NADE v Minister for Immigration
[2003] FMCA 504
•14 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NADE v MINISTER FOR IMMIGRATION | [2003] FMCA 504 |
| MIGRATION – Application for review of Refugee Review Tribunal Decision – failure to advise applicant of adverse material – lack of procedural fairness – jurisdictional error. |
Migration Act 1958
WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 409
Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 179 ALR 238
VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74
Re Minister for Immigration & Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188
Muin v Refugee Review Tribunal (2002) 190 ALR 601
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24
VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205
Re MIMA; Ex parte Lam (2003) 195 ALR 502
Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 497
SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121
SDAH v Minister for Immigration & Multicultural Affairs [2003] FCAFC 49
WAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 60
Scargill v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 116
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
NAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 135
| Applicant: | NADE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1271 of 2002 |
| Delivered on: | 14 November 2003 |
| Delivered at: | Sydney |
| Hearing Date: | 22 May 2003 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Godwin |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
THE COURT DECLARES THAT
The decision of the Refugee Review Tribunal made on 13 September 2002 is invalid and of no effect.
THE COURT ORDERS THAT
The Minister is prohibited from acting in reliance upon the decision of the Tribunal.
The decision of the Tribunal is set aside.
The matter is remitted to the Tribunal for re-determination according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1271 of 2003
| NADE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 8 October 2002 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa. The applicant is a citizen of Burma who arrived in Australia on 28 March 1996. She applied for the visa on 12 June 1996 and the delegate’s decision refusing the visa was made on 26 April 1998. The applicant applied to the Tribunal for review of the delegate’s decision on 15 May 1998. The Tribunal held a hearing on 29 August 2000.
The applicant claimed to fear persecution by reason of a political opinion arising from support of the National League for Democracy (NLD) in Burma as well as two “sur place” claims relating to her activities in Australia. As the claimed jurisdictional error relates solely to the Tribunal’s treatment of her sur place claims it is necessary to mention only briefly the Tribunal reasons in relation to her claims based on her activities in Burma. In that respect while the Tribunal accepted some of her claims (in particular that she had been a member of the NLD in Burma and had participated in NLD work in Mingin, Burma) the Tribunal also found that some of her claims were not credible and that she had fabricated claims of facing persecution in Burma. The Tribunal was not satisfied that the applicant faced a real chance of persecution in relation to her activities and expression of pro-NLD opinion in Burma. No issue is taken with the Tribunal decision in this respect.
In addition the applicant made sur place claims. She claimed generally that she would be persecuted for being in “The Burmese family” in Sydney. This claim was rejected and no issue is taken with the Tribunal conclusions in that respect. The applicant also claimed to have participated in demonstration activities in Australia and to have been shown on television protesting. Relevantly she claimed that “in relation to the formation of an NLD committee in Sydney, I am one of the 15 people on the organising committee” and to have been active in pro-democracy activities since arriving in Australia. These claims were made in a statutory declaration dated 23 July 1996 provided in connection with her protection visa application.
In support of her claims to the Tribunal the applicant submitted a letter dated 15 July 2000 under the letterhead of the National League for Democracy, Burma signed by Win Khet who is described as the Secretary Central Intellectuals Working Group, National League for Democracy, Burma and as the senior adviser, National Council of the Union for Burma. He also provided a curriculum vitae which stated that he had held various offices in the National League for Democracy (Liberated Area) (NLD(LA)) between 1991 and 1996 including the role of Chairman. In his letter he stated that the applicant had been a member of the NLD since 1989, her membership card having been issued by him in Burma in his role as head of the administration of the NLD headquarters at that time. It was also stated that the applicant “has been a member of the Organising Committee of the NLD (LA) Australian branch formed by me as the Chairman of the NLD (LA) headquarters in June 1996”. Annexed to the letter was information about the situation in Burma and a signed statement that the Organising Committee of the NLD (LA) Australian Branch consisting of eight named persons including the applicant was formed on 22 June 1996 to initiate a membership drive for the establishment of the NLD (LA) Australia Branch.
