Xiang Sheng Li v Refugee Review Tribunal

[1994] FCA 977

XIANG SHENG LI v. REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION AND
ETHNIC AFFAIRS
No. NG83 of 1994
FED No. 977/94
Number of pages - 16
Migration - Administrative Law - Evidence
(1994) 36 ALD 273

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
MOORE J

CATCHWORDS

Migration - decision not to grant refugee status - review by Refugee Review Tribunal - requirement to provide procedural fairness - opportunity for legal representation

Administrative Law - rules of natural justice - determination of application before application for legal aid resolved

Evidence - failure of Tribunal member to give evidence - application of rule in Jones v Dunkel

Migration Reform Act 1992, ss 166C and 166DD

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
Jones v Dunkel (1959) 101 CLR 298
R v Marks; Ex parte Australian Building Construction Employees' Builders Labourers' Federation (1981) 147 CLR 471
Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1990) 169 CLR 379
Minister for Immigration, Local Government and Ethnic Affairs v Immigration Review Tribunal (1993) 41 FCR 71
Li Shi Ping and anor v Minister for Immigration Local Government and Ethnic Affairs, unreported, 19 August 1994, Federal Court and 28 November 1994, unreported, Full Court of the Federal Court
McInnes v The Queen (1979) 143 CLR 575
Dietrich v The Queen (1992) 177 CLR 292
New South Wales v Cannellis (1994) 124 ALR 513
Blazevski v Judges' of the District Court of New South Wales (1992) 29 ALD 197
Sullivan v Department of Transport (1978) 20 ALR 323
Zhang De Yong v Minister for Immigration Local Government and Ethnic Affairs (1993) 45 FCR 384
Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 121 ALR 83
Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39

HEARING

SYDNEY, 1 November 1994
#DATE 14:12:1994
#ADD 13:3:1995

Counsel for the Applicant: Mr G. Craddock

Solicitor for the Applicant: Kessels and Associates

Counsel for the
Second Respondent: Ms L. McCallum

Solicitor for the
Second Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The decision of the Tribunal of 19 January 1994 be set aside.

2. The matter be remitted to the Tribunal to be determined according to law.

3. The second respondent to pay the applicant's costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the

Federal Court Rules.

JUDGE1

MOORE J This is an application under s5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal"). The decision of the Tribunal made on 19 January 1994 was to affirm decisions of the primary decision maker, a delegate of the Minister for Immigration and Ethnic Affairs, made on 12 June 1993 that Xiang Sheng Li is not a refugee within the meaning of Article 1 of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees and that the applicant be refused a domestic protection (temporary) entry permit. At the hearing counsel appeared for the applicant and second respondent. There is nothing in the Court file to suggest that, as often happens, the first respondent appeared through the Australian Government Solicitor to submit to any order the Court might make other than an order as to costs though I imply no criticism by that observation.

Background
2. The circumstances of the applicant leading to the application for the entry permit are not, for the purposes of these proceedings, contentious. They are recounted by the Tribunal in its decision and I have drawn on that decision in summarising them. The applicant is a Chinese national aged 39 who entered Australia on 15 July 1990 as a student. He had been granted an entry permit which was valid until 30 January 1991 and on that day he lodged an application for refugee status which is deemed to be an application for a domestic protection (temporary) entry permit (after entry). The applicant completed his secondary education in 1968 and joined the armed services in 1973 having worked in rural China for a period. He attended a military training school in 1978 and 1979 and became an officer in the armed services. In 1980 he married and had a child. In 1985 he began to experience difficulties in his work as an administrative officer responsible for ordering equipment for hospitals under the control of the navy. His difficulties were associated with his expression of views about the political system in China. He was jailed for a period in 1985 though in 1986 he was arrested and accused of bribery. He was detained for several months in mid to late 1986 and was sentenced by a military court to one year's imprisonment in October 1986.

1. In April 1987 Mr Li was released from jail and appealed against his decision. He had, in the meantime, not been allowed to return to his employment. In June 1989 his appeal was determined and it was successful. However subsequent attempts to return to his former employment and officer rank in the army were unsuccessful and this remained the case until he travelled to Australia in July 1990.

Legislation
4. This application raises an issue which is narrow in compass and does not involve a detailed consideration of the legislative scheme by reference to which an entitlement to a domestic protection (temporary) entry permit would be determined. The issue concerns the procedures of the Tribunal.

