SZGCK v Refugee Review Tribunal
[2006] FMCA 1575
•16 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGCK v REFUGEE REVIEW TRIBUNAL & ANOR | [2006] FMCA 1575 |
| MIGRATION – RRT decision – Bangladeshi fearing political and religious persecution – claims disbelieved by Tribunal – confidential “dob‑in” material on Departmental files – Tribunal disclaimed reliance during hearing – not disclosed to applicant – no apprehension of bias – no denial of procedural fairness – no breach of s.424A(1) – application dismissed. |
Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 414, 415, 418(3), 421, 422, 424A, 424A(1), 424A(3)(b), 438, 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155
Applicant S416 of 2003 v Refugee Review Tribunal [2003] FCA 1630
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 741; [2003] FCA 437
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs(2005) 222 ALR 411, [2005] HCA 72
Crowley v Holmes & Ors (2003) 132 FCR 114
Holmes v Mercado (2000) 111 FCR 160
Kioa v West (1985) 159 CLR 550
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
Minister for Immigration & Multicultural & Indigenous Affairs v VEAL (2004) 138 FCR 84, [2004] FCAFC 179
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, [2002] HCA 30
NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89
NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SZAYW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 49
SZCNP v Minister for Immigration & Multicultural Affairs [2006] FCA 1140
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214
SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801
SZEPZ v Minister for Immigration & Anor [2005] FMCA 1614
SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195
SZFIR v Minister for Immigration & Anor [2006] FMCA 1451
SZGNY v Minister for Immigration & Anor [2006] FMCA 1142
| Applicant: | SZGCK |
| First Respondent: | REFUGEE REVIEW TRIBUNAL |
| Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File Number: | SYG955 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 10 August 2006 |
| Date of Last Submission: | 28 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 16 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr I Latham |
| Solicitors for the Applicant: | Allens Arthur Robinson |
| Counsel for the Second Respondent: | Mr S Lloyd |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Application dismissed.
Confidential Exhibit R3 must be returned forthwith to the possession of the solicitor for the second respondent.
The applicant’s “supplementary confidential submissions” must be returned forthwith to the possession of the solicitor for the applicant.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG955 of 2005
| SZGCK |
Applicant
And
| REFUGEE REVIEW TRIBUNAL |
First Respondent
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 18 April 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 February 2005 and handed down on 22 March 2005. The Tribunal, constituted by Mr Hardy, affirmed a decision of a delegate made on 9 February 1999 which refused to grant a protection visa to the applicant in response to an application lodged on 2 February 1999.
The long delay while the matter was before the Tribunal is explained by two previous decisions of the Tribunal, differently constituted on each occasion, which were set aside by consent orders of the High Court and the Federal Court. The history of the earlier proceedings in the Tribunal and in the Courts is documented in a 913 page court book, and the present Tribunal provides a summary at the commencement of its decision. It is unnecessary for me to refer to that history, with the exception of proceedings before Madgwick J leading to the second remitter. I shall explain below what happened then.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A and has restructured the Court’s jurisdiction in relation to migration decisions. However, these amendments apply only to proceedings commenced on or after 1 December 2005 and the repeal does not affect the present proceeding (see Sch.1 cl.41, and Acts Interpretation Act 1901 (Cth), s.8).
Section 483A gives the Court the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Part 8 of the Migration Act, which have the effect that that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76]‑[77] and subsequent cases). I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a refugee visa.
The three grounds upon which the applicant challenges this third decision of the Tribunal rely upon aspects of its procedure after the last remitter. The applicant contends that there was a failure of procedural fairness under common law principles arising from how the Tribunal dealt with some confidential and potentially prejudicial material on the Departmental files. This material was seen by Mr Hardy, but was not disclosed in any manner to the applicant or his legal representatives. The applicant also contends that Mr Hardy’s actions in relation to this material might give rise to a reasonable apprehension of bias. The third ground of the application is that there were breaches of the Tribunal’s obligations to invite written comments under s.424A(1), unrelated to the confidential material. I shall examine the circumstances bearing on these three arguments below, after sketching the Tribunal’s substantive reasoning.
The applicant’s refugee claims
Because of the confined and procedural nature of the grounds of review, it is unnecessary for me to explain in any detail the applicant’s refugee claims, how they were presented, and why they did not persuade the Tribunal to be satisfied as to his refugee status under s.36(2) of the Migration Act. Mr Hardy provided a carefully written and very lengthy statement of reasons explaining these things. The applicant made no challenge to any of his substantive reasons for affirming the delegate’s decision.
The applicant’s refugee claims were summarised in the statement of reasons:
The Applicant claims fear of persecution in Bangladesh for Convention‑related reasons of “religion” and “political opinion.” The Applicant has also indicated that he fears persecution in Bangladesh for reasons “membership of a particular social group” identifiable as “journalists.” His claims in this regard overlap significantly with his claims regarding political opinion, due to the claimed content of the journalism in question. The Applicant has further indicated that he fears persecution in Bangladesh for reasons “membership of a particular social group” identifiable as “human rights advocates.” His claims in this regard also overlap with his claims regarding “political opinion.”
The Applicant first raised his political opinion claims in his original protection visa application in 1999. Essentially, he claimed that he has for many years been closely affiliated with the Bangladesh Nationalist Party (BNP), which held government in Bangladesh from 1991 to 1996 and has again held government since October 2001. He claimed he also had some links with the minority party Jemaat‑e‑Islami (JEI) a minor partner of the BNP during the BNP’s time in government. The Applicant claimed that he was harassed and persecuted by the former Ershad regime in the 1980s. There are political links between that long‑defunct regime and the Jatiyo Party (JP) which later became a coalition partner with the BNP. The Applicant’s claims take account of a mending of relations between the BNP and the JP/Ershad. The Applicant claimed that the Awami League (AL) harassed him when it was in opposition from 1991 to 1996, and that the prospect of the AL having more power to do so after the 1996 elections motivated him to leave Bangladesh in 1995. He claimed he resided in Singapore to avoid persecution in Bangladesh. He claimed that he was nevertheless harassed and threatened by an AL government minister in Singapore. He claimed he went to Denmark in 1997 on a study grant and preached politics there and attracted additional threats as a result. He claimed that his open support for the reunification of Bangladesh with Pakistan was one of the issues that put him offside with the AL, along with his use of the media to criticise the AL, and his use of political and other contacts in order, covertly, to gather and pass on information that was potentially embarrassing to the AL. In his original protection visa application, the Applicant used the terms “Awami League” and “government” quite interchangeably, which was not inappropriate given the time at which he first presented his “political opinion” claims. The Applicant claimed that his efforts to remain in Australia, even before he applied for protection, were means of obtaining protection here from Convention‑related persecution in Bangladesh. He claimed his protection visa application was precipitated by information of raids on his [home] in Bangladesh and of false charges having been brought against him as result of false allegations by influential AL figures.
As noted, throughout his application history, the Applicant also indicated, or at least implied, a fear of being persecuted in Bangladesh for reasons of vocational profiles as a journalist and as a fighter for social justice.
The Applicant lodged new and different claims after his case was remitted to the second Tribunal. He claimed that during 1999 he became a Christian and claimed that figures and parties with which he had previously been allied were now also his enemies. He named an Amir and the JEI as those enemies, placing emphasis on the JEI’s privileged place in the current BNP‑led government. He claimed that the BNP, with which he had previously claimed close relations, was a mere front for Muslim fundamentalists. He claimed at one point that he abandoned the BNP when he became a Christian, which was in 1999. He indicated that the BNP government would leave him to be persecuted by the Muslim fundamentalists it supports and encourages. He claimed that he abandoned support for the reunification of Bangladesh and Pakistan at some stage in recent years, after his politics became more global.
