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MIGRATION – Refugee Review Tribunal – procedural fairness – adverse information given in confidence by informer – Tribunal declined to take that information into account – no denial of procedural fairness in failing to disclose that information to applicant

Minister for Immigration & Multicultural & Indigenous Affairsv Applicant VE

Minister for Immigration & Multicultural & Indigenous Affairsv Applicant VEAL of 2002 [2004] FCAFC 179 (9 July 2004)
Last Updated: 13 July 2004

FEDERAL COURT OF AUSTRALIA


Minister for Immigration & Multicultural & Indigenous Affairs v

Applicant VEAL of 2002 [2004] FCAFC 179





CORRIGENDUM



















MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS v APPLICANT VEAL OF 2002


V 427 of 2003



GRAY, WHITLAM and MANSFIELD JJ
9 JULY 2004 (CORRIGENDUM 12 JULY 2004)
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 427 OF 2003


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
APPELLANT
AND: APPLICANT VEAL OF 2002
RESPONDENT
JUDGES: GRAY, WHITLAM and MANSFIELD JJ
DATE OF ORDER: 9 JULY 2004
WHERE MADE: MELBOURNE




CORRIGENDUM


1. On page 24, paragraph 63 of the reasons for judgment of Whitlam and
Mansfield JJ, the paragraph reference "at [20] above" is replaced with

the reference "at [45] above".


I certify that the preceding one (1) paragraph is a true copy of the Corrigendum to the Reasons for Judgment of the Honourable Justices Whitlam and Mansfield


Associate:

Date: 12 July 2004


FEDERAL COURT OF AUSTRALIA


Minister for Immigration & Multicultural & Indigenous Affairs v

Applicant VEAL of 2002 [2004] FCAFC 179




MIGRATION – Refugee Review Tribunal – procedural fairness – adverse information given in confidence by informer – Tribunal declined to take that information into account – no denial of procedural fairness in failing to disclose that information to applicant

Migration Act 1958 (Cth) ss 5, 424A, 438, 440
Administrative Appeals Tribunal Act 1975 (Cth) s 7(1A)
Federal Court of Australia Act 1976 (Cth) s 6(2)

Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 741 reversed
Hall v Release on License Board (unreported, New South Wales Court of Appeal, 27 June 1989) applied
Kioa v West (1985) 159 CLR 550 considered
NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 160 referred to
NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561 considered
Madafferi v Minister for Immigration and Multicultural Affairs [2000] FCA 158 referred to
Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483 referred to
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476 referred to
VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 referred to
Youssef v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 550 referred to
Roderick v Australian and Overseas Telecommunications Corporation Ltd (1992) 39 FCR referred to
R v Gaming Board for Great Britain; Ex parte Benaim and Khaida [1970] 2 QB 417 referred to
Hercules v Jacobs (1982) 60 FLR 82 referred to
Phillips v Secretary, Department of Immigration and Ethnic Affairs (1994) 48 FCR 57 referred to
Day v Douglas [1999] FCA 1444 referred to
Commonwealth of Australia v Day [2000] FCA 474 referred to
Bohills v Friedman [2001] FCA 569 (2001) 110 FCR 338 referred to










































MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS v APPLICANT VEAL OF 2002


V 427 of 2003



GRAY, WHITLAM and MANSFIELD JJ
9 JULY 2004
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 427 OF 2003


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
APPELLANT
AND: APPLICANT VEAL OF 2002
RESPONDENT
JUDGES: GRAY, WHITLAM and MANSFIELD JJ
DATE OF ORDER: 9 JULY 2004
WHERE MADE: MELBOURNE


THE COURT ORDERS THAT:


1. The appeal is allowed with costs.
2. Orders 1, 2 and 3 made on 9 May 2003 in the Court below are set aside and, in lieu thereof, it is ordered that the application is 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

VICTORIA DISTRICT REGISTRY V 427 OF 2003


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
APPELLANT
AND: APPLICANT VEAL OF 2002
RESPONDENT


JUDGES: GRAY, WHITLAM and MANSFIELD JJ
DATE: 9 JULY 2004
PLACE: MELBOURNE


REASONS FOR JUDGMENT

GRAY J:

The nature of the appeal

1 The essential question in this appeal is whether the Refugee Review Tribunal (‘the Tribunal’) denied natural justice to the respondent to the appeal, by the manner in which it dealt with a ‘dob-in’ letter (‘the letter’), received by the Tribunal prior to the hearing it conducted in relation to the respondent’s case. The respondent, a citizen of Eritrea (and his wife, who is not a party to the appeal) had applied for a protection visa, pursuant to the Migration Act 1958 (Cth) (‘the Migration Act’). He had sought review by the Tribunal of the refusal by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) to grant the visa.

2 The Tribunal did not show the letter to the respondent at any stage. It was common ground on the appeal that the Tribunal did not give to the respondent a proper opportunity to respond to allegations made against him in the letter. It referred to the letter only at the end of its reasons for decision, in the following terms:

‘In reaching its findings in this matter the Tribunal gives no weight to a dob-in letter that has been sent to the Department and forwarded to the Tribunal. The writer of that letter makes clear that the material therein is provided confidentially. The Tribunal has been unable to test the claims made in the letter and, accordingly, gives it no weight. The Tribunal has decided this matter solely for reasons outlined above.

In the present case the material referred to immediately above was provided in confidence to the Department and the Tribunal considers it is in the public interest that the content of the letter be regarded as "non-disclosable information" for the purpose of S424A(3)(c) of the Act. If the material in the letter should happen to be true then disclosure of it might possibly in the present case expose the author of it to serious harm. Accordingly, the Tribunal has taken the unusual step of ordering, in accordance with s440(1) of the Act, that the content of folio 32 of the Tribunal file not be published or disclosed.’
3 The judgment from which this appeal has been brought by the Minister is a judgment of a single judge of the Court in Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 437 (2003) 197 ALR 741. The learned primary judge made orders on 9 May 2003, setting aside the decision of the Tribunal, remitting the matter to the Tribunal, differently constituted, to be determined according to law and requiring the Minister to pay the respondent’s costs of the application. His Honour also ordered:

‘4. The letter referred to in the reasons for judgment as the "dob-in
letter" be retained in the Court file in a sealed envelope and, save for
any disclosure made of the content of that letter in the reasons for judgment, the letter not otherwise be disclosed to any person without the leave of a judge of the Court.’
4 At [50], his Honour expressed the conclusion that the Tribunal was under a duty to accord procedural fairness to the respondent in respect of the letter. It could have done so in either of two ways. It could have disclosed to him the substance of the relevant prejudicial allegations, without revealing the identity of, or otherwise exposing, the informant. Alternatively, it could have taken the necessary steps to have the respondent’s case dealt with by a different member of the Tribunal to whom the letter would not be shown.

5 I have read in draft form the joint reasons for judgment of Whitlam and Mansfield JJ in this appeal. Their Honours are of the view that the appeal should be allowed, except with respect to the fourth order of the primary judge. I disagree. In my view, the primary judge was correct to say that the Tribunal denied the respondent procedural fairness. It is therefore necessary that I set out my reasons for my conclusion. Both the detailed facts and the legislative provisions to which it is necessary to have regard are set out fully in the reasons for judgment of Whitlam and Mansfield JJ. Except to the extent to which it is necessary for the purpose of disclosing my reasoning, I do not propose to set them out again.

