S103 of 2003 v Minister for Immigration - [2005] FMCA 1148

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S103 OF 2003 v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1148

MIGRATION – RRT decision – anonymous ‘dob-in’ letters received by Tribunal – not referred to at hearing nor in reasons – probably read by Tribunal – failure of procedural fairness.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B, 424A, 427(1)(c), 438, 438(1), 438(2), 439, 440, 474(1), 477(1A), 483A, Pt.8
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 Pt.2 cl.8

Ex parte Prosecutors 1, 2, 3 & 4; Re Minister for Immigration & Multicultural Affairs (S196/2001, 29 November 2001)
Kioa v West (1985) 159 CLR 550
Minister for Immigration & Multicultural & Indigenous Affairs v VEAL (2004) 138 FCR 84
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89
NAVK v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 567
NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561
Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18
SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773
X v Minister for Immigration & Multicultural Affairs (2002) 116 FCR 319

Applicant:

APPLICANT S103 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1643 of 2004

Judgment of:

Smith FM

Hearing date:

28 July 2005

Delivered at:

Sydney

Delivered on:

1 September 2005

REPRESENTATION

Counsel for the Applicant:

Mr I Archibald

Solicitors for the Applicant:

Michaela Byers, Solicitor

Counsel for the First Respondent:

Mr R Beech‑Jones

Solicitors for the Respondents:

Clayton Utz

ORDERS

A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent dated 31 January 2003 and handed down on 25 February 2003 in matter N01/40387.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 3 April 2000.
The documents which are the subject of previous non-publication orders are to be returned to the legal representatives of the party filing or tendering them.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1643 of 2004

