Plaintiff S254-2006 v MIMA & Anor

[2006] HCATrans 515

[2006] HCATrans 515

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S254 of 2006

B e t w e e n -

PLAINTIFF S254/2006

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Defendant

REFUGEE REVIEW TRIBUNAL

Second Defendant

Summons

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 13 SEPTEMBER 2006, AT 9.29 AM

Copyright in the High Court of Australia

MR D.J. JENKINS:   If your Honour pleases, I appear for the plaintiff.  (instructed by the plaintiff)

MR G.R. KENNETT:   May it please the Court, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Jenkins, you rely on an application for an order to show cause that was filed on 2 August?

MR JENKINS:   Yes, your Honour.

HIS HONOUR:   You also rely on a summons filed on 2 August?

MR JENKINS:   Yes, your Honour.

HIS HONOUR:   And you read the affidavit of the plaintiff which was affirmed and filed on 2 August?

MR JENKINS:   Yes, I do, your Honour.  The plaintiff has also sworn a second affidavit.  That is in the process, as we speak, of being stapled and copied and I would seek leave to file that in Court when it arrives and to also rely on that affidavit.

HIS HONOUR:   Mr Kennett, is there any objection to any part of this affidavit of 2 August?

MR KENNETT:   No, your Honour.

HIS HONOUR:   Have you seen a copy or received any advanced intimation of what is in the affidavit?

MR KENNETT:   I have not, your Honour, no.

HIS HONOUR:   Do you read Mr Markus’ affidavit of 6 September?

MR KENNETT:   It is essentially procedural, your Honour, but yes.

HIS HONOUR:   You do not object to that, Mr Jenkins?

MR JENKINS:   No objection.

HIS HONOUR:   We cannot go any further until we get this affidavit.  When you say it is being stapled, it is being stapled in someone’s office?

MR JENKINS:   It is.  I can only anticipate it is five minutes away.

HIS HONOUR:   You do not have a copy?

MR JENKINS:   No, the original is being copied.

HIS HONOUR:   I think we will have to adjourn this case unless anyone is ‑ ‑ ‑

MR JENKINS:   My apologies to the Court.

HIS HONOUR:   There does not seem any alternative but to adjourn this hearing pending the hearing of the first matter in the list, does there, Mr Kennett?

MR KENNETT:   No, I do not think so, your Honour.

HIS HONOUR:   I should just say before we adjourn that there is a certificate by the Deputy Registrar advising that the solicitor for the second defendant has indicated that the second defendant will submit to any order of the Court except as to costs.  We will hold Plaintiff S254 in the list.

AT 9.32 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 10.04 AM:

HIS HONOUR:   Mr Jenkins, you wanted to file in Court an affidavit?

MR JENKINS:   Yes, your Honour.  I seek leave to file in Court the affidavit of the plaintiff affirmed this day, 13 September 2006.  I have provided my learned friend with a copy.

HIS HONOUR:   Very well.  I grant leave to file that in Court.  Have you had a chance to read it, Mr Kennett?

MR KENNETT:   I have, your Honour.  I do not object to it.  If the matter were to go on a final hearing, my client would obviously wish to investigate the correctness of it and perhaps test in particular the proposition in paragraph 7, but for today’s purposes I do not object to it.

HIS HONOUR:   The problem is that one of the arguments you advance is that the evidence is unclear whether it was the department who gave the Tribunal the passport or whether it was the plaintiff who gave the Tribunal the passport.

MR KENNETT:   The affidavit has clearly been designed to fill that gap, so there is ‑ ‑ ‑

HIS HONOUR: Today we have to decide – if paragraph 7 did not exist, one could fairly say that despite the plaintiff’s complaint about non‑compliance with section 424A of the Act, the plaintiff would not have established whether or not an exception applied or an area where the section did not operate. That argument cannot really be used as a means of defeating the application unless one makes one’s mind up about whether paragraph 7 is true or not.

MR KENNETT:   That is right, your Honour, yes.

HIS HONOUR:   Standing by itself it has to be accepted as true unless it is damaged in cross‑examination.