The Tribunal’s reasoning in relation to these claims can be summarised:
i)It accepted that journalists in Bangladesh could constitute a “particular social group”, and that “there has been a history of political parties harassing journalists and editors across partisan political divides in Bangladesh (including the secularist‑fundamentalist divide)”. However, it did not accept “that the Applicant is the kind of journalist who would attract such trouble in Bangladesh”. His evidence showed no involvement in domestic political reporting at least since 1991, by which time he was already editing foreign affairs reporting. The Tribunal said:
Some fifteen years down the track, there is no basis for accepting that the Applicant would be perceived as a partisan journalist as far as Bangladesh society and politics are concerned, and no basis for accepting that he has any genuine interest in becoming one.
ii)It accepted that “human rights activists in Bangladesh” constitute a particular social group, but thought that not everyone in Bangladesh who had worked or spoken out in the field of “social justice” faced persecution there. It had concerns about the timing of the applicant’s claims to be such a person, since these were first presented after the 2001 change of government in Bangladesh, and after the first remitter of the Tribunal proceeding. It thought that there was a “lack of evidence from the Applicant of a background in human rights activism in Bangladesh”. Notwithstanding evidence that he was involved in church‑based social justice organisations in Australia, the Tribunal was not satisfied that he would concern himself with social justice issues in Bangladesh, nor that his Australian activities would be “sufficient to mark him as a human rights activist in Bangladesh”.
iii)In relation to fears of persecution for political opinions and activities, the Tribunal examined the applicant’s claims to have supported the controversial cause of a reunified Pakistan, to have had a close relationship with the BNP party when it was in government, and to have feared to return to Bangladesh when the Awami League was in government. It did not accept the truth of a claim that he had been threatened by a Minister of that government after a press conference in Singapore in 1996. It concluded that the applicant’s claimed history of service to the BNP was “invented for the purposes of constructing a case against the AL”. It concluded that his more recent claim to no longer support the BNP resulted from his “rethink[ing] his claims” after its election victory in 2001. It concluded:
The Tribunal is of the view that the Applicant has had no significant relationship, positive or negative, with any of Bangladesh’s political parties since he abandoned his student youth league activities to concentrate on his personal professional (at that time academic) career.
On the grounds of the overwhelming lack of consistency and credibility in his evidence, the Tribunal does not accept that the Applicant faces a real chance of persecution in Bangladesh for reasons of “political opinion,” or even for reasons of “imputed political opinion.”
The Tribunal is all the more confident of the correctness of its findings due to what it concludes to have been a highly disingenuous approach by the Applicant to the timing and manner of disclosing his protection claims.
iv)In relation to the applicant’s claims to fear persecution by reason of his conversion from Islam to Christianity in 1999 while held in Villawood detention centre, the Tribunal referred to the lack of a “consistent and comprehensive explanation” of why he did not disclose his conversion to the first Tribunal. The Tribunal also had concerns as to why he presented the name of a Muslim leader to the first Tribunal as his political ally, but later claimed that this person would incite people to persecute him in response to his apostasy. It said that it had “overwhelming doubts as to the sincerity of his conversion”, but recognised that the more important issue was whether he would be perceived as Christian in Bangladesh, and whether this would lead to his being persecuted. It concluded:
Essentially, whilst the Tribunal is convinced that the Applicant’s conversion is known beyond his extended family in Bangladesh, it is not satisfied on the evidence before it that there has been a significant reaction against it or that there would be, even if he were to return to Bangladesh. Conversion in Bangladesh is not illegal. The authorities in Bangladesh have no power to harass or repress religious converts. There is no evidence to suggest that the authorities use other means of repressing Christians or religious converts. There is evidence of inter‑religious conflict, but it generally refers to individual circumstances, particularly in smaller, conservative, rural and provincial communities.
There is no evidence before the Tribunal to support the conclusion that the Applicant would be at risk of summary repression, say, by unrestrained religious groups, were he to return to Bangladesh and identify as a Christian.
…
The Tribunal has essentially dealt with the Applicant’s “religion” claims as though his conversion were genuine, due to his claims as to the significance of potential perceptions back in Bangladesh that might arise from his conversion. This has been the appropriate thing to do. Having considered the evidence, the Tribunal is not satisfied that the Applicant faces a real chance of persecution for reasons of “religion” in Bangladesh.
The above summary does not attempt to explain the details of the Tribunal’s reasoning. It does, however, show that the Tribunal’s adverse conclusions about the applicant’s claims essentially relied upon inconsistencies and inherent flaws in the applicant’s own evidence in support of his refugee claims. In the Tribunal’s opinion, significant defects appeared when his claims were assessed against relevant country information, and against their content and presentation over the many years that the case was before the Department and Tribunal.
The Tribunal’s reasons were, in my opinion, plainly open to it on the material before it. Its assessment of the applicant’s claims took an obvious and natural approach for a refugee decision‑maker. Reading the Tribunal’s reasons, I was left with no impression that the Tribunal might have had other, undisclosed, reasons, which might explain any of its conclusions, nor that it did not present an outcome which flowed logically and forcefully from the multitude of evidentiary points which it assembled.
I consider that an informed lay observer would form the same impression. The apparent cogency of the Tribunal’s stated reasons therefore presents difficulties for the applicant’s procedural fairness and bias complaints. The applicant’s counsel made no attempt to find support for any of his arguments on these grounds in any part of the Tribunal’s reasoning – even after he obtained access to the previously undisclosed confidential material.
The confidential material
Although the Court Book in this matter comprises 913 pages, this is clearly but a small part of bulky Departmental and Tribunal files which must have faced the member constituting the Tribunal after the second remitter. The Tribunal refers to having before it the applicant’s DIMIA files, comprising a total of seven folders which included the applicant’s original protection visa application and the delegate’s decision record. While the matter was before the Tribunal, there had been three hearings conducted by the first Tribunal in 1999. Further hearings were held by the second Tribunal in 2002, and by Mr Hardy in 2004. Throughout the proceeding, the applicant was legally represented. At each rehearing, the applicant tendered extensive further evidentiary material and written submissions. As I have described above, his claims altered over the years, taking into account the changes of government in Bangladesh and his claimed conversion to Christianity. Mr Hardy’s task in sifting the essential factual issues and the significant relevant evidence from all this material was therefore daunting.
I emphasise this background, because it explains why it would have been very reasonable, and not at all concerning, for Mr Hardy at preliminary stages of his consideration of the matter to put aside any material which he found in the files before him which he thought was of dubious relevance or weight. As his close and lengthy reasoning about the remaining material demonstrates, he was still left with a large amount of directly pertinent evidence upon which to assess the applicant’s refugee claims.
The issues raised by Grounds 1 and 2 of the further amended application focus upon a relatively discrete part of the material in the files before the Tribunal, and require consideration of whether the Tribunal made a jurisdictional error when disclaiming reliance upon it without revealing its contents to the applicant. Those grounds are:
1.The Decision was affected by an apprehension of bias because a reasonable outsider, knowing that the Tribunal Member had read certain material (Material), would have a reasonable suspicion that the Tribunal Member could not bring a fair and unbiased mind to bear on the application.
2.The Tribunal denied the applicant procedural fairness because the Tribunal Member reviewed the Material without disclosing the Material, or the substance of the Material, to the applicant.
The legal principles relevant to each of these grounds were generally uncontentious before me, and it is convenient to summarise them at this point.
·In relation to apprehended bias, the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 (“Ex parte H”) at [27]‑[32] held that the test of “whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided” was applicable to proceedings in this Tribunal. They also suggested that, in view of its administrative and inquisitorial nature, the test might be formulated “by reference to a hypothetical fair‑minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to any apprehension of bias”.
·In relation to the procedural fairness obligation to disclose adverse information and allow an opportunity to respond, the principle stated by Brennan J in Kioa v West (1985) 159 CLR 550 (“Kioa”) at 629 has been adopted in recent judgments: “in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made” (see Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [26], [89], [125]‑[126], [140] and [147]; Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, [2002] HCA 30 at [30], [123] and [234]; Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs(2005) 222 ALR 411, [2005] HCA 72 at [16]‑[17]; NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89 at [15] c.f. [42]; and Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 at [140]‑[144]).