The applicant also submitted a letter from the All Burma Students’ Democratic Organisation (ABSDO) signed by Nyi Nyi Soe, Network Co-ordinator dated 9 March 2000 which stated that the applicant was “a former member of the National League for Democracy in Burma and the Organising member of the NLD – LA (Australia)”, was involved in the nationwide uprising in Burma in 1988 and was still involved in the struggle for democracy and human rights for her people of Burma.
He stated that “She … always participated in our movements such as demonstrations, function, conferences and several meeting, which is conducted by ABSDO. We, Central Committee of ABSDO, respectfully recognise her activities and believes in the struggle against the brutal military rule in Burma”.
The applicant also submitted an updated list of activities she had been engaged in in opposing the Burmese government since being in Australia and photographs of her participating in some of these activities.
The Tribunal invited the applicant to attend a hearing by letter dated 5 July 2000. In a response to the hearing invitation dated 14 July 2000 the applicant indicated that she would like the Tribunal to take evidence from Nyi Nyi Soe who would give evidence “to witness my activities in Australia”. It is evident from the transcript of the hearing held on 29 August 2000 that a witness accompanied her to the hearing. However, the Tribunal member indicated to the applicant in the hearing that it “may not be necessary” to speak to the witness who had accompanied her to support her claims. The member stated that he had the letters she had submitted about her activities. He did not, either at the start or at any other time during the hearing, either advert to the applicant’s position on the Organising Committee of the NLD (LA) Australia or to the Tribunal concerns in that respect (despite the fact that material relied upon in relation to those claims as discussed below was from a country information report prepared in 1998). Nor did the Tribunal member hear from the applicant’s witness (it was not suggested that he was under such an obligation). The Tribunal did bring to the attention of the applicant independent information to the effect that engaging in demonstrations and other Burmese activities in Australia does not necessarily result in persecution upon return to Burma even for people known to have been politically active in Australia, although there were exceptions to this and that people could face different treatment which “could result from a person, say you, being regarded as a ringleader or as somebody who has been involved in violent protest against the Burmese or who has returned to Burma in extraordinary circumstances …”.
On 10 May 2002 the Tribunal sent to the applicant what it described as “country information held by the Tribunal may be used to decide your case” and invited her to comment in writing. The country information enclosed consisted of 2002 press reports in relation to Aung San Suu Kyi and the situation in Burma in May 2002. On 31 May 2002 the applicant provided comments to the Tribunal on that material and the implications of Aung San Suu Kyi’s release from house arrest in May 2002. She also provided copies of material from newspapers and other publications in relation to the situation in Burma.
The Tribunal decision
The Tribunal reasons for decision refer to the documentation which the applicant submitted in support of her claims including the letter from Mr Win Khet. The Tribunal stated that the applicant was said in this letter to be a member of the “so called” NLD (Liberated Area) Australian Branch Organising Committee. The reasons for decision refer to the letter from Nyi Nyi Soe as “purportedly from ABSDO a Burmese opposition student group stating that she had taken part in several of their activities”. The Tribunal found:
The applicant has made several “sur place” claims. She claims that she faces persecution over her claimed membership of several organisations. I do not accept this for the following reasons:
· I am not satisfied that she would be persecuted simply for being in “The Burmese family” in Sydney since independent evidence does not support this claim.
· I am not satisfied that the applicant would be persecuted for being an office-bearer of an organisation calling itself the National League for Democracy (NLD) (Liberated Area) Australian Branch given the dubious credentials of this group. The NLD’s representative in Australia informed the RRT in 1998 that while the NLD (Liberated Area) is a legitimate organisation set up in the “liberated area of Burma” in the Thai-Burma border area by NLD elected representatives who had been forced to feel Burma in the wake of the extinguishment of the NLD’s election victory in 1990, it does not recognise the formation of the so-called NLD (LA) Australia Branch in Sydney in 1996. He states that the NLD and other leading Burmese opposition groups “have neither given their endorsement nor their support to the setting up of the NLD (LD) in Australia” (NLD (LA) Australia, Letter from Philip Smyth, sole official representative to Australasia and the Pacific of the National League for Democracy, 2 January 1998, CX30519.
