5. His Honour erred in holding that there was jurisdictional error in the manner in which the Tribunal dealt with the first respondent’s claims in relation to the ‘false charge’ said to have been laid against the first respondent."

Constructive failure to exercise jurisdiction

109 The Magistrate’s finding of a constructive failure to exercise jurisdiction can be disposed of briefly. The first respondent’s claim of a fear of political persecution in respect of the false charges was stated by the RRT to be as follows:

"In August 1996, while the AL was in government, the applicant’s home had been ransacked and his brother beaten up by AL thugs. In September 1998 the applicant had been beaten up by AL thugs. Police had taken no action. At the hearing, the applicant said that he had not been able to identify his attackers. In February 1999 this had happened again. When the applicant’s family had gone to the police to lodge a complaint, they had found that a charge had been laid against the applicant. This had caused the applicant to fear for his life, and so he had left Bangladesh for Australia with his wife.

The applicant became vague and evasive when asked what the charge against him had involved. When the question was repeated, he said that he had been accused of involvement in violence at a rally from which he had, in fact, been absent. All this trouble had come from people in his village who had known his family to have been opposed to Bangladesh’s independence in 1971 and had been inimical to the applicant’s political activities."
110 In his written statement in support of his application for a protection visa the first respondent referred to acts of violence he had suffered and, in particular, to the violence that occurred on 17 February 1999, and stated:

"15. ... On 17 February 1999 when I was returning home from Mauchak Market along with my wife a group stop[p]ed our Rickshaw and asked me to go with them. They started punching on my face by their non-stop punching and kicking I lost my sense and my wife with the help of other people sent me to a private clinic. When I was at the clinic, my brother went to police station to file a case. The police told him a case has been filed against me already.

16. After the above mentioned incident I was shocked seriously. I was thinking about leaving the country. Finally I decided to leave the country and obtained visas along with my pregnant wife.

17. My life is not safe in Bangladesh. The authorities in Bangladesh did not protect me at all. My life was in danger in Bangladesh. I am seeking refugee status in light of the United Nations Convention 1951 and 1967 protocol related to the status of refugee."
111 The first respondent did not claim that he feared detention or imprisonment pending the determination of the charges laid against him and his counsel did not take us to any evidence that he was threatened with such detention or imprisonment. In those circumstances the RRT’s task was limited to determining whether there was a real chance of the first respondent being subjected to the harm that he claimed to fear if he were to return to Bangladesh and, if so, whether that harm constituted political persecution. As the harm claimed to be feared did not include detention or imprisonment pending the outcome of the charges laid, the RRT was not required to consider whether the first respondent might be so detained or imprisoned. Accordingly, the Magistrate was in error in concluding that the RRT had constructively failed to exercise its jurisdiction by failing to consider that matter.


Section 424A

112 Section 424A provides:

"(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.


(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or

(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.


(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application; or

(c) that is non-disclosable information."

113 Section 441A provides for the notification required by s 424A(1) to be carried out by the delivery of documents whether by hand, prepaid post or by electronic means depending upon an applicant’s particular circumstances.

114 Section 424A(1) only requires disclosure of information that would be a reason or part of the reason for the decision of the RRT to affirm the decision of the delegate. As was observed by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 206 ALR 471 ("VAF") at 478 [29] the question of compliance with s 424A(1)(a) "is to be judged retrospectively in light of the tribunal’s actual decision". Their Honours stated at 478 [30]:

"The information concerning the appellant’s behaviour clearly was not ‘the reason’ for the tribunal’s decision. But was it ‘a part of the reason’? As we have indicated, the tribunal considered it to have some relevance to the determination to be made. And the tribunal’s treatment of that information (ie the ‘significance’ attributed to it) equally had a place in its reasoning process. However, it is not necessarily the case that for either or both of these reasons, the circumstances attract the obligation of s 424A(1)(a). The subsection itself requires identification of the reason for affirming the decision under review."
115 And at [33]:

"It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the tribunal’s decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a tribunal’s reasons are to be evaluated for s 424A(1) purposes, the court as a matter of judgment is required to isolate what were the integral parts of the reasons for the tribunal’s decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy – and made the more so by less than explicit indications in the reasons themselves as to what the tribunal itself considered to be integral."
116 The above passages were cited with approval by a Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [51]-[52].

