M196 of 2002 v Minister for Immigration - [2005] FMCA 1650

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M196 of 2002 v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1650

MIGRATION – Refugee Review Tribunal – protection visa – confusion regarding meaning of ‘jihad’ and political group ‘al Jihad’ – whether denial of procedural fairness – reliance of textbook extract not put to applicant – whether jurisdictional error – whether breach of s.424 of Migration Act.

Migration Act 1958, ss.424A, 476

NARV & Ors v Minister for Immigration and Indigenous Affairs (2003) 203 ALR 494
Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 82
Re Ruddock; Ex Parte LX [2003] FCA 561
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SAAP & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162
VHAJ v Minister for Immigration and Indigenous Affairs (2003) 75 ALD 609

Applicant:

M196 OF 2002

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1435 of 2003

Judgment of:

McInnis FM

Hearing date:

21 February 2005

Delivered at:

Melbourne

Delivered on:

16 November 2005

REPRESENTATION

Counsel for the Applicant:

Mr D. Star

Solicitors for the Applicant:

Arnold Bloch Leibler

Counsel for the Respondents:

Mr C. Horan

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 3 July 2001.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent pay the Applicant’s costs fixed at $9,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1435 of 2003

M196 OF 2002

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant before this court relies upon an application filed 1 September 2004 seeking judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 3 July 2001. In its decision the Tribunal affirmed a decision of the first respondent's delegate to refuse to grant to the applicant a protection visa.

History of proceedings

It is noted that on 21 August 2001 the applicant filed an application for judicial review in the Federal Court of Australia. The grounds of review ultimately relied upon before that court were set out in an amended application dated 19 November 2001, prepared by solicitors acting for and on behalf of the applicant. The grounds included error of law, failure to take into account relevant considerations and taking into account irrelevant considerations.
On 7 May 2002 the application in the Federal Court was dismissed by Finkelstein J who ultimately concluded that the Tribunal did not fall into error in reaching a conclusion which was contrary to the applicant's interests, and other matters then raised by the applicant were regarded by the Federal Court as amounting to “nothing more than a complaint that the tribunal erred on the merits and not that the tribunal erred in law in a way that would permit the grant of relief under s 476.” (See court book page 129)
On 19 November 2002 the applicant then filed an application for an order nisi in the High Court of Australia. That application was subsequently remitted to the Federal Court and then transferred to this court. In this court, as indicated earlier, the applicant now seeks to rely upon the application filed 1 September 2004.

The background

The applicant is a citizen of Egypt who arrived in Australia on 7 March 2000. He travelled on an Egyptian passport issued in Kiev on 14 September 1999 and valid to 13 September 2006. When he arrived in Australia on 7 March 2000 he was the holder of a tourist short stay visa. Before he arrived in Australia the applicant has resided in the Ukraine for over five years.
On 20 March 2000 the applicant lodged an application for a protection visa, and on 8 May 2000 a delegate of the first respondent refused to grant the visa. The applicant then applied for review of that decision to the Tribunal on 1 June 2000.