I am of the opinion that this group, which does not enjoy support from recognised Burmese opposition and dissident groups, is charlatan in nature, existing simply to provide fraudulent letters of support to Burmese asylum-seekers. The group’s leader, Mr Win Khet’s claim that the applicant “has been blacklisted” by the Burmese military lacks credibility given her ability to secure a passport in her own name and leave Burma unhindered and given the applicant’s own evidence that she had had no problems with the authorities in Rangoon prior to leaving Burma. Country information does not support Mr Win Khet’s other claim that the applicant would be persecuted simply for being in the NLD.
In all, I give no weight to the claims made on the applicant’s behalf by the above group, and I am not satisfied that she faces persecution in relation to the group.
· As stated earlier, I am sceptical about the applicant’s NLD credentials since leaving Burma since she belongs to a group which appears to be a pretender in the gallery of Burmese dissident organisations. Even if she is an NLD member or supporter, I am not satisfied that she would be persecuted given her unimportance in political terms and the fact that the NLD operates legally in Burma.
· I am not satisfied, given what I consider to be the applicant’s lack of political profile, that she faces persecution in Burma simply for having been present at several activities organised by the Burmese dissident group, ABSDO.
This application
It was submitted for the applicant that the Tribunal denied her natural justice. It was said that the legitimacy of the group NLD (LA) Australia was the critical issue upon which the Tribunal determined to reject the applicant’s sur place claim insofar as it was based on her claimed organisational role in that organisation. No notice of this was provided to the applicant and no opportunity was given to her to respond. It was submitted that the contents of the country information report (CX30519) dated 17 July 1998 which was clearly adverse to the applicant’s case should have been brought to her attention for comment. It was also submitted that implicit in the Tribunal’s reasoning was a conclusion that the applicant herself was complicit in supplying fabricated evidence to the Tribunal and that this assertion should have been put to her to give her an opportunity to respond.
The country information report in question consisted of a letter from Philip Smyth who is described as the sole official representative to Australasia and the Pacific of the National League for Democracy (Liberated Area) in relation to the NLD (LA) Australia. That letter which was dated 2 January 1998 stated:
The National League for Democracy (NLD) (Liberated Area) (LA) has been set up in the Liberated Area of Burma, in the Thai-Burma border area.
It appears that the NLD (LA) Australia was set up in Sydney on 22 June 1996. This organisation does not have the approval of my representative organisation in the Liberated Area of Burma, and I have not been approached to seek such approval on their behalf. I am informed by representatives of NCGUB, NLD and LNDP that they have neither given their endorsement nor their support to the setting up of the NLD (LA) in Australia.
I understand that Dr U Sein Win (Prime Minister NCGUB) when last in Australia, strongly objected to the setting up of such an organisation in Australia, as to do so may in some way jeopardise the registration of the NLD of the party in Burma. That it was only due to extenuating circumstances that the NLD was set up in the liberated area, by elected representatives and the rank and file of NLD members who were forced to flee the liberated areas of Burma.
While the Tribunal reasons for decision state that independent evidence relevant to the applicant’s claims, particularly in regard to her activities in Australia, was discussed at the hearing it is apparent from the transcript that neither this particular report, its substance or the consequences of acceptance of this evidence were discussed with the applicant either at the hearing or thereafter. The Tribunal concerns about the legitimacy of the NLD(LA) Australian branch and that her letters of support may be fraudulent were not raised with her.
The respondent submits that procedural fairness did not require that such general country information (which was said not to be personal to the applicant) be released to her, that there was no breach of procedural fairness by the Tribunal and that in any event section 424A (which it was submitted was not breached) was an exhaustive statement of the Tribunal’s obligation to bring information to the attention of the applicant. It was also submitted that there was no practical unfairness and that this was a reason to withhold relief.