1. The Migration Act 1958 was amended by the Migration Reform Act (Act No. 184 of 1992) ("the Reform Act") and has since been further amended. The form it was in at the time of the decision under review was, for relevant purposes, the same as that found in the Reform Act. The Reform Act established the Tribunal and provided for its membership and powers. Its functions include reviewing decisions of the Minister that a person who is not an Australian citizen is not a refugee. Section 166C dealt generally with the manner in which the Tribunal exercises its powers and provided:
   

"166C.(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case."

More specific procedural powers were set out in s166DD which provided:

"166DD.(1) For the purpose of the review of a decision, the Tribunal may:

(a) take evidence on oath or affirmation; or

(b) adjourn the review from time to time; or

(c) subject to sections 166GC and 166GE, give information to the applicant and to the Secretary; or

(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.

(2) The Tribunal must combine the reviews of 2 or more RRT-reviewable decisions made in respect of the same non-citizen.

(3) Subject to subsection (4), the Tribunal in relation to a review may:

(a) summon a person to appear before the Tribunal to give evidence; and

(b) summon a person to produce to the Tribunal such documents as are referred to in the summons; and

(c) require a person appearing before the Tribunal to give evidence either to take an oath or affirmation; and

(d) administer an oath or affirmation to a person so appearing.

(4) The Tribunal must not summon a person under paragraph

(3)(a) or (b) unless the person is in Australia.

(5) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true.

(6) A person appearing before the Tribunal to give evidence is not entitled:

(a) to be represented before the Tribunal by any other person; or

(b) to examine or cross-examine any other person appearing before the Tribunal to give evidence.

(7) If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter."

The issue
6. The applicant contends that the decision of the Tribunal is vitiated by a breach of the rules of natural justice in that the Tribunal did not allow the applicant an opportunity to obtain legal assistance and thus the opportunity to properly put his case to the Tribunal (see s5(1)(a) of the ADJR Act).

The evidence
7. In this appeal evidence was called by both the applicant and the second respondent concerning events leading to the applicant giving evidence to the Tribunal, the hearing held for that purpose and events following it. The application to be accorded refugee status and for the domestic protection (temporary) entry permit was lodged on 30 January 1991 and was refused by a delegate of the Minister on 12 June 1993. On 27 July 1993 the applicant made application for review of that decision by the Tribunal. It appears that on the same day he attended at the office of the Legal Aid Commission of New South Wales and made an application for financial assistance to enable legal representation to prosecute his application for review though that application was refused. On 10 August 1993 he lodged an appeal to the Legal Aid Review Committee against the decision to refuse legal aid. On that day he was given a letter signed by a solicitor of the Legal Aid Commission, Mr Croke, in the following terms:

"Refugee Review Tribunal

Locked Bag No 3

St James Post Office

SYDNEY NSW 2000

Attention: Helena Rudnick

Dear Ms Rudnick

RE: XIANG SHENG LI: N93/00242

I wish to advise that the abovementioned has sought legal aid to assist in his application for a review of the decision refusing refugee status. Enclosed herewith please find a copy of correspondence from the Refugee Review Tribunal acknowledging receipt of his application.

Mr Li has been refused legal aid and has today lodged an appeal to the Legal Aid Review Committee against his refusal of legal aid. It may take up to six weeks for this appeal to the Legal Aid Review Committee to be processed and accordingly Mr Li has asked me to request that he be allowed an extension of time in which to lodge any further material should the Legal Aid Review Committee grant him legal aid.

If he is granted legal aid by the Committee he then wishes to approach a solicitor in relation to his matter.

Please direct any reply directly to Mr Li.

Yours faithfully

DAVID CROKE

Solicitor

ID 2186b"

What happened to that letter was in issue in these proceedings. The applicant gave evidence that he was given the letter and a copy of it. It appears from a file note prepared by Mr Croke that the letter was given to the applicant for him to deliver to the Tribunal. The applicant gave evidence that he was given directions by Mr Croke on how to get to the Tribunal's premises.

1. The applicant says that he then went to the offices of the Tribunal and went to the counter. He says he handed the letter to a man at the counter who said "just leave it here". Evidence was given by an employee of the Tribunal, Ms O'Brien who is now the Deputy Registrar of the Tribunal, to the effect that she has searched the records of the Tribunal and there is no record of that letter having been received and that it is not on any relevant file of the Tribunal. She accepted, however, that the procedures adopted by the Tribunal for handling documents of that type might not operate effectively on all occasions and accepted documents might sometimes go astray. That concession was made in relation to circumstances where the staff are called upon to deal with applicants attending at the Registry who were not able to speak any or adequate English.