The facts

6 Two factual matters are of significance. The first is that the letter was received by the Tribunal on 5 March 2002, prior to the Tribunal’s hearing in relation to the respondent’s case, which took place on 22 March 2002. Although there is no evidence to this effect, it is to be expected that the letter was among the papers given to the Tribunal member who dealt with the case, and read by him prior to the hearing. The Tribunal member certainly did not disclaim having read the letter prior to the hearing, and did not suggest in his reasons for decision that the letter had been dealt with in some way separately from the other papers relating to the respondent’s case. It may be taken, therefore, that the Tribunal member read the letter prior to the hearing.

7 The second matter of significance is that the respondent’s credibility was a definite factor in the result of the case in the Tribunal. As the primary judge found at [26], and the Tribunal’s reasons for decision show, the Tribunal found that the respondent had exaggerated his association with former Minister Sherifo and his supporters. The Tribunal’s finding that the respondent had been a strong supporter of the Eritrean Government was based on its view of ‘the clear weight of evidence’. Contrary to the respondent’s claims that he risked persecution in Eritrea by reason of his political views, the Tribunal found that he was able to use influence with high Eritrean officials, both in Eritrea and Australia, and to obtain funding from the Eritrean Government for a festival of which the respondent was a principal organiser. The letter apparently included material relating to these issues.

The Tribunal’s direction under s 440(1)

8 To a considerable extent, the fact that the Tribunal made a direction, in reliance on s 440(1) of the Migration Act, that the information in the letter not be published or otherwise disclosed to the applicant or to any other party, has been something of a distraction. In his amended application, by which he sought relief at first instance, the respondent did not seek to set aside the decision of the Tribunal to give the direction pursuant to s 440(1). He sought to set aside the decision of the Tribunal to affirm the decision of the Minister’s delegate not to grant a protection visa. One of the grounds on which he did so was denial of procedural fairness. The particulars of that ground referred to the letter. They suggested that the Tribunal was required by s 424A of the Migration Act to disclose the letter to the respondent, that it failed to disclose the letter because it misconstrued the meaning of ‘non-disclosable information’ in s 424A(3), and that the Tribunal was not empowered under the Migration Act to make a determination that the letter was non-disclosable information.

9 The Tribunal did not act on the basis that the making of a direction under s 440(1) absolved it from its obligation to afford procedural fairness to the respondent. The Tribunal took the view that it had no obligation to provide the respondent with any information about the contents of the letter, because it had not had any regard to the letter in reaching its findings in the case. The direction pursuant to s 440(1) was subsequent to, and separate from, the Tribunal’s consideration of the material before it.

10 It is therefore not to the point to ask whether the Tribunal had power to give the direction. By s 440(1), the Tribunal was empowered to give such a direction, if satisfied that it was in the public interest that any evidence before it, any information given to it, or the contents of any document produced to it, should not be published or otherwise disclosed. Although s 440 is mentioned in s 438(4), s 440(1) is in no respect limited to documents which have been dealt with under the non-disclosure procedures laid down in s 438. (It should be noted that, even if the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs has given to the Tribunal a notice pursuant to s 438(2), in relation to a document given to the Minister, or to an officer of the Department in confidence, s 438(3)(b) makes specific provision for disclosure of the contents of the document to the applicant in a particular case.) Section 440(1) gives to the Tribunal a discretion, consequent upon its formation of the view that non-publication or non-disclosure is in the public interest, to give a direction to achieve that end. The Tribunal may do so in respect of any evidence given before it, any information given to it or the contents of any document produced to it. It may do so without the need for any certificate by the Minister or notice by the Secretary of the Department. It is the Tribunal’s own discretion as to matters arising within the performance of the Tribunal’s functions.

11 How a decision by the Tribunal to give a direction pursuant to s 440(1) could be challenged in the Court is difficult to see. It appears to fall within the definition of ‘privative clause decision’ in s 474, so a challenge to it would need to be based on jurisdictional error. See Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Such an error is difficult to establish in the case of the exercise of a discretion by a decision-maker on whom the discretion is conferred expressly. Only if the concept of public interest were to be regarded as a ‘jurisdictional fact’, and the Tribunal misdirected itself as to what might constitute the public interest could it be envisaged that a challenge might succeed. In any event, there might be difficulties of standing. An applicant in a particular case in the course of which a direction is given would not necessarily have standing to challenge the giving of the direction. A person who supplied confidential information to the Tribunal, which the Tribunal decided should not be published or disclosed in the public interest, would not be aggrieved by the direction.

12 In the present case, the Tribunal member seems to have become confused as to the relationship between s 440 and s 424A of the Migration Act, especially s 424A(3)(c). He appears to have made an error, in the sense that he thought that the Tribunal had the power to attach the label ‘non-disclosable information’ to the contents of the letter. Nevertheless, the Tribunal did make a decision that non-publication or non-disclosure was in the public interest, which was the criterion on which the exercise of its discretion to give the direction rested.

13 These matters were really irrelevant to the question of denial of procedural fairness. As I have already pointed out, the Tribunal did not fail to disclose the letter because it misconstrued ‘non-disclosable information’ in s 424A(3). It failed to disclose the letter because it did not rely on it as part of its reasoning. The error it made with respect to s 424A(3) was an error made subsequent to its decision not to disclose the letter. It was made in effect to carry out that decision. The contention that the Tribunal was not empowered to make a determination that the letter was non-disclosable information within the definition in s 5 of the Migration Act may be said to be correct, but it had nothing to do with the question of denial of procedural fairness.

14 As the primary judge pointed out at [18] and [19] of his reasons for judgment, s 424A of the Migration Act did not assist the respondent, because of the Tribunal’s statement that the letter did not form part of its reasons for affirming the decision under review. The letter was not considered by the Tribunal to be ‘part of the reason’ for affirming the decision, within the meaning of s 424A. That section did not apply. It is unnecessary to consider whether that conclusion was correct. It was the subject of challenge by the Minister in the notice of appeal, but if the Minister were to succeed in establishing that s 424A did not oblige the Tribunal to disclose the letter to the respondent, that would not entitle the Minister to succeed on the appeal. It is well established that the statutory procedure in s 424A, designed to give an applicant an opportunity to comment on information that the Tribunal considers might be the reason, or part of the reason, for affirming the decision under review, does not exclude the ordinary right to procedural fairness. See, for instance, VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74. It was on the basis of the general obligation of the Tribunal to afford him procedural fairness that the respondent succeeded at first instance.

15 For all of these reasons, the exercise by the Tribunal of its discretion to give a direction pursuant to s 440(1) of the Migration Act with respect to the letter is irrelevant to the question whether the Tribunal denied procedural fairness to the respondent.

Denial of procedural fairness

16 There is a substantial body of authority concerned with the situation in which an administrative decision-maker becomes aware of information bearing on the decision, which is not made known to a party to whom the decision is unfavourable. In such cases, courts will not accept readily the statement by the decision-maker that the unrevealed information played no part in the decision. The rationale for this rule is the concern with due process. The risk of unconscious prejudice against the losing party is considered to be so great that, in general, courts will say that the information should have been revealed to the losing party, so as to provide an opportunity to respond to it, or the decision should have been made by someone unaware of the unrevealed information.