117 The country information that the Magistrate found was required to be disclosed to the first respondent was stated by the RRT to be that, according to DFAT and American authorities, the political violence of the kind claimed to have been suffered by the first respondent:

"... is mainly experienced by those activists who take part in the mafia-like, criminal vendetta-type activities indulged in by many in the student and youth wings of the political parties, or by those who take part in confrontational actions such as national strikes and major rallies which are prone to violence no matter which party is holding them and which [is] the party in government at the time ..."
118 The country information appears to have been relied upon by the RRT, together with other matters, to conclude that it was not satisfied that the first respondent had been targeted for violence by his political enemies, and to make the adverse credibility finding against the first respondent that he had "fabricated claims to exaggerate the harm he might have suffered". It is now well established that information that was a reason for the rejection by the RRT of an applicant’s credibility may be information the particulars of which is required to be given pursuant to s 424A(1): see VAF at 483 [53] and the cases there cited.

119 Subject to certain observations we make at the conclusion of our reasons we are of the view that, applying the observations of Finn and Stone JJ in VAF at 478 [33], the relevant country information was an integral, and not an inessential, part of the reasoning of the RRT that led it to reject the first respondent’s claim to have a well-founded fear of political persecution if he were to return to Bangladesh. Our reasons for that conclusion are:

• the findings by the RRT that it was not satisfied that the first respondent had been targeted for violence by his political enemies and that he had "fabricated claims to exaggerate the harm that he might have suffered" were critical findings against the first respondent as they resulted in the RRT rejecting his primary claim that he would continue to be targeted for political violence because of his political profile with the BNP;

• the relevant country information was relied upon by the RRT, together with the finding about the first respondent’s low political profile, to make those findings;

• accordingly, it is appropriate to characterise the relevant country information as a reason for the RRT’s rejection of the first respondent’s claims and therefore a reason for the RRT affirming the decision under review.

120 It was not contended on behalf of the Minister that the country information was given in accordance with s 424A(2) of the Act, but counsel for the Minister contended, correctly in our view, that non-compliance with that sub-section does not, without more, constitute jurisdictional error: see NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 214 at 219-221 ([23]-[25]). Particulars of the information required to be given may be given to an applicant in the course of the hearing before the RRT (see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [32]), and counsel for the Minister contended that there is no evidence that the relevant information was not given to the first respondent by the RRT during the hearing it conducted.

121 In the usual course the tape or transcript of the hearing before the RRT would reveal whether particulars of the relevant information were given to an applicant in the course of a hearing before the RRT. However, the Minister’s tape of the RRT proceedings was defective and this question does not appear to have been raised with the first respondent, who was then not represented, at the hearing before the Magistrate. If that was where the matter stood it would not have been open to the Magistrate to conclude that the information had not been given to the first respondent.

122 However, the reasons of the RRT disclose that specific matters, including country information, which it considered at the time to be significant to the claims of the first respondent, were raised with him. The matters that the RRT stated it raised with the first respondent did not include the relevant country information. In the unusual circumstances of the present case we are prepared to infer, on the balance of probabilities, that the relevant country information was not raised by the RRT with the first respondent. It was therefore open to the Magistrate to conclude, as he did, that the relevant country information was not disclosed to the first respondent prior to the RRT’s decision.

123 Accordingly, the remaining issue is whether the relevant country information was information that fell within the exclusion in s 424A(3)(a) because it "is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". The information was not specifically about the first respondent or another person. It was, however, about a class of persons: namely, the persons in Bangladesh who are likely to be targeted for violence by their political enemies. Significantly, the RRT found that the first respondent was not a member of that class. Without reference to authority, and applying a literal meaning to the words used in s 424A(3)(a), the relevant country information can be characterised as information that is not specifically about the appellant or another person and is not about a class of persons of which the applicant or the other person is a member. On that basis the information would not be excluded under s 424A(3)(a) and would therefore be required to be given under s 424A(1).