2. The applicant was cross-examined about his evidence and I accept that his account of what occurred in relation to delivering the letter is correct. It is improbable that a person in his circumstances would, when given a letter of this type prepared by a public authority would fail to do what he was being told to do, namely deliver it to another public authority that was about to embark upon the consideration of a matter of fundamental importance to him.

3. The next event was the proceedings in the Tribunal on 11 November 1993 which appears to have taken the form of a hearing. The account of part of that hearing given by the applicant in an affidavit was as follows:
   

"4. On the 11th November 1993 I attended the Tribunal for a hearing of my review. By this time I had not been notified of the result of my appeal to the Legal Aid Review Committee. I again attended at the counter. I was spoken to by a man who shortly afterwards directed me to a room where the hearing took place.

5. The hearing was conducted by a woman. At some stage she said to me, words to the effect: 'Do you have a solicitor acting for you or someone to help you?'

I replied, words to the effect:

'I have applied for legal aid but I don't have the answer. If I get legal aid then I will have a solicitor to provide more material.' I can not now remember whether I said anything to her about the letter from the Legal Aid Commission. She then said to me: 'It's OK. If you want you can lodge more material after the hearing. It may be that there would be more hearings.'

I can not now remember exactly when we had this conversation but my best recollection is that it was at the start before the interpreter was sworn in."

The second respondent took issue with the evidence that something had been said about legal aid and solicitors. The second respondent tendered the transcript of the proceedings and the tape that was made at the time which records the hearing. The transcript begins with the notation: "BEGINNING OF TAPE INAUDIBLE" and then commences with the heading "INTERPRETER SWORN:". The next entry records the name of the member of the Tribunal who is recorded as saying "Madam Interpreter, you will notice that we have added an additional clause in that oath, ...". There is then recorded an explanation of the form of the oath and after that, the proceedings. At no point is there recorded any conversation of the type the applicant says occurred.

1. The actual tape was played in Court in these proceedings and there are parts of it at the beginning that are either comprehensible or partly comprehensible and other parts that are not. The tape runs for approximately 35 seconds before a male person, presumably a Tribunal officer, says "Would you please hold that in your right hand..." which is the swearing in of the interpreter referred to in the transcript. The period of 35 seconds commences with 3-4 seconds of comparative silence then the beginning of crackling noises akin to static, which suggests that recording on the tape then commenced. Approximately two seconds later a male voice, presumably the Tribunal officer, commences to announce the matter by saying "This is a hearing of an application by ......". That announcement takes approximately 14 seconds and some of what the officer says can be understood, some not. Immediately after this a female voice is heard and appears to say "thanks Brad". It is reasonably clear, in context, that the female voice is that of the Tribunal member. There is then a pause, the female voice says "um", another pause and then the female voice says "What I might get you to do is swear in the interpreter" during which the tape runs for a further 3 to 4 seconds. The beginning of the statement "What I might..." occurs approximately 28 seconds after the tape commences.

2. To this point the crackling has continued on the tape. It stops abruptly approximately 34 seconds after the tape commences and immediately before the swearing in occurs. It appears to me that at this point the source of the crackling may have been instantly eliminated by human intervention or the recording stops and recommences after adjustments are made. It may also be that the source of the crackling is in the tape itself and the quality of the tape alters at that point. The reasons the crackling stops is something I am not in a position to assess. However the fact that on the tape the Tribunal member asks that the interpreter be sworn in and seconds later the interpreter is sworn in, suggests that the recording was not interrupted by the tape being stopped and I do not accept that it did.

3. If any conversation took place of the type that the applicant alleges, it would have occurred before the recording of the hearing commenced. Ms O'Brien gave evidence that the Tribunal has an established procedure regarding the conduct of its hearings. She said that the Tribunal member enters the hearing room from a door behind the bench after everybody is seated. The interpreter is sworn immediately after the matter has been announced. She said that as a matter of standard practice no conversation occurs between the applicant and the Tribunal member prior to the commencement of the tape recording, the formal announcement of the matter and the swearing of the interpreter. However, in cross-examination she acknowledged that the Tribunal members, numbering approximately 32 in Sydney in November 1993, come from a range of backgrounds and that she was not able to say that each of the members who conducts a hearing before the Tribunal in every case adheres strictly to the procedure. Indeed she said she does not sit in on hearings.

