FEDERAL COURT OF AUSTRALIA

NAVK v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 160

MIGRATION – appeal from single Judge – protection visa – where documents provided in confidence – where Tribunal refused to disclose such documents – where Tribunal failed to consider whether it was possible to reconcile the confidence alleged and the appellant’s interests – whether denial of procedural fairness as a result.

Migration Act 1958 (Cth)

Freedom of Information Act 1982 (Cth)

Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)

Alister v The Queen (1984) 154 CLR 404 referred to

Ansett Transport Industries Ltd v Secretary, Department of Aviation (1987) 73 ALR 205 cited

Buttes Gas and Oil Co v Hammer (No. 3) [1981] 1 QB 223 referred to

Chu v Minister for Immigration, Local Government & Ethic Affairs (1993) 45 FCR 540 referred to

Chu v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314 referred to

Johns v Australian Securities Commission (1993) 178 CLR 408 cited

Kioa v West (1985) 159 CLR 550 discussed

Luu v Minister for Immigration & Multicultural Affairs (2002) 127 FCR 24 cited

Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 561 cited

Minister for Aboriginal & Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40 referred to

NAAO v Secretary, Department of Immigration and Multicultural Affairs (2002) 117 FCR 401 referred to

NAFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 473 cited

Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483 discussed

Re Minister for Immigration and Multicultural Affairs, Ex parte Miah (2001) 206 CLR 57 discussed

Sankey v Whitlam (1978) 142 CLR 1 discussed

Velmurugu v Minister for Immigration & Ethnic Affairs (1997) 48 ALD 193 distinguished

WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 referred to

WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597 discussed

J D Heydon, Cross on Evidence, 6^th Australian edition

“Principles of Evidence and Administrative Tribunals” in E Campbell and L Waller (ed), Well and Truly Tried: Essays on Evidence, Law Book Co Ltd, 1982

M Aronson & B Dyer, Judicial Review of Administrative Action, 2^nd ed, LBC Information Services, 2000

NAVK V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 2192 OF 2003

BEAUMONT, CONTI & CRENNAN JJ

17 JUNE 2004

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be allowed, with costs.

2. The orders made at first instance be set aside; in lieu thereof, order that the decision of the Refugee Review Tribunal dated 20 August 2003 be quashed; and that the matter be remitted to the Tribunal, differently constituted, for reconsideration in accordance with these reasons for judgment.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

The Court:

Introduction

1                     Appeal from a judgment of a Judge of the Court dismissing an application for judicial review.

2                     In a claim for a protection visa, documents provided to the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) by Chinese authorities were relied on by the Refugee Review Tribunal (‘the Tribunal’), but, in the exercise of its discretion under s 438(3) of the Migration Act 1958 (Cth) (‘the Act’), the Tribunal did not disclose the documents to the appellant. The question presented to the primary Judge, and to this Court, was whether judicial review of the Tribunal’s decision, not to disclose the documents to the appellant, should be granted.

3                     The appellant, a citizen of the People’s Republic of China (‘China’), arrived in Australia on 5 January 2001. She lodged an application for a protection (Class XA) visa under the Act. She claimed to fear persecution by reason of her political opinion in China. She claimed that her husband was detained by the Chinese authorities on politically contrived allegations that he had been involved in misappropriation of funds. She also claimed that a warrant had been issued against her as a tactic to persecute her and her husband.

4                     The Minister’s delegate refused to grant the visa. The appellant then sought review from the Tribunal. On 7 June 2001, the Tribunal (Member O’Brien) affirmed the delegate’s decision.

5                     This decision of the Tribunal was set aside by consent, by another Full Court on 17 May 2002, when the matter was remitted to the Tribunal for re-hearing.

6                     On 6 December 2002, the Tribunal (Member MacCarthy), also decided to affirm the delegate’s decisions. However, an application to this Court for judicial review succeeded before Moore J (NAFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 473), who again remitted the matter to the Tribunal for further consideration.

7                     On 20 August 2003, the (present) Tribunal (Member Cheetham) again affirmed the delegate’s decision. Specifically, the Tribunal then confined its attention to the only outstanding aspect remaining after the several Court proceedings. Certain documents, which had been provided to the Department by the Chinese Public Security Ministry (‘PSM’), but had previously been taken off the Departmental file and thus not disclosed to the Tribunal earlier, were provided to Ms Cheetham who stated in her reasons:

‘The only outstanding aspect of the court proceedings is whether, in the exercise of my discretion, to release those documents to the [appellant] notwithstanding that the government of the People’s Republic of China has requested that the documents not be released to the [appellant] or her legal advisers.’

8                     For the reasons then given, the Tribunal held that it should decline to exercise the discretion to disclose the information to the appellant or to her advisers.

9                     The Tribunal went on to deal with the ‘refugee claims’, holding that it was ‘satisfied that the evident reason for the arrest warrant and the arrest was to prosecute persons suspected, on cogent direct evidence, of involvement in criminal activities’.

10                  The Tribunal added:

‘My decision not to disclose the contents of the information precludes me from providing explicit reasons for my conclusion that there is no apparent Convention-related reason for the arrest warrant or for the arrest.

There is nothing before me to support a conclusion that Chinese law in relation to criminal activities, including financial crimes and corruption, has been or is likely to be applied in a discriminatory fashion, or that the law itself is other [than] a criminal law of general application, or that any harm which the applicant may experience would be other than punishment of a non-discriminatory kind for contravention of China’s criminal law.’

11                  By application to this Court, the appellant sought judicial review of this decision. As will be seen, the grounds for review focussed on the failure of the Tribunal to disclose to the appellant the documents provided to the Department by the Chinese authorities. On 28 November 2003, the primary Judge dismissed the application. This is an appeal from that judgment.

The Legislative Scheme

12                  Section 438 of the Act confers upon the Tribunal a discretion in relation to the disclosure of certain information.

13                  By s 438(1), this section applies to a document or information if (a) the Minister certifies that disclosure would be contrary to the public interest (for a reason other than those set out in s 437); or (b) the matter or information was given to the Department in confidence. (As will be seen, the Department relied on s 438(1)(b), claiming that the documents were confidential.) By s 438(3), if the Tribunal is given (pursuant to s 438(2)) a document or information, the Tribunal (a) may have regard to it; and (b) may, if the Tribunal thinks it appropriate to do so, having regard to any advice given by the Secretary of the Department (‘the Secretary’) under s 438(2), disclose any matter contained in it to the applicant.

14                  Section 438 is thus to be read in conjunction with s 437, which provides that, in spite of anything else in the Act, the Secretary must not give to the Tribunal a document, or information, if the Minister certifies that disclosure of information would be contrary to the public interest because it (a) would prejudice Australia’s security, defence or international relations; or (b) would involve the disclosure of Cabinet deliberations or decisions. (No such certificate was issued here.)

Background facts

15                  The documents in question were given to the Tribunal before it made the second decision. Accordingly, s 438(2) was attracted in respect of them and, pursuant to s 438(2)(a), the Secretary notified the Tribunal that s 438 applied in relation to the documents in question. By letter dated 19 November 2002, the Secretary gave the Tribunal written advice (‘the Secretary’s Advice’), pursuant to s 438(2)(b) of the Act, about the significance of the documents in question and the information contained in them. The Secretary’s Advice was that the documents ‘should not be disclosed to the [appellant] or the [appellant’s] legal representative’.

16                  The Secretary’s Advice referred to s 438(1)(b) and stated:

‘The documents were provided to the Department by the [Chinese] Government Agency, the [PSM], on the basis that the information in the documents remain confidential. This is consistent with the annotation “Law enforcement – confidential” that appears on the translation of the Note from the PSM and on other documents within the Appendices and also the circumstances under which the documents were provided to the Department.’

17                  The Advice further stated:

‘Because the information is non-disclosable information [under s 424A(3)], it also cannot be disclosed to the [appellant] under s 424A of the Act.’

18                  The letter continued:

‘In this case, permission was specifically obtained by [the Department] from the [PSM], to disclosure [sic] the documents to the [Tribunal]. However, please note that the [Chinese] agency did not permit the disclosure of the documents or their contents to the [appellant], the [appellant’s] legal representative or any other entity. Nor is the department’s obligation of confidentiality towards the information otherwise affected by the permission given by the [PSM].

The information provided by the [PSM] is information that appears likely to be used in any prosecution of the [appellant] by the [Chinese] authorities. If disclosure were viewed adversely by the [Chinese] authorities it may affect future cooperation.’

19                  (The Tribunal did not disclose the documents in question to the appellant or her legal advisers prior to making the second decision. The Tribunal adopted that course following receipt of the Secretary’s Advice. However, the Tribunal did not inform the appellant or her legal advisers of the content of the Secretary’s Advice. That was the ground upon which this Court (Moore J) granted relief on 16 May 2003 in respect of the second decision of the Tribunal.)

20                  After the appellant’s solicitors were furnished with a copy of the Secretary’s Advice, they wrote to the Tribunal on 29 July 2003, reiterating previous submissions that the appellant should be provided with the information given to the Department by the Chinese authorities, so that she might know the case that she has to meet. In response to the statement set out in [18] above, the letter dated 29 July 2003 said:

‘We seriously doubt the accuracy of this statement, and suggest that the following questions be directed to [the Department],

1. Was the fact that the Tribunal has to [sic] right to act against [the Department’s] advice disclosed to the Chinese, and if so what was their reaction?

2. Are the Chinese authorities aware that the documents may have had to be given to a judge, and may be read by a judge?

3. Exactly what was communicated by the Chinese authorities to the section re the confidentiality of the documents?

4.                  Is [the Department] saying that no document from an overseas law enforcement agency can ever by [sic] given to an applicant in any circumstances?’