124 However, the meaning of s 424A(3)(a) has been the subject of controversy and single judges of the Court and Full Courts have expressed differing views as to its meaning.

125 The controversy relates to two areas. The first is whether information is "just about" a class of persons of which the applicant is a member when the information relates not only to that matter but also to other matters: see the discussion in that regard in VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 ("VNAA") at [18]-[24] per Sundberg and Hely JJ and NANF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 292 at [41]-[50] per Sackville J.

126 The second area of controversy relates to whether s 424A(3)(a) contains two criteria, namely that the information is not specifically about the applicant or another person and is just about a class of persons of which the applicant and the other person is a member, each of which must be satisfied. The alternative view is that the reference to the class of persons is not another criterion to be met but, rather, underlines the specificity required in respect of the applicant or another person by precluding any argument that reference to a class can be taken to be a reference to all individuals falling within it. The "two criteria" interpretation was adopted in VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 609 ("VHAJ") at 616-617 [25]-[29] per Moore J and 622-623 [46]-[48] per Kenny J; and NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494 ("NARV") at 509 [30] per Ryan and Finkelstein JJ. The alternative interpretation was adopted in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 ("VHAP") at [14] per Gyles and Conti JJ (with whom Allsop J agreed), VNAA at [32]-[33] per Gyles J, and is also favoured by Beaumont J at [68]-[71] in the present appeal.

127 In order to resolve the controversy it is appropriate to consider the legislative history of s 424A. The genesis of the section can be found in s 57 of the Act which established a similar procedure for the delegate of the Minister in respect of information that is required to be given to a visa applicant. Section 57 provides:

"(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for refusing to grant a visa; and
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c) was not given by the applicant for the purpose of the application.


(2) Subject to subsection (3), the Minister must:
(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c) invite the applicant to comment on it.

(3) This section does not apply in relation to an application for a visa unless:
(a) the visa can be granted when the applicant is in the migration zone; and
(b) this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa."

128 To the extent that s 57 applies it partly enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with information adverse to his or her interests that the repository of the power proposes to act upon in deciding upon its exercise: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 ("Miah") at 96-97 [139]-[140] per McHugh J. However, the statutory procedures the Minister (or his or her delegate) were required to follow did not exclude the application of the common law rules of natural justice: see Miah at 83-88 [90]-[104] per Gaudron J, 95-98 [131]-[143] per McHugh J and 111-115 [178]-[188] per Kirby J. The information included under s 57(1)(b) is information "specifically about the applicant or another person". Thus, the exclusion in respect of the class of persons of which the applicant or another person is a member merely ensures that information about that class is not treated as information specifically about the applicant or the other person.

129 When s 424A (and its counterpart in respect of the Migration Review Tribunal, s 359A) was enacted by the Migration Legislation Amendment Act (No 1) 1998 it was clear that the legislature intended to introduce a procedure for both the RRT and the Migration Review Tribunal that was similar to that which applied to decisions by the Minister (or his or her delegate): see the Second Reading Speech, Commonwealth, Parliamentary Debates, House of Representatives, 2 December 1998, 1122 (Phillip Ruddock, Minister for Immigration and Multicultural Affairs) at 1123. Importantly, the Explanatory Memorandum at [117] states:

"[The Amending Act] also inserts six new sections into the Migration Act. Of these sections 424, 424A, 424B and 424C provide a code of procedure which the [Refugee Review] Tribunal is to follow in conducting its review:

...

new section 424A ensures that an applicant is given particulars of any information that would be the reason or part of the reason for affirming the decision under review, and is asked to comment on that information. The information must be specifically about the applicant or another person and not just about a class of persons of which the applicant or the other person is a member. Paragraphs 424A(3)(b) and (c) provides respectively that information given by the applicant and non-disclosable information are not included in this section;" [Emphasis added]
130 Although the Explanatory Memorandum makes it quite clear that the information that must be provided under s 424A was intended to be equivalent to the information required to be given under s 57, for some reason s 424A was drafted quite differently to s 57. Rather than employ the simple expedient of requiring that the information that is to be provided must be information that would be a reason for the decision and is specifically about the applicant or another person, s 424A required that particulars of the information described in s 424A(1) is to be provided unless it is excluded under s 424A(3). In our view that exclusionary approach resulted in the literal meaning of ss 424A(1) and 3(a) not being equivalent to s 57(1)(b). The reason for that is that a literal interpretation of s 424A(3)(b) requires that both of the two criteria stipulated in the sub-section be met for the exclusion to apply.