4. It is, in my opinion, plausible that at some time the Tribunal member inquired of the applicant whether he was represented by a solicitor or had someone to help him. It would not be an unnatural question for a Tribunal member to have asked in the circumstances. It is possible that such a conversation took place before the recording commenced as there is nothing on the tape that suggest that the recording commenced before the Tribunal member entered the hearing room. Equally, the recording may have commenced before the Tribunal member entered or immediately upon her doing so. The only evidence as to the sequence of events on the day in question was the evidence of the applicant. I set out part of his cross-examination:
   

"MS McCALLUM: Did you and the interpreter come straight from the room outside to the witness box? THE INTERPRETER: No, I didn't go in together with the interpreter. I arrived first; then the interpreter came in and we were waiting for the member to arrive. MS McCALLUM: After the member arrived, what was the first thing that happened?

THE INTERPRETER: We stood up.

MS McCALLUM: What happened after that? THE INTERPRETER: Then we bowed to the member. MS McCALLUM: After that was the interpreter sworn in? THE INTERPRETER: Yes, she was, yes.

MS McCALLUM: I suggest to you that there was no conversation with the member before the interpreter was - sorry, I withdraw that - that there was no conversation between you and the member before the interpreter was sworn in.

THE INTERPRETER: Before she was sworn in? MS McCALLUM: Yes.

THE INTERPRETER: I did have a conversation."

and later:

"MS McCALLUM: Are you saying that conversation took place through the interpreter, before she was sworn in? THE INTERPRETER: I can't remember whether that is before or after she was sworn in."

1. The affidavit of the applicant is in terms that suggests that he said certain things directly to the Tribunal though in his cross-examination he said that the conversation was translated by the interpreter. Counsel for the applicant explained to me, with the consent of counsel for the second respondent, that the applicant was interviewed by counsel and his instructing solicitor with the assistance of an interpreter, though the applicant has some conversation in English at a basic level. The solicitor then prepared an affidavit which was interpreted and sworn though none of this emerges from the affidavit itself.

2. The only evidence led by the second respondent concerning the conversation alleged to have taken place at the commencement of the hearing was the transcript of the hearing and the tape from which it was made. The Tribunal officer, the interpreter, the tape monitor and the Tribunal member were not called. The person who plainly could provide direct evidence for the second respondent on whether the conversation took place was the member of the Tribunal. I raised with counsel for the second respondent whether the member of the Tribunal could have given evidence and she indicated that there is a reluctance for that to occur given what was said to be the quasi-judicial nature of the role of a member of the Tribunal. It is a generally accepted practice that members of administrative tribunals do not, as a rule, participate actively in judicial proceedings reviewing their decisions or actions: see R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 36. However there have been a number of occasions in which this Court has, in proceedings under the ADJR Act, applied the rule in Jones v Dunkel (1959) 101 CLR 298 when the decision maker has chosen not to give evidence: see Arm Constructions Pty Ltd v Commissioner of Taxation (1986) 10 FCR 197 at 205; The Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs (1986) 11 FLR 543 at 548; Citibank Ltd v Federal Commissioner of Taxation (1988) 88 ATC 4714 at 4728; Dahlan v Minister for Immigration, Local Government and Ethnic Affairs, 12 December 1989, unreported, Federal Court, Hill J; Prasad v Minister for Immigration Local Government and Ethnic Affairs (1991) 101 ALR 109 at 123; Lek v Minister for Immigration Local Government and Ethnic Affairs (1993) 43 FCR 100 at 123. I do not find the explanation as to why the Tribunal member did not give evidence an entirely satisfactory one. It was accepted by counsel for the second respondent that there is a factual issue of substance to be resolved. While the tape goes some way towards establishing what the second respondent alleges is the case, that there was no conversation, I am left not knowing whether an opportunity existed for the conversation to have occurred before the tape commenced.

3. The most satisfactory way for the second respondent to have proved that the conversation did not take place at all was to call the Tribunal member to deny that it did. I do not view the perceived status of the decision maker as providing an adequate explanation as to why evidence was not given by the Tribunal member. Calling a member of a statutory tribunal to give evidence where there is an issue in subsequent proceedings about what was said to or by the Tribunal member is not, as far as I am aware, contrary to established principle: see R v Marks; Ex parte Australian Building Construction Employees' Builders Labourers' Federation (1981) 147 CLR 471 at 483 per Mason J and at 500 per Brennan J. Accordingly the evidence of the applicant that could have been contradicted by the Tribunal member can be accepted the more readily if the Tribunal member is not called: see Jones v Dunkel, supra at 308, 312 and 320-321. Similar considerations arise from the failure to call the Tribunal officer or the tape monitor. I cannot say whether the same can be said of the interpreter as I do not know whether she was provided by the Tribunal or the applicant. I thus do not know whether the interpreter was equally available to both sides or in the camp of one side: see Prasad, supra at 123.