17 The rule was summarised by Brennan J in Kioa v West (1985) 159 CLR 550 at 629 as follows:

‘Nevertheless 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 to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.’
18 At [21], the primary judge referred to this statement of the law by Brennan J. At [22] – [24], his Honour also relied on: Youssef v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 550 at 552; Roderick v Australian and Overseas Telecommunications Corporation Ltd (1992) 39 FCR 134 at 145 per Hill J, with whom Keely and O’Loughlin JJ agreed; and NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40 (2002) 115 FCR 561 at [94]. At [30], his Honour referred to R v Gaming Board for Great Britain; Ex parte Benaim and Khaida [1970] 2 QB 417 at 431 per Lord Denning MR. To that list of citations might be added the line of authority relating to disciplinary tribunals in the Australian Public Service, to which it was apparently the practice to send the whole file relating to the public servant concerned, even if it contained prejudicial material extraneous to the matter at hand. See Hercules v Jacobs (1982) 60 FLR 82, Phillips v Secretary, Department of Immigration and Ethnic Affairs (1994) 48 FCR 57, Day v Douglas [1999] FCA 1444 at [45], Commonwealth of Australia v Day [2000] FCA 474 at [22] – [24] and Bohills v Friedman [2001] FCA 569 (2001) 110 FCR 338 at [20] – [31]. In each of those cases, the Court emphasised the importance of the decision-maker not seeing the prejudicial material when the credibility of the party to whom it is prejudicial is crucial to the decision. It should be noted that the public service disciplinary tribunal cases were concerned with tribunals in which the presiding officer was required to be an experienced lawyer, although the other two members of the tribunal were likely to be lay persons.

19 There are cases in which courts have taken the view that no harm was done by the unrevealed prejudicial material, because the decision-maker concerned was considered to be well able to put the material out of consideration, as a judge is generally expected to do. Madafferi v Minister for Immigration and Multicultural Affairs [2000] FCA 158 and Hall v Release on Licence Board (unreported, New South Wales Court of Appeal, 27 June 1989) are examples, but they are rare. Madafferi concerned a deputy president of the Administrative Appeals Tribunal, an office for which s 7(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) requires the same qualification as is required by s 6(2) of the Federal Court of Australia Act 1976 (Cth) for appointment as a judge of this Court. It was by no means clear that the material concerned was irrelevant to the issues before the deputy president. Because the argument was about whether the deputy president should disqualify himself in advance of the hearing, by reason of apprehended bias as a result of seeing the prejudicial material, it was not then clear to what extent, if any, the credit of Mr Madafferi bore on the issues in the case. Hall concerned a board the chair of which was a person of long judicial experience, entrusted with the task of considering whether prisoners should be released early on licence, and therefore accustomed to assessing the relative significance of items of information relating to the past conduct of those prisoners. The issue was whether the board was disqualified by reason of having seen the full file of the Department of Corrective Services, which had not been supplied to the solicitor acting for the prisoner. The file contained details of charges pending against the prisoner. It was clear that the board was able to separate those pending charges from the breaches of licence conditions with which its deliberations were concerned. The credit of the prisoner does not appear to have been in issue.

20 The Tribunal that decided the respondent’s case consisted of one member. So far as I have been able to ascertain, the Migration Act lays down no minimum qualifications for appointment as a member of the Tribunal. Although some members of the Tribunal are lawyers, most are not. It is unnecessary for any of them to have the same qualifications as are required for appointment as a judge of a court. There is no requirement for experience, such that it might be possible to say that members might have had to engage in the task of sifting relevant from irrelevant material and having regard only to the former in making decisions. The Tribunal is not bound by the rules of evidence. Its members do not have the opportunity to do what judges do frequently, to look at the content of evidence for the purpose of ruling on its admissibility and then to disregard it for all purposes if it is inadmissible. These considerations suggest that the principle emerging from the cases to which I have referred in [17] and [18] ought to be applied to the Tribunal’s conduct of its proceedings with a degree of strictness. Caution is required, to ensure that systems of administrative decision-making are to be fair.

21 Based as it is on a fundamental principle, namely the requirement that procedural fairness not only be afforded, but be seen to be afforded to an unsuccessful party, the body of authority to which I have referred in [17] and [18] should not be set aside lightly. In my view, it is wrong to undermine the principle by close distinctions on the facts of particular cases. Nor do I think that the principle should be undermined by treating Brennan J’s formulation of it as if it were a statute, and seeking to construe closely what his Honour meant by ‘credible, relevant and significant to the decision to be made.’ As to the word ‘credible’, I am of the view that all that is required is that the information should not lack credibility either on its face, or by reason of the circumstances in which it came to the notice of the decision-maker. I am far from convinced that a rule should be developed that regards as credible only those documents emanating from official sources. Still less would I favour a rule that treats all documents emanating from official sources as automatically credible. The threshold of credibility intended is a low one. It is intended to exclude only those kinds of information that would necessarily be dismissed out of hand.

22 In my view, the primary judge in the present case was correct to regard the letter as ‘credible, relevant and significant to the decision to be made’, within the formulation of the principle as expressed by Brennan J. As his Honour found at [25] of his reasons for judgment, the Tribunal did not dismiss the letter out of hand. The Tribunal expressly regarded the allegations in the letter as possibly having weight, if it had been in a position to test them. The fact that the letter was written by a person who claimed to have a personal association with the respondent and to be in a position to provide the information contained, including information said to have been provided by the respondent, was a powerful reason for regarding the letter as ‘credible’.

23 The primary judge was also correct at [26] of his reasons for judgment, in finding that the information was relevant and significant to the decision. His Honour described the allegations about the respondent’s activities in Australia as ‘highly derogatory of him and ... clearly prejudicial to his claim’. As his Honour said, the credibility of the respondent was central to the Tribunal’s decision. The tenor of the letter was such as to undermine that credibility. If the case had not been one in which the credibility of the respondent played an important part, it would have been easier to accept the Tribunal’s disclaimer that the material in the letter had affected its decision. In the circumstances, it is more than possible that the Tribunal’s assessment of the credibility of the respondent was influenced, even subconsciously, by the material in the letter. I do not accept that evidence is necessary before a decision-maker’s disclaimer is to be ignored in circumstances such as these.

24 The reasons given by the Tribunal for making the direction pursuant to s 440(1) leave me far from satisfied that the Tribunal member dealt with the letter appropriately. It was one thing for the Tribunal member to suggest that the contents of the letter should not be published or disclosed because they were communicated in confidence, although exactly how it was intended that the ‘advice’ to keep the ‘information secret’ in a letter addressed, ‘To Whom it May Concern’, is not entirely clear. It is another thing to say that the contents of the letter should be known to the Tribunal member who made the decision, but concealed entirely from the respondent. In my view, the primary judge was correct to hold that, in the circumstances, the respondent was denied procedural fairness. In order to ensure that procedural fairness was afforded to him, it was necessary that he be given an opportunity to respond to the substance of the allegations in the letter, or that the case be determined by another Tribunal member who had not seen the letter.

Conclusion


25 For the foregoing reasons, I should dismiss the appeal and order that the Minister pay the respondent’s costs of the appeal.




I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray .



Associate:

Dated: 9 July 2004



IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 427 OF 2003


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
APPELLANT
AND: APPLICANT VEAL OF 2002
RESPONDENT


JUDGES: GRAY, WHITLAM and MANSFIELD JJ
DATE: 9 JULY 2004
PLACE: MELBOURNE


REASONS FOR JUDGMENT

WHITLAM and MANSFIELD JJ

INTRODUCTION

26 This is an appeal from a decision of a judge of the Court (Merkel J) given on 9 May 2003. His Honour set aside a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 27 May 2002, and remitted the matter to a differently constituted Tribunal to be determined according to law. The Tribunal affirmed a decision of a delegate of the appellant of 21 December 2001 refusing to grant to the respondent a protection visa for which he had applied under the Migration Act 1958 (Cth) (‘the Act’). The judgment in the Court below is now reported: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 741.

27 The appeal concerns a discrete piece of material that was before the Tribunal and the way in which it was handled. It is the material in what the Tribunal and the judge at first instance called a ‘dob-in letter’. The issue is whether the Tribunal was obliged to disclose that material to the respondent in accordance with the Act or with the requirements of procedural fairness.

28 The circumstances in which the issue arises are somewhat unusual, and it is convenient to set them out in a little detail. It is necessary to refer only briefly to the general grounds upon which the respondent claimed to be entitled to a protection visa. The Tribunal did not accept his claims and, as the primary judge held that it properly characterized, understood and dealt with those claims, the present appeal does not seek to revisit those issues.

THE CLAIMS AND THE TRIBUNAL’S REASONS

29 The respondent is a male aged 45 who is a citizen of Eritrea. He came to Australia with his wife on 1 June 2000 to pursue medical treatment in an in vitro fertilisation program. He claims that, whilst he was in Australia, the circumstances in Eritrea changed. Consequently, he applied for the protection visa on 15 June 2001. As noted, the delegate of the appellant refused the application, and the Tribunal on 27 May 2002 affirmed the decision of the delegate.

30 In broad terms, the respondent claimed to have been actively involved for many years in the Eritrean Peoples Liberation Front (‘EPLF’). The Tribunal accepted that in the period 1974 to 1980, he fought for the EPLF in the war of independence, and between 1980 and 1991 he was active in the EPLF whilst living in Sudan in political and administrative duties. Following Eritrean independence in 1991, it also accepted that the respondent became a senior public servant in the Eritrean Government, reporting to a minister called Mahmoud Sherifo.

31 The respondent claimed that in March 2001 Mr Sherifo was dismissed, and in September 2001 was arrested, together with his close supporters, for suspicion of corruption in the arranging of departures of people from Eritrea to avoid military service. The respondent claimed that, through his association with Mr Sherifo and his long involvement with him and the EPLF, he would be suspected of involvement in that corruption and so would be vulnerable to arrest and detention if he were to return to Eritrea. He feared in addition that he would lose his public service job when he returns to Eritrea. He further claimed that, by reason of his departure from Eritrea, his presence in Australia, and his application for a protection visa, he would be suspected of having left Eritrea to avoid the potential obligation to undertake compulsory military service in Eritrea for political reasons, and again be vulnerable to persecution for those reasons.

32 The Tribunal said that, because formal arrangements were made for the respondent and his wife to depart Eritrea for approved medical treatment, it did not accept that any allegation against Mr Sherifo of corruption, well after the respondent left Eritrea legally, would implicate him in that alleged conduct so that he would now or in the foreseeable future face a real chance of persecution for any Convention reason if he returned to Eritrea. The Tribunal additionally doubted that Mr Sherifo was targeted for corruption in facilitating the departure from Eritrea of people who were liable for military call-up. The Tribunal also concluded that the respondent had exaggerated his association with Mr Sherifo and his supporters, and with others who might have been arrested after August 2001. It accepted that in about September 2001 Mr Sherifo and some of his supporters had been arrested after they had signed an open letter that was highly critical of the government.

33 It accepted that the respondent and his wife are familiar with some people, apart from Mr Sherifo himself, who were among those arrested in September 2001 or soon afterwards. However, it continued:

‘In light of the length of the [respondent’s] absence from Eritrea, the vagueness of his evidence about the alleged arrest of people at the same administrative level that he occupied in Eritrea, and considering the belated nature of the claim, the Tribunal is not satisfied that such arrests have actually occurred, and continue to do so now, such that the [respondent] himself, or his wife, would be exposed to a real chance of persecution for any Convention reason. In reaching that conclusion the Tribunal also gives weight to the [respondent’s] recent association and dealings with high level government officials in Australia and in Eritrea.’

34 The Tribunal accepted that the respondent and his wife might no longer have their former jobs available to them. It noted the respondent’s continuing formal and fruitful association with various high ranking government officials since his departure from Eritrea, including since the arrest of Mr Sherifo and others, and their employment history. It concluded that any loss of the former employment in Eritrea would not be attributable to any Convention reason. It also found that neither the respondent nor his wife would face a real chance of denial of suitable employment upon return to Eritrea, so as to amount to persecution for any Convention reason.

35 The Tribunal also was not satisfied that the respondent, despite his evidence about his involvement in Eritrean activities in Australia, including in 2001 organising a three-day Eritrean festival and presiding over a Victorian Eritrean Community group whose activities including raising consciousness of political abuses in Eritrea, led to any persuasive view that he is other than a strong supporter of the Eritrean Government. It concluded:

‘There is no information to indicate that persons with the political profile of the [respondent] encounter persecution if they apply for asylum. The [respondent] has not encountered past persecution for any Convention ground and in weighing all of the foregoing the Tribunal concludes that the applicant does not face now or in the foreseeable future a real chance of persecution by reason of his political opinion, or that imputed to him, or for any other Convention reason.’

36 It was also not satisfied that there is a real chance in view of the respondent’s employment record and his age that he would be required to undertake military service. It was also not satisfied that, given his previous history, and the circumstances of and reason for his departure from Eritrea, he would be regarded as a deserter or draft dodger. It also noted that, in any event, punishment for draft evaders or deserters was not applied for any Convention reason to particular persons such as the respondent.

37 The point of the appeal arises from the following passage at the conclusion of the Tribunal’s reasons:

‘In reaching its findings in this matter the Tribunal gives no weight to a dob-in letter that has been sent to the Department and forwarded to the Tribunal. The writer of that letter makes clear that the material therein is provided confidentially. The Tribunal has been unable to test the claims made in the letter and, accordingly, gives it no weight. The Tribunal has decided this matter solely for reasons outlined above.

In the present case the material referred to immediately above was provided in confidence to the Department and the Tribunal considers it is in the public interest that the content of the letter be regarded as "non-disclosable information" for the purpose of S424A(3)(c) of the Act. If the material in the letter should happen to be true then disclosure of it might possibly in the present case expose the author of it to serious harm. Accordingly, the Tribunal has taken the unusual step of ordering, in accordance with s 440(1) of the Act, that the content of folio 32 of the Tribunal file not be published or disclosed.’

38 The ‘dob-in letter’ was not disclosed to the respondent or his advisers, and they were not given an opportunity to comment on it. According to the date stamp on the ‘dob-in letter’, it was received by the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs on 1 March 2002 and apparently forwarded to the Tribunal and received by it on 5 March 2002. It was not information before the delegate.