I shall address the parties’ arguments in relation to the application of these principles to the circumstances of the present case, after describing the relevant background.
It is common ground that the confidential material in question in the present case was never seen by the applicant or his representatives at any time prior to the hearing in this Court on 10 August 2006. At all times after its existence was discovered, the Minister has claimed public interest immunity in relation to its disclosure upon grounds which were previously upheld by Madgwick J and which, on my own reading of the material, appear to have justification. Although the material is exhibited to an affidavit, I have ordered that its publication should be severely confined.
The applicant’s representatives were initially in the difficult position of presenting their arguments without knowing its content. Prompted by exchanges with the bench at the hearing, the Minister consented to disclosure of the material to such of the applicant’s legal representatives who have given the Court an undertaking in terms acceptable to the Minister. I then allowed time for further written submissions from all parties, and these have considerably assisted my consideration of the case.
The continuing confidentiality of the material does, however, mean that I must be circumspect in my own description of its origins and contents. I consider that it is sufficiently indicated by setting out what was said about the material openly in the previous Federal Court proceedings.
The existence of the material on the files of the Department which had been sent to the Tribunal appears to have become first known to the applicant’s representatives only in the course of judicial review proceedings in 2003 before Madgwick J which challenged the second decision of the Tribunal. The applicant there attempted to inspect all the material which had been forwarded by the Department of Immigration to the Tribunal at any stage prior to the second Tribunal’s decision, which was made on 26 September 2002. An “open affidavit” sworn by an officer of the Department in those proceedings supported a claim for immunity in relation to “certain documents” which are attached to a “confidential affidavit”. The affidavit is now also in evidence before me.
The claim for immunity was not founded upon any claim that the documents were covered by a certificate under s.438 of the Migration Act which limited disclosure by the Tribunal, and there is no evidence that any such certificate was ever issued. Rather, the deponent of the affidavit claimed immunity on the following basis:
7.I make a claim of public interest immunity on behalf of the respondent and the Department in relation to those documents as disclosure of them would, or would tend to:
a)reveal the source of information received on a confidential basis by the Department in the course of its administration of the Migration Act 1958 (Cth) (“the Act”);
b)as a result hinder or inhibit the ability of the Department to administer the Act insofar as the Department relies on the receipt of confidential information to do so;
c)adversely affect the relationship between the respondent (and the Department) and other persons wishing to communicate with the respondent (and the Department) on the basis that their communications and their identity remain confidential;
d)adversely affect the relations between the respondent and the Refugee Review Tribunal and other agencies in relation to information provided to them in confidence and in relation to which assurances of confidentiality have been given.
8.On a general level, the Department relies on information given to it by members of the general public on the basis of confidentiality in administering the Act. If that confidentiality was not or was not able to be protected and upheld, this would prejudice the Department’s ability to obtain such information in the future. In my experience and in my opinion, people and organisations would be unwilling to provide information to the Department if the confidentiality of the information and their identity could not be protected and upheld by the Department.
9.The Department is also reliant upon good working relations with the Refugee Review Tribunal (“Tribunal”). Disclosure of information supplied in confidence to the Tribunal, or subject to a request for confidentiality over material held by the Tribunal, would, I believe, prejudice those good relations. It could also prejudice the working relations between the Department and other Tribunals or agencies with whom it shares information. It would also undermine the provisions of the Act, such as s 439, that seek to protect and uphold the confidentiality of information provided to the Tribunal.
The claim for immunity was considered and upheld by Madgwick J at an interlocutory hearing on 19 November 2003. A transcript is in evidence before me, but some of it is obscure due to the absence of any other evidence as to what happened in those proceedings. It appears that his Honour had read the documents and submissions before coming into court. He upheld the claim for privilege, and made observations on issues of procedural fairness which would face the Tribunal if the matter were remitted. I shall extract the relevant passage in full, emphasising parts to which the applicant now gives particular significance. Mr Patch represented the applicant, and Mr Wigney represented the Minister:
HIS HONOUR: Now, Mr Patch you are severely handicapped in saying anything much about this except that you trust me.
MR PATCH:That’s right, your Honour. I can tell your Honour that the connection with the case that we have - - -
HIS HONOUR: It’s obvious.
MR PATCH:It’s a question of the credit, the believability of the applicant.
HIS HONOUR: Actually I think if you knew what was in the document it’s more than that, too. I don’t have much doubt about the forensic relevance. I’ve read the documents, I’ve read Mr Wigney’s helpful and accurate submissions.
MR PATCH:I can tell your Honour that the name of the person that sought to be protected is [name deleted]; we know that person’s name and we know that she made various complaints about the conduct of the applicant to do with acts of personal violence. We know about that, they were the subject of open court proceedings so if, and I don’t know, if the confidential material relates in part to that it’s already been disclosed in open court.
HIS HONOUR: Yes. Mr Wigney, I am persuaded by the affidavit and your submissions that there is a proper case. However, this has many implications for the principal relief claim, doesn’t it? I think it’s only fair to say I am not going to disclose who said what but I think it’s fair to say that in my opinion any tribunal member, any judge who read that material would have some - let me put it this way: A reasonable outsider knowing that the judge or the adjudicator had read that material would have a reasonable suspicion, subject to anything you might say to the contrary, that the adjudicator couldn’t bring a fair and unbiased mind to bear on the subject matter.
MR WIGNEY: I hear what your Honour says. I take it on board.
HIS HONOUR: There is authority in the court, isn’t there, that deals with this tricky problem. Has anyone looked it up yet?
MR WIGNEY: The only thing I could find is that decision of Moore J in NAFQ - - -
HIS HONOUR: What did he say?
MR WIGNEY: He refused access to the documents on the basis - - -
HIS HONOUR: I am not talking about that, I am talking on the principle side of it. If there is material that in all justice should be disclosed but the disclosing of it would contravene a legitimate public interest so that the Tribunal would rightly not be inclined to disclose it, then my understanding is that it’s actually been held, what I would have thought was a law anyway, that the Tribunal should do what it can to inform the applicant of the burden of the material and if it can’t should at least make a disclosure of the kind, not a disclosure but make an observation of the kind that I have made if thought warranted, so that the applicant can take any steps thought appropriate if the Tribunal continues to deal with the matter.
If you can’t disclose it to the applicant in a way that enables him to deal with it then except where the material is of an absolutely compelling nature substantively as distinct from prejudicially, it seems to me that procedures would have to be crafted probably by the President of the Tribunal by which the matter is reassigned without that material.
MR WIGNEY: Yes, now that you mention it, your Honour, I think there is authority on it.
HIS HONOUR: If you look that up, subject to any submissions you want to make I really think that’s what should have happened in this case. I can’t imagine - you might even imagine or you might imagine even better at it than I can - I can’t see a way in which you can disclose anything useful about the subject matter without disclosing - - -
MR WIGNEY: That’s right.
HIS HONOUR: Or materially tending to disclose the identity of the informant and I might be a bit more easily influenced than other people but it had a pretty - I acknowledge it had a fairly powerful emotional impact on me and I can’t assume that others are stonier hearted than me, probably not stony hearted they’ve probably got greater fortitude than I have but there you go.
MR WIGNEY: I can certainly assure your Honour that those issues would be considered.
HIS HONOUR: Yes, but the sooner it’s all considered the better. Why don’t we stand that over for a week to enable the respondent to consider its position.