The claim before the Tribunal

The applicant gave oral evidence before the Tribunal on 1 May 2001 and otherwise relied upon written submissions in support of the application for review and a post-hearing submission. Attached to the application for a protection visa was a statement which in part includes the following:
“In 1994 I met a group of people in the mosque of my village. Some of them were from the same village while the others were not. They began to convince me to join them and believe in their principles in fighting for the sake of Islam known as jihad. They also believed that the Egyptian government is blasphemer and it should be toppled and replaced by their own style of government. I did not realize that the group was trying to use force to introduce reforms to the country's system.
When I was at a group's meeting at a member's house outside the village in late August, 1994 a man (also a member) rushed to us and told us to leave the place immediately and flee because the police were looking for us to arrest us. As we heard this we dispersed in a matter of seconds. I was too scared to go back to the village. Thus, I fled to the capital Cairo to hide in a relative's home. At the beginning I was considering handing myself to the police but I changed my mind when my relatives warned me that should I do so the police would ruthlessly torture me and force me to admit things that I had not done, a method used by the police when dealing with opposition members. And once the members do so, they will be brought to justice.” (Court book page 25)
In his claim before the Tribunal the applicant stated that the only country to which he could get a visa was the Ukraine and he went there on 19 August 1994. After five and a half years in the Ukraine he claimed the situation there began to worsen following the outbreak of war in Chechnya. He claimed the Ukrainian police turned on Arabs and Muslims, harassing them and even storming their homes, and life became very risky.
The Applicant relied upon a statutory declaration signed 9 November which referred to his family background, which included the fact that he was one of nine children, two of whom had died when the applicant was very young, and that all his siblings except one brother reside in Egypt. The one brother resides in the Ukraine. He otherwise referred to his studies. Specifically in the declaration which had been declared on 9 November 2000, the applicant relevantly states the following:
“5.I have known the Muslim Brotherhood for as long as I can remember. In around 1990, while I was still doing my national services, I was approached through men I knew from the mosque to become involved in the Muslim Brotherhood. I was invited to join the prayer groups and meetings. At this stage Islamic movements in Egypt were on the rise and I had friends who were joining Muslim Brotherhood and other organisations.
6.I was interested in the Muslim Brotherhood because of my commitment to the Muslim faith. The mosque that I attended most was in (Y) although I also went to other mosques in surrounding towns. The Muslim Brotherhood was fairly strong in (Y).
7.Part of the reason that I was invited to join the Muslim Brotherhood was because I am a part of a big family in the (Y) area. I was asked to spread the Muslim Brotherhood message through my extended family.
8.I did not tell my immediate family about my involvement in the Muslim Brotherhood. I did not want them to know because I knew they would not approve as they knew the Muslim Brotherhood was an illegal organisation and that people were sometimes being arrested. The only one I told about my involvement in the Muslim Brotherhood until I was forced to leave was my younger brother, (M).” (Court book page 40)
The Tribunal in its decision otherwise appears to have accurately recited the other claims arising from the statutory declaration in the following terms:
“The Applicant claimed that after he finished his national service, he became much more involved in the Brotherhood and he came to know important leaders in it such as (A), (B) and (C). The latter was a relative of his mother's. He said that by 1994 his participation had increased to such an extent that he was in charge of Al Da'wa or the call up to join Islam in the countryside around (Y). He organised prayer meetings and discussion groups and talked to people about joining the Brotherhood. The countryside in that area was considered more important as a recruiting ground than the city itself. He met regularly with two leaders, …. Most of their meetings were held at night in the mosque, in private homes or in public places which they thought were safe. He was still able to hide his involvement from his parents even though he was out a lot.
The Applicant claimed that he assisted (A) with his election campaign in 1990. (A) did not openly campaign as a member of the Brotherhood. He also began assisting him to get ready for the 1995 election campaign. He handed out pamphlets to people and put up posters. He also was involved in protests about the continuing involvement of Egypt in the war against Iraq.” (Court book page 86)
As I understand it, that extract is conceded to be an accurate summary of the claim.
In the Tribunal's decision, when dealing with the ‘Claims and Evidence’ the following relevant extract appears:
“At his hearing the Applicant was asked about the significant differences between the first statement which accompanied his application for a protection visa and the later statutory declaration made to the Tribunal. Of particular interest was the fact that he named the Islamic organisation to which he belonged as the jihad in the first statement and as the Muslim Brotherhood in the second. The Tribunal put to him that these were very different organisations. He responded that he had simply summarised his claims in his primary application. In any case 'jihad' was simply a political term.
He also had stated that he joined the jihad in 1994 whereas in his second application he stated that he was already involved by 1990. He responded that he was too scared to tell the truth because four years made a great difference in Egypt in terms of joining an Islamic group. He had actually joined in 1994, at the time being responsible to promoting the Muslim Brotherhood and distributing the newsletter, Al Da'wa.” (Court book page 90)
In its decision the Tribunal then recites in significant detail matters raised with the applicant concerning the Muslim Brotherhood. In a post-hearing submission prepared by lawyers on behalf of the applicant received by the Tribunal on 15 May 2001, further submissions were made in relation to the 1990 Egyptian elections and the claimed participation by the applicant together with further reference to the Muslim Brotherhood. The concluding submission in that document sets out the following:
·The applicant has been persecuted by, and faces further persecution from, the Egyptian authorities.
·The applicant remains within Australia and is therefore outside the country of origin.
·The applicant's fear of future persecution if forced to return to Egypt is supported by the available country information.
·The applicant therefore has a well-founded fear of persecution for the purposes of the convention and the tribunal is urged to respond accordingly, set aside the decision of the delegate and remit the matter to her on the basis that the applicant ... is a refugee.

The Tribunal's decision

Under the heading "Findings and Reasons" the Tribunal accepted that the applicant was outside his country of nationality, namely Egypt, and further accepted “that the applicant has a strong fear of returning to Egypt” and further goes on to state, however, that:
“It is the Tribunal's responsibility to assess whether his subjective fear is objectively well-founded and whether it is a fear of persecution for Convention reasons. The fact that he has anxiety‑related illnesses does not of itself mean that his fear is objectively well-founded.” (Court Book page 94)
In dealing with the issue of interpreters, translations and inconsistencies, the Tribunal states, significantly, the following:
“Interpreters, translations and inconsistencies: While the Tribunal accepts that there can be problems which arise from the translating of words from one language into another, it is satisfied that the Applicant has been able to present his claims in a satisfactory way. The interpreter used at his Tribunal hearing was a NAATI Level 3 qualified interpreter and the Tribunal detected no serious difficulties. In the matter of the loss of his passport, the question was re-put and the Applicant allowed to make further explanation.
The Tribunal is not satisfied that some of the major inconsistencies in the Applicant's claims at various stages of processing can be put down to problems in interpreting and translating. For example, in his statement attached to his application for a protection visa, the Applicant claimed that he joined a group which
'believed in fighting for the sake of Islam known as jihad. They also believed that the Egyptian government is blasphemer and it should be toppled and replaced by their own style of government. I did not realize that the group was trying to use force to introduce reforms to the country's system.'
This is much more than the inadvertent use of a wrong or inappropriate word. The thoughts link together. The Applicant is stating that he became associated with a group which advocated force but he did not know it at the time. The Tribunal does not accept that this was not what he meant or that he has been mis‑interpreted on this point. The point he made later was that in fact he joined the Muslim Brotherhood, which he claimed did not promote violence. The Tribunal finds that these two claims do stand in contradiction to each other.” (Court Book pages 94-95)
Significantly, in relation the Muslim Brotherhood, the Tribunal concludes as follows:
“… The Tribunal is not satisfied that the Applicant is in the category of persons wanted for reasons of his activities with the Muslim Brotherhood. It has taken into account the confusion over the Brotherhood and the jihad, the alterations in his claim as to when he got involved in political activities, the problem of claiming his family did not know of his allegedly widespread activities, and his claimed manner of evading the police and leaving his country.” (Court book page 100)
Earlier in its decision the Tribunal dealt with the issue of the difference between the applicant's initial claim that he joined a ‘jihad’ group and the subsequent claim that he belonged to the Muslim Brotherhood as an issue relating to credibility, referred to in part already in this judgment. Significantly, it went on to state the following:
“Association with the Muslim Brotherhood: This is the basis for his claim that he is in need of Australia's protection. He has claimed that he was a member of the Muslim Brotherhood, a proscribed group, that he was known to be a member and is wanted by the police for that reason.
As indicated above, the Tribunal has considered the fact that he referred to the jihad in his primary application but altered that to Muslim Brotherhood in his statutory declaration. He has held to that position since that time. It finds that the fact that he linked the jihad with the use of force persuades the Tribunal that he was talking of a different group in that primary application. While it might be that the word jihad has a common parlance, in Egypt it is a term most usually associated with extremist Islamic groups.
According to the reference work Islam and Islamic Groups: A worldwide reference guide, al Jihad was a
'clandestine organization uncovered in 1978; claimed responsibility in October 1981 for the assassination of President Sadat ... Since 1986 the group has been associated with a variety of terrorist incidents and most recently, with the outbreak of riots between Muslims and Christians in part of Upper Egypt.’ (Farzana Shaikh ed. Longman Current Affairs, 1992, p.70)
The Tribunal does not accept that a person claiming to have an association with a prohibited organisation in Egypt in the early 1990s would make the mistake of using jihad to describe the Muslim Brotherhood. It notes, for example, that in 1992, before the Applicant left Egypt, there had been attacks on tourists, killings of Christians and attempted assassinations of the Prime Minister and other Egyptian leaders in the name of jihad groups. (Europa Year Book 2000, p.1310-1311) That is the word was prominently and publicly used to describe certain groups who engaged in violent activities. However, the Applicant has claimed that he was not associated with the militant groups and that he never participated in any criminal activities. He has the right to correct his own evidence during the process of refugee assessment. However, the Tribunal finds that the difference between claiming that he belonged to a jihad group and to the Muslim Brotherhood goes to his credibility.” (Court Book pages 96-97)
A significant adverse finding by the Tribunal against the applicant is found in its conclusion where it states the following:
“The Applicant has consistently claimed to have been involved in Islamic activities since 1994. The Tribunal has found his evidence on this matter confused and over-stated”. (Court book page 98)