DECISION AT FIRST INSTANCE

39 On the application to quash the Tribunal’s decision under s 39B of the Judiciary Act 1903 (Cth), it was first contended that the Tribunal’s decision involved jurisdictional error as it had mischaracterized and misunderstood the respondent’s reason for fearing persecution and had failed to deal with his sur place claim of having a well-founded fear of persecution if he were to return to Eritrea. Merkel J rejected that contention. He considered that the Tribunal properly characterized, understood and dealt with the respondent’s claims. The present appeal does not seek to revisit that issue.

40 It was next contended that the Tribunal had constructively failed to exercise its jurisdiction as its decision was not based on rational and probative material, and involved erroneous findings of fact and of reasoning so that it had failed to engage in its task in the manner required by s 414 of the Act. Merkel J was not satisfied of that attack upon the Tribunal’s reasons as demonstrating jurisdictional error on its part. Again the present appeal does not seek to revisit that issue.

41 It is common ground that the ‘dob-in letter’ was not referred to or given to the respondent or his advisors, and that it was not put by the Tribunal to the respondent or his advisors in any form which might have given them an opportunity to address and make submissions with respect to its contents.

42 It was contended before the primary judge and on appeal that the Tribunal had failed to accord procedural fairness to the respondent in respect of ‘the dob-in letter’ by failing to accord to him the opportunity to comment on it. The obligation to do so was said, at first instance, to be an obligation arising under s 424A(1) of the Act, and alternatively under the common law obligation to accord procedural fairness which had not been removed by any provision in the Act.

43 Merkel J at first instance did not consider that the ‘dob-in letter’ attracted the operation of s 424A(1) of the Act. The Tribunal had stated that the letter did not form part of its reasons for affirming the decision under review. Accordingly, his Honour found that the information contained in the ‘dob-in letter’ was not considered by the Tribunal to be ‘part of the reason’ for affirming the decision of the delegate. Consequently, it was concluded that s 424A(1) did not oblige the Tribunal to have given the respondent the opportunity to comment upon the ‘dob-in letter’.

44 However, his Honour held that that conclusion did not answer the alternative contention because the Full Court had held in VAAC v Minister for Immigration and Multicultural Affairs [2003] FCAFC 74 (‘VAAC’) that the presence of a provision such as s 424A does not, of itself, exclude the obligation of the Tribunal to accord procedural fairness. It was upon this contention that the respondent succeeded at first instance.

45 His Honour found that the obligation to accord procedural fairness included providing an opportunity to deal with the gravamen of the allegations contained in the ‘dob-in letter’, notwithstanding that the Tribunal disavowed any reliance upon it. In particular, his Honour relied upon a passage in Kioa v West (1985) 159 CLR 550 (‘Kioa’) where Brennan J said (at 629):

‘Nevertheless 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 to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without a reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.’
Merkel J said (197 ALR at 746 [24]) that the ‘relevant principles’ were summarized in NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561 (‘NIB Health Funds’), where Allsop J said (at 585-586 [94]):


‘First, if there is a real risk of prejudice in the decision-making process in not disclosing the substance of material before the decision-maker, bona fide disavowal of reliance on it will not be sufficient to warrant the non-disclosure of the material. The sufficiency of the existence of a real risk of prejudice reflects what the Court of Appeal said in Johns [v Release on Licence Board (1987) 9 NSWLR 103], that the inquiry is whether the material could have influenced the decision, not whether in fact it did influence it. Secondly, there will generally be such risk where the material is, in the particular circumstances, credible, relevant and significant to the decision. This is to be judged leaving aside the disavowal. Relevant to this assessment will be, amongst other things, the quality of the material and the risk of subconscious influence. Also relevant to this assessment will be the degree to which the fairness of the process is likely to be thrown into question on revelation of the existence of the material and that it was before the decision-maker. Thirdly, if one member of a decision-making organ takes the undisclosed material into account, that will suffice as a ground to set aside the decision if it is of the kind earlier described. Fourthly, as reflected by the use of the adjective "real" in the phrase "real risk of prejudice", a merely theoretical possibility of prejudice will not suffice.’

46 Consequently, adopting the phrase used by Brennan J in Kioa, his Honour addressed whether the adverse information in the letter was ‘credible, relevant and significant to the decision to be made’. He was satisfied as to each of those criteria.

47 His Honour said (at 747 [25]):

‘At the outset it is necessary to consider whether the information contained in the "dob-in letter" was credible, relevant and significant to the decision. The letter discloses that it was written by a person who claimed to have a personal association with the applicants and to be in a position to provide the information contained in it, some of which was said to have been provided by the male applicant to the author. Further, there is nothing about the nature of the information contained in the letter that suggests that it lacks credibility. Finally, the Tribunal did not suggest the information was not credible. Rather, it stated that it was provided "in confidence" and was therefore non-disclosable information for the purposes of s 424A(3)(c). It also took the "unusual step" of directing, pursuant to s 440(1) of the Act, that it was in the public interest that the content of the letter "not be published or disclosed". Although the Tribunal acknowledged it was unable to test the claims in the letter I doubt that it would have made that direction if it considered that the information in the letter was not credible. In the circumstances, I am of the view that the information contained in the letter should be regarded as credible.’

48 Thus, the primary judge found that the disavowal of reliance on the ‘dob-in letter’ in the Tribunal’s reasons was not sufficient to justify its failure to provide any of the information contained in the letter to the respondent.

49 His Honour then addressed whether withholding the information by the Tribunal was justified where it had apparently been provided in confidence. His Honour rejected the contention that, at common law, the confidential nature of the information enabled the obligations of procedural fairness to be qualified or ignored. He also rejected the contention that the letter contained ‘non-disclosable information’ as defined in s 5(1) of the Act so that the Tribunal was not obliged to disclose the information by reason of s 424A(3)(c) of the Act. He also rejected the contention that the direction of the Tribunal not to publish or disclose the letter, made under s 440(1) of the Act, excused the Tribunal from disclosing the substantive contents of the letter to the respondent. He did not regard those provisions or s 438 of the Act as providing in the circumstances a clear legislative intention to exclude the rules of natural justice. Consequently, his Honour concluded that the Tribunal was under a duty to accord procedural fairness to the respondent in respect of the contents of the ‘dob-in letter’, and because the Tribunal had not done so, he set aside its decision and remitted the matter for re-consideration. The reasons for those conclusions are briefly set out in the following paragraphs.

50 As to s 424A(3)(c), his Honour followed the decision of the Full Court in VAAC where it was held that a failure to provide information even though the information in question fell within the exception contained in s 424A(3)(a) of the Act constituted a failure to accord procedural fairness. He applied that decision in respect of information that might fall within s 424A(3)(c). His Honour noted that s 424A(3) did not require the Tribunal not to provide ‘non-disclosable information’ or not to set out the details of such information, but merely provided circumstances in which such information was not required to be provided as part of a statutory scheme which prescribed the circumstances and manner in which certain information is to be provided by a person affected by visa decisions.

51 His Honour did not consider that s 438 of the Act excluded the information in the letter from the obligation to accord procedural fairness with respect to it. He noted that s 438(1)(b) appeared to apply to the letter but, in any event, s 438(3)(b) contemplated circumstances in which information to which s 438 applied should be disclosed. He did not, therefore, see s 438 as statutorily abrogating the entitlement at common law to procedural fairness.