MR KENNETT:   Yes.  So that I do not think it is any longer open to me to say that the application has to fail at the threshold because there is nothing to support the critical point in it.  The critical point would need to be tested and presumably at a final hearing if the matter were not dismissed for reasons of delay.

HIS HONOUR:   If everything else went in favour of the plaintiff, this might be a case where the matter went to the Full Court on 486A but this other issue did not go to the Full Court and was determined separately.

MR KENNETT:   Yes, your Honour.  It may be of course that my instructor has listened to the transcript of the hearing and we find that we do not contest the correctness of it.  We just do not know at the moment.

HIS HONOUR:   Transcript of which hearing?

MR KENNETT:   Of the Tribunal hearing.

HIS HONOUR:   Yes.  You are postulating really this, that the references by the Tribunal to the passport, if one looked behind them to see what the Tribunal member actually said, it might emerge from that that the Tribunal member was speaking of something that was in the file rather than something which the plaintiff had handed over to the Tribunal?

MR KENNETT:   Quite, yes.

HIS HONOUR:   If we put that issue on one side, do you still oppose the matter going to the Full Court or the relief being granted?

MR KENNETT:   Yes, your Honour, and we would oppose it firstly on grounds of delay, assuming that the time limits in the Court’s Rules are the relevant ones.

HIS HONOUR:   Six months for certiorari.

MR KENNETT:   We would say it has just gone too far.

HIS HONOUR:   But nothing for mandamus because the Refugee Review Tribunal is not a judicial tribunal?

MR KENNETT:   What the applicant seeks in substance, I would submit, is to overturn what purports to be a decision of the Tribunal.  The relief might be crafted so as to consist of mandamus or of prohibition to prevent future action being taken but, whatever the relief sought might be, the applicant needs as a matter of substance to establish the purported decision of the Tribunal is invalid.

HIS HONOUR:   Certiorari is needed.

MR KENNETT:   So I would submit it is de facto certiorari and one should focus on the time limit provided for that remedy.

HIS HONOUR:   It is not de facto certiorari.  They ask for a writ of certiorari.

MR KENNETT:   They do, your Honour, but my point is that when my friend says there is an application for prohibition which does not have a time limit ‑ ‑ ‑

HIS HONOUR:   It would not be granted unless certiorari were granted.

MR KENNETT:   That would be my submission, your Honour, yes.

HIS HONOUR: So you say six months and it was eight months or so beyond the six‑month period. That is one point. Let me just put this to you. Do you agree that section 424A(1)(a) requires that the particulars of the information referred to must be given in writing?

MR KENNETT:   Yes, your Honour, that is ‑ ‑ ‑

HIS HONOUR:   SAAP held that.  And that paragraph (c), the invitation to the applicant to comment on it, must be in writing.

MR KENNETT:   Yes.

HIS HONOUR: But in (b) the ensuring that the applicant understands why it is relevant to the review does not have to be in writing because section 424A(2)(a) uses the words “except where paragraph” – no, I withdraw that. What do you say about subsection (1)(b)? Does that have to be in writing?

MR KENNETT:   I am not sure that it has ever been considered, your Honour, but I think we would accept that the whole of the task has to be done in writing.

HIS HONOUR:   You can only communicate with people with documents, not with oral words.

MR KENNETT:   Yes.

HIS HONOUR:   I suppose it is not really open to the Minister to challenge the correctness of the construction I have been putting to you because it is supported by the majority in SAAP.  Would you put an argument along these lines, that the only thing that the Tribunal member here did not do was deal with the plaintiff in writing?  If you take the reasons for decision given by the Tribunal member on their face, she must have said, “Look, you got a passport on 30 September 2002 but you didn’t leave Nepal for almost two years and that was more than 18 months after what you say was a threatening incident in February 2003”.  Would that not be orally indicating information that the Tribunal considered would be a reason for affirming the decision orally trying to ensure that the applicant understood why that was relevant and orally inviting the applicant to comment on it?

MR KENNETT:   Yes, your Honour.

HIS HONOUR:   So the only deficiency is that it was not in writing.

MR KENNETT:   That is right, yes.