21                  In order to understand the limited issues that arise in the appeal, it will be necessary to explain the reasoning of the Tribunal and then of the primary Judge.

22                  The documents in question are:

• A document entitled ‘NOTE’ of nine folios containing a summary of background information, the details of the alleged crime and a request for the arrest and deportation of the appellant.
• A document entitled ‘APPENDIK’ containing the following information:
• identification details of the appellant;
• the warrant of arrest and case registration details with Guangdong Provincial Procuratorate;
• records of interview and statements of testimony, including personal information about people not connected with the appellant;
• copies of certificates and documents used in transactions;
• copies of statements from the PSM.

23                  It should also be noted that, in another proceeding brought by the appellant pursuant to the Freedom of Information Act 1982 (Cth) (‘the FOI Act’), a Full Court of this Court ordered that the Secretary produce to the appellant’s solicitors all documents received from China that pertain to the conduct or affairs of the appellant, but only in so far as the documents reveal the name of the agency from which the document originated; and any request for confidentiality therein (being the words requesting confidentiality, exclusive of their context): see NAAO v Secretary, Department of Immigration and Multicultural Affairs (2002) 117 FCR 401.

24                  In NAAO, the Minister relied upon s 503A of the Act for the purposes of registering disclosure under the FOI Act. Section 503A(1) provides a prohibition against communication of information by a migration officer to another person if such information is communicated to a migration officer by a gazetted agency on condition that it be treated as confidential and the information is relevant to the exercise of power under ss 501, 501A, 501B or 501C (i.e. in setting aside a decision or revocation (on character test grounds) or refusal or cancellation of a visa). The Full Court held that the prohibition of s 503A(1) did not apply to the name of the agency which communicated the information, nor the condition upon which that communication occurred.

25                  In compliance with the Full Court’s order, the appellant was provided with redacted copies of documents showing that they originated from the PSM and that they were endorsed ‘LAW ENFORCEMENT-CONFIDENTIAL’.

The Tribunal’s decision

26                  In deciding (at [23]) ‘not to exercise my discretion’ to disclose this material to the appellant or her advisers, the (present) Tribunal said (at [24]):

‘24. I have read all the information [provided by the Chinese authorities] and there is nothing in that material which appears to me to be other than evidence acquired through an investigation into the activities of the [appellant] and her husband. The Chinese authorities have clearly concluded from the evidence gathered that criminal charges against the [appellant] and her husband are justified. It is not for me to draw any conclusion as to the correctness of the decision by the Chinese authorities to arrest the [appellant’s] husband and to issue a warrant for the arrest of the [appellant], which is a matter for the relevant Chinese court to determine in any trial which may eventuate. However, following a careful reading of the information, I am satisfied that there is nothing in the conduct of the investigation or the evidence supporting the warrant which suggests any motive for the issue of the arrest warrant other than to prosecute criminal charges based on prima facie evidence of criminal activities.’

27                  The Tribunal noted (at [25]) the appellant’s submission that –

‘…if the [appellant] had access to the information, she may be able to identify and cast suspicion on the motives of one or more of the informants or investigators involved in the collection of the evidence, and may be able to link that suspicion to one of the Convention grounds. The [appellant’s] confidence that she may be able to extract from the information a link to one of the Convention grounds is, in my view, misplaced because at the hearing before me, and throughout the progress of this matter from the original delegate decision to the three Tribunal decisions (including this decision) and the conclusions of the Federal Court in remitting this matter for reconsideration, the [appellant] has not provided any basis upon which I could conclude, contrary to my reading of the information itself, that motives other than law enforcement led to the issue of the arrest warrant.’

28                  The Tribunal went on to observe (at [25]):

‘…The [appellant] has conceded that she has no direct knowledge of her husband’s work or of his work colleagues or of any activity or expression of opinion in which her husband may have engaged which would have led to persecution of him by the Chinese authorities. The [appellant] has speculated that the motive for the arrest of her husband is political in-fighting at his place of employment, or envy or revenge by a work colleague, or differences in opinion between her husband and another unidentified member of the Chinese Communist Party, but there is nothing in the information to support this speculation and much which contradicts it.’

29                  After referring (at [26]) to the Department’s submission that ‘disclosure would harm future cooperation between the Australian and Chinese governments, and that it may constitute breach of the common law or of the … Act because the information was provided with a specific request that it be kept confidential’, the Tribunal concluded (at [27]):

‘27. On balance, and in full awareness of the difficulty which the [appellant] argues she has experienced in pressing her claims to refugee status because of non-disclosure of the information, I have decided not to exercise my discretion to disclose the information. The [appellant] has provided nothing substantive to support her speculation as to the reason for her husband’s arrest and the issuing of an arrest warrant against her. The information itself is innocuous enough in the sense that it appears to be merely a body of direct evidence obtained by investigators to support the framing and prosecution of criminal charges. The benefit which the [appellant] claims would accrue to her by disclosure is not evident in the contents of the information. The detriment which may attend disclosure, which I am not in a position to assess myself but which the Department has expressed, is potentially significant and serious, amounting to a deliberate reneging on an undertaking of confidentiality and perhaps damage to the cooperative relationship between Australia’s and China’s law enforcement bodies in not only this matter but perhaps future matters.’

The grounds for judicial review of the Tribunal’s decision

30                  The appellant stated, in essence, the following as her grounds in her amended application:

·                    The appellant was denied procedural fairness by the Tribunal in considering whether to exercise its discretion under s 438(3)(b) of the Act, in so far as the Tribunal failed to make the enquiries of an officer of the Minister proposed in a submission to the Tribunal of 29 July 2003 (repeated on 12 August 2003) by the appellant’s solicitors (described as ‘the Enquiry Request’ – see above at [20] for its terms).

·                    The Tribunal’s failure to make the enquiries of an officer of the Minister proposed in the Enquiry Request, before deciding whether to exercise its discretion under s 438 in favour of the appellant, was so unreasonable that no reasonable decision-maker could so act and thus a jurisdictional error occurred.

·                    The Tribunal committed a breach of the rules of procedural fairness in that it failed to disclose to the appellant documents obtained by the Department from the Chinese authorities in circumstances where neither s 438 of the Act nor any other section of that Act operated to override the requirements of common law procedural fairness.

The appellant’s contentions before the primary Judge based on s 438 (i.e. the first two grounds for review)

31                  As has been seen, the appellant’s first two grounds focussed upon the operation of s 438, whereas the third ground sought to ‘by-pass’ s 438 altogether.

32                  Counsel for the appellant submitted that, in relation to the exercise of the discretion under s 438(3)(b), the Tribunal should have exercised the powers conferred by s 427 of the Act in order to obtain answers from the Secretary to those questions before deciding whether or not to disclose the documents in question. (Section 427(1)(d) provides that the Tribunal may require the Secretary to arrange for the making of any investigation that the Tribunal thinks necessary and to give to the Tribunal a report of that investigation. Under s 427(3), the Tribunal may summon a person to give evidence or to produce documents.)

33                  The appellant contended that, in the circumstances of this case, there was a duty imposed on the Tribunal to enquire in order to afford procedural fairness to the appellant. Alternatively, the appellant’s counsel argued, the failure to enquire into the circumstances of this case resulted in an exercise of discretionary power, whether or not to disclose, that was so unreasonable, that no reasonable decision-maker could have exercised it in the way in which the Tribunal exercised the power.

34                  The appellant further submitted that the questions suggested by the Enquiry Request went directly to the issue of whether the documents in question were indeed confidential, or were at least as confidential as the Secretary claimed. She contended that the answers to the questions would be relevant and significant to the decision to be made by the Tribunal as to whether the documents in question should be disclosed to her. The appellant said that, since the answers were unavailable to her and could only reasonably be obtained from the Secretary by the exercise of the Tribunal’s powers under s 427, procedural fairness demanded that the Tribunal put the questions; and for the Tribunal to fail to do so would deny the appellant an opportunity to deal with relevant and significant matters.

THe primary Judge’s decision on the first two grounds for review (that is, grounds based on the proper construction of s 438)

35                  His Honour said that, in the ordinary course, there was no duty imposed upon the Tribunal to exercise the power conferred by s 427, citing WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24] – [26]. Nevertheless, failure by the Tribunal to make enquiries about the claims or the evidence of an applicant could in some circumstances be a breach of the rules of natural justice or render the decision unreasonable where, for example, there was information readily available to it that was centrally relevant to a decision affecting that applicant, citing Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at 552, [26].

36                  The Judge said:

‘A duty to enquire may arise in the rare case where information that is centrally relevant to a decision that may affect a person is readily available to the decision maker but is not available to the person affected. The questions set out in the Enquiry Request, on a fair reading, call for a response concerning matter within the knowledge of the Secretary. To that extent, the information necessary to respond was readily available to the Secretary and, therefore, could have been compelled by the exercise of the powers conferred on the Tribunal by s 427. However, it is by no means clear as to why the answers would be centrally relevant to the exercise of the discretion to disclose the documents in question.’

37                  His Honour noted that the Secretary’s Advice stated, expressly, that the obligation of confidentiality was not affected by the permission given by the PSM; that is to say, the Secretary’s Advice was that, whatever permission may have been given by the Chinese authorities, the Department regarded the obligation of confidentiality as preventing disclosure. The Judge observed that the Tribunal had had the benefit of the submissions, made on behalf of the appellant in the Enquiry Request, that the authorities in China may have taken a different attitude to disclosure if they had known of the possibility that the documents could be shown to a judge; and that the Tribunal took those submissions into account.