52 His Honour also concluded that the information in the letter, other than the identity of the supplier of the information, was not ‘non-disclosable information’ as defined in s 5(1) of the Act. The identity of the informant was not information that would be required to be disclosed to the respondent in order to have accorded procedural fairness to him. Thus, he concluded, the information that was required to be disclosed was not confidential information and was therefore not ‘non-disclosable information’ as defined in s 5(1) of the Act.

53 Finally, his Honour rejected the contention that s 440 protected the Tribunal from the consequences of not having disclosed to the respondent the substance of the allegations made in the letter. His Honour rejected that contention, partly because the Tribunal did not, when exercising its power under s 440, intend to undertake any balancing of the confidentiality of the information in the letter against the respondent’s entitlement to be accorded procedural fairness, but was simply protecting the letter from publication following its disavowal of reliance upon it. In any event, his Honour found s 440 required a balancing of the desirability of prohibiting publication of information against the observance of the requirement to accord procedural fairness and the Tribunal had not undertaken that task. Thirdly, his Honour concluded that s 440 did not excuse or permit the Tribunal failing to inform a visa applicant of the detail of information given in confidence, notwithstanding that it might otherwise be the subject of a direction against publication or further disclosure under s 440.

CONTENTIONS ON THE APPEAL

54 Counsel for the appellant contended that the primary judge erred in his fundamental approach to what procedural fairness required by way of the disclosure of prejudicial information in the possession of a decision-maker. However, they also submitted that specific provisions of the Act operated in the circumstances of this case to prevail over any obligation of disclosure pursuant to the requirements of procedural fairness. First, it was submitted that the disclosure of the ‘dob-in letter’ or its contents involved the exercise by the tribunal of the discretionary power conferred on it by ss 438 and 440 of the Act. Secondly, it was submitted that, contrary to the finding of Merkel J, the information in that letter was covered by the definition of "non-disclosable information" in s 5(1) of the Act, and that, therefore, s 424A(3) absolved the Tribunal of any requirement to disclose that information to the respondent.

THE LEGISLATIVE PROVISIONS

55 To consider those contentions it is convenient to set out the relevant provisions of the Act. Section 5(1) of the Act provides the following definition:.

‘non-disclosable information means information or matter:
(a) whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:
(i) prejudice the security, defence or international relations of Australia; or
(ii) involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or
(b) whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or
(c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;
and includes any document containing, or any record of, such information or matter.

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) appliers – 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.’
Section 438 provides:

‘(1) This section applies to a document or information if:
(a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a)( or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.’
Section 440 provides:

‘(1) If the Tribunal is satisfied, in relation to a review, that it is in the public interest that:
(a) any evidence given before the Tribunal; or
(b) any information given to the Tribunal; or
(c) the contents of any document produced to the Tribunal;
should not be published or otherwise disclosed, or should not be published or otherwise disclosed except in a particular manner and to particular persons, the Tribunal may give a written direction accordingly.
(2) If the Tribunal has given a direction under subsection (1) in relation to the publication of any evidence or information or of the contents of a document, the direction does not:
(a) excuse the Tribunal from its obligations under section 430; or
(b) prevent a person from communicating to another person a matter contained in the evidence, information or document, if the first-mentioned person has knowledge of the matter otherwise than because of the evidence or the information having been given or the document having been produced to the Tribunal.
(3) A person must not contravene a direction given by the Tribunal under subsection (1) that is applicable to the person.
Penalty: Imprisonment for 2 years.’

CONSIDERATION


Statutory Obligations and Powers

56 Counsel for the appellant accepted the correctness of the holding in VAAC, which was decided by a Full Court (North, Merkel and Weinberg JJ) after the hearing at first instance in the present case. The decision in VAAC meant that the respondent did not have to rely on s 424A to be entitled to be given the information in the "dob-in letter". In any event, so far as s 424A is concerned, the primary judge held that, quite apart from s 424A(3), the Tribunal was not obliged to invite the respondent to comment on information in the letter. The respondent does not contend that his Honour erred in so holding. That being the case, the grounds of appeal relating to s 424A(3)(c) are pointless and need not be considered.

57 The scope of ss 438 and 440 was raised tangentially at first instance in a submission by the appellant that relied on the Tribunal’s view that the letter contained ‘non-disclosable information’. It is by no means clear it was contended in the Court below that the Tribunal exercised any discretion under s 438(3) of the Act. The primary judge observed that s 438(3) relates to information that is likely to overlap with and include non-disclosable information, but his Honour also expressly noted that there was no evidence of notification by the Secretary under s 438(2)(a). It may be doubted, therefore, that his subsequent comments were intended to suggest that in the present case any matter contained in the letter could only be disclosed to the respondent under s 438(3).

58 Counsel for the appellant submitted that the primary judge should have held that the particular question of the extent, if any, to which the contents of the letter were to be disclosed to the respondent fell to be determined as an exercise of the statutory discretion conferred on the Tribunal by s 438 of the Act. The difficulty with this submission is that, as the primary judge remarked, the Secretary did not notify the Tribunal under s 438(2)(a) that s 438 applied to the letter. The introductory words of s 438(3) make it clear that the discretion of the Tribunal under s 427(1)(c) to give information to an applicant for review is only relevantly constrained where such a notification is given by the Secretary. It is hardly surprising, therefore, that s 438 of the Act is not mentioned in the Tribunal’s reasons for decision. This ground of appeal cannot be sustained.

59 The appellant’s alternative submission, namely, that his Honour should have held that the proper course for the Tribunal to have adopted was to adjourn the review pending receipt of a notification from the Secretary, makes no sense at all. The Tribunal did, in fact, make a decision on the review. At first instance the appellant did not submit that that decision should be set aside and the further hearing by the Tribunal of the application for review adjourned pending the receipt of such a notification. More importantly, s 438(2)(a) makes it clear that the Secretary is obliged to give any such notification at the same time as it gives to the Tribunal a document or information to which s 438 applies. The Tribunal’s conduct of the review would otherwise be unworkable. It may be possible for the Tribunal to infer from the contents of a document that it had been given to the Minister or to an officer of the Department in confidence, but it would not know whether any such claim had been waived. In other cases, including one can imagine some of great sensitivity, it will be impossible to tell, simply by inspection of a document or consideration of information, whether the document or the information has been given in confidence.

60 At first instance the appellant relied on s 440(1)(c) of the Act to justify the Tribunal withholding the letter from the respondent. However, the Tribunal plainly misunderstood the object of s 440. The Tribunal did not disclose ‘the information at folio 32’ of its file to the respondent. There was no occasion to give him a direction under s 440(1) in respect of that information. Such a direction is concerned with the further communication of information that is passed on by the Tribunal. (The disclosure of information by the Tribunal and its staff is dealt with in s 439.) Section 427(1)(c) makes it plain that, where the Tribunal gives any information to an applicant for review, it may give a direction under s 440(1) in respect of such information.

61 None of the grounds touching on ss 424A, 438 or 440 of Act provides any basis for overturning the judgment in the Court below.

Natural Justice

62 In this case the Tribunal declined, expressly and in the clearest possible terms, to weigh the claims made in the informant’s letter. Yet the primary judge assessed for himself whether the information in that letter was ‘credible, relevant and significant’ to the Tribunal’s decision. That exercise was said to be necessary in order to determine whether the Tribunal had failed to accord procedural fairness to the respondent. In the event, the primary judge satisfied himself that such information was credible, relevant and significant. He then went on to hold that the Tribunal denied the respondent natural justice by not bringing to his attention the gravamen of the prejudicial allegations contained in the informant’s letter. The appellant submits that the primary judge erred in so holding when the Tribunal gave no weight to that letter.