HIS HONOUR:   Would you also point to this, that at no time after the Tribunal decision did the applicant complain about his treatment until an amended application was filed to the Federal Magistrates Court by a lawyer?  What the applicant did was apply to the Minister and file an application of his own done by himself without aid to the Federal Magistrates Court that complained about the way in which the country information had been employed.  Stale country information was being relied on.  Would you also point to the fact that the applicant has never said what difference it would have made if the Tribunal member had written out on a piece of paper the various things that she seems to have said to him orally?

MR KENNETT:   But for the majority in SAAP, I would point to all of those things, your Honour.

HIS HONOUR:   Yes, that is one thing.  If all this was happening within time, then however technical and unmeritorious the point is, it is a good point.  But it is not happening within time.

MR KENNETT:   Yes, your Honour is right.  Another point that I am reminded of is that in the exchange in the hearing to which I think your Honour was referring – this is at the bottom of page 6 and the top of page 7 of the Tribunal’s reasons – the Tribunal member seems to have put to the plaintiff that he had obtained a passport on a particular date and not left Nepal until almost two years later.  The response of the plaintiff appears to confirm the correctness of that rather than to challenge it or to seek further time to disprove it.  All of those matters add up, I suppose, to a point that there has not been in the case any substantial unfairness even though there might on analysis have been a failure to comply with the strict terms of the statute.  The lack of substantial unfairness is a consideration that I would add to those I have outlined in writing as to why the application should not be permitted to be made out of time.

HIS HONOUR: When you speak of your points made in writing, we have to leave on one side this evidentiary question as to how the passport got before the member. Your points turn really on delay in section 486A.

MR KENNETT: Yes, and there is an additional element to the delay which is the making of a request for intervention by the Minister. The request is exhibit 2. It is with the plaintiff’s first affidavit. There is no particular provision of the Act referred to but it does seem clearly to be a request to the Minister that she exercise her discretion under section 417. That is a discretion to substitute for the decision of the Tribunal a more favourable decision. My argument is that taking that step involves not only adopting another procedural avenue but adopting a course which presupposes and accepts that the Tribunal’s decision is legally effective.

HIS HONOUR:   This is all a bit sophisticated though for people like the plaintiff.

MR KENNETT:   Sophisticated for people like the plaintiff, although his evidence was that the letter had been prepared for him.  It is a step which I would submit makes it harder for the plaintiff now to say that the Tribunal

decision is in fact not legally effective because it is infected by some jurisdictional error.

HIS HONOUR:   I think the cases you rely on in relation to that, especially the second one, Das v Minister for Immigration and Multicultural Affairs, the argument you have been putting succeeded there because Justice Sundberg said the applicant made a considered decision to elect in favour of the section 417 course. That was after the Minister said, “You cannot both have an application to the court for review and an application to me under section 417. You must choose”, and there was a choice. Factually speaking, that seems to be a stronger argument there than it is here where the plaintiff’s case is that he is moving in a fog of ignorance.

MR KENNETT:   The point certainly was there in a heightened form in Das because the issue had been put squarely to the plaintiff there and he had made his choice.  Here I would say the same choice has been made, although perhaps without the need to choose having been put to the plaintiff in quite those stark terms.  The applicant’s evidence in paragraphs 9 and 10 of his first affidavit was that that letter had been drafted for him by a solicitor and registered migration agent, so perhaps not a complete fog of ignorance; it was done on advice.

HIS HONOUR:   But the problem is it is advice which the plaintiff now says, taking it as a whole, was partly wrong.  Yes, I think I need not hear from you any more for the time being, Mr Kennett.  Mr Jenkins, what is the answer to the proposition that your client depends on an application for an extension of time of some months?  The flaw in what the Tribunal member did – let me ask you this.  Is there anything wrong with what the Tribunal member did other than to do what she communicated to the plaintiff in writing?

MR JENKINS:   I would submit that there is.

HIS HONOUR:   What is that?

MR JENKINS:   The Tribunal member did not sufficiently alert the plaintiff to the relevance of the information.