131 Counsel for the respondents submitted that the two criteria approach gives effect to the ordinary and natural meaning of the words used in s 424A(3)(a) and that if the legislature had wished to replicate s 57 it would have been a simple matter for it to do so. Although there is some force in that submission it is difficult to see any rationale for excluding from the operation of s 424A information which is just about a class of persons of which the applicant or the other person is a member, but not excluding such information if those persons were not members of the class. Yet, the two criteria approach has that anomalous result.

132 Four factors have led us to conclude that by enacting s 424A (and s 359A) Parliament intended to substantially replicate the effect of s 57(1). First, that is clearly stated as the intention in the Explanatory Memorandum. Second, the literal meaning of s 424A, as drafted, would result in the anomalous outcome described above. Third, the procedural "code", of which s 424A formed part, did not exclude the rules of natural justice: see Miah and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at 178 [30]. Thus, it was not unreasonable or anomalous for the legislature to require that, in so far as s 424A formed part of that procedural code, the section was only to apply to information specifically about the applicant or another person, leaving the rules of natural justice to apply to other information. While that situation may have changed as a result of the subsequent enactment of s 422B, which seeks to excludes the rules of natural justice at least in respect of matters dealt with in the procedural code relating to the conduct of reviews by the RRT, the later legislative amendment cannot affect the proper construction of s 424A, which has remained in its unamended form since it was enacted. Finally, there is no obvious reason why the legislature would seek to impose a substantially different mandatory disclosure requirement on the RRT to that imposed on the Minister (or his or her delegate).

133 The remaining question is whether, having regard to the intention of the legislature in respect of s 424A it is open to the Court to depart from the literal meaning of s 424A(3)(a). There is a substantial body of authority to the effect that where a judge concludes that the legislature could not having intended that a statute operate according to its literal meaning since that meaning would defeat the manifest object or purpose of the legislation, then an alternative interpretation must be preferred. In Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 ("Cooper Brookes") several members of the Court declined to adopt a literal construction which would defeat the object or purpose of the enactment. At 311 Stephen J declined to adopt a literal application when to do so would:

"...in the words of Fry L.J., be to construe ‘the Act in order to defeat its object rather than with a view to carry its object into effect’; Curtis v. Stovin".
134 In a much cited passage at 320-321 Mason and Wilson JJ said that departure from the ordinary grammatical sense is not restricted to cases of absurdity or inconsistency. Their Honours said at 321 that -

"when the judge labels the operation of the statute as ‘absurd’, ... ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’ he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."
135 Those principles were applied in MacAlister v The Queen (1990) 169 CLR 324 by Mason CJ and Dawson, Toohey, Gaudron and McHugh JJ who said at 330:

"To give the words ‘an offence’ in s. 77 their literal meaning would defeat the purpose of the legislation and produce the unreasonable result that there was no right of appeal from the County Court against a s. 70(b) order. Such a result was certainly not intended. On the other hand, if the words ‘an offence’ are read as ‘his or her offence’, as we think their context and the apparent intention of the section suggest they should be read, the provision has a sensible meaning which gives effect to its evident purpose. In Luke v. Inland Revenue Commissioners, Lord Reid, when confronted with a similar problem, said:

‘The general principle is well settled. It is only where the words are absolutely incapable of a construction which will accord with the apparent intention of the provision and will avoid a wholly unreasonable result, that the words of the enactment must prevail.’"