38                  In rejecting these grounds of appeal, the Judge said:

‘The attitude of the Chinese authorities was not central to the exercise of any discretion conferred on the Tribunal by s 438(3)(b). Section 438(2) confers a discretion on the Secretary to give the Tribunal advice. If it does, the Tribunal is required to have regard to it under s 438(3). The Tribunal is not bound by the advice. Further, it must be remembered that the exercise of discretion under s 438(3) is a mere incident of the primary function of the Tribunal, namely, to decide whether the [appellant] is a person to whom Australia has protection obligations under the Refugees Convention.

Question 3 of the Enquiry Request seems to encompass the first two questions and the observations made above are equally applicable to that question. Question 4 seems to be an enquiry as to the attitude of the Department to an issue that did not arise before the Tribunal. The Secretary’s Advice did not make any general statement about documents from overseas enforcement agencies. There is no reason why the Tribunal would need an answer to the question in order to exercise its discretion under s 438(3).’

39                  His Honour concluded that failure to make the enquiries of the Secretary was not a denial of procedural fairness, and having given consideration to the Enquiry Request, there was nothing unreasonable on the part of the Tribunal in deciding not to accede to it.

The primary Judge’s decision on The appellant’s third ground (that is, a denial of procedural fairness)

40                  The Judge said:

‘Each of the first two grounds turns on whether it can be said that the questions proposed by the [appellant’s] solicitors were central to the decision that the Tribunal was called upon to make under s 438(3)(b). The third ground, in contrast, bypasses s 438 altogether. That is to say, the first two grounds assume that, but for the exercise of the discretion conferred by s 438(3)(b), the [appellant] would not be entitled to access to the documents in question. The third ground makes no such assumption. The [appellant] contends that, unless there is some provision of the Act that prohibits the Tribunal from providing the [appellant] with access to the documents in question, the principles of procedural fairness would require them to be made available to her.’

41                  In the course of argument before his Honour, reference was made to s 424A of the Act.

42                  (Section 424A appears in Division 4 of Part 7 of the Act, which Division deals with the conduct of the Tribunal’s review. Section 424A(1) provides that, subject to s 424A(3) (see below), the Tribunal must –

‘…give to the [appellant], in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision … under review.’

43                  Section 424A(3) provides that s 424A does not apply to, inter alia, ‘non-disclosable information’, defined in s 5(1) to mean information or matter:

‘(a) whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:

(i)                 prejudice the security, defence or international relations of Australia; or

(ii)               involve the disclosure of deliberations or decisions of the Cabinet …; or

(b)               whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or

(c)               whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;

and includes any document containing, or any record of, such information or matter.’)

44                  The Judge noted that counsel for the Minister did not contend that s 424A –

‘…constitutes an exhaustive statement or code as to the circumstances in which procedural fairness, in the form of disclosing material to an applicant, is to be afforded. However, [the Minister submitted] the content of procedural fairness that is to be afforded under Pt 7 is to be informed by the scheme of Pt 7 generally.’

45                  His Honour observed that s 424A did not prohibit the giving of information. Rather, it imposed an obligation of disclosure, subject to the exception of s 424A(3). Further, s 438 contained no express prohibition, although it appeared to assume that, but for the power to permit under s 438(3), access would be denied. The question, the Judge said, was whether such a prohibition on access is to be implied from the terms of s 438; there would be little, if any, work for s 438 to do if there were no such prohibition.

46                  The Judge commented upon the existence of a parallel between, on the one hand, the provisions of s 437 and s 438, prohibiting disclosure of material for national or public interest reasons or if confidence were to be breached, and, on the other, the exception in s 424A(3)(c) in respect of ‘non-disclosable information’.

47                  Noting that the Secretary is prohibited by s 437 from giving to the Tribunal a document or information to which that section applies; and that the Secretary is obliged by s 438 to notify the Tribunal if that section applies to any documents given to the Tribunal, the Judge said:

‘In so far as the balance of s 438 confers a discretion to give advice about the significance of the document or information and then confers on the Tribunal a discretion, if it thinks fit, to disclose any matter contained in the document or the information to the applicant, there is clearly an assumption that, but for the exercise of the discretion, there would be no entitlement on the part of an applicant to disclosure of the matter in question.’

48                  His Honour next observed that:

‘Section 438(4) imposes an obligation on the Tribunal, if it does disclose any matter to an applicant, to give a direction under s 440. Section 440(1) gives the Tribunal a discretion to give a written direction that evidence, information or contents of documents before the Tribunal should not be published or otherwise disclosed. Under s 440(3), it is an offence punishable by imprisonment for two years for a person to contravene such a direction given by the Tribunal.’

49                  His Honour said that it was ‘patently clear’ that the Parliament, in enacting s 438, assumed that matter contained in a document or information to which s 438 applies would not be disclosed except upon the exercise of discretion by the Tribunal and then subject to a direction that it may not be published or otherwise disclosed. The Judge further observed that s 424(3) excuses the Tribunal from giving to an applicant particulars of information that the Tribunal considers would be the reason or part of the reason for affirming a decision under review, where that information is, inter alia, information whose disclosure would found an action for breach of confidence; and that it would be ‘curious’ if, notwithstanding that provision, the confidential information were otherwise required to be given to an applicant in order to afford procedural fairness to the applicant.

50                  In rejecting this ground, his Honour said:

‘The implicit assumption to be found in s 438 is consistent with the scheme of s 424A that an applicant is not entitled to access to documents or information that consist of:

·        non-disclosable information;

·        a document or information that is the subject of a certificate under s 437;

·        a document or information to which s 438 applies, unless the Tribunal thinks it appropriate to disclose any matter contained in the document or the information but subject to giving a direction that the information and contents of the document not be published or otherwise disclosed’.

51                  The Judge concluded that the scheme of the Act indicated that the procedural fairness that is to be afforded to an applicant does not extend to disclosure of any of the above material, except in the circumstances contemplated by s 438(3)(b).

The appellant’s grounds of appeal

52                  In challenging this judgment, the appellant states the following as grounds in her notice of appeal:

Ground 1

53                  In the circumstances, it should not have been concluded that procedural fairness did not require the Tribunal to comply with the appellant’s request to put specific questions to an officer of the Department about documents in her care and control – ‘such documents being allegedly provided to the Minister under conditions of confidentiality’.

Ground 2

54                  It should have been held that as the questions posed by the appellant were the only realistic method of testing the premises of the Minister’s assertion that the documents were confidential, or confidential to the degree claimed by the Minister, procedural fairness required those questions to be asked.

Ground 3

55                  It should not have been concluded that the effect of Part 7 of the Act amended the requirements of procedural fairness so as not to mandate the disclosure to the appellant of the documents or the substance of the information in documents provided by an agency of the government of China to the appellant.

Ground 4

56                  It should have been held that the requirements of procedural fairness as they applied to the appellant’s case would not be satisfied unless either the documents themselves, or the substance of those documents, were disclosed to the appellant.

57                  In argument, as will be seen, it was submitted for the appellant that, on its proper construction, s 438 contains no prohibition against disclosure to an applicant of information that would otherwise be subject to disclosure pursuant to the requirements of procedural fairness (i.e. grounds 3 and 4) (hereafter ‘the appellant’s first contention’).

58                  Alternatively, the appellant further contended in argument (as will appear) that an inquisitorial body (as the Tribunal is) is required to test, by means of appropriate questioning, an assertion by a public agency that documents adverse to an applicant’s case are immune from disclosure, where such inquiry is necessary and appropriate to permit such an inquisitorial body to give proper consideration to relevant considerations in the exercise of a statutory discretion (i.e. grounds 1 and 2) (hereafter ‘the appellant’s second contention’).

59                  It will be convenient to deal initially with the appellant’s first contention, before considering her second contention, which depends upon the exercise of discretion.

Was disclosure to the appellant of the material sought required for reasons of procedural fairness provided by s 424A or at common law?

60                  This contention raises the question whether s 438, on its proper construction, contains a prohibition against disclosure to an applicant of information that would otherwise be subject to disclosure pursuant to the requirements of procedural fairness.

61                  As will be seen, this question appears to be free of any square authority and has its own adjectival complexities. The matter has been made more complicated by the absence of any formal structure in the Tribunal process to enable the parties, and the Tribunal, to identify with sufficient precision the issues which needed to be addressed in determining what was, for the Tribunal, a collateral question. As will also appear, the absence of any formal infrastructure before the Tribunal has given rise to contentious questions arising between the parties in their arguments to us concerning what was, or was not, relied upon by them before the Tribunal and before the primary Judge. In order to explain the nature of these collateral issues, themselves arising in connection with yet another collateral issue, it will be necessary to explain the nature of the parties’ submissions to us, both written and oral, in the sequence in which those arguments were advanced.

The appellant’s written outline of submissions dated 7 May 2004

62                  In this outline, the appellant, by her counsel, Mr Basten QC and Mr Karp, submitted:

·                    It is a well-established aspect of the obligation of procedural fairness that a party be given an opportunity to deal with adverse information that is apparently credible, relevant and significant to the decision to be made. The common law (or implied statutory) duty is ‘subject only to the clear manifestation of a contrary statutory intention’, citing Kioa v West (1985) 159 CLR 550 at 584 and, inter alia, Gleeson CJ and Hayne J in Re Minister for Immigration and Multicultural Affairs, Ex parte Miah (2001) 206 CLR 57 at [43].

·                    For present purposes, the relevant aspect of the obligation to accord procedural fairness is now stated in s 424A(1)(a). The exceptions contained in subs (3) do not apply. Given that the Parliament has expressly provided for exceptions to the statutory obligation in s 424A(1), a greater than usual burden is placed on a party asserting that there is some implied exception arising from a different provision, the consequences of which, for procedural fairness, have allegedly not been addressed by the Parliament.