The grounds of review

The applicant relies upon two grounds for review; namely:
a.Breach of natural justice and
b.Breach of section 424A of the Migration Act 1958 (the Act).

Breach of natural justice

The particulars relied upon in support of the natural justice ground are as follows:
a.The second respondent in reaching its decision adverse to the applicant reasoned as follows:
(1)In his initial application the applicant said that he was approached by a group to join the jihad;
(2)By this the applicant intended to refer to a particular group;
(3)In Egypt the word ‘jihad’ is a reference to an extremist Islamic group;
(4)Accordingly, the group to which the applicant first referred was an extremist group;
(5)In his statutory declaration the applicant named the group as the Muslim Brotherhood;
(6) The Muslim Brotherhood is not an extremist group;
(7)It follows that the group to which the applicant first referred was not the Muslim Brotherhood;
(8) For this reasons the applicant had ‘altered’ his claim.
b.Central to the reasoning of the second respondent set out in particular (a) was an extract from the book Islam and Islamic Groups: A worldwide reference guide, Farzana Shaikh ed., Longman Current Affairs, 1992, p70 which says al Jihad was a
‘clandestine organization uncovered in 1978; claimed responsibility for the assassination of President Sadat ... Since 1986 the group has been associated with a variety of terrorist incidents and most recently, the outbreak of riots between Muslims and Christians in part of Upper Egypt’.
(‘the al Jihad textbook extract’) See page 096 of the Court Book in proceeding V158 of 2003 which is page 16 of the reasons of the second respondent.”
c.The al Jihad textbook extract does not support the conclusion for which it was cited and the second respondent's reasoning set out in particular (a) by reason of the following critical matters.
(1)The second respondent's assertion that in Egypt the word "jihad" is most usually associated with extremist Islamic groups may or may not be correct. The position taken by the second respondent is certainly not supported by the al Jihad textbook extract. The al Jihad textbook extract explains that there is in Egypt an extremist group known as "al Jihad". But it says nothing about the use of the word "jihad" in Egypt.
(2)The second respondent fell into error when it found that the group to which the applicant referred in his first statement was not the Muslim Brotherhood. There is another possible explanation for the "alteration" to which the second respondent did not advert: that is that the applicant was indeed referring to the Muslim Brotherhood in his first statement (although not by name) and that he characterized that group as one that was attempting to bring about change by the use of force. There was evidence before the second respondent to the effect that during the 1990s the Muslim Brotherhood was making attempts to resume its clandestine activities and restore its links with extremist groups and the second respondent may be in error when it described the Muslim Brotherhood as a moderate organization.
("the second respondent's uses of the al Jihad textbook extract")
d.Neither at the hearing, nor before nor after, did the second respondent read, give or send to the applicant the al Jihad textbook extract or a copy of it.
e.In all the circumstances, the second respondent denied the applicant natural justice by denying the applicant the opportunity to give evidence to address the al Jihad textbook extract and its application to his case for a protection visa, including the second respondent's uses of the al Jihad textbook extract.”