4. While it can be more difficult to judge the demeanour of a witness when they are giving evidence through an interpreter, there was nothing about the demeanour of the applicant that suggested to me that he was not telling the truth. The answer "I did have a conversation" to a question concerning whether a conversation took place before the interpreter was sworn in may appear to be an affirmative response to the suggestion that there had been a conversation at that time. If so, it would be at odds with his later answer and what is said in the affidavit about when the conversation took place. That was, he did not know whether it was before or after the interpreter was sworn in. However that answer, "I had a conversation", is an equivocal answer that does not, in my opinion, constitute an acceptance of what was being put to him and does not indicate to me any inconsistency in the applicant's evidence. He gave evidence of the sequence of events at the commencement of the hearing, namely entry of the member, bowing, and the interpreter being sworn. That evidence was not given in a way that makes clear there was no opportunity for a conversation to have taken place after the entry of the member but before the interpreter was sworn. This is particularly so given that the event after the bowing, the swearing in of the interpreter, was put to him and not elicited from him.

5. Having regard to the applicant's earlier involvement with the Legal Aid Commission and that it would not be unnatural for a Tribunal member to ask such questions, it is quite plausible that he had a conversation of the type recounted in his affidavit. I accept the applicant's evidence and find that a conversation took place as deposed to in paragraph 5 of his affidavit.

6. The last relevant fact concerned a letter sent on 1 December 1993 by an officer of the Tribunal seeking to have comments from the applicant on certain matters raised by the member hearing the application. The relevant parts of the letter are as follows:
   

1) "No evidence has been found that corroborates your claim that military personnel are prevented by the Chinese authorities from travelling overseas. The Military Service Law of the People's Republic of China of 1984 makes no mention of such provisions. Please find attached a copy of The Military Service Law of the People's Republic of China of 1984. The punishments contained in this law appear to relate to people who are in active service and who desert or neglect their duty. As you were not on active duty at the time and you travelled in a private capacity to study, it can be inferred that you satisfied the vetting procedures of the authorities before departure. Please comment.

2) Advice from the Defence Intelligence Organisation states:

"Officers who leave without authority during peace time are considered to be AWOL, that is absent without leave. Punishment would be in accordance with the military law of China. It would not be excessive or harsh nor would such an act be considered as treason."

A copy of this information is attached. Given this information, it would appear that on return you would not be seen as a "political traitor" and as a result would not be dealt with more harshly. In addition, if you were charged with being 'AWOL' by the authorities such action would appear to be a legitimate exercise of the authorities powers and does not constitute persecution for Convention purposes. Please comment.

3) According to the Immigration and Refugee Documentation Centre, Ottawa, and the Department of Immigration Local Government and Ethnic Affairs, it is usual for an individuals personal file to be transferred to the Neighbourhood Committee if they are away for an extended period or are unemployed. In the circumstances, the transfer of your personal file of itself, does not mean that you will become a target for adverse treatment by the authorities on return. Nor does it corroborate your claim that as a result the authorities would detect that you had falsified documents given to the PSB when applying for an exit permit to leave China. Further, upon return household registration can in most cases be easily re-established. A copy of this information is attached. Please comment.

The Member has requested that your comments to the attached information be received by the Tribunal within 14 days of the date of this letter. If a response is not received within 14 days the Member will decide your case based on the available material.

Should you have any queries regarding this matter please do not hesitate to contact Kerrie Davis at the Tribunal telephone [phone]."

The applicant responded on 6 December 1993 and it is apparent from a note attached to the file copy of the letter that the letter is a translation of something prepared by the applicant. This letter commences with the following:

"Thank you very much for your letter. Now I would like to answer the questions put to me in your letter."

The letter then deals with the three matters raised in the earlier letter and concludes with the following:

"Finally, I wish to plead with you to give me an early reply about my application for political asylum so that I could make contributions to the Australian society earlier."

Was the applicant denied procedural fairness
21. Counsel for the applicant submitted that in order to accord the applicant procedural fairness the Tribunal was obliged to adjourn the proceedings. It was submitted that the letter of 10 August 1993 should have been treated as an application for an adjournment and the inquiry should have been adjourned because the applicant desired legal representation, had some prospect of getting representation and it was necessary that he have legal representation because of the character of the matter before the Tribunal. Counsel put an alterative submission though it was put in various ways. It was that the Tribunal should have enquired, before calling upon the applicant to answer the questions in its letter of 1 December 1993, whether he was going to be legally assisted or whether he was no longer seeking to have legal representation. At another point in the submission, counsel for the applicant suggested that at the time the 1 December 1993 letter was sent the Tribunal should have adjourned the matter to allow the applicant to obtain legal representation and its failure to do so denied the applicant procedural fairness. At yet another point it was submitted that at least the Tribunal should have considered whether the applicant desired legal representation or that it was impractical or impossible for him to obtain representation.