(emphasis added)
Three weeks later, on 5 December 2003, the matter was again listed before Madgwick J, when he was asked to make orders by consent for the rehearing of the matter. He gave a short judgment which was revised and published as Applicant S416 of 2003 v Refugee Review Tribunal [2003] FCA 1630. This said:
2Counsel for the respondent Minister has explained that the reason that the second respondent consents to the orders is a relevantly narrow one and it is that certain ‘country information’ which the Tribunal Member relied upon as casting doubt on a claim by the applicant that his uncle held a certain position in relation to a religiously based political party, namely JIB, was not brought to the attention of the applicant, nor was he given a chance to comment on the information.
3There may well have been other reasons which the applicant would have wished to urge as to why the Tribunal Member’s decision should be quashed. I am aware, for example, that certain material was sent to the authorities on a confidential basis, making serious allegations against the applicant. I upheld a claim for public interest immunity, made by the Minister, against a requirement that the relevant documents making allegations should be produced to the applicant’s legal advisers. The nature of that material, it seems to me, was such that it might well give rise to a claim that if a Member of the Tribunal were to look at it and not show it to the applicant or apprise him of sufficient of the substance as to enable him to deal with it for fear of compromising the identity of the informant, among other things that could give rise to a claim of apprehended bias on the part of the Tribunal Member. It therefore seems to me that in order to forestall, so far as possible, any such dispute, it would be desirable upon the remitter of the matter to the Tribunal for re‑consideration according to law that the President of the Tribunal should, with the benefit of legal advice, give the matter his consideration.(emphasis added)
It is significant that in his revised judgment, Madgwick J did not give an opinion more definite than: “it might well give rise to a claim … of apprehended bias” if the reconstituted Tribunal “were to look at it and not show it to the applicant or apprise him of sufficient of the substance as to enable him to deal with it”. In my opinion, the informed observer would give closer attention to these statements than to judicial comments caught on transcript at the earlier interlocutory hearing.
Clearly, a fair‑minded lay observer would appreciate the warning offered to the Tribunal by Madgwick J, and his Honour’s continuing concern that the confidential information might have an irredeemably prejudicial quality. However, in my opinion, the observer would note that Madgwick J allowed the Tribunal to form its own judgment on how to deal with the material. Moreover, Madgwick J presented the possibility of a future concern about apprehended bias in language showing a clear desire to avoid any prejudgment on the issue. He said no more than that there “might” be a “claim” of procedural irregularity. With respect, he was not able to say more, even by implication. In my opinion, a lay observer would not, after reading both the transcript and the judgment, conclude that Mr Hardy might have become unable to bring an open mind to his decision, merely because the procedure suggested by Madgwick J for consideration was not followed.
This conclusion is confirmed by a second aspect of Madgwick J’s judgment. This was that he accepted that the confidential material might not need to be considered by the Tribunal when assessing the applicant’s claims. In other words, his assessment of its weight and relevance appeared to allow for the possibility that it could be put to one side. His Honour’s warning was that a decision on discarding the material would preferably be done by someone in the Tribunal other than the member constituting the Tribunal. However, whether this was permissible under the legislation was not something upon which his Honour had received any argument, and he suggested that this was a matter for “legal advice”.
Before me, no argument was presented by either party whether it would have been open to a different person within the Tribunal to decide what parts of the evidentiary material should be shown to the member constituting the Tribunal. In view of the principle that it is usually a decision‑maker’s personal duty to consider all relevant evidentiary material, there must be real doubt that the procedural course suggested by Madgwick J would have been open (c.f. Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 30‑31, 38‑39, 66‑67, 70, 71). If it is relevant for me to decide, I am not persuaded that the procedure suggested by Madgwick J was open to the Tribunal.
Certainly, the Secretary of the Department of Immigration has a discretion to decide what should be forwarded to the Tribunal in accordance with s.418(3), including with a non‑disclosure certificate under s.438. In the present case, it might appear regrettable that greater thought was not given within the Department as to whether the confidential material should be sent to the Tribunal or sent without such a certificate. However, in my opinion, once the material did reach the Tribunal, it was the duty of the member constituting the Tribunal personally to consider its potential relevance, weight and usefulness. To allow another person to perform this assessment, would mean that the Tribunal, as properly constituted by a member designated under ss.421 and 422, had failed to perform the “review” required by ss.414 and 415.
Even if I am wrong in my opinion that Mr Hardy could not avoid deciding how to deal with the confidential material, the Act might appear reasonably open to such a construction. No adverse impression of the Tribunal’s conduct could, in my opinion, be taken by an observer, if the Tribunal decided that it could not follow the procedure suggested by Madgwick J.
There is no evidence before me as to what legal opinions were, in fact, obtained or formed by either the Principal Member or Mr Hardy on whether Madgwick J’s suggested procedure could or should be followed. All that is known, as I shall explain, is that Mr Hardy did probably read the material, and purported to put it out of his deliberations at a preliminary stage.
Following the consent remitter of the matter, the applicant’s solicitors lodged further extensive submissions and further evidence. They did not raise concerns about the confidential material until shortly before a further hearing to which the applicant was invited. By letter dated 29 June 2004, they wrote to the Principal Member of the Tribunal:
[The applicant’s] application for review has been set down for hearing on Wednesday, 14 July 2004 at 10am. We are writing to you further to suggestions made by Mr Justice Madgwick at a hearing on 19 November 2003.
Mr Justice Madgwick made these suggestions after reviewing confidential material to which we were seeking access on behalf of [the applicant]. We have never seen this confidential material and do not know what it contains.
Mr Justice Madgwick said that the material was gravely prejudicial and that a reasonable outsider, knowing that the tribunal member had read the material, would have a reasonable suspicion that the tribunal member could not bring a fair and unbiased mind to the application. Justice Madgwick therefore requested that we write to you asking you to ensure that either:
1.the tribunal member hearing the application of [the applicant] does not see this material; or
2.if a tribunal member does see the material, then it be disclosed to [the applicant] to allow him to deal with it.
Mr Justice Madgwick also specifically asked Mr David Patch of Counsel, who appeared for [the applicant], either to attend with [the applicant] at the next hearing before the tribunal or to ensure that [the applicant] had representation. We understand that Mr Justice Madgwick was concerned to ensure that, following difficulties with the previous 2 hearings, [the applicant] received a fair hearing before the RRT. Mr Patch and Mr Malcolm Stephens will therefore be among those attending with [the applicant].
Please let us know if you have any questions about the matters which arose before Mr Justice Madgwick.
There is much in this letter which is not found in Madgwick J’s statements recorded in the transcript which is in evidence before me or in his judgment. It is clear from Madgwick J’s judgment that he did not remit the matter with any express or implicit direction that “a reasonable outsider, knowing that the tribunal member had read the material, would have a reasonable suspicion that the tribunal member could not bring a fair and unbiased mind to the application”. On the evidence before me, the suggestion that the Tribunal was bound to follow the procedure raised for consideration by Madgwick J has no proper basis. An informed observer would have appreciated this. I also consider that the observer would not have regarded it significant that no formal response was made by the Tribunal to the applicant’s letter, before the applicant attended the hearing.
The Tribunal’s approach to the confidential material was indicated by Mr Hardy in the course of the hearing on 5 August 2004, which had been postponed at the request of the applicant. In response to questions concerning the applicant’s unsuccessful application for an interdependency visa, the applicant referred to his relationship with an “ex girlfriend” in Australia. The transcript then shows:
Interviewer: It’s high time I actually shared with you something that you probably need to hear and it’s in the interest of fairness.
You were concerned about some documents in your files that were exempt from FOI. Okay. And the concern was expressed to the Tribunal that we not looking at those documents lest they unfairly influence the decision. Okay. For reasons that make those documents exempt from FOI in the first place, I cannot go into much detail about them. Okay?
You suspect they make certain accusations about you. In my view they are unsupported accusations from the various parties who had made them. Okay. So let me say on the record today, that I will not be taking them into account.
I did mean to make that point at some stage. I thought it was going to be something I was going to say in the beginning of the hearing when there wasn’t an interview to distract me onto other things, but had we had that hearing on the earlier occasion, I would have put that as part of my introduction. And starting today with the interview, I forgot to mention that, but I was cued to mention that by your description of the relationship, mentioning of the relationship.