63 The primary judge justified his approach by particular reference to the statements in Kioa and the NIB Health Funds Ltd reproduced at [20] above. Counsel for the respondent maintained that in those passages the primary judge identified the relevant principles and that he correctly applied them to the facts of this case.

64 The decision in Kioa on what the principles of natural justice required in the circumstances of that case requires careful attention. Brennan J held Mr Kioa should have been given an opportunity to deal with an allegation contained in a single paragraph of a departmental submission. Although his Honour accepted that the allegation in that paragraph formed no part of the delegate’s reasons for making the deportation orders under challenge in that case, he said (159 CLR at 628): ‘it was contained in the material before him which he proposed to consider in coming to a decision.’

65 The other Justices in the majority in Kioa approached the question differently. Mason J said (at 588):

‘Although the [delegate’s] statement of reasons makes no reference to the contents of par. 22, it does not disavow them. As the paragraph was extremely prejudicial, the appellants should have had the opportunity of replying to it.’
That conclusion followed his Honour’s observation (at 587) that:

‘... recent decisions illustrate the importance which the law attaches to the need to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it.’
Wilson J said (at 602) that the allegation was ‘clearly prejudicial’ and that, whilst there was no mention of the particular paragraph in the delegate’s reasons for decision, the allegation was a factor which contributed to and supported the departmental recommendation for deportation. His Honour concluded (at 603):

‘In any event, it is not necessary to show that the allegation contained in par. 22 did work to the prejudice of Mr and Mrs Kioa. It is enough to show that the way was open for it to do so: see Kanda v Government of Malaya [1962] AC 322 at pp 337-338.’
Deane J was content to say (at 634) that, on the facts, there was a failure to extend to Mr and Mrs Kioa the opportunity of dealing with the matters raised in three paragraphs of the departmental submission ‘which was placed before the delegate’.

66 Gibbs CJ dissented in Kioa, holding (at 569) that the paragraph in question comprised merely adverse comments on material put before the Department on behalf of the appellants. His Honour also referred to the judgment in Kanda and said (at 570):

‘Even if (contrary to my opinion) the nature of the contents of par. 22 was such that the appellants should have been given an opportunity to answer them, it cannot be said that there was a risk of prejudice once it is accepted that the comment in par. 22 did not in fact form one of the reasons for the delegate’s decision.’
67 It will be seen that the present case is very different to Kioa where the delegate did not mention in his reasons for decision the allegation in the departmental submission. This meant that a majority of the High Court was unwilling to infer that that allegation played no part in the delegate’s decision. Brennan J accepted that the delegate did not rely on the allegation in making his decision, but held that it had to be put to Mr and Mrs Kioa for their comments because it was contained in the material which he proposed to consider in coming to a decision. Brennan J’s later observation that a person whose interests are likely to be affected by the decision ‘will be neither consoled nor assured to be told that the prejudicial information was left out of account’ must be read as an answer to the kind of conclusion that Gibbs CJ was prepared to draw about there being no risk of prejudice . His Honour cannot have meant being ‘told’ by the decision-maker since in Kioa the delegate did not refer to the allegation at all. It should be noted in this context that Brennan J had also earlier referred (at 628) to the judgment in Kanda where Lord Denning, writing for the Privy Council, said (at 337-338):

‘... whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not inquire whether the evidence or representations did work to [the accused man’s] prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing.’

68 The NIB Health Funds case involved a challenge to the decision made by the respondent Council under the National Health Act 1953 (Cth) refusing a request by the applicant, a registered health benefits organization, for a recalculation and adjustment in respect of the Health Benefits Reinsurance Trust Fund. That decision was made on 11 August 2000, on which date the Council gave the applicant ten close-typed pages of reasons for its decision. The Council was a statutory body comprised of five members. Its affairs were managed by a statutory officer-holder designated Chief Executive Officer of the Council (‘CEO’). In the course of the proceedings the Council discovered a report on the applicant’s management which had been prepared by the CEO at the request of the Council and been considered by it at a meeting on 5 May 2000. The CEO’s report and the Council’s request for it arose out of errors relating to the adjustment requested by the applicant. It contained blunt and trenchant criticism of the applicant reflecting the view that the errors were caused by the applicant’s management deficiencies. The report was not included amongst the documents listed in the statement of reasons issued on 11 August 2000 as ‘evidence or other material on which findings were based’, and the applicant had not previously been informed of its existence. Following its discovery, the applicant amended its case to allege that the Council’s failure to disclose to it the adverse views in that report constituted a denial of procedural fairness.

69 The Council responded to this fresh allegation. The CEO made an affidavit on 12 June 2001, in which she said that, in making its decision on 11 August 2000, the Council did not take her report into account. The member who presided at that meeting also made an affidavit on 19 June 2001, in which he said that the Council did not take into account the report. Allsop J inferred that a decision was probably made later on to call all members of the Council. This was not possible because one was overseas and another was gravely ill. However, shortly before the hearing, the two other members made affidavits on 23 October 2001. Each of those members said that, in forming his or her view that the applicant was not entitled to reinsurance adjustments, he or she did not take into account the report. All four deponents were cross-examined at the hearing. Allsop J had to consider the sufficiency of their disavowals, all of which were drafted in the affidavits in similar terms long after the subject decision. His Honour found that there was a real risk that the CEO’s views about the applicant’s management being the cause of the errors influenced her recommendation to the Council and that the disavowals of the three Council members were ‘less than compelling’.

70 Since all the Council members had been in favour of the decision taken on 11 August 2000, Allsop J also considered the position of the two members who did not give evidence. In discussing his approach to an ‘organ of decision-making comprised of more than one person’, his Honour noted (115 FCR at 584):

‘In Johns v Release on Licence Board (1987) 9 NSWLR 103 the New South Wales Court of Appeal (Kirby P, Hope JA and Priestley JA) was concerned with circumstances in which the decision-making board had a summary of matters before them, which summary contained a factual mistake. The argument was that it was unlikely to have influenced the board. The document had been before the board on a prior occasion. The Court said (in its joint judgment):
"The importance of the mistake in respect of Mr Madden [contained in the document] is not that it did influence the decision of the Board on this occasion. It is rather that it could have influenced that decision." ’
Allsop J extracted from that passage the statement about Johns in the summary of legal principles to which the primary judge referred in the present case.

71 Allsop J regarded the views expressed by the CEO in her report as, objectively speaking, of central relevance to the Council’s decision. In the event, his Honour concluded that those views had an influence on the individual decision of all the Council members. Accordingly the substance of the contents of the report should have been disclosed to the applicant in reasonable time for it to consider those views and make an appropriate response. Allsop J held that the failure to do so denied the applicant procedural fairness.

72 It will be seen that the facts in the NIB Health Funds case bear no resemblance to those in the present case. In that case the Council did not refer to the report which contained the damning views about the applicant and the disavowals were made long after the decision. In Johns there was no express disavowal by any member of the Release on Licence Board of reliance on the incorrect statement about Mr Madden and no one gave evidence to that effect on behalf of the defendant Board or the defendant Minister for Corrective Services.