It is appropriate to consider first whether s424A is an exhaustive statement of the Tribunal’s obligation to bring information to the attention of a visa applicant overriding any common law obligation of procedural fairness. It was conceded that s422B of the Migration Act 1958 did not apply to the Tribunal’s decision as the application for review was made before 4 July 2002. The submission was based on the decision in WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 409 made on 12 December 2002. That decision concerned a failure by the Tribunal to give an applicant, an Iranian who claimed to have converted from Islam to Christianity, an opportunity to comment on a Departmental report in relation to the situation of converts from Islam to Christianity in Iran. The Court held that such information was within section 424A(3) as information not specifically about the applicant or another person but just about a class of persons of which the applicant or another person was a member. Hence the obligation in section 424A(1) to invite comment did not apply. The Court briefly considered the question of procedural fairness which had been mentioned during argument although not raised in the grounds of appeal. It referred to Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 179 ALR 238 in which the High Court had held that a denial of procedural fairness by the Tribunal would be a jurisdictional error giving rise to a ground for relief under section 75(v) of the Constitution and that the procedural provisions of the Migration Act 1958 as then in force did not constitute a code excluding requirements of procedural fairness. In WAAJ the Full Court of the Federal Court expressed the view that s424A was exhaustive. It noted that section 424A was not in the Act when the Miah delegate’s decision was made and that all members of the High Court bench in Miah had pointed out that the common law rules about natural justice “could be excluded by a manifestation of legislative intention to that effect, including by the making of a statutory regime to cover the relevant factual situation: see Gleeson CJ and Hayne J at [35], per Gaudron J at [90], per McHugh J at [141]-[143], per Kirby J at [187]. As it seems to us, s424A must be treated as an exhaustive statement of the Tribunal’s obligation to bring information to the attention of a visa applicant, overriding any wider common law obligation”. (at [36]).
Subsequently, however, in WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220 French J, sitting as a single judge of the Federal Court, took issue with the correctness of the observations in WAAJ in relation to the exhaustiveness of s424A and expressed doubt as to whether such observations were of binding authority as they did not appear to be part of the ratio in WAAJ. He also pointed out that at the time Miah was decided s57 of the Migration Act was in force which was not relevantly distinguishable from the present s424A. Further, he indicated that Parliament had legislated to overcome the effect of the Miah decision in relation to procedural provisions in the Act by the introduction of s422B which (while not entirely without difficulty in its application) was said to be a statement of legislative intention that Division 4 of Part 7 (which includes s424A) is intended to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters with which it deals.
The approach suggested in WAID was confirmed by a more recent and differently constituted Full Court of the Federal Court in VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74. In that case the issue of procedural fairness was directly in point (unlike WAAJ) because leave was granted to the appellant to add a ground based on natural justice and/or the duty of procedural fairness (in that the Tribunal was said to have failed to give the appellant notice of material or information adverse to his interests which it was proposing to take into account). The question of whether there was a breach of s424A and whether s424A precluded the continued existence of the common law requirements of natural justice was before the Court for consideration. In that case the Tribunal had failed to supply to the applicant for comment a letter or details of the contents of a letter from the Afghani Consulate in Canberra relating to the availability of Consular services including the issue of passports to all Afghan nationals. The Court held that such information fell within s424A(3)(a). However it went on to consider whether the Tribunal had breached the rules of natural justice by not giving the applicant an opportunity to comment on the information contained in that letter. The Court stated (at [30]) “It is established that the presence of a provision such as s424A does not, of itself, preclude the continued existence of the common law requirements of natural justice: Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) CLR 57 (Miah). It may be that this position no longer prevails. The Act was amended on 3 July 2002 by the introduction of s422B which seeks to exclude the common law requirements of natural justice. However, the amendment does not apply retrospectively, and has no bearing upon the present appeal.” Similarly s422B has no bearing on this application. It might also be noted that in reaching its conclusion the High Court in Miah considered expressly whether the provisions of the Migration Act as it then stood (including s57) manifested a clear intention that the rules of natural justice be excluded (see Gaudron J at [90]-[98], McHugh J at [140]-[147], Kirby J at [179]-[188]. (Also see Re Minister for Immigration & Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489 at 501 per Kirby J.)