APPLICANT S103 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for orders by way of judicial review under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) and s.39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 31 January 2003 and handed down on 25 February 2003. The Tribunal affirmed a decision of a delegate made on 3 April 2000 which refused an application for a protection visa received on 15 June 1999. The applicant’s application for review of the delegate’s decision was received by the Tribunal on 1 May 2000.
The delay before the making of the Tribunal’s decision is explained by an unfortunate history, in which a previous decision of the Tribunal was set aside by consent orders in the Federal Court on 12 October 2001. Upon the remitter and after holding further hearings, the member reconstituting the Tribunal became unavailable for reasons which do not appear in the evidence before me, and the Tribunal was again reconstituted. The Tribunal member who made the decision which is now challenged held a further hearing which the applicant attended on 21 January 2003. Regrettably, I have concluded that the decision published on 25 February 2003 should also be set aside, and the matter should again be remitted for further consideration by the Tribunal.
In summary, my reasons are that there has been a failure of procedural fairness in the proceedings of the Tribunal due to its failure to give the applicant a reasonable opportunity to deal with significant and material allegations which were highly prejudicial to her claims. These reached the Tribunal in two “dob‑in” letters, received by it on 18 July 2002 and 2 December 2002. The transcript of the hearing on 21 January 2003 is in evidence before me, and it is clear that no attempt was made during that hearing, nor at any other time, to put to the applicant even the “gist” of some significant elements in the letters.
Counsel for the first respondent has not disputed this, but argued that I cannot be satisfied that the letters ever came to the attention of the member ultimately constituting the Tribunal, and that, even if they did, the Tribunal was not obliged to give the applicant any opportunity to deal with the contents of the letters. His first contention has troubled me due to the paucity of evidence bearing on this issue. However, I infer from the content of the letters and from the circumstances of their receipt that the letters were, on the balance of probabilities, shown to the member ultimately constituting the Tribunal before she handed down her decision. I have also concluded that, while accepting that considerations of confidentiality might have prevented the letters themselves being shown to the applicant, there were measures of procedural fairness which the Tribunal failed to adopt or even to consider.
I shall explain these conclusions after providing more of the legal and factual background to the matter.
Contrary to a suggestion I made to counsel at the hearing, I consider that the current “privative clause” provisions of Part 8 of the Migration Act do apply to the current proceeding, since it seeks judicial review of a “decision” made after their commencement. I do not consider that the transitional provisions in cl.8 of Sch.1 of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) prevent this, since the previous application for judicial review which was pending at the date of their commencement concerned a different decision (this provision was recently discussed by Branson J in SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 773). However, regardless of whether ss.474(1) and 477(1A) might apply, it is common ground that, if a failure of procedural fairness were found to affect the present decision of the Tribunal, then this would allow the grant of relief by way of writs of certiorari and mandamus. Counsel for the Minister did not argue that there was any reason upon which the Court should refuse relief in the exercise of its discretion.
Counsel for the Minister conceded that the provisions of s.422B of the Migration Act did not apply to the proceedings of this Tribunal, and therefore that the provisions of s.424A concerning disclosure of adverse information were not “exhaustive” of “the requirements of the natural justice hearing rule in relation to the matters they deal with”. He also accepted that well established requirements of procedural fairness were applicable to the Tribunal’s proceedings, including the obligation described by McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [140]:
A basic principle of the common law rules of natural justice is that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise. This does not mean that all material which comes before the decision‑maker must be disclosed but, “in the ordinary case … an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made” (citing Brennan J in Kioa v West (1985) 159 CLR 550 at 629 (“Kioa v West”), see also NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89 at [15]).
Counsel for the first respondent submitted that this obligation did not arise in the present circumstances. I shall examine his submissions below.
The relevant circumstances, as shown in the evidence before me, were as follows.
The applicant is a national of The People’s Republic of China who arrived in Australia in August 1996 following a period of residence in Hong Kong. She applied for a protection visa on 15 June 1999 assisted by a migration agent. In a statement responding to questions in the application form, she claimed to have been influenced to support democratic movements as a result of her family background and participation in activities in Hong Kong which commemorated the “Tian An Men Square Massacre”. She claimed to have taken part in similar activities in Australia, including at a demonstration on 4 June 1999. She presented photographs showing her presence on that occasion. She claimed that if she returned to China she would be persecuted because of her political opinions, and also that she would be persecuted under the one child policy if she had a second child.