·                    Nor is it only in s 424A itself that relevant exceptions are specified. Thus, in imposing a prohibition on disclosure of information obtained from any ‘gazetted agency’, the Parliament has been at pains to give that provision overriding effect. Thus, s 503A(6) states (in its preface):

‘(6) This section has effect despite anything in:

(a)               any other provision of this Act... ; and

(b)               any law (whether written or unwritten) of a State or a Territory.’

·                    The only basis upon which it is contended that s 424A(1) does not operate in the present case is an implied exception derived from the terms of s 438. Relevantly for present purposes, the provision of s 438 which is relied upon is par (1)(b). (A reference is made to a letter to the Tribunal from a delegate of the Secretary dated 19 November 2002 asserting that the information was provided ‘in confidence’.) If s 438 had that effect as a matter of implication from silence, that would be a conclusion only supportable in the strongest of circumstances. The terms of s 438 (whether taken in combination with s 440 or separately) do not satisfy that test.

·                    The primary Judge held that if there were not an implied exclusion of procedural fairness obligations, there would be ‘little, if any, work for s 438 to do’. However, that is not the case. When a document is received by the Tribunal, it is empowered to do two things, namely: (a) have regard to any matter contained in the document, and (b) if it thinks appropriate to do so, disclose the matter to the applicant. Both the use to which the document may be put and the appropriateness of disclosure of the document to the applicant are matters left to the Tribunal. The only constraint upon the power of disclosure is that the Tribunal must have regard to any advice given by the Secretary under s 438(2). Because material is provided confidentially, if the Tribunal does disclose any of the matter to an applicant, it must give a direction designed otherwise to preserve the confidentiality, in accordance with s 440.

·                    Thus, material to which s 438 applies may be assessed by the Tribunal on two bases. First, the Tribunal will need to consider whether or not it is relevant to the issues before it, as it perceives them. Secondly, it will need to consider whether the material is supportive of, or adverse to, an applicant’s case. If the information is not clearly relevant, or may be supportive, but the Tribunal is not sure in what manner, it might well consider disclosing the material to an applicant, but be dissuaded from that course because of the confidentiality attaching to the material. Thus, s 438 has work to do in cases where s 424A is not potentially engaged. It is only if the material is identified as information which the Tribunal considers could be the reason or part of the reason for finding against the applicant, that s 424A will be engaged. There is nothing in s 438(3) to suggest that the Tribunal should deem it other than ‘appropriate’ to disclose the material, if it is satisfied that it falls within s 424A(1)(a).

·                    The primary Judge considered that the inference that there was no entitlement to receive the document, otherwise than by exercise of a discretion conferred on the Tribunal, was supported by the requirements of s 438(4) and s 440. However, those provisions are either neutral or lead to a different conclusion. They expressly envisage that the Tribunal may deem it appropriate to disclose information to an applicant, and then seek to ensure that the disclosure goes no further. That being the case, it is difficult to envisage any circumstance in which disclosure is more likely to be appropriate than one in which it is required by the standard principles of procedural fairness.

·                    His Honour sought to support the contrary view by reference to two other provisions. First, his Honour noted that there is ‘a parallel’ between s 438 and the definition of ‘non-disclosable information’ in s 5. However, the ‘parallel’ is not so significant as is the point of departure. As his Honour noted, there is in s 424A an express exception in respect of ‘non-disclosable information’; but there is no similar exception by reference to s 438. The obvious inference which could have been derived from this point of departure was that the Parliament did not consider it appropriate to include such an exception in relation to s 438.

·                    Secondly, his Honour sought to treat together s 437 and s 438. Yet, the significant disparity is that s 437, where invoked, prohibits the Secretary from providing documents (pursuant to s 418, for example) to the Tribunal. (Section 418(1) provides that the Tribunal shall notify the Secretary of an application for review. By s 418(2), the Secretary must give the Tribunal a statement about the decision under review that sets out findings of fact; refers to the evidence; and gives reasons.) That being its effect, the Tribunal will hardly be able to rely upon them, and therefore, s 424A will never be engaged in relation to that material. For relevant purposes, s 437 stands apart from any exercise concerning the operation of s 424A. Nevertheless, when his Honour summarised his conclusion as to the ‘implicit assumption to be found in s 438’, he identified a scheme which included reference to ‘non-disclosable information’ and information subject to s 437. But neither of those two cases required any ‘implied assumption’ in relation to s 424A and its operation.

·                    As a matter of construction, s 424A could not apply in relation to information which was the subject of s 438(1)(b).

The Minister’s written outline of argument dated 11 May 2004

63                  By this outline, the Minister, by her counsel, Mr Reilly, submitted:

q                   Before his Honour, the appellant claimed that she was denied procedural fairness by the Tribunal. She did not then claim that the Tribunal had failed to comply with s 424A. Nor is this claimed in the Amended Notice of Appeal. However, the appellant’s (written) submissions now claim that the Tribunal breached s 424A. The appellant knew well before the Tribunal hearing (from correspondence from the Department) that the information was claimed to be ‘non-disclosable’ information within s 5(1) of the Act, and therefore within the exception in s 424A(3)(c). She never sought to contest this claim before the primary Judge.

q                   If the appellant had raised this issue previously, the Minister may have led evidence to support the contention that the information was ‘non-disclosable’ information. The appellant should not be permitted to raise this issue for the first time on appeal (citing Coulton v Holcombe (1986) 162 CLR 1 at 7 – 8). The same conclusion would apply even if the Minister would not have led evidence, as the appellant has been legally represented at all stages and it is unjustifiable that such matters be argued for the first time on appeal (citing H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43 at [6] – [9]).

q                   The applicability of the exception in s 424A(3)(c) has never been in issue, and, as submitted, the appellant should not be permitted to raise it for the first time on appeal.

q                   Rather, the issue at trial was procedural fairness alone. The Minister conceded that the Tribunal was obliged to afford the appellant procedural fairness in making its decision under s 438. (Section 422B of the Act now provides, inter alia, that Division 4 and s 437 and s 438 are ‘taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters they deal with’. The Minister’s submission noted that s 422B of the Act does not apply to this case, as the application for review to the Tribunal was made on 18 June 2001, and s 422B only applies to applications for review made after 4 July 2002: see Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), Sch 1, item 7(5). The assertion to the contrary, made by the Department in its letter dated 19 November 2002, that s 422B applied, is wrong, as was conceded by the Minister at trial.)

q                   His Honour’s reasons for finding that the statutory scheme indicated that procedural fairness did not require the disclosure of the information are adopted. In addition to his Honour’s reasons may be added citations to Velmurugu v Minister for Immigration & Ethnic Affairs (1997) 48 ALD 193 at 196.9, and NAFQ at [38].

In Velmurugu, Davies J (Burchett J and Whitlam J concurring) said (at 196 – 197):

‘It may be accepted that, when a tribunal has significant information relating to a party before it which has not been disclosed, it should always make it perfectly clear that it has that information and provide the reasons why the material is not disclosed. Preferably, when there is confidential or privileged material, the material should be dealt with in accordance with the provisions of ss 438 and 440 of the Act.

However, the submission I have set out above was not a submission which was put to the trial judge. It was not said to the trial judge that the tribunal had failed to comply with the procedures stipulated in s 420 because it had failed to disclose the letters to Mr & Mrs Velmurugu. No doubt the matter was not put in that way because, at the time of the hearing before the tribunal, Mr & Mrs Velmurugu were aware that the tribunal had the anonymous letters which they had not seen. Mr & Mrs Velmurugu were no doubt satisfied that the substance of any allegations contained in the letters had already been put to them and that they had been afforded an opportunity to meet those allegations, insofar as they were significant. The complaint arose later when an examination of the tribunal’s reasons for decision disclosed that the tribunal had not set out a specific finding as to the author or authors of the letters.

The case before the trial judge centred not upon an allegation of breach of fair procedure but upon the failure of the tribunal to express a finding about the authorship of the letters.’

In NAFQ (i.e. this matter), Moore J said (at [38]):

‘In the present case, the Tribunal had a clear statutory mandate (under par 438(3)(b)) to have regard to the documents from the Chinese authorities without their contents being disclosed to the applicant. However the existence of that power renders more significant the exercise of the discretionary power which might result in disclosure of the contents and points, in my opinion, to the need in this case for the Tribunal to have given the applicant an opportunity to be heard before the discretionary power was exercised. Because the Tribunal might ultimately decide the matter having regard to undisclosed material (and material which the applicant has not scrutinised or commented on) it reinforces, in my opinion, the need for that opportunity to be clear and unequivocal, to use the language adopted by Weinberg J.’

The reference to the language of Weinberg J is to part of his Honour’s reasons in Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483, where in the course of proceedings before the Administrative Appeals Tribunal, prison files concerning the applicant were produced on a summons directed to the Office of the Correctional Services Commissioner. Unknown to the applicants’ representatives, twenty-one pages from these were the subject of a confidentiality order. This material was not referred to during the hearing, nor in the Tribunal’s reasons, and was subsequently lost. Remitting the matter for re-hearing, Weinberg J said (at 504 in the passage cited by Moore J):

‘Where a decision-maker has received material which is, or may be, adverse in a material respect to a party, it is not unreasonable to expect that the fact that this material had been received will be emphasised during the course of the hearing, and the party adversely affected invited to be heard in relation to it. If the material has been previously read, and sealed, because of its sensitive or confidential nature, the party who may be adversely affected by it should, in my view, be given an opportunity to be heard in relation to any such confidentiality orders. That opportunity should be given clearly, and unequivocally, or to put the matter another way, there must be “meaningful disclosure” - Moore v Guardianship and Administration Board [1990] VR 902 at 912 per Gobbo J.’