136 In Saraswati v The Queen (1991) 172 CLR 1, after referring to the passages from the judgment of Mason and Wilson JJ in Cooper Brookes set out above, McHugh J said at 22:

"Moreover, once a court concludes that the literal or grammatical meaning of a provision does not conform to the legislative purpose as ascertained from the statute as a whole including the policy which may be discerned from its provisions, it is entitled to give effect to that purpose by addition to, omission from, or clarification of, the particular provision: see Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd.; Jones v. Wrotham Park Settled Estates; Cooper Brookes; In re Lockwood."
137 Finally, Lord Diplock observed in "The Courts As Legislators" The Lawyer and Justice (Sweet & Maxwell 1978) at 274:

"if...the Courts can identify the target of Parliamentary legislation their proper function is see that it is hit; not merely to record that it has been missed."
138 As is demonstrated by the differences of opinion within the Court to which we have referred, s 424A is not incapable of a construction that gives effect to the intention of the legislature. Accordingly, albeit for reasons that differ from those expressed in VHAP and by Beaumont J, we are also of the view that the reference in s 424A(3)(a) to the class of persons is not another criterion to be met but, as is the case with s 57(1)(b), is designed to underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals (including for example, an applicant) falling within it: see VHAP at [14]. It follows that the Magistrate was in error in failing to find that the relevant country information fell within the exclusion in s 424A(3)(a), and in finding that the RRT failed to comply with s 424A(1).

139 Our view gives effect to the intention of the legislature when s 424A was enacted. However, the consequence of the subsequent enactment of s 422B is likely to be that there is no longer an obligation on the part of the RRT to afford applicants before it a fair hearing, in so far as that requires the RRT to give those applicants an opportunity to deal with relevant matters adverse to their interest the disclosure of which is not required by s 424A(1), but which the RRT proposes to take into account in affirming the delegate’s decision to refuse to grant a protection visa. Plainly, that is a highly undesirable outcome. Nonetheless, although the RRT might no longer be obliged to afford applicants a fair hearing, that is not a reason for it not to afford a fair hearing to all applicants appearing before it. Those observations, however, do not apply to the present case because the RRT’s decision was handed down prior to the commencement of s 422B. Accordingly, it is necessary to consider whether the RRT did not accord procedural fairness to the respondents.


Procedural Fairness

140 In NARV, which was also concerned with country information, Ryan and Finkelstein JJ stated at 503 [15]:

"The principal aspect of the rules of natural justice with which this case is concerned is covered by the following statement by Brennan J (as he then was) in Kioa (at CLR 629; ALR 380): ‘n the ordinary case...an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.’ This statement has been adopted in later cases: see, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 96-97, 116; 179 ALR 238 at 269, 285-6; Muin v Refugee Review Tribunal (2002) 190 ALR 601, 631, 653; 68 ALD 257 at 286-7, 308-9. Brennan J’s statement of the applicable principle is in conformity with the statement of principle found in earlier cases: see, for example, De Verteuil v Knaggs [1918] AC 557 at 562-563; Kanda v Government of the Federation of Malaya [1962] AC 322 at 337; R v Industrial Injuries Commissioner; Ex parte Howarth (1968) 4 KIR 621 at 626; Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255 at 1260; Mahon v Air New Zealand Ltd (PC) [1984] AC 808 at 820-821; (1983) 50 ALR 193; National Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296 at 316; 52 ALR 417 at 431."
141 In Miah, which was concerned with information about a change in government, Gaudron J stated (at 86 [99]):

"The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her. Mr Miah was not given the opportunity to put a case by reference to the change in government in Bangladesh or to answer the case made against him by reference to that change. Procedural fairness required that he be given that opportunity."
142 McHugh J (at 96-97 [140] stated:

"A basic principle of the common law rules of natural justice is that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise. This does not mean that all material which comes before the decision-maker must be disclosed but, ‘in the ordinary case ... an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.’"
143 Kirby J stated at 117-118 [194]:

"The requirement of disclosure, relevant to a case such as the present, has been expressed by the Full Court of the Federal Court in terms that I accept:

‘[The] entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.’"