In his reasons for refusing the application on 3 April 2000, the delegate said that he was “not satisfied that the applicant would retain an adverse political profile in the minds of the Chinese authorities merely for being involved in such demonstrations in Hong Kong and Australia”.
The applicant’s application for review, filed with the Tribunal on 1 May 2000, disagreed with the delegate’s assessment. It also raised a new claim by stating: “Furthermore, I had practiced FALUNGONG before I came to Australia. After I came to Australia I continued to support FALUNGONG. I go to (a park) to practise FALUNGONG almost every day whenever I have time”. She also gave the name and a telephone number of a “contact person”.
In a letter sent to the Tribunal on 18 January 2003, the applicant maintained her claim to fear persecution as a result of sending Falun Gong promotional leaflets to a relation in China, and as a result of her continuing involvement in Falun Gong practices and demonstrations in Australia. She presented photographs of this.
The Court Book filed by the Minister’s solicitor does not contain the transcripts of her evidence given to the Tribunal as first constituted, and it is unclear to me what additional oral or documentary evidence she gave about these claims. Neither party has sought to tender the whole contents of files and other records kept by the Tribunal in relation to the applicant’s application for review. However, the applicant served a notice to produce, which was answered by the respondents. This brought to light the presence on the Tribunal’s file of the two “dob‑in” letters I have referred to above.
The Minister claimed public interest immunity from disclosure of the two letters, but agreed to give access to them to the applicant’s legal representatives under undertakings not to disclose their contents nor the contents of an affidavit of the Tribunal’s Registrar which explained a claim for privilege. These undertakings were given and, although I have not ruled upon the claim to privilege, I consider that I should be circumspect in how I describe the letters.
The first letter is a short handwritten document, and is stamped received by the Tribunal on 18 July 2002. It also has a Tribunal registry stamp which has been completed in handwriting, I infer, on the day of receipt, to show the applicant’s file number and name, the name of the member who constituted the Tribunal at that time, and other annotations which have not been explained to the Court. The letter is anonymous and makes a general accusation which bears upon the matter which was before the Tribunal.
The second letter is a longer typed document, which is stamped received by the Tribunal on 2 December 2002, and has a similarly completed Tribunal registry stamp. Although its authorship also is anonymous, it contains elements giving it evidentiary weight and relevance to the matter before the Tribunal. It makes allegations bearing on the truth and bona fides of the applicant’s claims to refugee status. Other elements have only indirect relevance to the issues decided by the Tribunal.
An “open” affidavit by the Tribunal’s Registrar identifies the documents as having been part of the Tribunal’s files relating to the applicant. He also says:
6.From time to time, the RRT is provided with information from third parties which is relevant to a review application relating to a decision that an applicant is not a person to whom Australia owes protection obligations. It is quite common for such third parties to conceal their identity or request that their details not be disclosed to the applicant to the review. …
8.The RRT relies on “community information” given to it by members of the general public, when administering the Migration Act. For this reason, it is the general practice of the RRT to treat as confidential information that is of this type. …
The Registrar’s “confidential” affidavit includes the statement: “I have reviewed the RRT decision in relation to file number N01/40387 and note that, having regard to the text of the decision, there is nothing to indicate that the Tribunal has placed any weight on the information contained in the Exempt Documents”. I accept that the Registrar could not be expected to have personal knowledge as to whether the letters were actually considered by the Tribunal member, and that this is a matter which is immune from discovery and in relation to which no inference should be drawn from the absence of sworn evidence from the Tribunal member (see Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 at [25], [118], [197] and [299‑300]). However, the Registrar’s statement suggests that he was ready to assume from the state of the file that the letters had been read by the Tribunal member. I would also have expected the Registrar to have pointed out something on the file or in the procedures of the Tribunal, if either of these sources suggested that the Tribunal member who made the present decision did not know of their existence as part of the relevant file.
On the evidence before me, the letters were identified upon their receipt as relevant to the file of documents assembled in the course of the performance of the Tribunal’s duty to review the delegate’s decision, and I consider that it is reasonable to infer that the file and all documents marked as part of it were referred to the Tribunal member prior to her handing down of her decision. I find it improbable that someone in the Tribunal’s Registry would make a decision to withhold such obviously relevant evidence from the Tribunal member constituted to perform the review. If such a decision had been made, I would expect it to have been recorded in the file, and would expect that record to have been produced to the applicant and to the Court. I conclude that it is more probable than not that the Tribunal member read, in particular, the prejudicial long letter at some point in the nearly two months which elapsed between its receipt and her signing of her decision on 31 January 2003.