1. In my opinion, the consideration of the application by the Tribunal up until the dispatch of the letter of 1 December 1993 was unexceptionable. The original request contained in the letter of 10 August 1993 was to permit further material to be lodged at a time when, if the applicant was granted legal aid, he would be able to obtain the services of a solicitor for that purpose. I do not accept, as the applicant submitted, that the letter should be seen as an application for an adjournment or a deferral of the consideration of the application in its entirety for a period of six weeks. The substance of the request related to the provision of material at a time when a solicitor might be available and an estimate is given that this might be known in six weeks.

2. The exchange between the applicant and the member of the Tribunal before the formal hearing commenced is consistent with what had been sought in the letter namely an opportunity to provide further material with the assistance of a solicitor if legal aid was forthcoming.

3. This leads to the more difficult and vexing question concerning the request made in the letter of 1 December 1993. It is clear that the letter called for comments on issues that may be of some complexity. They involved the interpretation of the Military Service Law of the People's Republic of China and what is persecution for the purposes of the 1951 Convention Relating to the Status of Refugees: see Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1990) 169 CLR 379. They are matters where a solicitor could well have been involved in a way that would have positively assisted the prosecution of the applicant's application. The question is whether the Tribunal was obliged, at that stage, to defer consideration of the application by notionally adjourning it, until the result was known of the applicant's appeal against the refusal of legal aid, in order to deal with the application fairly.

4. The Tribunal published its decision on 19 January 1994. As it transpired the Legal Aid Review Committee met on 12 January 1994 and decided to grant legal aid. It advised the applicant and his solicitor of its decision by letter dated 24 January 1994. However I do not see the fact that legal aid was granted at that time as relevant to these proceedings, however exasperating the sequence of events might seem to be to the applicant or his legal advisers.

5. The Tribunal was aware when the letter of 1 December 1993 was sent that the applicant had sought legal aid with a view to obtaining a solicitor. At least by the time it received the applicant's reply, it would have been apparent, in my opinion, that the applicant had not then secured the services of a solicitor having regard to the terms in which the response is couched.

6. The manner in which the Tribunal dealt with the application has to be considered having regard to the legislative provisions regulating it procedures. Generally the Tribunal is obliged to provide a mechanism of review that is fair, just, economical, informal and quick: see s166C(1) of the Reform Act. It is not bound by technicalities, legal forms or the rules of evidence and must act according to the substantial justices and merits of the case: see s166C(2). Section 166DD(6)(a) provided that a person appearing before the Tribunal to give evidence is not entitled to be represented before the Tribunal by any other person. If the Tribunal is not conducting a review "on the papers" it is required to give the applicant an opportunity to appear before it to give evidence: see s166DB(1)(a) though it is not required to allow a person to address it orally about the issues: see s166DB(2). It is reasonably clear that s166DD(6)(a) applies to an applicant when appearing to give evidence. The Reform Act is otherwise silent on the question of representation. The exercise of powers in similar terms was considered by Keely J in Minister for Immigration, Local Government and Ethnic Affairs v Immigration Review Tribunal (1993) 41 FCR 71. While that matter did not raise an issue that is directly relevant to these proceedings, his Honour decided that provisions that dealt with how the Tribunal in question might act did not oblige it to act in that way.

7. Circumstances may arise where procedural fairness requires that a person appearing before a court or tribunal be allowed legal representation. This matter has recently been considered by Drummond J in Li Shi Ping and anor v Minister for Immigration Local Government and Ethnic Affairs, unreported, 19 August 1994, Federal Court, which was another matter concerning an application for refugee status. After reviewing a number of the authorities on this issue his Honour said:
   

"The effect of the cases is that in the absence of statutory indication to the contrary, administrative bodies and lay tribunals are in general free to exclude lawyers; but the circumstances of the particular case may be such that a refusal to allow legal representation may constitute a denial of natural justice. This is likely to be so where complex issues are involved or where the person affected by the decision is not capable of representing his or her own case. In this sense, it may be said that in certain circumstances the "right to legal representation" is an element of natural justice."

While an appeal against this decision was partially successful, there is nothing in the judgments of the Full Court to suggest this passage or another I refer to shortly, mistates the law though these matters to which both relate appear not to have been in issue in the appeal: see Li Shi Ping and anor v Minister for Immigration, Local Government and Ethnic Affairs, 28 November 1994, unreported, Full Court of the Federal Court.