The main submission of the applicant was that the breach of natural justice arose from the use and reliance by the Tribunal on the textbook extract on ‘al Jihad’ without the Tribunal reading it to the applicant or at any time giving it to the applicant so that he had an opportunity to address the Tribunal specifically about the ‘al Jihad’ textbook extract and its application to his case.
Reliance is placed upon the decision of Finkelstein J which appears in the court book commencing at page 122. It should be noted that it is agreed that this application before Finkelstein J was restricted to the grounds of review then available under what is described as the old Part 8 of the Act. It is common ground and I accept that denial of natural justice could not be raised in the earlier Federal Court proceeding, though the ground is available in the proceeding before this court. I accept for present purposes that principles of res judicata, issue estoppel and Anshun estoppel do not apply to the present case at least insofar as the applicant seeks to rely upon a breach of natural justice.
In considering the natural justice point, however, reliance was placed upon the judgment of Finkelstein J for and on behalf of the applicant in submission before this court. Specifically, reference was made to the following paragraph which appears in the judgment of Finkelstein J:
“10.In reaching its conclusion the tribunal’s process of reasoning seems to be as follows:-
(1) In his initial application the applicant said that he was approached by a group to join the jihad; (2) By this the applicant intended to refer to a particular group; (3) In Egypt the word ‘jihad’ is a reference to an extremist Islamic group; (4) Accordingly, the group to which the applicant first referred was an extremist group; (5) In his statutory declaration the applicant named the group as the Muslim brotherhood; (6) The Muslim Brotherhood is not an extremist group; (7) It follows that the group to which the applicant first referred was not the Muslim Brotherhood; (8) For this reason the applicant had ‘altered his claim.
11.This reasoning is built on two planks. The first is that the word ‘jihad’ is associated with extremist groups. The second, which is related to the first, is that the group to which the applicant referred in his first statement was not the Muslim Brotherhood because the latter is a moderate group.
12.
I must say that the reasoning has a very weak foundation.

I will explain what I mean. The word ‘jihad’ means to strive, as in to strive to attain perfect faith or to strive to promote justice. The word can be used in reference to a political struggle that involves the use of force to curb evil. Nowadays, however, at least in the western world, the word ‘jihad’ has come to be associated with Islamic revolutions and the work of Muslim extremists. That is not to deny that the word has other connotations, one of which is a reference to a war fought in self-defence against persecution and aggression. The tribunal’s assertion that in Egypt the word ‘jihad’ is not usually associated with extremist Islamic groups may or may not be correct. The position taken by the tribunal is certainly not supported by the textbook to which it made reference. The textbook explains that there is in Egypt an extremist group known as ‘al Jihad’. But it says nothing about the use of the word ‘jihad’ in Egypt.
13.It is possible that the tribunal may have regard to other evidence to which it did not refer. Indeed the Minister suggested that the tribunal may have used its own general knowledge of affairs in the Middle East to arrive at its conclusion. The tribunal is certainly a specialist body that is permitted to make use of its own knowledge about such things. So, if the tribunal knows how such a word such as ‘jihad’ is used in Egypt, it is permitted to make use of that knowledge. But I do not believe that the tribunal was placing any reliance upon its own specialist knowledge. In my opinion a fair reading of its reasons discloses that the tribunal was basing its conclusion as to usage on the textbook. And, as I say, that work does not support the conclusion for which it was cited.
…
15.The tribunal may have fallen into error when it found that the group to which the applicant referred in his first statement was not the Muslim Brotherhood. There is, of course, another possible explanation for the ‘alteration’ to which the tribunal did not advert; that is that the applicant was indeed referring to the Muslim Brotherhood in his first statement (although not by name) and that he characterised that group as one that was attempting to bring about change by use of force. There was evidence before the tribunal to the effect that during the 1990s the Muslim Brotherhood was making attempts to resume its clandestine activities and restore its links with extremists groups. So it is also possible that the tribunal was in error when it described the Muslim Brotherhood as a moderate organisation. However if the tribunal did err in any of these respects, its error was an error of fact and not of law. For such an error there is no remedy available under s.476.”
As I understand the submissions for and on behalf of the applicant, whilst it is acknowledged that the issue of natural justice was not a matter which was before Finkelstein J, that this court otherwise should regard to the findings of his Honour as at the very least persuasive. It is argued that errors identified by Finkelstein J adversely affected the case and were sufficient to constitute jurisdictional error by reason of a breach of natural justice.
In support of the submission that there was real unfairness to the applicant in this case, it was submitted as follows:
·The RRT accepted the applicant had a subjective fear of returning to Egypt.
·The RRT also accepted that conditions in Egyptian jails are very bad and the use of torture is routine, and that to be in the hands of police is almost certain to create a condition of persecution.
·However, the RRT made significant adverse findings about the applicant's claims and credibility with erroneous reasoning based upon the textbook extract regarding ‘al Jihad’ without the textbook extract being read or given to the applicant.
It was further argued that the rules of procedural fairness can require the RRT to provide an asylum seeker with country information that is not personal to the applicant. Reference was made to the decision of the Full Court in NARV & Ors v Minister for Immigration and Indigenous Affairs (2003) 203 ALR 494 per Ryan and Finkelstein JJ at [15].
“The minister has taken this statement to stand as authority for the proposition that the rules of procedural fairness do not require the tribunal to provide to an applicant for a visa country information which is not personal to the applicant. This is not so. First, it has never been the law that the requirements of procedural fairness are only enlivened in the case of adverse information which is about (in the sense of being concerned solely with) the person who may be affected by the decision. 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): “[i]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 at 96–7, 116 ; 179 ALR 238 at 269, 285–6; Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 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 562–3; 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 820–1 ; (1983) 50 ALR 193; National Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296 at 316 ; 52 ALR 417 at 431. Secondly, Mason J did not in the quoted passage purport to state a principle of law. If one takes the trouble of reading his judgment in full one can see that his statement that a decision-maker is obliged to disclose adverse information which is personal to the applicant is but one instance of a wider duty to disclose adverse information significant to the making of the decision.”
In the present case it was argued that the failure to show independent country information to the applicant in this instance was a breach of the rules of natural justice. It was further argued that if it established a breach of natural justice had occurred, then it is sufficient to establish "practical injustice" without having to prove what the applicant would have done if he had been provided with that information.
In the alternative in this case the applicant relied upon an affidavit sworn by him on 30 August 2004 to establish the breach of natural justice, and in particular refers to other information which presumably would have been provided had the opportunity been given to the applicant to do so to correct the errors in the reasoning of the Tribunal identified by Finkelstein J and arising out of the use of the Tribunal of the ‘jihad’ textbook extract.
The applicant relied upon the decision of Gleeson CJ in Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82 where the court states at [4]:
“… It is possible that, even if the prosecutor had been given an opportunity to deal with the point, the tribunal's ultimate conclusion would have been the same. But no one can be sure of that. Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive. As a result of the conduct of the tribunal, the prosecutor was deprived of a fair opportunity of presenting his case, and of correcting an erroneous and unfavourable factual assumption relevant to his credibility. The circumstance that this resulted from an innocent misstatement does not alter the position. The question concerns the nature and extent of the statutory power exercised by the tribunal, and the condition that the power be exercised in a manner which was procedurally fair; not the good faith of the tribunal.
It perhaps should be noted in the context of the natural justice ground and also for the purposes of the ground relying upon breach of s.424A of the Act that it is common ground that the applicant was not given the extract from the textbook, nor was it read out to the applicant or indeed referred to in any correspondence between the Tribunal and the applicant.
Central to the argument of the applicant is that the RRT made a mistake in dealing with ‘al Jihad’ and ‘jihad’ and the Muslim Brotherhood, and had the applicant been given an opportunity to deal with the matter he would not have made that mistake. Specific reference was made to the affidavit of the applicant where he states in paragraph 10 the following:
“If the textbook page had been read to me, or a copy provided to me, or if I had received a letter from the RRT referring to it,