Counsel for the Minister relied upon two arguments that I should not draw this inference. The first argument sought to draw a contrary inference from handwritten folio markings on the two letters. It was submitted that, by comparing the folio markings on other documents which are in the Court Book, I should conclude that the letters only reached the file after the Tribunal’s decision was signed, and that they were placed on the file in early February 2003 and before the decision was posted to the applicant on 25 February 2003.
However, no witness was called to explain the folio marking practices of the Tribunal generally nor in relation to this file, and in the absence of such evidence I am not prepared to draw any inferences from these marks. I was not presented with the actual file to allow me to draw any conclusions from its current appearance. My own experience of erratic folio marking practices in public administration does not allow me to draw this inference. Looking at these particular marks on the few documents from the file which are in evidence, I think it more likely that at relevant times before the member made her decision, the file was not fully “folio’ed” nor compiled in any particular order, and that this probably occurred during or after the “handing down” procedures followed by the Tribunal after the signing of the decision. Moreover, even if the letters only reached the file after the decision was signed, the Tribunal member would still have had an obligation to consider their evidentiary significance and the requirements of procedural fairness (c.f. X v Minister for Immigration & Multicultural Affairs (2002) 116 FCR 319 at [13‑18] and [48‑52]; and Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18 at [19‑27]).
Counsel’s second argument against inferring that the letters were read by the Tribunal member was that she made no express mention of them during the hearing nor in her statement of reasons. The difficulty with this argument is that the Tribunal’s silence can also be accounted for by the hypothesis that she read the letters but thought that she should not refer to them because their contents had not be put to the applicant due to perceived requirements of confidentiality. This is speculative in the absence of any evidence on the Tribunal file or in the Tribunal’s reasons, or by any witness called in these proceedings, as to how these letters were dealt with within the Registry processes of the Tribunal.
I have carefully considered what implications could be drawn from the Tribunal’s silence about the letters, but it does not persuade me to find that the Tribunal member was unaware of their existence as part of the file, nor that there is no possibility that they might not have influenced her decision‑making. As I have indicated above, the sequence of events leads me to conclude that it is more probable that the letters were seen by the member.
Moreover, when reading the Tribunal’s reasons in the light of the “dob‑in” letters, I was left with an impression that the member may have read and been influenced by the letters rather than the converse. In particular, this impression arose from the Tribunal’s otherwise obscure observation: “… she has not been upfront and forthcoming before the Tribunal in relation to the remainder of her application in any respect regarding political activism or particular interest in either FG in Australia, the 1989 Tianamen massacre commemorations or independence for Tibet”. It also arose from the Tribunal’s finding: “It would be fair to say that on the totality of the evidence before the Tribunal that the applicant has no real interest in the right to assemble, publicly agitate or speak freely”. This finding is made with such assurance, as to lead me to think that the Tribunal saw evidence positively pointing towards these conclusions about the applicant’s subjective characteristics.
As I have indicated above, it was common ground that the Tribunal member said nothing in the course of the hearing which revealed to the applicant the allegations made in the “dob‑in” letters nor that they had been received. Although in the course of her questioning the Tribunal touched upon topics to which elements of the letters referred, it is not possible for me to identify anything which was said as confirming one way or the other whether the Tribunal had read them. However, as with her statement of reasons, her conduct of the hearing is equally open to an interpretation that she thought that she should not mention the letters and should only obliquely touch on issues raised by them. A slight suggestion of this might also appear in how the Tribunal opened the hearing:
… I also have in front of me the earlier Refugee Review Tribunal files which also contains the original decision made by member Josh Short on 26th April 2001. I have carefully gone through that decision, I have looked at the evidence you gave at that hearing. It was the 15th December 2000. The statements you made, the additions you made and the conclusions [the] then member made in regards to your application. I also have your more recent refugee tribunal file. And you can assume that I have read all those files and I am familiar with the materials in them.
… I would like you to affirm your original application is true and correct. And you also affirm the statements that you made and the additions that you made on the 15 of December 2001 before Mr Josh Short. [The applicant answered “yes”].
What I am going to put to you now is the information you put to the Department of Immigration that I’ve gotten from your review tribunal files and some information that I have got from the earlier decisions by Josh Short on 26th April 2001 ….