Weinberg J went on to say (at 504):

‘If the decision-maker has concluded that the material will, in any event, be disregarded that fact should, ordinarily, be communicated to the parties. Even if that is not done it may, in a given case, be appropriate for the decision-maker to state in his reasons for decision that certain documents which contained material of a confidential nature were received, and read, but disregarded when it came to making the final determination.’

q                   The appellant’s (written) submissions proceed on the incorrect assumption that his Honour was addressing s 424A rather than procedural fairness. It follows that the present grounds (4 and 5) in the Notice of Appeal should be rejected.

The appellant’s oral response to the Minister’s written outline

64                  In argument before us, counsel for the appellant contended:

·                    The Minister’s submissions fail to address directly the appellant’s case, and instead ‘divert’ attention to the ‘inappropriateness’ of the appellant making her case.
Section 424A is of ‘central importance’ to any consideration of procedural fairness, it was a matter ‘of some interest’ to his Honour and was addressed before the Tribunal. The claim that s 424A was ‘not relied upon’ by the appellant is ‘factually wrong’.

·                    In relation to the Tribunal, it is ‘wrong’ for the Minister to assert that the appellant well knew before the Tribunal hearing that the information was claimed to be ‘non-disclosable’ information. In the Tribunal, this claim was ‘expressly challenged’. The reason why ‘it didn’t form [part] of the argument [before] his Honour was that the Tribunal didn’t in terms rely upon it’. In any event, the Minister should not be embarrassed here. No notice of contention was filed by the Minister stating that the decision could have been supported on the basis that the material was ‘non-disclosable’. Although it is now contended that the Minister could call evidence, the nature of that evidence is not identified. Moreover, this is not a case where the proposition raised by the appellant is ‘entirely new’.

·                    Although the Minister concurred before his Honour that s 422B could not apply here, that provision ‘was relied upon’ by the Secretary in his advice to the Tribunal. This (circumstance) is directly relevant to the extent to which s 424A is, or is not, a comprehensive statement of the principles of procedural fairness.

·                    In WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597, a Full Court said (at [38] – [39]):

‘There is no express statement in s 424A that common law rights are [thereby] revoked … and operation of the section does not depend upon an implication to that effect.’

Furthermore, when the High Court determined in Miah (above) that ‘the Act was not to be read as an exhaustive code that excluded obligations of procedural fairness’, it was considering decision-making provisions of the Act equivalent to s 424A.

·                    Although the primary Judge relied on s 437, its purpose is to prevent disclosure to the Tribunal when the Minister certifies that disclosure would not be in the public interest because it would prejudice security, defence or international relations. But the Minister has not so certified, notwithstanding the Tribunal’s reference to ‘damage to the cooperative relationship between Australia’s and China’s law enforcement bodies’.

The Minister’s oral response

65                  In oral argument before us, Mr Reilly submitted:

q                   The appellant did not raise s 424A before the primary Judge. The provision was not mentioned in the stated grounds for judicial review, which as mentioned, relied on s 438 and ‘the requirements of common law procedural fairness’. In the appellant’s outline of submission, it was alleged that the Tribunal’s failure to inquire here amounts to a failure to afford ‘procedural fairness’, citing Kioa per Mason J at 584.

q                   Counsel for the appellant ‘tried to blur’ s 424A and common law procedural fairness together, assuming, incorrectly, that when his Honour spoke of the common law, he Honour must also have been talking about s 424A.

q                   The decision in WAEJ, above, indicates that the provisions of s 424A and the common law rules of procedural fairness are not the same. If the appellant wished to rely on the former, this should have been done at first instance. The Minister disputes the appellant’s contention that ‘the only basis’ upon which it is contended that s 424A(1) does not operate here is as an ‘implied exertion derived from the terms of s 438’. The Minister contends that the basis on which s 424A was seen to operate here was in the Department’s letter (dated 19 November 2002), which drew attention to s 424A(3)(c). If it had ever been an issue, that would have been the basis upon which it would be said that s 424A did not apply.

q                   The primary Judge’s approach was to assume that s 424A(3)(c) applies as part of considering whether common law procedural fairness would nevertheless demand the disclosure of the information. His Honour did not address the question whether s 438 overrides what would otherwise be an obligation of disclosure. The Minister’s argument at trial was to acknowledge that s 424A did not cover the field, that there was, in principle, a procedural fairness argument available; but that the content of procedural fairness depended on the statutory scheme, which included s 424A(3)(c), as well as s 438. The issue his Honour was addressing was whether s 438, which does not, in terms, prohibit disclosure, properly construed, does prohibit disclosure even when the rules of procedural fairness would, in principle, have required disclosure.

The appellant’s oral reply

66                  In her reply, the appellant in further argument before us contended:

·                    The difference in opinion between Mason J and Brennan J as to the source of the general law obligation to accord procedural fairness appear to be of significance here. (This difference was noted by Gaudron J in Miah (at 83 [89]) as follows:

‘Two views have emerged in the decided cases with respect to the obligation of an administrative decision-maker to act in accordance with the rules of natural justice. In Kioa v West, Mason J identified the obligation as “a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention”. On the other hand, Brennan J, in the same case, identified the rules of natural justice as an implication to be drawn from the legislation conferring decision-making authority. The difference between the two views may not be as great as might at first appear. Thus, in Annetts v McCann, Brennan J explained that the implication arises because “the common law will usually imply a condition that a power be exercised with procedural fairness to parties whose interests might be adversely affected by the exercise of power”.’)

·                    Whilst the common law rules of procedural fairness and the provisions of s 424A ‘may not be co-terminous, … they … overlap to a large extent’. Accordingly, there is no difference in the nature of the appellant’s argument: ‘Either there’s an obligation to accord procedural fairness or there is not … . [T]his … isn’t a fresh, different or new issue’.

·                    Somewhere there is an obligation to afford procedural fairness. ‘Does it extend to this case where there seems to be an express statutory exception? It either does or it doesn’t … . The real significance of s 424A is that it does indeed contain a very specific exception which may or may not have been invoked in the present case’.

·                    The reason why the appellant did not say anything about the exception (to s 424A(1)) is that the appellant was ‘not appealing from the Secretary’s [Advice]; [the appellant was] seeking to review the Tribunal’s decision, and the Tribunal did not rely on that [exception]. [The Tribunal] relied on the passage … [in par [25] of its reasons (cited above)].’

·                    If the Minister wished, she could have contended before the primary Judge that even if the Tribunal’s reasons were ‘wrong’, this is ‘non-disclosable’ information and ‘the exception to s 424A must also constrain the content of procedural fairness under Part 7 generally and this is why [this Full Court] will need to look at it’.

·                    The Minister has given no indication of how any evidence she may wish to call on any question of confidentiality would vary from the material relied upon in the Secretary’s Advice. In any event, for the reasons given by McHugh JA in Attorney-General for the United Kingdom v Heinemann Publishers Pty Ltd (1987) 10 NSWLR 86 (at 193 – 196), such a claim (for breach of confidence) would not be justiciable in Australia.

Conclusions on this part of the appeal

67                  Given the complexity of the issues, both adjectival and substantive, emerging from the parties’ submissions, it will be necessary for us to commence our consideration with the Secretary’s Advice. We have already referred to extracts from this letter but, in our view, in the events which have since happened, it is a critical document which needs to be understood fully, and in its context.

68                  The Secretary’s Advice is said to concern the ‘further release or otherwise’ of any of the documents forwarded to the Tribunal on 6 November 2002, which the Department believed to be the source documents for those that were excised or removed from the appellant’s original file.

69                  The Secretary’s Advice states that s 438 applies to this information, specifically mentioning s 438(1)(b) (then cited), that is, that the document (etc.) was given (to the Department) ‘in confidence’.

70                  Picking up the reference in s 438(2)(b) to advice from the Secretary, the letter stated that the information was provided to the Department ‘on the condition that it remain confidential and the Department accepted that condition [so that] unauthorised disclosure of the material to the [appellant] or her representatives … would be likely to be considered a breach of confidence’.

71                  The Secretary’s Advice further stated that where disclosure ‘would result’ in an action for breach of confidence, that information was ‘non-disclosable’ for the purposes of s 5(1) and thus could not be disclosed to the appellant under s 424A, citing s 424A(1) and (3)(c).

72                  The Secretary’s Advice went on to refer (incorrectly in point of timing, as has been said) to s 422B, noting that Division 4 of Part 7 (in which s 424A is located) is an ‘exhaustive statement’ of the requirements of natural justice; and that ‘this means that non-disclosable information cannot be disclosed to the [appellant] under s 424A’.

73                  The Secretary’s Advice repeated its earlier statement, that where information, given under an obligation of confidentiality, has been disclosed to another party and that other party has been advised of that obligation, that other party would breach this obligation by disclosing the relevant information without the authority of the person to whom the obligation is owed.

74                  The Secretary’s Advice noted that permission was ‘specifically obtained’ (by the Department from the PSM) to disclose the documents to the Tribunal, but did not permit disclosure of the contents to the appellant or her representatives, or to any other entity. Nor is the Department’s obligation of confidentiality ‘otherwise affected’ by the PSM’s permission.

75                  The Secretary’s Advice stated that this information ‘appears likely to be used’ in any prosecution of the appellant by the Chinese authorities; and that, if disclosure were ‘viewed adversely’ by the Chinese authorities, it may affect future cooperation’.

76                  The Secretary’s Advice added that some of the documents contain personal information about witnesses, and their statements, which may have been provided to the relevant Chinese agency under conditions of confidentiality.

77                  The subsequent course of events is also of crucial significance here.

78                  By letter dated 5 August 2003 (that is, prior to Member Cheetham’s decision on 20 August 2003), the Tribunal informed the appellant that the Tribunal ‘had information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa’.