Now we will move onto another question.
Third person: I assume that gives us an indication of who the allegations may have been from?
Interviewer: Well I think that assumption was already conveyed in the enquiries, but are not exclusive to that party at all.
Third Party: Not exclusive to that party?
Interviewer: We who are mature people and decision makers can put them aside and dismiss them. Okay, they are not about Bangladesh. Or, to the extent that Bangladesh is mentioned, I’m not taking them into account. I’m taking your evidence into account and independent country information. Things like that.
At the beginning of his statement of reasons, Mr Hardy again explained the course he had taken in relation to the confidential material. Following a “background” narration of the proceeding before the Tribunal, and before referring to the relevant law and the applicant’s “claims and evidence”, he said:
FREEDOM OF INFORMATION & MATERIAL NOT CONSIDERED IN THE PRESENT CASE
The Applicant applied for release to him of RRT and DIMIA file contents under the FOI Act. His request was duly processed. However, certain documents were exempted under law and not released for reasons explained to the Applicant.
The Applicant expressed concern that the Tribunal had nevertheless seen the exempted documents and might be influenced by them. The Applicant indicated that he feared that such material might be taken into account in the course of assessing his good faith in the present matter. As discussed with the Applicant on 5 August 2004, the exempted documents are not considered by the Tribunal to be relevant to his protection visa application and have been put aside. Neither those documents nor any references to them in any other document form any basis for the Tribunal’s decision in the present matter.
The Applicant has stated that he was the subject of a NSW court order in a matter of suspected domestic violence. This matter is also considered by the Tribunal to be irrelevant to the protection visa application before it.
One reason for my concern that the applicant’s legal representatives should have access to the confidential material was to allow them to re‑read the transcript of the hearing before Mr Hardy and his statement of reasons, with an awareness of the content of the material. As I indicated to the applicant’s counsel, it might be relevant to his arguments if he could show, contrary to Mr Hardy’s claim at the start of the hearing and in his reasons, that Mr Hardy may not in fact have been able to put the prejudicial material out of its mind. However, counsel’s post‑hearing submission made no suggestion that any evidence of this could be found. He made no submission that any reference to anything taken from the confidential material could be identified in Mr Hardy’s reasons.
I find that, in fact, the confidential material was treated by Mr Hardy as not “credible, relevant and significant to the decision to be made”, and that he did actually decide the matter without any reliance upon that material. Further, on my own reading of the material, I consider that it was open to Mr Hardy to decide that the material was not so clearly relevant, reliable and significant as to be required to be taken into account. While I accept that some of the material contained information which was potentially derogatory of the character of the applicant and the credibility of his refugee claims, I am not satisfied that the material in fact had any influence on Mr Hardy’s decision, and I consider it probable that it had no influence.
These findings may not, however, directly address the applicant’s contentions that the Tribunal’s conduct gave rise to jurisdictional error under principles of apprehended bias or procedural fairness. Although these contentions at times overlapped, I shall address them separately.
Ground 1 – apprehended bias
In his oral arguments, counsel for the applicant sought to rely upon passages from the first instance judgment of Merkel J in Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 741; [2003] FCA 437, and the dissenting judgment of Gray J in Minister for Immigration & Multicultural & Indigenous Affairs v VEAL (2004) 138 FCR 84, [2004] FCAFC 179. The orders of Merkel J were upheld by the High Court in Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs(2005) 222 ALR 411, [2005] HCA 72.
In that case, the Tribunal’s decision was set aside on grounds of failure of procedural fairness, and not apprehended bias. The Tribunal had disclaimed in its statement of reasons any reliance upon a “dob‑in” letter which had not previously been revealed nor put to the applicant in any manner. The majority in the Full Court allowed the Minister’s appeal from Merkel J. They referred to statements by Brennan J in Kioa suggesting that not every adverse piece of information requires disclosure, and said at [78]:
Where a decision-maker says at the time of the decision that adverse information has not been taken into account, such a statement is not to be set at nought simply because a judge subsequently considers such information and decides that it is credible, relevant and significant to the decision. It is difficult to see how such information could be significant to a decision if no regard were paid to it in reaching the decision. The underlying rationale for any necessity of disclosure remains that explained by Lord Denning in Kanda. Of course a disavowal of reliance need not be accepted by a court, but in most cases that will require the person aggrieved by the decision to adduce evidence to show why the disavowal should not be accepted. (emphasis in original)
On appeal, the High Court considered that this revealed a misapprehension of principle. They said:
“Credible, relevant and significant”?
[16]What is meant by “adverse information that is credible, relevant and significant to the decision to be made”? As is always the case, what is said in reasons for judgment must be understood in the context of the whole of the reasons. Examining sentences, or parts of sentences, in isolation from the context is apt to lead to error. In particular, what Brennan J said about “information that is credible, relevant and significant” takes its meaning from the point his Honour had made only a few sentences earlier: that “[a]dministrative decision‑making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made”. Moreover, what is meant by “credible, relevant and significant” must be understood having regard also to the emphasis that his Honour had given earlier in his reasons to the fundamental point that principles of natural justice, or procedural fairness, “are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise”. Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision‑maker must do in the course of deciding how the particular power given to the decision‑maker is to be exercised. They are to be applied to the processes by which a decision will be reached. (emphasis in original)
[17]It follows that what is “credible, relevant and significant” information must be determined by a decision‑maker before the final decision is reached. That determination will affect whether the decision‑maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision‑maker as not credible, not relevant, or of little or no significance to the decision to be made. “Credible, relevant and significant” must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision‑maker before making the decision. And the decision‑maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is “credible, relevant and significant” are not to be understood as depending upon whatever characterisation of the information the decision‑maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.
[18]It follows that the tribunal’s statement, that it gave no weight in reaching its decision to the letter or its contents, does not demonstrate that there was no obligation to reveal the information to the appellant and to give him an opportunity to respond to it before the tribunal concluded its review. Deciding that it could reach its conclusion on other bases did not discharge the tribunal’s obligation to give the appellant procedural fairness. (citations omitted)
In VEAL, principles of apprehended bias were not addressed by either Merkel J at first instance, or the Full Court, or the High Court. However, Merkel J at [24] cited discussion by Allsop J in NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561, which suggested that considerations of impartiality were relevant to deciding when disclosure was necessary notwithstanding a bona fide disavowal of reliance. Allsop J suggested that “the risk of subconscious influence” was relevant to an assessment of whether the material was “in the particular circumstances, credible, relevant and significant to the decision”.
This consideration also played a significant part in the dissenting reasoning of Gray J in VEAL. As did Merkel J at 197 ALR 741 [31], his Honour at 138 FCR 84 [18] cited authorities which “emphasised the importance of the decision‑maker not seeing the prejudicial material when the credibility of the party to whom it is prejudicial is crucial to the decision”. He continued:
[19]There are cases in which courts have taken the view that no harm was done by the unrevealed prejudicial material, because the decision‑maker concerned was considered to be well able to put the material out of consideration, as a judge is generally expected to do. Madafferi v Minister for Immigration and Multicultural Affairs [2000] FCA 158 and Hall v Release on License Board (unreported, NSW Ct of App, Priestley, Mahoney and Clarke JJA, 27 June 1989) are examples, but they are rare. Madafferi concerned a deputy president of the Administrative Appeals Tribunal, an office for which s 7(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) requires the same qualification as is required by s 6(2) of the Federal Court of Australia Act 1976 (Cth) for appointment as a judge of this Court. It was by no means clear that the material concerned was irrelevant to the issues before the deputy president. Because the argument was about whether the deputy president should disqualify himself in advance of the hearing, by reason of apprehended bias as a result of seeing the prejudicial material, it was not then clear to what extent, if any, the credit of Mr Madafferi bore on the issues in the case. Hall concerned a board the chair of which was a person of long judicial experience, entrusted with the task of considering whether prisoners should be released early on licence, and therefore accustomed to assessing the relative significance of items of information relating to the past conduct of those prisoners. The issue was whether the board was disqualified by reason of having seen the full file of the Department of Corrective Services, which had not been supplied to the solicitor acting for the prisoner. The file contained details of charges pending against the prisoner. It was clear that the board was able to separate those pending charges from the breaches of licence conditions with which its deliberations were concerned. The credit of the prisoner does not appear to have been in issue.