1. The essence of the applicant's case is that the Tribunal should have deferred further considering or at least determining the matter until the issue of whether the applicant would secure legal aid had been resolved. To describe the issue in terms of whether there should or should not have been an adjournment does not entirely accurately describe the nature of the process the Tribunal was engaged in as there was, after 1 November 1993, no hearing or proceeding that might be adjourned. However that is not to say that authorities dealing with the refusal of courts or tribunals to adjourn matters and whether or not this constitutes a denial of procedural fairness, do not provide a helpful guide as to what the Tribunal should have done in the present case.

2. In McInnes v The Queen (1979) 143 CLR 575 the High Court had to consider whether a judge had wrongly refused an adjournment in a criminal trial in circumstances where the accused was unrepresented but an application by him for legal aid had yet to be determined. The majority of the Court decided that there had been no miscarriage of justice having regard to the strong case against the accused. Barwick CJ (with whom Aickin J agreed), was not prepared to say that the trial judge erred in refusing an adjournment and a similar view was expressed by Wilson J. In reaching that view, their Honours paid regard to both the fact that the trial had been specially fixed and the interests of jurors and the witnesses including the prosecutrix who was alleged to have been raped by the accused. Mason J expressed the view that the trial judge failed to attach sufficient importance to the desirability of the accused being represented by counsel. His Honour had earlier expressed the view that in Australia an accused does not have a right to present his case by counsel provided by public expense which is a matter that has been addressed in more detail since in Dietrich v The Queen (1992) 177 CLR 292: see also New South Wales v Cannellis (1994) 124 ALR 513. Mason J went on to say in McInnes, supra:
   

"However, he does have a right to apply for legal aid under statutory procedures and the importance of obtaining legal aid cannot be overestimated - see Lord Parker CJ in Wedge v Howes (1964) 2 QB 459 at 463. Here the applicant had applied for legal aid under s36(1) of the Legal Aid Commission Act 1976. However, due to circumstances outside the knowledge and control of the accused his application only came before the Committee in time to be considered on the day preceding the day of the trial. The accused did not have time to pursue the procedures for review given to him under ss48 and 49 of the Legal Aid Commission Act. Nor had he applied to his family for legal assistance since he had been under the misapprehension until the evening before the trial that he would be granted legal aid."

That matter concerned legal aid to secure representation in a criminal trial of a serious charge which gives rise to particular considerations which were discussed in the joint judgment of the majority of the High Court in Cannellis, supra at 522-523 when considering the decision of the Court in Dietrich, supra. The members of the Court emphasised the special position of someone on trial on a serious charge. The observations of Mason J in McInnes, supra, nonetheless provide some indication as to what might have been the appropriate course in the present case for the Tribunal to have followed given that the repatriation of a person who is arguably a refugee can have the most severe consequences for the individual involved and, in the present case, it is said by the applicant that he will be imprisoned upon returning to China.

1. I should here mention s57 of the Legal Aid Commission Act 1979 (NSW) which provides:
   

"Where it appears to a court or tribunal, on any information before it

(a) that a party to any proceedings before the court or tribunal

(i) has appealed, in accordance with Section 56, to a Legal Aid Review Committee and that the appeal has not been determined; or

(ii) intends to appeal, in accordance with Section 56, to a Legal Aid Review Committee and that such an appeal is competent;

(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings and

(c) that there are no special circumstances that prevent it from doing so,

the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit."

1. No submissions were made on the legal effect of this section, if any, on the Tribunal though it was drawn to my attention to illustrate the way in which at least those courts and tribunals established under New South Wales law are required to act when an application for legal aid has been refused but is being reviewed.

2. In the present case no request was made by the applicant upon receipt of the letter of 1 December 1993 for the Tribunal to defer final consideration of his application until the question of legal aid was resolved. It is clear the applicant makes no reference to that in his letter of 6 December 1993. However that response has to be seen in context. The applicant had a limited grasp of the English language and was dealing with a public authority exercising a power of fundamental significance to him. That authority had, in its letter of 1 December 1993, made it plain that a response was required within a specified time. It was also made clear that if a response was not forthcoming the application would be decided on the basis of available material. One can well understand a person in the applicant's position responding promptly to the request and in terms that did not provoke any controversy. The public authority to whom he was writing was the very authority that was to determine his status. Not only is it reasonable, in my opinion, for him not to have raised any issue about needing the assistance of a solicitor, it is also understandable that he concluded the letter in the terms he did. Whilst he seeks an "early reply" in relation to his application, that entire sentence is in terms that assumes a favourable result. It is, in that sense, intended to further his interests by showing a keenness to be a resident of Australia contributing to the country's well-being and a desire to do so as soon as possible. It cannot be seen as an abandonment of the two earlier intimations that he would like an opportunity to submit material with the assistance of a solicitor if legal aid was forthcoming.