I would have taken the opportunity to give the RRT information and evidence to prevent it making important mistakes. Maybe the RRT would have accepted me as a refugee and not made these errors if the textbook extract was read or given or sent to me and I had the chance to deal with it.”
Essentially the point made by the applicant was that at that time of the Tribunal hearing, namely 3 July 2003, there was other material available which defined ‘jihad’ in terms which went beyond the narrow interpretation referred to in the Tribunal decision.
It was submitted that a fair reading of the Tribunal's decision results in erroneous and unfavourable assumptions made in relation to the applicant's credibility based upon incorrect analysis of ‘al Jihad’ and ‘jihad’.
In relation to natural justice there was an agreed version of the transcript of the proceedings before the Tribunal which became an exhibit in these proceedings (exhibit R1). The relevant extract with appropriate deletions to preserve anonymity is as follows:
MS WOOD:   Well, let's go through it then. You see there really is a very important difference between saying that you've joined a group known as Islamic Jihad and saying that you're a member of the Muslim Brotherhood.
INTERPRETER:   The word jihad, it has a political meaning.
MS WOOD:   But it is after all also one of the groups which is operating in Egypt illegally.
INTERPRETER:   The area where I was living and where the Islamic Brotherhood was controlling, Sheik Hasan Al-Banna who founded the Islamic group in 1950 something like that - I will tell you this because I trust you now - ….., secondly the Sheik Mahmoud Abdel Hamid Kishk, the main political leaders, and they were the source of Islamic Brotherhood in Egypt and you could check and ask about those two person because they are very well known.
MS WOOD:   Yes, I would say that, I mean that's the sort of very well known thing. I'm really interesting in you telling me whether you actually did belong to Al Jihad which is certainly a group there in Egypt and which as I said, operates away from the Muslim Brotherhood?
INTERPRETER:   When we talk about the Brotherhood we say it's a jihad, it means to struggle, and it's a political struggle also. So jihad is a word - is an adjective, but the group you are talking about they are the group who are killing people in Egypt and some areas. There are two Islamic groups in Egypt, the political groups of north of Egypt and they're in Behaira province, the group was founded by Sheik Hassan Al Banna, originated from the village ….., and then there is (A) group and also (B), those two people are from my village. But the other Islamic groups are making trouble in south of Egypt and killing people but they are different to our principles and to our ideology because we fight for changing the law.
MS WOOD:   That had to be explored because al Jihad, that group of course is the group that assassinated Anwar Sadat and frankly are a very unpleasant lot.
INTERPRETER:   They don't belong to our party.
It was submitted on behalf of the applicant that the extract demonstrates that the applicant and the Tribunal were at cross-purposes, with the Tribunal referring to the applicant joining a group, Islamic Jihad, and then referring to the applicant having joined the Muslim Brotherhood. It was noted that nowhere in the material is it suggested that the applicant was a member of Islamic Jihad. The primary application, it was submitted, referred simply to the word ‘jihad’.
The Tribunal goes on to deal with the textbook reference to ‘al Jihad’ which, it was submitted and is common ground is Islamic Jihad. During the course of submissions the applicant claimed that the process could be likened to "ships in the night", with the Tribunal referring to Islamic Jihad and Muslim Brotherhood while the applicant's case was never about Islamic Jihad. The Tribunal then in the extracts cited earlier in this judgment refers to the political meaning of ‘jihad’.
It was noted that a relevant transcript passage referred to earlier in this judgment does not include any attempt by the Tribunal to put to the applicant matters arising from the textbook concerning ‘al Jihad’. It was submitted that the Tribunal, by confusing the words ‘jihad’ and ‘al Jihad’, had then used against the applicant the fact that at one point he referred to ‘jihad’ and later on used the description Muslim Brotherhood and then drew an adverse credibility finding. It did so by not accepting, as it stated:
“That a person claiming to have an association with a prohibited organisation in Egypt in the early 1990s would make the mistake of using jihad to describe the Muslim Brotherhood.”
As I understand the submissions for the applicant, a significant complaint was the way in which the Tribunal reached its adverse conclusion regarding the applicant when it referred to the word ‘jihad’ being a reference to an extremist Islamic group and then concluded the group to which the applicant first referred was an extremist group, though noting that in the statutory declaration the applicant named the group as the Muslim Brotherhood, and this is not an extremist group, and hence the applicant had altered his claim.
It was otherwise argued that in any event the ‘al Jihad’ textbook extract does not support the conclusion in which it was cited. Again reference was made to the reasoning of Finkelstein J referred to earlier in this judgment. In simple terms, it was submitted for the applicant that the Tribunal should have referred to the use of ‘jihad’ in the applicant's first statement and then made further reference to Muslim Brotherhood in the later statement and asked to comment on information which showed that ‘jihad’ is usually used in Egypt with extremist groups.
The respondent referred to the extract from the transcript set out earlier in this judgment. It was submitted by the respondent that there was no denial of natural justice by the Tribunal as the applicant was made aware of the critical issues which the decision was likely to turn upon; namely the potential conflict between his use of the term ‘jihad’ in his earlier statement and his subsequent claim that he was involved in the Muslim Brotherhood. It was argued the applicant was given a full opportunity to address the Tribunal on that issue. The Tribunal was not required to notify the applicant of the precise content of the extract from the textbook.
According to the respondent's submissions, the role of the textbook extract needs to be viewed in the context of adverse findings concerning the applicant's credibility made by the Tribunal. It did not accept the applicant's claim that he was wanted for reasons of his activities with the Muslim Brotherhood.
That adverse credibility finding was based in part on a finding that there were differences between claims made in the earlier statement and the claims made in the subsequent statutory declaration. The differences related to the identification of the Muslim Brotherhood as the group the applicant became involved with and the time at which the applicant became involved in political activities.
The finding that the applicant had not intended to refer to the Muslim Brotherhood was based upon use in the earlier statement of the term ‘jihad’ - most usually associated with extremist Islamic groups and publicly used to describe groups who are engaged in violent activities - and the fact that the applicant had linked ‘jihad’ to the use of force. The extract from the textbook was cited only in relation to the proposition that the term ‘jihad’ was most usually associated with extremist Islamic groups. It was therefore only an example or an illustration of that proposition.
The proposition was claimed to be one of several matters relied upon in relation to the finding that the applicant had not referred to the Muslim Brotherhood in his earlier statement. It was argued that this was in turn one of several matters relied upon in relation to adverse credibility findings. It was argued the Tribunal is required to focus on the particular use of the term ‘jihad’ by the applicant in his statement as opposed to its general use as a matter of "common parlance".
The Tribunal therefore did not accept that a person claiming to have an association with a prohibited organisation in Egypt in the early 1990s would use the term ‘jihad’ to describe the Muslim Brotherhood. The Tribunal further relied upon the fact that the applicant himself had connected the term ‘jihad’ with the use of force.