For the above reasons, and mainly relying upon the sequence of events and the inherent likelihood that all significant pieces of information reaching the Tribunal would have been shown to the Tribunal member, I conclude that the Tribunal member who made the decision probably was aware of the prejudicial contents of the two “dob‑in” letters and might have been influenced by them. It is clear, and uncontested, that the applicant was not afforded any opportunity to respond to them.
In my opinion, the contents of the letters and the reasoning followed by the Tribunal shows that they contained “adverse information that is credible, relevant and significant to the decision to be made”. It follows that, absent considerations arising from the perceived confidentiality of the letters, the failure to allow the applicant an opportunity to respond to the letters or their contents was a failure of procedural fairness within the principle from Kioa v West identified above.
The procedures required of the Tribunal to afford procedural fairness when a confidential “dob‑in” is received depend upon the particular contents of the “dob‑in”, the identification of what elements are “sensitive” in relation to disclosing the source, the significance of the information to the proceeding before the Tribunal, and how the Tribunal proposes to weigh the information when reaching its decision. Further guidance on procedural fairness requirements may be hoped from the High Court when it delivers its currently reserved judgment in an appeal from Minister for Immigration & Multicultural & Indigenous Affairs v VEAL (2004) 138 FCR 84 (“VEAL”). However, I have decided not to await that guidance, since the differences of opinion in the Full Court in VEAL which will be addressed by the High Court concerned a situation where a Tribunal openly revealed and disavowed reliance upon “dob‑in” information. This did not happen in the present case.
On my reading of the judgments in VEAL and the authorities cited in them, there is acceptance that a review tribunal, which decides not to disclose pertinent evidence to a party, should at least disclose its receipt and should provide a reasoned disavowal. This requirement, unless expressly excluded by legislation, is usually seen to be inherent to the procedures of Commonwealth merits review tribunals. Open and fair review processes are threatened if a tribunal secretly receives “credible, relevant and significant” evidence adverse to an applicant (c.f. Weinberg J in Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483 at 504, and NAVK v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 567 (“NAVK”) at 583). Further, the absence of openness by a tribunal about how a “dob‑in” has been dealt with, fuels the Court’s concern that the secret material might have unfairly and prejudicially influenced the mind of the Tribunal (c.f. NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561 at [94]).
A tribunal’s obligations in relation to confidential evidence may be confined or mandated by statutory provisions. In the present case, although I was referred by counsel for the Minister to ss.438 and 440, he accepted that they did not justify the course taken by the present Tribunal. I accept this submission. Section 438 concerns sensitive information in relation to which the Minister gives a certificate under s.438(1) or the Secretary gives a certificate under s.438(2). Neither of these events occurred in the present case. Section 439 imposes duties of Tribunal members and staff in relation to the confidential handling of information reaching the Tribunal. However, it does not preclude nor limit the duties of the Tribunal to make disclosures under obligations of procedural fairness arising in the conduct of a review conducted under the Act. Section 440 allows the Tribunal to give directions in relation to the publication and disclosure of material. Such directions may at times be appropriately given to allow the fullest disclosure to an applicant or his or her representatives, but in my opinion the provision is facultative and not confining of the Tribunal’s duties in relation to procedural fairness. In the present situation, the Tribunal had express power in s.427(1)(c) to “give information to the applicant” and the qualification “subject to sections 438 and 440” had no relevance. In the present situation its power should have been exercised by reference to considerations of procedural fairness.
In all the circumstances of the present matter, I am unable to find considerations of confidentiality nor statutory provisions which justified the Tribunal maintaining total secrecy about its receipt of anonymous adverse information about the applicant. If, indeed, it thought its decision‑making was not influenced by the “dob‑in”, it should have revealed in its statement of reasons that one was received and should have explained, in an unrevealing way, why it thought it could be put out of mind. By failing at least to do this, procedural fairness was not observed.
Furthermore, established authority holds that in many circumstances it is possible, and mandatory, that a review tribunal should “effect a satisfactory compromise between the demands of disclosure and confidentiality” by disclosing as much as possible of the “substance, but not the detail, of the material” (see NAVK (supra) at [86]).
I explored the extent to which this was achievable in relation to the present letters, in the course of submissions from both counsel. I accept the submissions of the applicant’s counsel that there were many aspects of the letters which could have been directly put to the applicant for comment in a manner having little risk of revealing the identity of their authors. General questions could have been framed to squarely put some specific allegations to the applicant. Others could have been put obliquely. I also consider that the Tribunal could, and should, have explored generally with the applicant whether anonymous adverse information given to the Tribunal might have come from a malicious or untrustworthy source. I therefore reject the contrary submissions of counsel for the first respondent, but shall respect his submissions by not being more specific as to how these matters could have been raised with the applicant.
Moreover, the silence of the Tribunal as to how it dealt with this material leads me to draw the conclusion that:
… the Tribunal failed to consider whether it was possible to reconcile the claims … for non‑disclosure on the one hand, with the claims for procedural fairness on the other, by, for instance, addressing the question whether such a reconciliation could be achieved by disclosing the gist of the information in the subject documents. In our opinion, looked at purely from a common law perspective, the Tribunal’s approach failed, to this extent, to accord the appellant procedural fairness (c.f. NAVK (supra) at [90], also [99], [107] and [113]).
Counsel for the Minister sought to justify the Tribunal’s silence and to argue that no breach of procedural fairness occurred, even if the Tribunal read the letters. He argued that the situation was comparable to VEAL and sought to gain support from the judgment of the majority judges in that case. However, on my above findings, the Tribunal has dealt with the letters in a manner with was not “entirely frank and open” and it did not say “at the time of the decision that adverse information has not been taken into account” (c.f. VEAL (supra) at [76] and [78]). Nor, in my opinion, can the Court conclude from looking at the letters that “it is impossible to infer from this document that the allegations in it are credible” (c.f. VEAL (supra) at [77]).
Counsel also sought to gain support from an ex tempore judgment of Gleeson CJ which is found at the end of the transcript in Ex parte Prosecutors 1, 2, 3 & 4; Re Minister for Immigration & Multicultural Affairs (S196/2001, 29 November 2001). His Honour rejected an argument that information should have been put to the applicants for comment, and gave as one reason: “There is nothing in the reasoning of the Tribunal to suggest that the matter in question was given any significance by the Tribunal or even that it was regarded as relevant. In truth, and partly because of the generality with which the information was expressed, it was irrelevant”. I am unable to apply this to the present situation, because I consider that the adverse material in the present letters appears to be very relevant and significant. I am unable to infer from the Tribunal’s silence that they had no prejudicial influence on its decision.
For the above reasons, I have concluded that the Tribunal failed to afford procedural fairness to the applicant by denying her any opportunity to be heard in relation to the “dob‑in” letters. The Tribunal’s decision is therefore affected by jurisdictional error, and the applicant is entitled to relief by way of certiorari and mandamus.
These conclusions mean that I do not need to address other grounds raised in the application nor counsels’ submissions upon them. Some were withdrawn in the course of submissions, and the remaining grounds had some difficulties which I canvassed with counsel for the applicant.
Rather than keeping on the court’s file the documents on which I made non-publication orders, I propose to return them to the party who filed or tendered them. If they are required in subsequent proceedings, further non-publication orders will need to be considered.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 1 September 2005