HIS HONOUR:   How can we be sure about that?  All we know about it is what is on pages 6, 7 and 14 of her reasons.  The plaintiff has not said anything in either affidavit about not understanding the point or “What I would have done if I’d been given it in writing” or anything of that character.  Why cannot we take the reasons for decision at face value?

MR JENKINS:   Because of the strong policy considerations which underlie the section.  The need to place the information which forms part of the reason cannot merely be read from the face of the record but requires in writing an explanation to the plaintiff why that information is relevant.  The Tribunal member’s comments in the record are insufficient to satisfy the section.

HIS HONOUR:   Did she not give particulars of some information, namely the date of the passport?  In the light of the way she expresses herself, it sounds as though that was the result of questions flagging to any normal hearer that this was something that was troubling her and that therefore, if answered the wrong way, as it were, might be part of the reasons for arriving at an adverse decision.

MR JENKINS:   I think your Honour touches on the appropriate form of words in that it might to a normal listener.

HIS HONOUR:   Who was represented.

MR JENKINS:   At the Tribunal?  Your Honour, not represented but accompanied.

HIS HONOUR:   By whom?

MR JENKINS:   By a friend.

HIS HONOUR:   Did the friend speak English?

MR JENKINS:   I am instructed that he spoke little English.  Your Honour, I would submit that the Tribunal needs to go the next step.  The Tribunal needs to say not just “You had a passport” in an effort to flag the issue but rather to say “You had a passport.  This was prior to the incident that you claim founds your well‑founded fear.  You chose not to leave”, and to go on and make it in no uncertain terms why the information is relevant and why it would be relied upon.  I would submit that the Tribunal has not done that.

HIS HONOUR:   Can I put this to you, that the answers recorded indicate that the plaintiff understood why the information was relevant and the way it might be relied on because after the material that is at the bottom of page 6 and the top of page 7, it records a line of response which says:

he was biding his time because he could not find a suitable for hiding.

I am not quite sure what that means, but he is giving an explanation for the delay.  Then she said she could not:

understand why he would wait because he was clearly in a reasonable financial position to leave and he had a passport.

He then gives another explanation that:

he remained in Kathmandu because it was safe there but after the incident in February 2003 he was looking for a place to go.

Those answers seem to indicate an understanding of why delay might count against him and why it needed to be accounted for.

MR JENKINS:   Your Honour, I would submit that there are other interpretations as to what his responses do mean.  They can represent not the high standard that your Honour has put to me of understanding the relevance of the information that the Tribunal member is putting to the plaintiff but rather an ability at its lowest level.  I submit it is an ability to communicate with the Tribunal.  It is an ability to put forward claims, to respond to questions, but I would submit that it does not reach the high standard required of the section of his understanding the relevance of what the Tribunal member was putting to him.

HIS HONOUR:   What you are saying is that if those sentences had been written out on a piece of paper and the piece of paper given to him, they would not have satisfied 424A?

MR JENKINS:   No.  I would submit, your Honour, that the next step that the Tribunal needs to go to is to say that, “These claims that you are making and the information that you have provided or that we have become aware of is information which we will rely upon in the reasons that we give to refuse your claims and to affirm the decision of the delegate”.  There needs to be a clear nexus between the information that the Tribunal is seeking to use and the way that it will manifest itself in the reasons for decision.

HIS HONOUR:   Anything more on that point?  Anything else you want to put?  You need not bother about 486A.  What we are really talking about is whether we get to 486A.  I do not think you need bother about any doctrines of election or choice arising from applying to the Minister rather than ‑ ‑ ‑

MR JENKINS:   Would your Honour require any further assistance regarding the delay issue?

HIS HONOUR:   I am accepting the account given in the affidavit, namely that he goes to – except for this.  There is no explanation for why the plaintiff did not begin from 30 May 2005 searching out avenues of appeal because the letter dated 26 May 2005, under cover of which the Tribunal’s reasons were sent to him, did state that:

You may have a limited right to seek review of this decision by the Federal Court, Federal Magistrates Court and/or the High Court.  There are strict time limits –

emphasised –

within which an application for review by the Courts must be filed . . . I strongly advise you to promptly seek legal advice if you wish to seek review by the Courts.