[20]The Tribunal that decided the respondent’s case consisted of one member. So far as I have been able to ascertain, the Migration Act lays down no minimum qualifications for appointment as a member of the Tribunal. Although some members of the Tribunal are lawyers, most are not. It is unnecessary for any of them to have the same qualifications as are required for appointment as a judge of a court. There is no requirement for experience, such that it might be possible to say that members might have had to engage in the task of sifting relevant from irrelevant material and having regard only to the former in making decisions. The Tribunal is not bound by the rules of evidence. Its members do not have the opportunity to do what judges do frequently, to look at the content of evidence for the purpose of ruling on its admissibility and then to disregard it for all purposes if it is inadmissible. These considerations suggest that the principle emerging from the cases to which I have referred in [17]‑[18] ought to be applied to the Tribunal’s conduct of its proceedings with a degree of strictness. Caution is required, to ensure that systems of administrative decision‑making are to be fair.
[21]Based as it is on a fundamental principle, namely the requirement that procedural fairness not only be afforded, but be seen to be afforded to an unsuccessful party, the body of authority to which I have referred in [17]‑[18] should not be set aside lightly. In my view, it is wrong to undermine the principle by close distinctions on the facts of particular cases. Nor do I think that the principle should be undermined by treating Brennan J’s formulation of it as if it were a statute, and seeking to construe closely what his Honour meant by “credible, relevant and significant to the decision to be made”. As to the word “credible”, I am of the view that all that is required is that the information should not lack credibility either on its face, or by reason of the circumstances in which it came to the notice of the decision-maker. I am far from convinced that a rule should be developed that regards as credible only those documents emanating from official sources. Still less would I favour a rule that treats all documents emanating from official sources as automatically credible. The threshold of credibility intended is a low one. It is intended to exclude only those kinds of information that would necessarily be dismissed out of hand.
[22]In my view, the primary judge in the present case was correct to regard the letter as “credible, relevant and significant to the decision to be made”, within the formulation of the principle as expressed by Brennan J. As his Honour found at [25] of his reasons for judgment, the Tribunal did not dismiss the letter out of hand. The Tribunal expressly regarded the allegations in the letter as possibly having weight, if it had been in a position to test them. The fact that the letter was written by a person who claimed to have a personal association with the respondent and to be in a position to provide the information contained, including information said to have been provided by the respondent, was a powerful reason for regarding the letter as “credible”.
Counsel for the applicant in the present case cited the above passages in support of the grounds of apprehended bias as well as procedural fairness. In effect, he submitted that a test of apprehended subconscious influence should be applied under both grounds, when considering whether the Tribunal’s disavowal could be accepted.
However, in my opinion, the High Court in VEAL has clearly demonstrated the separate doctrines which explain and give content to principles of apprehended bias and the “hearing rule” of procedural fairness. In relation to the latter, they addressed, and rejected, the analysis which was followed by Gray J:
Subconscious effect?
[19]Is it nonetheless relevant to ask whether the letter had or might have had some subconscious effect on the tribunal in this case? Again, what Brennan J said about subconscious effect and prejudice must be read in its context. It was said in explanation of why it is that fairness requires that the person whose interests are likely to be affected by a decision should be given an opportunity to deal with the adverse information. As has later been rightly said, “the necessity to disclose such material in order to accord procedural fairness is not based on answering a causal question as to whether the material did in fact play a part in influencing the decision”. It follows that asking whether, despite what was said in its reasons, the tribunal may have been subconsciously affected by the information distracts attention from the relevant inquiry. The relevant inquiry is: what procedures should have been followed? The relevant inquiry is neither what decision should the decision‑maker have made, nor what reasons did the decision‑maker give for the conclusion reached. (citation omitted)
Because none of the courts in VEAL addressed apprehended bias, and because the High Court dismissed the relevance of considering subconscious influence in the context of the “hearing rule”, I do not consider that the judgments of Merkel and Gray JJ directly assist the applicant in relation to either Ground 1 or Ground 2 of the amended application. I shall, however, consider the High Court’s judgment in VEAL further when addressing Ground 2.
In relation to Ground 1, counsel for the applicant also cited authority directly bearing on the test of apprehended bias which I have quoted from Ex parte H above, under which it does remain relevant to consider the possibility of subconscious influence on a decision‑maker from having read undisclosed prejudicial material. It is relevant, because the “informed lay observer” test of apprehended bias requires consideration of whether a disclaimer of reliance would allay an observer’s apprehension that the material might have caused the decision‑maker to decide against the applicant, consciously or unconsciously.
The applicant’s counsel’s written outline submitted:
4.It is conceded that judges read and reject inadmissible material and that this does not usually give reasonable apprehension of bias Johns v Australian Securities Commission (1992) 35 FCR 16 at 37. Those cases can be distinguished on two points.
(i)The current circumstances of a lay tribunal member without the training and tradition of judicial office. The non curial nature of the body and the different character of proceedings must be taken into account Ex parte H at 435 at para 29. Cases in which administrative tribunals can put prejudicial material out of their minds are rare particularly where credibility is crucial Veal 2004 138 FCR 84 at para 18, 19 per Gray (in dissent).
(ii)The comments of his Honour Madgwick J. These comments give rise to the possibility that the decision maker was biased.
However, there are divergences in judicial assessments of the capacity of non‑legal administrative tribunals to exclude prejudicial material from any influence on their decision‑making. These assessments then influence judicial assessments of what an informed lay observer might apprehend. The passage from Gray J’s judgment in VEAL, which I have extracted above, reflects his doubt whether non‑lawyers should be attributed with the same capacity to be, or appear to be, uninfluenced as is expected in judges presiding over adversarial litigation. Such a concern might also appear in Madgwick J’s concerns in the present case.
Notwithstanding these concerns of Gray and Madgwick JJ, in my opinion, the weight of current authority in the Federal Court is against the suggestion that lay administrative tribunals are less capable of excluding irrelevant prejudicial material than are judges. In Holmes v Mercado (2000) 111 FCR 160 at [63] the Court considered a medical disciplinary committee’s assurance that they would not “make use of” a prejudicial report on a doctor’s prior medical practice. They said: “we see no reason to doubt that such people are as capable as lawyers of understanding the concept of putting out of their minds an irrelevant matter, when reaching conclusions on a matter of grave importance to a practitioner, and of doing so”. Similar opinions were expressed in Crowley v Holmes & Ors (2003) 132 FCR 114. At [36] Dowsett J, with whom Madgwick and Finkelstein JJ agreed, said:
Our society relies upon courts and tribunals to determine factual matters by weighing evidence, often rejecting or discounting some of it. There is no justification for the view that a professional tribunal such as the Committee is unable or unwilling to set aside material which, for one reason or another, is not proper for its consideration. I am confident that a fair‑minded observer would share that view.
A tribunal such as the present conducts a proceeding which “does not involve an adversarial trial … The Tribunal investigates an applicant’s claims in a process of administrative merits review of the delegate’s decision” (SZAYW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 49 at [4]). It should be assumed to bring to that proceeding experience in the task of an administrator in sifting relevant evidence from an administrative file, and discarding consideration of irrelevant documents. A lay observer might, indeed, consider that a tribunal member is likely to be better suited for that task than a lawyer trained in adversarial litigation. In the present proceeding, I have described above the voluminous documentation which was presented to Mr Hardy in the Departmental and Tribunal files. It would, in my opinion, be misconceived to discount his ability to isolate material deserving of weight and consideration in the particular matter, and his ability to exclude the other material, merely because he or other members of the Tribunal might lack the background or experience of a judge.