The respondent argued that the decision of Finkelstein J is neither binding nor authoritative. For the present purposes it was argued the court should rely upon the Tribunal's statement of reasons rather than interpretation placed upon those reasons in the Finkelstein J judgment. In any event it was contended that Finkelstein J did not hold that the Tribunal made "significant errors of fact". Reference was made to the judgment of Finkelstein J, and specifically where his Honour stated that:
“The tribunal's assertion that in Egypt the word 'jihad' is most usually associated with extremist Islamic groups may or may not be correct.”
A criticism found by Finkelstein J, was that that proposition was not supported by the textbook extract. It was argued that the textbook extract on the organisation ‘al Jihad’ was simply cited as an example of the association of the term ‘jihad’ with an extremist Islamic organisation. The respondent submitted that when viewed in that way, it could not be the case that the textbook extract says ‘nothing’ about the use of the word ‘jihad’ in Egypt.
Further reference was made to the Finkelstein J judgment, and it was submitted that his Honour had incorrectly stated that the Tribunal did not advert to the possible explanation “that the applicant was indeed referring to the Muslim Brotherhood in his first statement (although not by name) and that he characterized that group as one that was attempting to bring about change by the use of force”.
It was submitted that the Tribunal made express findings rejecting that possibility; that is, it expressly rejected that the applicant was referring to the Muslim Brotherhood in his first statement or that anyone claiming to have an association with a prohibited organisation in Egypt in the early 1990s would make the mistake of using ‘jihad’ to describe the Muslim Brotherhood.
It was submitted that this court should not proceed on the basis of any assumption that the Tribunal made significant factual errors, nor that the textbook extract was the central basis upon which the Tribunal's reasoning and conclusions depended.
As indicated earlier, the respondent made reference to the agreed transcript set out earlier in this judgment and then proceeded to make further submissions arguing that the transcript demonstrated a number of conclusions. Essentially the first respondent sought to argue that that transcript demonstrates that the Tribunal clearly raised with the applicant the differences between the claims made in his protection application and in the statutory declaration, including putting to the applicant that there was a difference between saying that he had joined a ‘jihad’ group and saying that he was a member of the Muslim Brotherhood.
It is not necessary to refer in detail to the extract or to otherwise recite what the respondent claims is demonstrated by that extract, though it is noted the respondent submitted that the distinction between Muslim Brotherhood and groups such as ‘al Jihad’ was specifically discussed. The significant submission made on behalf of the first respondent, however, is that if the court were to accept that the matter was discussed in the extract referred to, then that substantially diminishes any argument that the applicant was not provided with a copy of the textbook extract itself or that those extracts were not read to him.
It was argued that as a result of the discussion the applicant had a full opportunity to respond to the Tribunal in relation to the critical issues. Accordingly, it was argued it was not necessary for the Tribunal to read or give the applicant the textbook extract.
During the course of submissions the first respondent referred the court to a decision of Allsop J in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 82 at [27] to [30] where the court states the following:
“27 Natural justice and the analysis of whether, in any case, it was afforded is not a process of syllogistic reasoning. One does not approach it thus: the person is entitled to adverse material, this material was relied on in reaching an adverse result, that makes it adverse material, it was not provided in terms, therefore there has been a failure to afford natural justice.
28 Natural justice is ultimately a question of fairness. The appellant here came to the Tribunal armed with her material about her country of origin in order to persuade the Tribunal to reach a state of satisfaction about her, China, and her future: that she had a well-founded fear of persecution for a Convention reason should she be required to return to China. In order to perform the task required of it by ss 36 and 65 of the Migration Act 1958, the Tribunal was required to inform and educate itself about China generally, and about aspects of Chinese life and affairs pertinent to the appellant’s claims. In so analysing that material the Tribunal might form a view about the appellant or her version of events, which fairness dictated, must be raised. That was done here. The Tribunal will often have a store of experience and knowledge about the country in question without the need for specific reference to material. Sometimes, as here, it will reach for specific material for assistance. In doing so it was only informing itself of matters against which to assess the claims of the appellant. If, as here, subjects of concern are raised, I do not see how fairness requires provision of the specific text of country information seen to be of relevance.
29 The material to which we were taken was not such as to be required to be provided to the appellant. The appellant had an opportunity to persuade the Tribunal of her claims. The Tribunal raised with her issues of concern, which in the end were important. Fairness was afforded.
30 The kinds of consideration which led the primary judge confidently to apply Stead, and which were an accurate assessment of the material, seem to me to reinforce the conclusion that there was no breach of the rules of natural justice. At [18] his Honour said:
... Most of the information contained in the documents relied on was uncontroversial, in many respects in the public domain, and much of it was likely to be known to the applicant. Secondly, even if I am wrong on the first point, it is difficult to see how the applicant could ever be in the position where she could controvert the information, if any of it was controversial. ...”