The affidavit says that:

I did not know what to do after the Tribunal’s decision and believed I had to return to Nepal.  I did not know I could appeal the decision of the Tribunal.

Then on 30 June he spoke to his friend, which would have been slightly outside the first time period.  The friend said, “Go and see a lawyer”, and the lawyer gave what you say is wrong advice.  I think I follow it from there, but there is no explanation other than what is in paragraph 7 for the gap from 30 May to 30 June.  So the answer to your question is I think I do understand the delay arguments.  Anything further you want to say?

MR JENKINS:   No, nothing further, your Honour.

HIS HONOUR: On 2 August 2006 the plaintiff filed an application to show cause why writs of certiorari and mandamus should not issue against the second defendant and why a writ of prohibition should not be issued against the first defendant. The ground on which the relief is claimed is that the second defendant, the Refugee Review Tribunal (“the Tribunal”), failed to comply with section 424A of the Migration Act 1958 (Cth) (“the Act”) in a respect explained below.

The background is that the plaintiff is a Nepalese citizen.  He arrived in Australia on 14 July 2004.  He applied for a protection visa on 24 August 2004.  A delegate of the first defendant refused that application on 31 August 2004.  The plaintiff applied to the Tribunal for a review of that decision and gave oral evidence before it on 10 February 2005.  He claimed to fear persecution both from Maoists and from the Nepalese Government. 

On 29 April 2005 the Tribunal member signed a decision affirming the delegate’s decision.  The Tribunal’s decision was handed down on 26 May 2005 and delivered to the plaintiff on 30 May 2005 by registered post under cover of a letter dated 26 May 2005.  That letter stated, among other things:

What if I disagree with the Tribunal’s decision?

You may have a limited right to seek review of this decision by the Federal Court, Federal Magistrates Court and/or the High Court.  There are strict time limits within which an application for review by the Courts must be filed.  You are taken to be notified of the decision seven (7) working days from the date of this letter.  I strongly advise you to promptly seek legal advice if you wish to seek review by the Courts.

On about 30 June 2005 the plaintiff showed the Tribunal’s decision to a friend who told him to see a lawyer. The plaintiff did see a lawyer and the lawyer advised him that he was out of time and could not appeal but could write to the first defendant asking to stay in Australia. On 4 July 2005 the plaintiff did so. On 14 July 2005 an officer of the Minister’s department wrote a letter acknowledging receipt of the plaintiff’s request. The plaintiff received that letter on or about 18 July 2005. On or about 17 February 2006 the plaintiff received a letter informing him that the first defendant had decided not to exercise her power under section 417 of the Act favourably to the plaintiff. The plaintiff then spoke to his friend again and the friend advised him to appeal despite the earlier contrary advice of the lawyer.

On 17 March 2006 the plaintiff filed an application in the Federal Magistrates Court for review of the Tribunal’s decision. That application centred on a criticism of the Tribunal for relying on out‑of‑date country information. The plaintiff then received fresh legal advice and filed an amended application containing as the ground of the application the section 424A ground now relied on. On 16 June 2006 the present defendants objected to the competency of the application on the ground that section 477(1) of the Act required an application for review to be lodged within 28 days of the actual notification of the decision. The plaintiff was notified on 30 May 2005 that the transitional provision in clause 42, Schedule 1, Part 2 of the Migration Litigation Reform Act 2005 (Cth) provided that section 477 applied as if actual notification had taken place on 1 December 2005 and that the date of filing of the application for judicial review, 17 March 2006, was outside both the 28‑day period prescribed in section 477(1) and the maximum extendable period of 84 days allowed by section 477(2).

On 26 July 2006 the plaintiff discontinued his application.  On 2 August 2006 the plaintiff filed his application in this Court.  That application centres on the following two passages in the Tribunal’s reasons.  The first is page 6, line 49 to page 7, line 21:

It was also put to the Applicant that he had obtained a passport on 30 September 2002 but he did not leave Nepal until almost two years later and more than 18 months after the threatening incident in February 2003.  He said that he was biding his time because he could not find a suitable for hiding. [sic]  It was put to him that it is difficult to understand why he would wait because he was clearly in a reasonable financial position to leave and he had a passport.  He said that he remained in Kathmandu because it was safe there but after the incident in February 2003 he was looking for a place to go.