144 We are satisfied that, applying the principles set out above, the relevant country information was required to be disclosed by the RRT to the first respondent, as it was the foundation for the RRT’s conclusion that the first respondent he ‘has fabricated claims to exaggerate the harm that he might have suffered’. However, counsel for the Minister contended that the RRT’s reasons for its decision reveal that it raised with the first respondent the questions of his low political profile and, of effective protection being provided by the authorities, and, in the course of doing so, it made it obvious to the first respondent that country information about political violence, which was used by the RRT, was relevant to his claims and should be addressed by him. We do not accept that submission. There is nothing in the reasons of the RRT or in the material to which we were taken that suggests that the relevant information, or the use to which it was put, was so obvious to the first respondent that he should have been aware that it was incumbent upon him to address that information: see Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 633 [131] per McHugh J, 664 [276] per Hayne J (with whom Gummow J agreed: see [171] at 640) and 670 [301] per Callinan J; cf Gleeson CJ at 610-612 [26]-[31], Gaudron J at 618 [64] and Kirby J at 653-655 [226]-[236].

145 Accordingly, we are satisfied that the Magistrate was correct in concluding that the failure of the RRT to disclose the relevant country information upon which it relied resulted in the RRT failing to accord procedural fairness to the respondents. Thus, the Minister has failed to make out the ground of appeal upon which she relied in respect of procedural fairness. Subject to the further observations we make below it follows that the Minister’s appeal, in so far as it relates to procedural fairness, must be dismissed.


Further observations

146 In these reasons we qualified our conclusions that the relevant country information was a reason for the decision of the RRT and that the Minister’s appeal, in so far as it relates to procedural fairness, must be dismissed. The qualifications were made because of the concluding finding of the RRT, which was as follows:

"In summary, I find that whether or not the applicant had faced insurmountable problems over his political views before leaving Bangladesh, he would not face such problems now given that there is a new government, of his own party, which is determined to prevent political thuggery. I find that the applicant can avail himself of the protection of the police in relation to any threat of harm, and that the courts would act fairly and strongly in protecting him from false charges. For all these reasons, I am not satisfied that the applicant has a well-founded fear of persecution under the Convention in Bangladesh."
147 It may well be that the finding of effective protection in respect of "any threat of harm", in relation to "political thuggery", and also in relation to "false charges" was dispositive of the first respondent’s claims to be entitled to a protection visa (see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at 496 [29]). If that were the case the relevant country information may not have been part of the reason for the decision of the RRT.

148 The finding of effective protection was also potentially relevant to the respondents’ claims in respect of a denial of procedural fairness. The reason is that, even if there were such a denial, the Court may nonetheless refuse to grant relief if the respondents’ claim to be entitled to a protection visa must have failed in any event: see Stead v State Government Insurance Commission (1986) 161 CLR 141 and Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 at 41 [42] and the cases there cited.

149 Although the Minister did not raise either of the above matters at the hearing of the appeal we have considered whether it is appropriate for the Court to raise them with the parties. However, for the following reasons, we have concluded that it was not appropriate to do so. Counsel for the Minister submitted to the Magistrate that, even if the respondents established a breach of s 424A(1) or a denial of procedural fairness, relief should be denied because the RRT determined that the first respondent could avail himself of effective State protection if he was the subject of political violence. The Magistrate rejected that argument on the ground that the finding only related to the "sporadic and indiscriminate violent harm to which anybody could be subject" and not to the "more serious harm to which [the RRT] had previously found the [first respondent] was not at risk of suffering". Although there may be some doubt about the Magistrate’s reasoning it was not challenged by the Minister in her notice of appeal or in the course of argument. In those circumstances we have concluded that the Court should proceed on the basis that the Minister has elected not to challenge the Magistrate’s decision in relation to effective protection and that the Court should, in all the circumstances, determine the Minister’s appeal on the basis of the case presented by the Minister, rather than on the basis of the case that might have been open to, but was not presented by, the Minister.


Conclusion

150 For the above reasons the appeal is to be dismissed with costs.



I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Merkel and Hely .



Associate:

Dated: 23 September 2004



Counsel for the Appellant: R. Beech-Jones



Solicitor for the Appellant: Australian Government Solicitor



Counsel for the Respondent: T. Reilly



Date of Hearing: 9 August 2004



Date of Judgment: 23 September 2004
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