Reasoning

To understand the ground relied upon whereby it is asserted there has been a breach of natural justice, it is appropriate to carefully consider the transcript extract referred to earlier in this judgment. That extract whilst raising the difference between joining one group and another, does not ultimately raise for the consideration of the applicant the textbook extract ultimately relied upon by the Tribunal.
In fact the transcript extract in my view appears to be somewhat confused, and the participants appear to be at cross‑purposes. Whilst the Tribunal refers to "a group known as Islamic Jihad" and further refers to the applicant saying he was a member of the "Muslim Brotherhood," the response received through the interpreter is, “The word jihad, it has a political meaning.”
It is the Tribunal that then refers to it as being one of “the groups which is operating in Egypt illegally.”
That then generates a response which refers to local leadership of the Islamic Brotherhood. The Tribunal then raises the question of whether the applicant actually "did belong to al Jihad", which it then claims is “certainly a group there in Egypt and which as I said, operates away from the Muslim Brotherhood.”
The response clearly demonstrates in my view that the applicant did not understand at that point the reference to ‘al Jihad’. Of course providing the textbook extract at that point may have been the most direct and simplest way of dealing with the matter. In any event the response at that point from the applicant was again to refer to a ‘jihad’, which he refers to as meaning “to struggle, and it's a political struggle also.”
The applicant then refers to “other Islamic groups are making trouble in south of Egypt and killing people but they are different to our principles and to our ideology because we fight for changing the law.”
It is the Tribunal that then refers to ‘al Jihad’ being a group that "assassinated Anwar Sadat" and then goes on to say “frankly are a very unpleasant lot.”
The response from the applicant is “they don't belong to our party.”
In analysing the extract I accept that the Tribunal was endeavouring to focus on the different groups, though using a reference to ‘Islamic Jihad’ on the one hand, and then ultimately ‘al Jihad’ further in the exchange. It is unfortunate that the Tribunal did not seek to clarify the matter further by perhaps providing to the applicant the textbook extract which I am satisfied ultimately formed a significant part of the Tribunal's reasoning set out earlier in this judgment.
It seems to me that the Tribunal, despite the unsatisfactory exchange revealed in the transcript, has embraced and applied the reference to ‘al Jihad’ in the textbook extract and superimposed that meaning upon the reference to ‘jihad’ in the applicant's original application to then seek to highlight a discrepancy between that reference and the subsequent reference to ‘Muslim Brotherhood’ in the applicant's statutory declaration.
Had the Tribunal simply made the point directly to the applicant and referred to the textbook extract, then perhaps a more meaningful exchange would have occurred than the exchange which appears in the transcript.
The finding of a discrepancy in my view is an integral part of the Tribunal's reasoning, and it is perhaps regrettable that the Tribunal did not put to the applicant the exact words referred to in his application where he talks about being convinced to join a group and believe in principles “in fighting for the sake of Islam known as Jihad.”
I do not accept that the reliance by the Tribunal on the textbook extract could be described as merely a process of the Tribunal informing itself of matters against which it sought to assess the claims of the applicant. Fairness in this case in my view requires that at least the terminology and the descriptions used be properly and fairly explored, and any reference to ‘al Jihad’ or reliance upon the textbook extract should have been put to the applicant during the course of the exchange.
This is not simply a matter of putting "country information" to the applicant but rather, as a matter of procedural fairness, identifying with significant clarity the terminology relied upon by the applicant, as it is clear that the Tribunal made a major and significant finding against the applicant in relation to his credibility when it states:
“However, the Tribunal finds that the difference between claiming that he belonged to a jihad group and to the Muslim Brotherhood goes to his credibility.”
It is difficult to reach a conclusion other than that the Tribunal misunderstood the confused exchange which appears in the transcript and then simply sought to rely upon a textbook extract without referring the matter directly to the applicant and drew significant and adverse credibility findings against the applicant which formed an integral part of the overall decision to reject the applicant's claim.
Whilst I accept that the issue of groups was agitated by the Tribunal, the process which I have analysed was not satisfactory, and in my view there has been a denial of natural justice by the failure of the Tribunal to clarify the matter and to do so in the simplest manner then available; namely revealing the contents of the textbook extract which was ultimately relied upon by the Tribunal.
Whilst I do not regard myself as being bound by the analysis of the material referred to the in Finkelstein J judgment, I conclude nevertheless that his Honour's analysis is correct. Specifically, the assessment of the textbook extract by his Honour where he states that it “explains that there is in Egypt an extremist group known as "al Jihad". But it says nothing about the use of the word "jihad" in Egypt” in my view is correct, and further strengthens the conclusion that the use made of the textbook extract by the Tribunal and the failure of it to provide the details to the applicant during the course of the unsatisfactory exchange leads to the conclusion that there has been a denial of natural justice. That conclusion was not then open to Finkelstein J given that at the time he considered the decision, the natural justice ground was not available under s.476 of the old Part 8 of the Migration Act 1958.
In my view the natural justice ground should succeed, and on that basis the decision of the Tribunal dated 3 July 2001 should be set aside and the matter remitted to a differently constituted Tribunal.
I have considered the issue of delay which was agitated by both parties. In my view, whilst there has been some delay in this matter, I am satisfied that in this case the strong prospects of success outweigh the negative effect of the long delay. I otherwise apply and adopt the reasoning of Heerey J in Re Ruddock; Ex Parte LX [2003] FCA 561 at [44] where the court states the following –
“… Strong prospects of success might outweigh the negative effect of long delay, or delay for which there is little in the way of adequate explanation. And it must be kept in mind that in asylum cases the consequences of a wrong decision can have the most serious consequences for the individual.”
I further accept in the present case that there is no real prejudice to the respondent by the delay though clearly significant prejudice to the applicant if denied relief by reason of the delay. The applicant's affidavit deals with the chronology of events which in this case I am satisfied leads to the conclusion that it was not appropriate for the applicant to commence the High Court action much earlier than the date upon which he commenced proceedings having regard to the decision of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 which was heard in September 2002 and where judgment was delivered in February 2003.
Accordingly, in my view the delay in this matter should not be fatal to the applicant's application and if required to formally grant an extension of time, then I would do so for the reasons stated.

Breach of section 424A

Since the hearing of this matter and submissions by the parties, the court is aware that the High Court delivered its decision in SAAP & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. Whilst it is acknowledged that non‑compliance with s.424A may render a decision invalid on the basis that an imperative obligation for the conduct of a review by the Tribunal has not been complied with, I do not see the present case as necessarily falling within the ambit of s.424A.
Given my finding in relation the natural justice ground, it is unnecessary for me to consider this separate ground in further detail. It seems to me that the proper characterisation of the textbook extract to which reference was made earlier in the judgment would not necessarily be one where the court would conclude that this is "information" within the meaning of that term in s.424A(1) of the Act; rather it was material upon which questions were based, though the source not revealed during the exchange in the extract to which I have referred.
It was the failure to disclose that short textbook extract which then led to the confusion and what I have found to be a breach of natural justice. I do not regard it as necessary to seek to categorise it as information for the purpose of s.424A as I am satisfied otherwise in the context of this application that it simply formed part of material then known to the Tribunal which should have been squarely raised in the exchange concerning the organisations which ultimately led to a significant adverse conclusion against the applicant in relation to his credit.
In any event, as indicated, I do not propose dealing with the second ground in further detail, save and except I note that even if the textbook extract could be regarded as being information "about a class of persons" - namely members of the al Jihad group - it is arguable that it is not information "just about" that class of person (see VHAJ v Minister for Immigration and Indigenous Affairs (2003) 75 ALD 609 per Kenny J at 624 [52]).
In this case I am satisfied that the information for the reasons given clearly related to a significant issue which was an integral part of the reasoning process and the exchange between the applicant and the Tribunal which should have been disclosed (see NARV). Based on that conclusion, and if required to do so, I would be prepared to find that the second ground has been made out by the applicant and on that further basis would set aside the Tribunal decision and remit the matter.

Conclusion

Subject to further submissions as to the precise form of orders, it follows that the decision of the Refugee Review Tribunal dated 3 July 2001 should be set aside and the matter remitted to a differently constituted Tribunal to be decided according to law and that the first respondent should pay the applicant's costs.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 16 November 2005