I am not persuaded that an informed lay observer, after reading the confidential material and considering how Mr Hardy dealt with it, “might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided” (Ex parte H at [27]). In my opinion, the observer would have been satisfied that Mr Hardy had, for apparent and good reasons, excluded the prejudicial confidential material from his consideration. In forming that opinion, the observer would take into account the contents and significance of the material which I shall explain below when considering Ground 2. I do not accept that the observer might apprehend that Mr Hardy might have been unable to resist being influenced by the material, so as to bring a mind incapable of a fair and impartial assessment of the applicant’s refugee claims.
I do not consider that such an apprehension would arise from the fact that the procedure followed by the Tribunal and Mr Hardy did not accord with the suggestion of Madgwick J. As I have explained above, it was, at least, doubtful whether such a procedure was open to the Tribunal. An informed lay observer would, in my opinion, have appreciated this.
I also do not accept the submission that “the comments of his Honour Madgwick J … give rise to the possibility that the decision maker was biased”, so as to establish satisfaction of the test of apprehended bias in this case. I can accept that the informed lay observer would give serious consideration to his Honour’s concerns, but that person would also be aware that in his subsequent judgment Madgwick J was careful to avoid any prejudgment of whether the Tribunal could read and fail to disclose the confidential material without avoiding jurisdictional error. Once it is accepted that Madgwick J left open to the Tribunal the task of deciding how to deal with the confidential material, the fact that Mr Hardy did read it and decide that it was unnecessary to disclose it does not, in my opinion, give rise to a separate basis for apprehending bias against the applicant affecting the ultimate decision.
For the above reasons, I do not consider that Ground 1 of the further amended application is made out.
Ground 2 – procedural fairness
To assess this ground, it is necessary to examine further the reasoning of the High Court in VEAL, to discover whether the present Tribunal failed in its obligation to give the applicant a reasonable opportunity to respond to information which was “credible, relevant and significant to the decision to be made”.
As I have indicated, the High Court has now denied that this characterisation is to be performed by considering whether the information might have influenced the ultimate conclusions of the Tribunal. VEAL also explains why it is erroneous to give emphasis to a disclaimer of reliance on withheld information, if the disclaimer is first given in a Tribunal’s statement of reasons for its ultimate decision. However, the present case is distinguishable from VEAL, since Mr Hardy’s disclaimer was made and announced in preliminary stages of the evaluation of material in the files before the Tribunal. It remains to consider how a court, on judicial review, should treat such a disclaimer.
Counsel for the Minister submitted that a disclaimer such as was given by the present Tribunal accorded with the point made in VEAL at [16]‑[18] which I have extracted above. The Tribunal’s ruling properly occurred at the relevant point of time when the obligation to consider disclosure arose under the “hearing rule” of procedural fairness. He also submitted that VEAL required the decision‑maker, rather than the Court, to decide whether disclosure was required. He suggested that an element of conclusiveness arose from the present Tribunal’s implicit assessment that the confidential material should not be treated by it as information which was “credible, relevant and significant to the decision to be made”.
His submissions focused upon the first sentence in [17] of VEAL:
It follows that what is “credible, relevant and significant” information must be determined by a decision‑maker before the final decision is reached.
I accept that the points made in VEAL require the Court to consider how a decision‑maker has, in fact, assessed the potential weight of evidentiary material in the course of his or her investigations prior to making the decision. Such assessments might appear expressly or implicitly in correspondence, at a hearing, or even – using hindsight – in a statement of reasons. A decision‑maker’s statements confirming that material of dubious assistance in the decision‑making has been excluded from further investigation or consideration must, in my opinion, be given some significance, and in many circumstances even determinative significance, in the Court’s assessment of whether procedural fairness has been observed. However, I do not accept that VEAL requires disclaimers such as the present to be given any conclusiveness.
Logically, they could not be so treated, since necessarily the decision‑maker’s preliminary assessments of the material on file will be provisional, and must be subject to re‑assessment in the light of further evidence or submissions being received, or on further consideration of the issues for decision. It would be fallacious to view administrative decision‑making of the type conducted by an immigration review tribunal as if it fell into discrete stages, where the consideration of whether disclosure of prejudicial material was required arose only at one point prior to decision. The majority judgments in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 (“SAAP”) illustrate this point, when considering the similar statutory duties of the Tribunal under s.424A of the Migration Act.
Moreover, at other points in VEAL the Court made clear that the role of the Court when considering whether information should have been disclosed, requires it to form its own independent opinion on the significance of the withheld material to the matter decided. In [17] the High Court suggested a test of whether the information “cannot be dismissed from further consideration by the decision‑maker before making the decision”, but did not present it as a test addressed solely to the decision‑maker. This is clear from the following sentence, which recognises an “objective” aspect to the test, which the Court itself needs to consider: “the decision‑maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made”.
The need for the Court itself to consider whether it was “evident” that disclosure was not required, was further shown in the reasoning of VEAL on the facts of that particular case. At [20] the Court expressed its own opinions on the significance of the “dob‑in” letter. The Court concluded that information in the letter “could not be dismissed from further consideration … Neither the alleged admission nor the allegation of support for the current government could be dismissed as a matter of no relevance or of little or no significance to the decision. Further, neither the alleged admission, nor the allegation about where the appellant’s political sympathies lay, could be dismissed from consideration as material to which the tribunal could not give credence”.
It is clear that in VEAL at [21] the Court itself decided, after examining the information in the “dob‑in” letter and the issues addressed by the Tribunal, that “procedural fairness required that the tribunal draw the appellant’s attention to the information”. The Court then considered the manner in which disclosure could be given, consistently with the need to keep confidential the identity of the author of the letter.
The ratio decidendi in VEAL was summarised by the Court at [27]:
[27]The information which was contained in the letter was relevant to that inquiry and it could not be ignored by the tribunal. The tribunal was able to put the information aside from consideration in its reasons only because it reached the conclusion, on other bases, that the appellant was not entitled to a visa. But that step, of putting the information in the letter aside from consideration, could not be taken before reaching the conclusion that the application should be refused. It follows that to conduct the review with procedural fairness, the appellant had at least to know the substance of what was said against him in the letter. Only then could he attempt to answer the suggestions made by the author of the letter that the appellant had reasons other than Convention reasons to absent himself from Eritrea and that he did not have a well‑founded fear of persecution for a Convention reason.
In the present case, counsel for the applicant presented a detailed post‑hearing written submission, in which he analysed the contents of the confidential material, and made submissions to the effect that I should arrive at the same conclusion as in VEAL. Counsel for the Minister has responded with similar detail. The submissions are covered by my confidentiality order, and it is not possible for me to enter into a close examination of their various points without the risk of disclosures which might jeopardise the accepted public interest.
I have carefully read the confidential material, and have considered its significance in the light of the parties’ submissions and the evidence of the Tribunal’s proceedings and reasons.
I accept that the confidential material made allegations about the applicant with prima facie credibility, which reflected badly on his general character and behaviour in Australia. The allegations and the circumstances in which they were alleged to have arisen had no direct bearing on the applicant’s refugee claims, but I accept that some of them might have been capable of being regarded by a Tribunal as potentially relevant to an assessment of the applicant’s general motives and credibility in relation to his protection visa application.
However, that potential was very much conditional upon a procedural judgment on whether the Tribunal’s inquiry should be expanded to include investigation of the truth of the allegations, including by putting them to the applicant. The material was of such a nature that, absent such a procedural judgment and further inquiry, it raised only issues collateral to the real issues to be decided, and for that reason lacked any obvious “relevance” and “significance”. The Tribunal, with justification in the circumstances of the matter under review, decided that it would not investigate the allegations. Nothing which happened after it decided to put them out of consideration gave them any unavoidable relevance or significance to the issues to be decided by the Tribunal.