79                  The Tribunal’s letter referred to, and provided, the Secretary’s Advice, ‘in which the Departmental officer makes submissions against the disclosure to you or your advisers’ of documents provided to the Department, and subsequently to the Tribunal, by the PSM.

80                  The Tribunal’s letter stated that this information was relevant for the following reasons:

·                    The failure of the Tribunal, previously constituted, to disclose the Secretary’s Advice ‘pursuant to s 424A’ was the reason why this matter was remitted to the Tribunal by Moore J in NAFQ.

·                    The Secretary’s Advice is ‘significant’ to the Tribunal’s decision as to whether to disclose (to the appellant or her advisors) the documentation received from the PSM because the Department expressed its view that it should not be disclosed as the material was ‘confidential’ and ‘non-disclosable’ pursuant to s 5(1), definition (c); that the documentation contains material which may identify individuals and which ‘may have been’ provided confidentially to the Chinese authorities; and that disclosure ‘would be harmful to future cooperation’ between Governments.

81                  The Secretary’s Advice invited the appellant, or her advisors, to comment.

82                  The appellant’s solicitors wrote to the Tribunal by letter dated 12 August 2003, responding to several questions, and, specifically offering comments on the question of disclosure, noting that they had made earlier comments on the Secretary’s Advice, including making the Enquiry Request, mentioned above. The solicitor’s letter submitted that the Department’s reasons supporting non-disclosure were ‘not sustainable’, and said that the undisclosed information, or part of it, ‘may be able to be disproved to the extent that it becomes more likely than not that charges were fabricated’.

83                  It appears that, so far as the Tribunal was concerned, no other process or procedure was adopted by the Tribunal until it gave its reasons on 20 August 2003, refusing to order disclosure, essentially (as has been noted) upon the footing that, on the Tribunal’s reading of the material, it could not be demonstrated that ‘motives other than law enforcement led to the issue of the arrest warrant’.

84                  We will, of course, need to refer to the statute where relevant, but it will be convenient to consider the position of the Tribunal at common law initially, bearing in mind in particular, Mr Reilly’s contention that, before the primary Judge, the appellant restricted her argument, relevantly to the common law and did not invoke s 424A.

85                  At common law, the scope of the duty of an administrative decision-maker to accord procedural fairness includes ‘the hearing rule’. Specifically, the common law insists upon a range of procedural requirements, including disclosure (see, generally, M Aronson & B Dyer, Judicial Review of Administrative Action, 2^nd ed., LBC Information Services, 2000 at 414 – 417). It will usually be necessary for such a tribunal to give an opportunity to address material concerning matters personal (see, e.g. Kioa per Mason J at 587). But disclosure will not be necessary if the material is not sufficiently credible, relevant or significant (per Brennan J in Kioa at 628 – 629).

86                  However, in some cases, disclosure may have the potential to cause harm to some person or entity or to the public interest. That is to say, whilst exclusionary rules of evidence of the kind applied in courts which positively forbid the reception of certain kinds of evidence are not, in the main, appropriate for application in extra-curial tribunals, the position is different where the ground for exclusion is an identifiable and justifiable public interest ground (see Enid Campbell, “Principles of Evidence and Administrative Tribunals” in E Campbell and L Waller (ed.) Well and Truly Tried: Essays on Evidence, Law Book Co Ltd, 1982 at 86). In those circumstances, disclosure of the substance, but not the detail, of the material will often effect a satisfactory compromise between the demands of disclosure and confidentiality (M Aronson & B Dyer, above, at 416).

87                  Put differently, ‘[t]he need to preserve confidentiality of [an] investigation does not exclude procedural fairness, but reduces its content, perhaps [as Brennan J noted in Kioa] in some circumstances to nothing’ (per McHugh J in Johns v Australian Securities Commission (1993) 178 CLR 408 at 472); that is, [t]he fact that confidential material is involved in the decision-making process … does not negate the application of the rules of natural justice; rather it narrows the field of their operation’ (per Lockhart J in Ansett Transport Industries Ltd v Secretary, Department of Aviation (1987) 73 ALR 205 at 218). In many cases, ‘all that is necessary is that the gist of [the] information be disclosed …’ (per Lockhart J in Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 561 at 574). See also Chu v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 540 at 545 – 546; Minister for Aboriginal & Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40 at 58.

88                  It does not appear, at least from the Tribunal’s reasons, that the Tribunal at any point addressed the question whether a balance might be achieved between the claims for confidentiality and procedural fairness by, for instance, describing the gist of the documents in question, thus reconciling the competing interests involved, if that reconciliation were practicable.

89                  Related to the confidentiality aspect is the question whether a public interest immunity (that is, Australian domestic public interests – see J D Heydon, Cross on Evidence, 6^th Australian edition, at 770 [27070]) could exist here, especially if the material emanates from a sovereign state and is confidential (see Buttes Gas and Oil Co v Hammer (No. 3) [1981] 1 QB 223 at 265). Again, as in the case of a purely confidential claim, the Tribunal, in our opinion, should address the question whether it is possible to balance the public interest claim and procedural fairness (see Sankey v Whitlam (1978) 142 CLR 1 at 38, 39, 40; Alister v The Queen (1984) 154 CLR 404 at 412, 416, 469 – 470); Chu v Minister for Immigration & Ethnic Affairs (1997) 78 FCR 314 at 327, 328 and 329).

90                  In our opinion, the statute apart (and we come to that below), in the application of the common law principles we have mentioned, even it be assumed that the documents were, in truth, confidential, or were properly the subject of a claim of public interest immunity (see the observations of Mason J in Sankey at 96 requiring more than an ‘amorphous’ statement that non-disclosure is necessary), the Tribunal failed to consider whether it was possible to reconcile the claims of the Secretary for non-disclosure on the one hand, with the claims for procedural fairness on the other, by, for instance, addressing the question whether such a reconciliation could be achieved by disclosing the gist of the information in the subject documents. In our opinion, looked at purely from a common law perspective, the Tribunal’s approach failed, to this extent, to accord the appellant procedural fairness.

91                  We move next to consider the effect, if any, of the statute, bearing in mind the significance of the role played by the common law rules attributed in Miah and in WAEJ, which we should first note.

92                  In Miah, the Minister’s delegate relied upon, but failed to disclose, new material arising after lodgement of an application for a protection visa, and in May 1997 refused the application. Section 69 of the Act provided that non-compliance with the provisions of the Act for the processing of visas, did not invalidate the decision, but only meant that the decision might have been the wrong one and might be set aside if reviewed; and that, if the Minister dealt with a visa application in a way which complied with the Act, the Minister was not required to take any other action in dealing with the application.

93                  It was held by Gaudron, McHugh and Kirby JJ (Gleeson CJ and Hayne J dissenting), that the Act did not exclude the application of the common law rules of natural justice; and that the delegate had failed to accord the applicant natural justice by not informing him of the substantial new material on which the delegate relied.

94                  Gaudron J, after noting the two views of Mason J and Brennan J in Kioa (cited above) said (at 83 – 84 [90]):

‘Whether the rules of natural justice derive from the common law or whether they are implied by the common law, the question that presently arises is not whether subdiv AB constitutes a code. Rather, if natural justice is a common law duty, the question is whether the provisions of that subdivision manifest a clear intention that that duty be excluded. On the other hand, if the rules of natural justice are seen as implied by the common law, the question is whether the provisions of subdiv AB manifest an intention that that implication not be made. Whatever approach is adopted, in the end the question is whether the legislation, “on its proper construction, relevantly (and validly) limit[s] or extinguishe[s] [the] obligation to accord procedural fairness”.’

95                  Her Honour went on to hold that s 69 did not indicate an intention to preclude the High Court from exercising its jurisdiction under s 75(v) of the Constitution. (It will be recalled that s 422B was enacted after Miah was decided.)

96                  McHugh J said (at 93 – 94 [126 ] – [128]):

‘The common law rules of natural justice … are taken to apply to the exercise of public power unless clearly excluded.

Accordingly, the relevant question in the present proceedings is whether the terms of the Act, particularly subdiv AB, display a legislative intention to exclude the common law rules of natural justice. More specifically, the question is whether the Act intended to deny an applicant “an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise”.

It is highly improbable that the legislature intended to exclude all the common law requirements of natural justice from subdiv AB. There are no clear words to that effect. Where Parliament has wanted to exclude common law rules from applying to the administration of the Act, it has not hesitated to do so in clear words (see, eg, s 476(2)). Moreover, subdiv AB is headed “Code of procedure for dealing fairly, efficiently and quickly with visa applications”. (Emphasis added.) It therefore assumes that the “code” will operate fairly. The subdivision sets out various formal procedures which the Minister may or must follow to ensure fairness to applicants. But subdiv AB does not declare that they exhaustively define the content of fair procedure. The subject matter of the Act, the fact that it implements Australia’s international obligations, and the omission of words unambiguously pointing to an intention to exclude all the common law rules of natural justice indicate that the exercise of power under subdiv AB is conditioned on the observance of those rules except where the provisions of the Act specifically supersede them.’

97                  After citing observations by Brennan J in Kioa, McHugh J (at 94 [129]) said that the content of the principles which the legislature intends to apply in the circumstances of a particular case ‘cannot be discovered by reference solely to the statute’, adding (at [130]) that the ‘starting point for determining the context of the duty to accord natural justice is therefore the statutory context’.