3. Situations will arise where the court or tribunal makes it plain that an application for an adjournment would be futile and, though no application for an adjournment is made and refused, the immediate hearing of the matter may involve procedural unfairness: see Blazevski v Judges' of the District Court of New South Wales (1992) 29 ALD 197. In the present case, the terms of the letter of 1 December 1993 from the Tribunal were such that it could not have been expected that the applicant would write requesting that consideration of his application be deferred or his response to the letter be delayed until the application for legal aid was resolved. The fact that no such request was made by him does not mean the Tribunal need not follow that course if it was necessary to give the applicant the opportunity of properly presenting his case: see Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J.

4. I have accepted the evidence of the applicant that he informed the Tribunal that he had applied for legal aid but his application had not been determined and that if he obtained legal aid he would get a solicitor to provide more material. I have also accepted that he lodged at the registry of the Tribunal the letter from the Legal Aid Commission and counsel for the second respondent accepted that I could proceed on the basis that the Tribunal was on notice of it which I take to mean constructive notice of its contents. I have already expressed the view that the letter of 1 December 1993 required the applicant to address matters that might be more adequately dealt with by him if he was assisted by a solicitor. The Tribunal was aware that he wished to use the services of a solicitor if he was able to obtain legal aid. While the provisions of the legislation and, in particular, s160DD(6)(a) denies to an applicant an entitlement to be represented when giving evidence before the Tribunal, it does not follow that the Tribunal is entitled to disregard the desire of the applicant for legal representation either in a hearing or at any other point in the process of considering an application.

5. In my opinion, the Tribunal should have refrained from determining the application and acting on the response to the letter of 1 December 1993 until it was satisfied in one of three ways. The first was that the applicant had failed in the review of the refusal to grant legal aid. The second was that the applicant had been granted legal aid and was able, if he wished, to secure the services of a solicitor to assist in the response to that letter. The third was that the determination of the entitlement to legal aid was likely to occur at a time when the Tribunal would, if it did not decide the application until then, not satisfy the statutory injunction in s166C(1) to carry out its functions with a view to providing a mechanism of review that was quick while satisfying the associated requirement that it be fair and just. Each would have involved the Tribunal ascertaining the progress or outcome of the review by the Legal Aid Review Committee by inquiry of the applicant and, if necessary, the Legal Aid Commission.

6. In Li Shi Ping, supra, Drummond J said, in relation to the determination of whether a person is a refugee:
   

"The international aspect of such a determination, combined with its significance for the individual concerned requires that a high standard of procedural fairness be observed in the determination process: see Zhang De Yong v Minister for Immigration Local Government and Ethnic Affairs (1993) 118 ALR 165 at 190."

1. While those remarks were made in relation to a determination by a delegate of the Minister and not the Tribunal, they remain apt, in my opinion, to a consideration of an applicant's status by the Tribunal, though that standard of procedural fairness must yield to any legislative provisions regulating the procedures of the Tribunal that expressly permit of a lesser standard. In Zhang De Yong (1993) 45 FCR 384, French J recognised, at 410, that expedition should be a feature of any inquiry whether in relation to an arguable claim for refugee status or not. This was reflected, for the purposes of the present application, in s166C(1): as to the unsuccessful appeal against the decision of French J: see Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 121 ALR 83. However, the course that I consider the Tribunal should have followed was not likely to have resulted in unwarranted delay.

2. In the present case the applicant was deprived of the opportunity, in the event that his application to the Legal Aid Review Committee was successful, of obtaining legal advice to respond to matters raised by the Tribunal where he may well have been assisted by that advice. In those circumstances he was denied procedural fairness.

3. The decision of the Tribunal should be set aside and the matter should be remitted to the Tribunal to be determined according to law. The second respondent should pay the applicant's costs. The applicant submitted that the matter should be heard by the Tribunal differently constituted and this course was not opposed by the second respondent. Notwithstanding the apparent care with which the Tribunal considered the application, as evident from its detailed and seemingly comprehensive reasons, the submission of the applicant is one of substance: see Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42 and accordingly the matter should be heard by the Tribunal differently constituted.