In these circumstances, I have concluded that it was open to the Tribunal when conducting the reconsideration ordered by Madgwick J to decide that it could, and properly should, put aside the confidential material. In the light of all the circumstances, I would not myself characterise the material within the tests suggested by Brennan J in Kioa, as explained in VEAL. In my opinion, unlike VEAL, the material could be “dismissed from further consideration by the tribunal as not credible, or not relevant, or of little or no significance to the decision”.
I therefore do not accept Ground 2 of the further amended application.
Ground 3 – failure to invite comments under s.424A
This ground, and its particulars, were formulated in the further amended application as follows:
3.The Decision is void for jurisdictional error in that the Tribunal Member failed to comply with s424A of the Migration Act 1958 by not, in writing:
·providing the applicant with particulars of information that it considered part of the reason for affirming the decision of the delegate of the Second Respondent (information);
·ensuring that the applicant understood why the Information was relevant to the review; and
·inviting the Applicant to comment on the Information.
Particulars
The Information comprised the following.
(a)Oral evidence before the first tribunal:
(i)describing events at a press conference linked to a WTO summit in Singapore in December 1996;
(ii)describing the BNP as pro‑reunification with Pakistan;
(iii)supporting re‑unification notwithstanding his conversion to Christianity;
(iv)explaining his delay in applying for a protection visa; and
(v)not referring to alleged threats by a compliance officer.
(b)The explanation in the Applicant’s 1996 migration application for AsiaNews Network establishing an office in Singapore.
The effect of s.424A as interpreted by authorities culminating in SAAP and SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 is now very familiar, and it is not necessary for me to give more than my brief reasons for rejecting the two particulars of this ground.
Particular (a)
In relation to the identified information taken by Mr Hardy from a hearing conducted by the Tribunal as earlier constituted, I accept that there was such information which provided a part of the reason for his affirming the delegate’s decision.
Counsel for the applicant argued that this information was not excluded by s.424A(3)(b) from obligations under s.424A(1). He submitted that the word “application” in the statutory exclusion of “information … that the applicant gave for the purpose of the application” encompassed only “each separate occasion on which the matter is before, or remitted to, the Tribunal”.
However, I consider that the Full Court’s reasoning in SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 (“SZEPZ”) is inconsistent with this submission. In that case, the Full Court upheld my decision in SZEPZ v Minister for Immigration & Anor [2005] FMCA 1614 at [16]‑[20], that a second s.424A invitation was not required to be served by the Tribunal when reconstituted after the quashing of a previous decision. The Court accepted my reasoning that the “review” which was being conducted by the reconstituted Tribunal was the review originally initiated by the application for review. At [39] their Honours said:
Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.
I have applied this aspect of SZEPZ in at least two previous decisions, when rejecting contentions that a reconstituted Tribunal may not inform itself from information obtained at a hearing conducted by the previously constituted Tribunal, or that this would give rise to obligations under s.424A(1) (see SZGNY v Minister for Immigration & Anor [2006] FMCA 1142 at [15]‑[24] and SZFIR v Minister for Immigration & Anor [2006] FMCA 1451). I maintain my opinions, and reject the first particular of this ground.
Particular (b)
This particular relies upon discussion in the Tribunal’s reasons concerning a claim made by the applicant that his employment in Singapore evidenced his claimed connections with the BNP party.
The Tribunal’s description of the applicant’s evidence concerning this was:
The Applicant claimed that during the first half of the 1990s, whist he was forming associations with BNP figures and advocating pro‑BNP positions in the media and in the Bangladesh Journalists’ Welfare Council, gangs of AL terrorists invaded his home a number of times. He claimed, however, that he was never found at home during any of these attacks. He claimed that the BNP government placed security at his home “when the situation was too bad.”
The Applicant claimed to the Department that he started in mid‑1995 to plan to leave Bangladesh. He claimed that after discussion with his “supporters,” he moved to Singapore. The Applicant said he worked in Singapore as a “journalist,” and also identified himself amongst his claims as a “correspondent.” He said he still worked for AsiaNews Network Overseas. The reference letter submitted in support of the Applicant’s 1996 migration application provides details about AsiaNews Network Overseas’s role in Singapore, which was to promote and market documentaries to media outlets accessible in and from Singapore.
The Applicant claimed in support of his protection visa application that his role was to report on economic trends in Southeast Asia and circulate these reports to news agencies. This is quite close to what the reference letter said.
The Applicant told the first Tribunal that AsiaNews Network Overseas supported the BNP and could not run its Bangladesh office from within Bangladesh, which is why it set up an office in Singapore. The material in the Applicant’s 1996 migration application does not support that assertion. As discussed, it provides a very different explanation of the company’s role and the Applicant’s role within it. The Tribunal asked the Applicant to state what evidence there was of the AsiaNews Network or AsiaNews Network Overseas being a company set up by the BNP, as it was still operating after the AL took power in 1996. The Tribunal put it to the Applicant that none of the information about the company, so far available to the Tribunal, suggested that it was an organ of the BNP, or of any such link having been suspected by the AL.
In response, the Applicant said he did not think there was any such evidence because the network folded. He said the company ceased to operate due to internal conflicts within the BNP. He effectively explained one unsupported assertion with another.
The Tribunal’s reasoning concerning this part of the applicant’s evidence appears in the following passage:
The Applicant’s claim about being appointed to the AsiaNews Network, or AsiaNews Network Overseas, by the BNP is suspicious for two reasons, the first being that it so closely resembles the unreliable claim about the BNP appointing him to the acting presidency of the Bangladesh Journalists’ Welfare Council, and the second being that no evidence supports the claim about the BNP having any stake in AsiaNews Network, or AsiaNews Network Overseas. The Tribunal does not rule out that the company had a relationship with private or state broadcasters in Bangladesh. The Tribunal does not rule out that an influential contact in the government of the day might have helped the Applicant to get his job with the company. However, on the poor quality of the evidence before it, the Tribunal does not accept that the Applicant went to work for AsiaNews Network, or AsiaNews Network Overseas, as an extension of his services to the BNP or as a form of protection offered by the BNP for one of its faithful. The Tribunal does not accept that the Applicant’s tenure with AsiaNews Network, or AsiaNews Network Overseas has any significance as far as his protection prospects in Bangladesh are concerned. It was just a job that he had, until it ended.
In my opinion, this reasoning does not reveal the Tribunal relying upon any information which was not given to it for the purposes of the review application. In particular, the Tribunal does not rely upon any information taken from the applicant’s reference letter accompanying his 1996 migration application. The Tribunal’s reference to that letter in its reasoning indicates no more than an evaluation of its content, in particular, whether it provided support for the applicant’s claim that his employment was related to an association with the BNP. The Tribunal found “no evidence to support” that claim, including in the reference letter. The Tribunal’s actual reasoning does not, in my opinion, show it drawing an adverse inference on the ground that the claim was inconsistent with the reference letter. Although this suggestion appears to have been put to the applicant during the hearing, I do not consider that it ultimately formed a part of the Tribunal’s reasons for affirming the delegate’s decision. I therefore do not consider that the Tribunal used information from that letter in a manner requiring a notice under s.424A(1) (c.f. SZEEU (supra) per Weinberg J at [177], and Allsop J at [207], also Allsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29] and SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801 at [25], Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155 at [19], and Tamberlin J in SZCNP v Minister for Immigration & Multicultural Affairs [2006] FCA 1140 at [17]).
I therefore reject particular (b) of Ground 3.
Since none of the grounds is made out, I must dismiss the application. I will hear the parties further in relation to costs.
I certify that the preceding eighty‑two (82) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 16 November 2006
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