98                  Kirby J was of a similar view, holding (at 115 [190]) that ‘[t]he scope of the applicable legal entitlement is defined by the rules of natural justice consistent with the Act’. His Honour added (at 117 [193]):

‘… [W]hilst the position might be different in other circumstances, here there were special considerations which suggested that the delegate was obliged to call the information on which he acted to the notice of the prosecutor: (1) the very long delay between the application and the primary decision, which was not the result of anything the prosecutor did and which suggested that an opportunity of comment could have been afforded without unreasonably retarding an efficient decision; (2) the fact that the information was not confidential or secret; (3) the fact that it was judged of crucial importance, even determinative, for the outcome of the application; (4) the consideration that the delegate’s decision would have been better informed had he enjoyed the benefit of a submission on the information concerned; and (5) the fact that the delegate would have been aware that the decision was very important for the prosecutor and would have known that, for practical purposes, as in most cases, it represented, and was intended by the Act ordinarily to be, the final decision in the case.’ (Emphasis added.)

99                  Kirby J’s reference to the material there not being confidential or secret is, in our view, significant for present purposes, where such a claim is, of course, made. This indicates, we think, that in the absence of any statutory provision, the general law principles of natural justice applied in the present matter. But even under those principles, appropriate weight needed to be given to the circumstance where there was a claim that information was secret or confidential, and, if practicable, an effort should have been made to reconcile the competing interests involved.

100               There appears to be nothing in WAEJ which contradicts this proposition. The issue there (relevantly) turned on reliance by the Tribunal on (critical) country information without informing the applicant of its intention to do so. The Full Court (Lee, Hill and Marshall JJ) said (at 605 [36] – [40]):

‘[36] Section 424A of the Act, in the form the legislation took prior to July 2002 (which includes this matter), did not represent a complete statement of the RRT’s obligation to afford procedural fairness to an applicant for a protection visa: cf s 422B of the Act, which was introduced with effect from 3 July 2002.

[37] Counsel for the appellant submitted that the decision of a Full Court of this Court in WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 409 … mandated a contrary conclusion as to the effect of s 424A.

[38] We are unable to agree. The argument addressed in WAAJ was limited to whether failure to comply with the requirements of s 424A provided ground for review under the Act. There is no express statement in s 424A that common law rights are revoked by the section and operation of the section does not depend upon an implication to that effect.

[39] Furthermore, when the High Court determined in … Miah …that the Act was not to be read as an exhaustive code that excluded obligations of proceedural fairness it was considering decision-making provisions of the Act to which s 57 of the Act applied, a provision in equivalent terms to those set out in s 424A.

[40] It follows that a breach of the rules of natural justice occurred in the manner in which the RRT conducted its proceeding. (See: Miah per Gaudron J at [99], McHugh J at [143], Kirby J at [196]; Muin …per Gleeson CJ at [30], Gaudron J at [64], McHugh J at [137]-[138], Kirby J at [236].)’

101               Turning then to the Act, a convenient point for commencement is s 424A itself. It will be remembered that s 424A(1) provides that, subject to s 424A(3), certain information must be given to an applicant; that the Tribunal must ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review; and that the applicant is invited to comment on the information.

102               There would not appear to be any detraction from the general law principles of natural justice in the terms of s 424A(1), taken as a free-standing provision. In other words, picking up the principles enunciated in the application of the general law rules of natural justice, confidentiality is a material consideration and can call for a reconciliation process.

103               It will further be recalled that s 424A(3) excludes from the operation certain information, including, as arose in WAEJ (by virtue of s 424A(3)(a)), information that is ‘not specifically about the applicant etc.’ – something not in issue here. Relevantly for present purposes, the exclusion is (by virtue of s 424A(3)(c)) of ‘non-disclosable information’, defined in s 5(1) to mean information or matter, whose disclosure would, in the Minister’s opinion –

(a) ‘be contrary to the national interest because it would … prejudice the … international relations of Australia …’; or

(b)               ‘be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings’; or

(c)                ‘found an action by a person, other than the Commonwealth, for breach of confidence’.

104               Again, in our view, none of these provisions appears, for the reasons already given, to be inconsistent with the substantive tenor of the general law principles of natural justice.

105               We would add that nothing in Velmurugu, above, relied on by the Minister contradicts our conclusion. That case is clearly distinguishable on its facts. Nor in our view, does the decision in NAFQ assist the Minister. Moore J was there considering a specific, different issue.

106               However, at the adjectival level, some further issues need to be addressed in the application of the legislative scheme in this area in the circumstances of the present case.

107               First, as has been said, even if a claim for confidence, or a similar claim, based on national or public interest grounds, is made out, it does not follow that a tribunal should assume that an applicant can be told nothing at all about the material. It may be possible for the Tribunal, upon examination, to disclose the gist of the matter. Since it appears that the Tribunal did not turn its mind to that possibility, as has been said, to this extent, the appellant was denied procedural fairness not only under the general law, but also under s 424A, read as a whole.

108               Secondly, the Tribunal appears to have taken the Secretary’s claims of confidentiality, and ‘cooperation’ at face value, whereas s 5(1) makes such a claim either dependent upon the Minister’s opinion, or upon proof of a justiciable claim for breach of confidence. None of these questions was addressed by the Tribunal. Here also, the appellant was not accorded fairness in the application of s 424A(3)(c).

109               Moving beyond s 424A, we proceed next to consider whether the provisions of s 438 have any bearing upon the application of the general law rules of natural justice different from that previously discussed.

110               Section 438 (along with s 437), appears in Division 7 of Part 7, a division described as ‘miscellaneous’. Section 424A, by contrast, appears in Division 4, dealing with the Tribunal’s ‘[c]onduct of [its] review’. Although s 438(1) stipulates in detail the character of documents or information, the balance of the section is essentially procedural. In stipulating this character, questions arise similar to those arising under s  424A(3)(c) (read with the definition in s 5(1)), especially when regard is also had to pars (a) and (b) of s 437.

111               That is to say, as we have concluded in respect of the application of s 424A(3)(c), in determining whether a claim by the Minister qualifies for the purposes of s 438(1) the Tribunal should, in our opinion, have been satisfied here that the document was given in confidence. (We note that the Minister did not certify for the purposes of s 437 or s 438(1)(a). Nor were Minister’s certificates or opinions given for the purposes of s 424A(3)(c) (s 5(1) definitions (a) and (b)).

112               The question then for the Tribunal was whether, for the purposes of s 438(1)(b), the document, or information, was given to the Department ‘in confidence’, and if so, whether it was possible to describe to the appellant the gist of the material without breaching that confidence. As has been said, the Tribunal made no attempt to address this question, and to this extent, in our view, the appellant was here also not accorded natural justice.

113               In dealing with this part of the appeal, in summary we have held, in accordance with the majority decision in Miah, that neither s 424A nor s 438 necessarily exclude the general law rules of natural justice, but that under those rules, confidentiality may be protected, as both s 424A(3)(c) (s 5(1) definition (c)) and s 438(1)(b) also recognise; however, we have also held that both under the general law and under s 424A(3)(c) and s 438(1)(b), the Tribunal should have, but did not, consider whether it was ‘appropriate’ to inform the appellant of the gist of the material, without breaching confidence.

114               Before proposing any relief in respect of this part of the appeal, we propose to turn next to the appellant’s second contention. But, we should make it clear at this stage that our assumption that there was a relevant confidence is not our finding. As has been noted, it does not appear that this question was substantively litigated before the primary Judge, who proceeded on the basis that there was a confidence. Since the matter is to go back to the Tribunal, this question can be considered if it is an issue. We, of course, have assumed that there is a confidence, but, on that footing, we have nonetheless held that the Tribunal should, in according the appellant natural justice, have considered whether it was possible to reconcile the confidence and the appellant’s interests.

Was the Tribunal required to test, by means of appropriate questioning, an assertion by the Department that documents which may be adverse to the appellant’s case are immune from disclosure, if such inquiry is necessary and appropriate to permit the Tribunal, as an inquisitorial body, to give proper consideration to relevant considerations in the exercise of its statutory discretion?

115               In order to understand the issues arising in this part of the appeal, it will again be necessary to explain the nature of the parties’ alternative arguments.

The appellant’s written outline dated 7 May 2004

116               The appellant here submitted:

·                    On the assumption that s 424A did not impose a specific obligation on the Tribunal, the conditions of its operation, and the underlying principles of the common law concerning procedural fairness, should nevertheless constitute weighty factors in favour of disclosure when the Tribunal is considering the exercise of discretionary disclosure under s 438(3)(b). However, the Tribunal did not adopt this approach, when it observed:

‘The information itself is innocuous enough in the sense that it appears to be merely a body of direct evidence obtained by investigators to support the framing and prosecution of criminal charges. The benefit which the applicant claims would accrue to her by disclosure is not evident in the contents of the information.’

·                    But, as Deane J said in Kioa v West (at 633):

‘…[T]he mere circumstance that there is no apparent likelihood that the person directly affected could successfully oppose the making of a deportation order neither excludes nor renders otiose the obligation of the administrative decision-maker to observe the requirements of proceduralfairness. Indeed, the requirements of procedural fairness may be of added importance in such a case in that they ensure an opportunity of raising for consideration matters which are not already obvious.’

·                    To be weighed against the importance of disclosure in the present circumstances was the detriment which would accrue from disclosure to the appellant, assuming and accepting that such disclosure would be accompanied by a direction under s 440. With respect to that factor, the Tribunal stated:

‘The detriment which may attend disclosure, which I am not in a position to assess myself but which the Department has expressed, is potentially significant and serious, amounting to a deliberate reneging on an undertaking of confidentiality and perhaps damage to the co-operative relationship between Australia’s and China’s law enforcement bodies in not only this matter but perhaps future matters.’

·                    However, while any advice given by the Secretary was something to which the Tribunal was required to have regard, nothing in s 438(3)(b) requires the Tribunal to act on that advice, without attempting to form its own considered opinion on the issues in question. The Tribunal has, in terms, disowned any attempt to assess the material circumstances.