The Applicant told the Tribunal that the Nepalese government also became suspicious of him and doubted him.  He said that in about April 2003 someone had informed the authorities about the incident in February 2003 and Army personnel came to his house and questioned him.  He was asked if he had given money to the Maoists because they had been informed about it.  He said that he was told that if the Army personnel called him he would have to come but he was not ever called.  He said that he believed the authorities were keeping an eye on him.

The second passage is at page 14, lines 36 to 43:

His claim that he was threatened and under threat from the Maoists for his refusal to assist them is simply not plausible.  The situation in Nepal is desperate and if the Applicant were truly at risk of being harmed by the Maoists he would not have bided his time as he said at the hearing but would have fled.  He certainly had the financial means and he had a valid passport issued to him in 2002 which he could have used.  The Tribunal finds that as at the time of his departure from Nepal the Applicant was not of any adverse interest to the Maoists.

Section 424A(1) provides:

Subject to subsection (3), the Tribunal must:

(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)      invite the applicant to comment on it.

Section 424A(3) sets out three areas where the section does not apply. The only one of possible relevance is that contained in section 424A(3)(b) which provides:

This section does not apply to information:

. . . 

(b)      that the applicant gave for the purpose of the application –

There is authority that “application” means “application for review of the delegate’s decision” and does not include application for a visa to the delegate:  Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214. The first defendant reserves her position on the correctness of these authorities.

The first defendant at one point advanced a factual argument to the effect that the plaintiff had not made it plain whether or not section 424A(3)(b) applied but that evidentiary gap has been cured by an affidavit filed this morning. The evidence has not been tested but it is possible to determine this application without it being tested.

The plaintiff contends that the information that he obtained a passport in Nepal in 2002 formed part of the Tribunal’s reasons for refusing his application. Although there were numerous other reasons, that contention is correct. The plaintiff then contends that the Tribunal failed to comply with each paragraph of section 424A(1) in that, to use the language of the particulars in the application for an order to show cause, the Tribunal did not:

i.provide the Plaintiff with particulars of the information, in writing, that formed part of its reasons for refusing the application for review;

ii.explain to the Plaintiff, in writing, why that information was relevant to the review; and,

iii.      invite the Plaintiff to respond to the information.

The first defendant accepts that section 424A was not complied with at least so far as subparagraphs (a) and (c) are concerned in that, whatever the Tribunal did, it did not do it in writing. The first defendant reserved her position on whether it was necessary to comply with paragraph (b) in writing.

The first defendant contends that relief must be refused because of section 486A of the Act which requires applications of the present kind to be made within time periods that have now passed. The plaintiff questions the constitutional validity of section 486A. The first defendant concedes that if that were the decisive question, the matter should be referred to the Full Court but the first defendant contends that the plaintiff’s application must fail for reasons independent of section 486A.

To some extent those reasons concern the plaintiff’s delay.  The High Court Rules set a time limit of six months from the date of the order complained of within which applications for certiorari must be made:  rule 25.06.1.  This suggests that a similar period is appropriate for prohibition.  Whether or not that is so, the first defendant submits, I think correctly, that the plaintiff’s case depends on the grant of a writ of certiorari.  The relevant date being 26 May 2005, the delay is beyond six months from the end of that period.  The plaintiff seeks orders extending time under the Rules in view of that difficulty.

The plaintiff was explicitly warned by the Tribunal’s letter of 26 May 2005 that there were strict time limits in relation to review.  His affidavit does not deal with that warning.  Rather, it says only in paragraph 7 as an account of his thinking after receiving the Tribunal’s decision on 30 May 2005:

I did not know what to do after the Tribunal’s decision and believed I had to return to Nepal.  I did not know I could appeal the decision of the Tribunal.