Further, in WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 the Full Court applied VAAC, holding that s424A of the Act in the form the legislation took prior to July 2002 (that is pre s422B) did not represent a complete statement of the Tribunal’s obligation to afford procedural fairness to an applicant for a protection visa. The Court stated that WAAJ did not mandate a contrary conclusion (at [37] to [40]).
In these circumstances I consider that it is proper that I follow the authority of the Full Court of the Federal Court in VAAC in preference to WAAJ. In VAAC the question of the effect of s424A on the continued existence of common law requirements of natural justice was part of the ratio and the Court found that there was a denial of procedural fairness.
Accordingly it is necessary to consider whether the Tribunal breached the rules of natural justice. Natural justice requires that the applicant be given a reasonable opportunity to put her case to the Tribunal and also to “deal with matters adverse to [her] interests that the repository of the power proposes to take into account in exercising the power” Kioa v West [1985] CLR 550 at 628 per Brennan J. Further “in the ordinary case … an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made” (at 629). The decision-maker should bring to the applicant’s attention the ‘critical factor’ on which the decision is likely to turn so that he or she may have an opportunity of dealing with it. In this case the applicant’s claim to refugee status rested on a number of bases. One limb of her sur place claim was based on her claimed involvement on the Organising Committee of the NLD (LA) Australia. I am satisfied that the level and extent of her involvement in pro-democracy activities was, on the independent evidence relied on by the Tribunal itself, of significance, such that the legitimacy of the group NLD (LA) Australia was a critical issue upon which the Tribunal determined to reject the applicant’s sur place claim. Her claim was based on more than simply participation in demonstrations and meetings. Implicit in the Tribunal’s reasoning in relation to this aspect of her claim is a conclusion that the applicant was complicit in supplying evidence from a group which the Tribunal regarded as a “pretender” in the gallery of Burmese dissident organisations being, according to the Tribunal, “charlatan in nature” and existing “simply to provide fraudulent letter of support to Burmese asylum seekers”. The information that the Tribunal relied on to reach these conclusions (and there does not appear to be anything other than the letter from Mr Smyth to support the claim that the group existed simply to provide fraudulent letters of support to asylum seekers) was available to the Tribunal at the time of the hearing. The issues raised by that letter were not put to the applicant for comment. Furthermore, in the course of the Tribunal hearing the Tribunal member indicated that he did not need to hear from the applicant’s witness who, it appeared from the hearing response form, was in fact one of the people who had provided her with a letter of support in relation to her activities in Australia. While the Tribunal is not under an obligation to take evidence from witnesses proposed by an applicant, the failure to do so or to raise the Tribunal’s concerns with the applicant at the hearing when there was an opportunity to do so form part of the particular factual circumstances relevant in determining the scope and content of the requirements of natural justice in this particular situation (see NAFF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52 at [31] per Lindgren and Stone JJ.
The issue is not simply whether the applicant was given the opportunity to put matters to the Tribunal. It was also necessary for the applicant to know generally the negative matters against her which could be expected to operate adversely to her. There was no information made available to the applicant which addressed the Tribunal’s critical concerns as to the recognition of the NLD (LA) Australia by the NLD (LA) in the Thai-Burma border area and the legitimacy of the Australian organisation. The information from Mr Smyth is clearly credible, relevant and significant to the decision to be made given Mr Smyth’s apparent position in the NLD (LA). It was information that the Tribunal considered directly referable to the applicant’s situation that was critical to its decision that the applicant did not have a sur place claim to fear persecution by reason not only of her membership but also of the organising role which she claimed to have in the NLD (LA) Australia. By failing to disclose the substance of this material or the Tribunal’s concerns (and there was an opportunity for this to be done not only at the hearing but also thereafter for example in the letter of 10 May 2002 which invited the applicant’s comment on other matters) the Tribunal denied the applicant an opportunity to put forward answering material. Whether or not the material was “personal” to the applicant in the sense in which that concept has been interpreted for the purposes of s424A, it related to a specific element of her claims. Also she was one of a small number of people to whom the substance of the information from Mr Smyth had critical significance insofar as she claimed to be an organiser and hence to have a role beyond mere membership of or support for the NLD in Australia. I do not accept that the information in question concerned a minor detail of the applicant’s claims or that it should be regarded as merely general country information such that it need not be disclosed given the particular nature of the claims made by the applicant and the circumstances of the process of the review application and hearing in this case. See Re Minister for Immigration & Multicultural Affairs; Ex part Miah (2001) 206 CLR 57 per Gaudron J at [98], McHugh J at [140] to [141], Kirby J at [192] and Muin v Refugee Review Tribunal (2000) 76 ALR 96. Cf Gyles J in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 at [46] to [82] and note that NAAV (2002) 193 ALR 449 (the appeal from NAAX) is no longer binding authority: see SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121, SDAH v Minister for Immigration & Multicultural Affairs [2003] FCAFC 49, WAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 60 and Scargill v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 116 and Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168).
