Tharairasa v Minister for Immigration & Multicultural Affairs

The case of Tharairasa v Minister for Immigration & Multicultural Affairs concerns an application for judicial review of a decision made by the Refugee Review Tribunal, which upheld the refusal of a protection visa to the applicant, a 22-year-old Sri Lankan citizen of Tamil ethnicity. The applicant arrived in Australia in August 1999 and sought a protection visa, which was denied by a delegate of the Minister for Immigration and Multicultural Affairs. The Refugee Review Tribunal affirmed this decision on 18 November 1999, leading to the present application for review.

The key legal issue before the court was whether the Tribunal had complied with section 424A of the Migration Act, which mandates that the Tribunal must provide an applicant with particulars of any information it considers would be a reason for affirming the decision under review and ensure the applicant understands why it is relevant. The applicant argued that the Tribunal failed to disclose country information about Sri Lanka, which was relevant to its decision, thereby breaching the natural justice requirement to provide information that would be specifically applied to the applicant. The applicant contended that section 424A(3)(a) should not exclude all country information but only that which is of a general background nature, not specifically applicable to the applicant.

The court held that the Tribunal did not comply with section 424A as it failed to inform the applicant of the country information upon which it intended to rely. The court noted that the exception in section 424A(3)(a) should not be broadly interpreted to exclude all country information except that specifically about the applicant or other special individuals. Instead, the exception should be narrowly construed to apply only to general background information not specifically used in the applicant’s case. The court considered it imperative for the applicant to be made aware of country information that was specifically applied to them, allowing an opportunity to comment or counter it. This interpretation aligns with the principles applied in similar provisions at the primary decision-making stage under section 57 of the Act.

In light of the above, the court set aside the decision of the Refugee Review Tribunal and remitted the matter to a differently-constituted tribunal for re-hearing, with or without new evidence, in accordance with law. Additionally, the court ordered the respondent to pay the applicant’s costs.