The plaintiff’s explanation for delay thereafter boils down to receiving conflicting legal advice causing him to seek ministerial intervention rather than judicial review. The Minister contends that the plaintiff, by seeking an exercise of power by the Minister under section 417 of the Act, accepted that the decision of the Tribunal had finally determined the plaintiff’s application for a protection visa. The present application can be decided without considering the merits of that argument.

It was put to counsel for the plaintiff that the only deficiency in what the Tribunal did when the matter is examined in the light of section 424A is that the Tribunal member failed to deal with the question of the issue of the passport in writing. It was suggested to him that in substance what the Tribunal member conveyed complied with what section 424A requires and that there would have been no legal fault had the information been conveyed in writing.

Counsel for the plaintiff submitted that the deficiency in what the Tribunal member did was not limited to the orality of her conduct.  He submitted that the Tribunal did not sufficiently alert the plaintiff to the way in which the 2002 passport might be used.  He submitted that there were strong policy considerations underlying the section which meant that in the circumstances of this case substantial compliance with the section could not merely be inferred from the face of the reasons for decision.

He accepted that while what the Tribunal member appears to have done might suffice for an ordinary person, the plaintiff was not in that category. He submitted that the Tribunal member ought to have said explicitly, “You had a passport. You had that passport prior to the principal incident which caused you fear. You chose not to leave Nepal even though you had that passport”. He submitted that the Tribunal member should have made it plain why the information was relevant and how it could be relied upon by the Tribunal adversely to the plaintiff. In short, he submitted that the Tribunal did not meet the high standard stipulated by section 424A which is designed to ensure that persons in the position of the plaintiff do understand how information might be used against them. The Tribunal failed to make it plain that the relevant information was information that could be relied upon as part of the reasoning leading to a refusal of the plaintiff’s claims. It was submitted that there has to be a clear nexus between the information and the way in which it might manifest itself in the Tribunal’s reasons for decision.

There is not before the Court any transcript or other evidence indicating what happened during the hearing except for what may be inferred from the reasons for decision given by the Tribunal.  The first passage quoted earlier to my mind indicates that the Tribunal member did clearly indicate to the plaintiff not only that he had obtained a passport on 30 September 2002 but that its date was material to the timing of his departure from Nepal.  It called on him for an explanation of that delay.  That the plaintiff understood the point of what was being put to him is indicated by the fact that he did give explanations for the delay.  The Tribunal member then pressed him by pointing not only to the possession of a passport but also to his possession of sufficient funds with which to leave and he gave a further explanation for the delay.

In the circumstances, however high the standard called for by section 424A is, there is nothing to suggest that the plaintiff did not understand the points which the Tribunal was making orally and the significance which, unless explained or dealt with in some way, they might have in leading to a refusal of the plaintiff’s application for review to the Tribunal.

In my opinion the application should be dismissed for the following reasons. The only failing of the Tribunal was not to comply with section 424A by employing writing. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, the majority held that non‑compliance with section 424A was a matter of strictness. It did not permit of substantial rather than formal compliance.

Accordingly, the Tribunal’s handling of the matter was in breach of section 424A but it was a breach of the most formal kind. The plaintiff made no complaint of the kind he now makes about what had happened until a lawyer drafted the amended application to the Federal Magistrates Court after 17 March 2006. The letter to the Minister seeking a favourable decision under section 417 of the Act did not complain about this point. The plaintiff’s evidence contains nothing about how his course before the Tribunal would have been different if the material had been given to him in writing rather than orally.

It follows that if the application had been made in time subject to any challenges which the first defendant might wish to make to existing authorities on section 424A(3)(b), the plaintiff might well have a strong case for relief, unmeritorious though the foundation of that case is, but it is highly questionable whether the outcome before a differently constituted Tribunal would be different. The reasoning of the Tribunal both in relation to the passport and in relation to the other reasons for dismissing the application is powerful. It seems to me to be a material matter relevant to the discretion of whether to extend time that there has been no substantial unfairness. For those reasons, time should not be extended and the application must be dismissed with costs.

The Court will now adjourn.

AT 10.59 AM THE MATTER WAS CONCLUDED