The applicant was deprived of the ability to respond to the Tribunal’s concerns by supplying additional material of probative value (particularly in relation to the implication that the applicant was complicit in presenting fabricated evidence to the Tribunal). Hence the Tribunal contravened the rules of natural justice (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gummow and Gaudron JJ at 116).
Section 474 of the Act does not protect a purported decision made as a result of jurisdictional error (Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24). A failure to accord procedural fairness constitutes a jurisdictional error (Re Refugee Review Tribunal; Ex parte Aayala (2000) 204 CLR 82 per Gleeson CJ at [89], Gaudron and Gummow JJ at [101], Kirby J at [135] and Hayne J at [143].
Counsel for the Minister submitted that there was no denial of practical fairness or practical injustice in this case particularly given the applicant’s failure to give evidence as to what she would have done had the information in the country information report letter been put to her (Re MIMA; Ex parte Lam (2003) 195 ALR 502 at [19], [22] and [36] per Gleeson CJ, [57] and [106] per McHugh and Gummow JJ, [112], [122] per Hayne J and [149] per Callinan J). However Lam was not a case where an applicant did not have an opportunity to rebut material adverse to her case. Rather it was a case that involved an expectation that a certain procedure would be followed by the Tribunal (see Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 497 at 61 per Hill J). This is not a case in which it is necessary for the applicant to establish what evidence she would have put to the Tribunal (cf Muin v Refugee Review Tribunal (2002) 190 ALR 601). In this case the fact that she was deprived of the opportunity to be heard about a matter critical to her case suffices. Insofar as it is necessary to show that there was some practical injustice in this case it stems from the denial to the applicant of the opportunity to respond to the adverse critical material. It is not necessary for the applicant to prove that had she been given an opportunity to present her case this would have resulted in a more favourable outcome (VAAC at [25]). I am satisfied that there was a denial of procedural fairness by the Tribunal constituting jurisdictional error. (Plaintiff S157 v The Commonwealth (2003) 195 ALR 24.
The respondent also submitted that even if there was a breach of procedural fairness or denial of natural justice it was not such a “fundamental” breach as would allow relief to be granted in the face of s474. His Counsel relied on observations by Ryan J in VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205 at [23], [28] and [29]. However in VBAC no denial of natural justice was found. Further the contrary view was expressed in Dagli v Minister for Immigration & Multicultural & Indigenous Affairs per Hill J at [62] to [66]. In NAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 135 the Full Court of the Federal Court clarified that a jurisdictional error in the form of denial of natural justice takes the case outside the ambit of s474 of the Migration Act (at [57]).
Finally, while the Court has a discretion to withhold relief I am not satisfied that it would be appropriate to do so in this case. I have already indicated that I do not consider it critical that in this case the applicant has not given evidence to establish what steps she would have taken had the information in question been brought to her attention. Practical unfairness constituting a non-observance of the requirements of natural justice has been established. It cannot be concluded that the observance of such requirements “could not possibly have produced a different result” (Stead v State Government Insurance Commission (1986) 161 CLR 141 at [145], and Aala and NAFF at [31]).
The matter should be remitted to the Tribunal for re-determination according to law.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM
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