73 However, another case to which Allsop J referred deserves attention. Hall v Release on Licence Board (unreported, NSW Court of Appeal, 22 May 1989) was another case challenging in the Court of Appeal a recommendation to revoke a ticket-of-leave. There were two natural justice grounds of attack on the Board’s decision. The first ground was that the Board had not complied with the requirement mandated in Johns of notifying him of any matter to be considered by it in relation to the possible revocation of his licence. The offender’s solicitor had been provided prior to the hearing with the same documents as members of the Board, but it emerged during the hearing that the Board also had access to the full file of the Department of Corrective Services on his client. (This circumstance was the point of Allsop J’s reference.) This ground was not made good because the Court of Appeal found that the whole file was made available for inspection by the solicitor.

74 However, something else that was said in Hall in disposition of the other ground of challenge to the Board’s decision (which Allsop J had no occasion to notice) strikes us as instructive in the present case. Whilst at liberty on licence, the offender was charged with a number of serious offences and released on bail. Subsequently he breached conditions of his licence that he report monthly and reside at an approved address. The Board had before it details of the pending charges when it met to consider the revocation of his licence. However, the offender’s solicitor was assured by the Board’s chairman that at that meeting it would deal only with the admitted breaches of the licence conditions in the context of an incident resulting in the pending charges ‘without considering the circumstances of the charges’. The Court of Appeal rejected a submission that the Board must have taken into account the allegations relating to the pending charges. Priestley JA (with whom Mahoney and Clarke JJA agreed) said (at 20-21):

‘Not only do I not see in the reasons given by the Chairman any sign of the taking into account of anything more in regard to the Wyong charges than what the Chairman had earlier announced and had been assented to by the claimant’s solicitor, in the earlier of the passages I have set out the Chairman made it clear that care had been taken to see that the stated limitations upon the use of the material were observed. In regard to this, counsel for the claimant mentioned the fact that most of the members of the Board were lay persons not as practised in putting out of mind matters of which they have knowledge as judges are supposed to be. He submitted that by the time the procedure was decided upon, it was too late in the day for at least the lay members of the Board to be able to exclude the substantial content of the charges and the statements of the prospective witnesses for the prosecution, from their minds. ... I do not think there is any reason to suppose that the Board, in considering the matter before the Chairman delivered his reasons, did not do what the Chairman said they had all done, that is treated the Wyong charges as no more than an episode involving grave issues. Judicial officers of all degrees are constantly accepted as being capable of excluding from their process of decision knowledge of matters known to them but either irrelevant or agreed to be left out of account. In the present case, where the Board was presided over by a Chairman with long judicial experience, and its members all responsible persons chosen for their suitability for the particular Board, I do not see why in the absence of any evidence to the contrary of what the Chairman said, this Court should act on any different basis.’

75 Finally, before departing from the NIB Health Funds case, it is salutary to note what Allsop J said of Brennan J’s statement about a person ‘being neither consoled nor assured to be told that the prejudicial information was left out of account’. His Honour said (at 583):

‘... the necessity to disclose such material in order to accord procedural fairness is not based on answering a causal question as to whether the material did in fact play a part in influencing the decision, but rather on the appearance of a fair hearing and the maintenance of confidence in the administrative process and judicial review of it.’

76 In the present case the way in which the Tribunal dealt with the informant’s letter was entirely frank and open. It observed scrupulously its statutory obligations in relation to a statement of reasons. There was not in the slightest degree any lack of candour on its part that could excite any reasonable suspicion about the fairness of its process. The statements in Kioa and the NIB Health Funds case, upon which the primary judge relied in the present case, were directed at entirely different situations. They provided no guidance for the disposition of the entirely theoretical problem posed by the direction that the Tribunal purported to give under s 440 of the Act. Of course, a judge is not bound to accept a disavowal of reliance by a decision-maker but, as Priestley JA pointed out in Hall, this will require evidence. The NIB Health Funds case is a good example of how this can be done. The decisions of Weinberg J in Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483 and of the Full Court (Beaumont, Conti and Crennan JJ) in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 160 also provide examples of the obligation of a decision-maker to accord procedural fairness where the decision-maker did not direct attention to apparently authoritative and relevant material from an official source available to him or her and the decision-maker did not refer to the material in his or her reasons for decision.

77 The appellant also submitted that the primary judge erred in holding that the informant’s letter was ‘credible’. As we mentioned at the outset, the Tribunal declined to weigh the claims made in the informant’s letter. In those circumstances it could hardly say anything one way or the other about the ‘credibility’ of the respondent’s allegations. The letter was not received in evidence at the hearing before the primary judge. It was subsequently received and made the subject of an order that its contents not be disclosed. No evidence was adduced in relation to any of the allegations in that letter. The identity of its author and the authorship have not been proved. The allegations are, on their face, not obviously fanciful, but that does not mean that they are credible. They are quite specifically about the respondent. They are not matters of common knowledge, of which judicial notice may be taken. Why would the Tribunal give credence to such allegations? They are not made by a person in authority with professional expertise such as the Director of the Enforcement Section of the Department of Immigration and Ethnic Affairs in Kioa or the CEO in the NIB Health Funds case. That is not to say that it is only material apparently of official origin in respect of which the obligation to accord procedural fairness arises. That is clearly not the case. But as Brennan J said in Kioa (at 628):

‘The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made.’
This is a case where those remarks are apposite. In our view, it is impossible to infer from this document that the allegations in it are credible. (There is some information in the letter that is consistent with other information before the Tribunal, but that information is not significant.)

78 Where a decision-maker says at the time of the decision that adverse information has not been taken into account, such a statement is not to be set at nought simply because a judge subsequently considers such information and decides that it is credible, relevant and significant to the decision. It is difficult to see how such information could be significant to a decision if no regard were paid to it in reaching the decision. The underlying rationale for any necessity of disclosure remains that explained by Lord Denning in Kanda. Of course a disavowal of reliance need not be accepted by a court, but in most cases that will require the person aggrieved by the decision to adduce evidence to show why the disavowal should not be accepted. The bona fides of the decision-maker may be called into question, or a case may be made of subconscious influence where some use of other information from the same source has occurred. No such case was made in the present case. In those circumstances to overturn the decision of the Tribunal usurps the role diligently and honestly discharged by the holder of an important statutory office to whom Parliament has committed the function of selecting the material on which findings of fact are to be based. The Tribunal’s eschewal of the claims in the informant’s letter is not to be rendered nugatory by the mere fact that it also purported to give a direction under s 440(1) in respect of the letter’s content.

CONCLUSION

79 The decision of the Tribunal in this case was made prior to the enactment of the Migration Legislation Amendment (Procedural Fairness) Act 2002. Nonetheless, there was no failure to accord procedural fairness to the respondent, and there was no jurisdictional error on the Tribunal’s part. In holding to the contrary, the primary judge erred. The appeal should be allowed with costs, the orders in the court below set aside and, in lieu thereof, it should be ordered that the respondent’s application be dismissed with costs.




I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam and Mansfield.


Associate:

Dated: 9 July 2004



Counsel for the appellant: A L Cavanough QC with J D Pizer



Solicitor for the appellant: Australian Government Solicitor



Counsel for the respondent: D S Mortimer SC



Solicitor for the respondent: Victoria Legal Aid



Date of hearing: 18 November 2003



Date of judgment: 9 July 2004
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