·                    Further, the reason why the Tribunal may have felt unable to assess certain aspects of the claims made on behalf of the Secretary was that they concerned international relations between Australia and another country in relation to law enforcement. Yet, had the Minister been prepared to certify that that was indeed the case, the material could not have been supplied to the Tribunal, by virtue of s 437(a). Similarly, if it had been a matter of national interest, the Minister could have expressed an opinion pursuant to par (a) of the definition of ‘non-disclosable information’. Such matters are, it may be conceded, matters peculiarly within the purview of a Minister of the Commonwealth. The fact that no such opinion was expressed, or certification provided, by the Minister was, itself, a reason to discount the seriousness of the potential harm.

·                    To the extent that the letter provided on behalf of the Secretary sought to invoke the concept of ‘non-disclosable information’, it did not do so on that basis. It merely asserted that disclosure of the information ‘would found an action by a person ... for breach of confidence’. That assertion of law required careful consideration before it was accepted. The need for that consideration was made more obvious by the fact that the delegate of the Secretary had sought to rely on s 422B of the Act, as having application in relation to the present application for a visa, in circumstances where the Secretary should have been aware that the application was made before the commencement of the relevant provision and hence did not apply to it.

·                    The Tribunal did not attempt to identify the critical elements in these assertions made on behalf of the Secretary, nor attempt to determine whether they were correct. The Tribunal simply noted that disclosure ‘may constitute’ a breach of the common law or of the Migration Act because the information was provided with a specific request that it be kept confidential.

·                    Against this background, the questions (the Enquiry Request) which the appellant sought to have the Tribunal put to the Secretary should have been considered. The purpose of these questions is not hard to discern, since the Secretary had advised the Tribunal by way of a letter which made three assertions:

(a)                where information has been given under an obligation of confidentiality, there would be a breach of confidentiality if disclosure occurred ‘without the authority of the person to whom the obligation of confidentiality is owed’;

(b)               in this case, permission was specifically obtained by the Department from the PSM to disclose the documents to the Tribunal; and

(c)                ‘the Chinese agency did not permit the disclosure of the documents or their contents to the appellant, the appellant’s legal representative or any other entity.’

·                    If the Secretary did in fact seek permission to allow him to supply the material to the Tribunal under s 438, any inference that he did not reveal to the Chinese authorities that the Tribunal, as an independent entity, had (at the very least) a broad discretion to provide the material to the applicant (under the same section) would be ‘startling’. Nevertheless, if that was explained to the Chinese Ministry, it is difficult to understand how the Ministry would have granted permission for disclosure to the Tribunal but would ‘not permit’ disclosure to the appellant. It should have been clear to the Ministry (if properly informed by the Secretary as to Australian law) that such a condition was not within its power to impose. That being so, it is at least difficult to understand how the third statement could have arisen. One available inference is that the Secretary deliberately sought power of disclosure on a limited basis which would allow the information to be used only in a manner which was not adverse to the Minister’s case.

·                    It is not clear why the Secretary went to the steps of seeking a partial release from the Chinese authorities in circumstances where he was satisfied that the material ‘bears no reference to [the appellant’s] claims for protection’.

·                    Finally, what is revealed by the Secretary’s Advice is that the information contained is of direct concern to the appellant. The inference is available that the information was supplied by the Chinese authorities to effect a ‘backdoor extradition’, despite the absence of an extradition treaty with Australia. Thus, the documents include ‘a request for the arrest and deportation … of the [appellant]’. It also appears to contain information by way of witness statements, certificates and documents which are directly pertinent to the case the Chinese authorities seek to make against the appellant. If this material is genuine, it might support the character attributed to it by the Tribunal. If, however, it contains material including conversations, for example, with people the appellant has never met, or with people whom she knows to be subject to prosecution, and thus with an interest to do what the prosecutors ask them to do, that might well support her present application. She cannot now say that, because she does not know who the witnesses are. But nor can the Tribunal say that such claims would be untrue, because it knows nothing about the witnesses either.

·                    Of course, the questions which the Tribunal was asked to raise with the Secretary did not go to these issues. They did, however, seek to ascertain the underlying basis for some of the assertions made on behalf of the Secretary. It is not conceivable that a legally qualified decision-maker would accept an assurance that some person had given authority, but in limited terms, without seeking first-hand evidence of the terms of the authority so given, and the basis on which it was sought. The failure of the Tribunal to make those simple inquiries, as requested by the appellant, demonstrated an unwillingness to address a fundamental aspect of the case. Failure properly to exercise the power to consider disclosure of the material to the appellant constitutes a failure to exercise the jurisdiction vested in the Tribunal by the Act and itself constitutes a breach of procedural fairness.

·                    The basis on which the primary Judge rejected this argument was that ‘it is by no means clear as to why the answers would be centrally relevant to the exercise of the discretion to disclose the documents in question’. However, the express statements made by the Tribunal in refusing to consider disclosure ‘appropriate’, and to the circumstances of the case, must be taken into account.

·                    His Honour further noted:

‘The attitude of the Chinese authorities was not central to the exercise of any discretion conferred on the Tribunal by s. 438(3)(b).’

·                    But, the only ‘detriment which may attend disclosure’ identified by the Tribunal was the potential damage to the co-operative relationship between Australia and China, if there was a deliberate reneging on an undertaking of confidentiality. How that detriment could ensue at all, absent a strongly held attitude on the part of the Chinese authorities, is unclear.

·                    His Honour also sought to dismiss the fourth question raised on behalf of the appellant because:

‘The Secretary’s Advice did not make any general statements about documents from overseas enforcement agencies.’

·                    However, his Honour had earlier noted that the Secretary had said ‘expressly that the obligation of confidentiality is not affected by the permission given by the PSM’. At least one inference, which might be drawn, is that the Secretary was indeed making a blanket statement that such documents should generally not be disclosed to applicants. Furthermore, if the nature of any permission given by the overseas agency is disregarded, the statement that the documents were ‘non-disclosable information’, because disclosure would found an action for breach of confidence by some ‘person’, becomes untenable.

·                    The point does not, in any event, turn ultimately on the formulation of the questions put forward by the appellant. The issue is rather whether, without making some form of inquiry along the lines suggested, the Tribunal could properly be satisfied that it was not appropriate to disclose the documents in its possession to the appellant. If it could not, it was fully entitled to formulate any inquiries it had of the Secretary in terms it deemed appropriate. In the present case however, the substantive complaint remains: there was a failure by the Tribunal to take essential steps in order properly to exercise the jurisdiction conferred on it by s 438(3).

·                    Nor should that jurisdiction be dismissed as ‘a mere incident of the primary function of the Tribunal’. The basis for appropriate disclosure is found in principles of procedural fairness. The provision of procedural fairness goes to the essential validity of the exercise by the Tribunal of its statutory jurisdiction. If the substantive complaint is made out, the decision of the Tribunal should be set aside.

The Minister’s written outline dated 11 May 2004

117               The Minister here submitted:

q                   The appellant’s grounds argue that the Enquiry Request should have been put to the Department. This submission was rejected by his Honour in reasons which are adopted. The Tribunal was obliged by s 438(3)(b) to have regard to the Department’s advice, as it did. Plainly guided by the comments in NAFQ, it disclosed that advice to the appellant and gave her an opportunity to be heard on it.

q                   The Tribunal was not, however, additionally obliged to ask questions of the Department, or of the Chinese government on the appellant’s behalf. It may be noted that the answer to question 3 in the Enquiry Request was, in any case, known to the appellant from the Secretary’s Advice and the documents given to the appellant in 2002 in compliance with the Court’s orders in NAAO. The other questions suggested appear to have little, if any, relevance to the Tribunal’s s 438 decision and to be nothing more than a ‘fishing expedition’.

q                   The lengthy explanation of and justification for, these questions made in the appellant’s submissions should properly have been made to the Tribunal. It is unfair to expect the Tribunal to have inferred all the reasons for these questions that the appellant now puts on appeal. The claim that there was a breach of procedural fairness by the Tribunal not having asked these questions, cannot be made out on the present state of the evidence, especially having regard to the terms of s 438(3)(b).

The appellant’s oral response

118               In argument before us, the appellant responded to this effect:

·                    The appellant has never submitted that the Tribunal was obliged to ask questions of the Department or the Chinese government on behalf of the appellant. Rather, what was put to the Tribunal was that, in order to understand the claim for confidentiality, then made, the Tribunal should itself have made some inquiries in order to exercise its statutory jurisdiction properly, not of the Chinese government, but of Australian authority.

·                    Question 3 in the Enquiry Request asked ‘[e]xactly what was communicated by the Chinese authorities … concerning the confidentiality of the documents?’ The Minister now suggests that this is answered by the statement in the Secretary’s Advice that the documents were ‘given under an obligation of confidentiality’. But this ‘bland’ statement fails to say very much about whether they were ‘to remain confidential from the public at large (as distinct) from the person most directly interested in the criminal charges … .’

·                    It is clear that neither s 437 nor s 503A is relied on by the Minister here.

The Minister’s oral reply

119               In argument, Mr Reilly submitted:

q                   Although the Tribunal did not accept what was put to it by the appellant in its Enquiry Request, the Tribunal did not ignore the appellant’s submissions in this connection.

q                   By virtue of the provisions of s 438(3)(b), the only matter that the Tribunal must have regard to is the Secretary’s Advice, and there was nothing before the Tribunal to contradict that advice.

q                   As to the first question in the Enquiry Request (i.e. were the Chinese authorities informed of the Tribunal’s ‘right to act against’ the Department’s advice?), the attitude of the Chinese government ‘isn’t determinative for the exercise the Tribunal has to undertake’. The attitude of the Australian government ‘would be the one that it would pay most [attention] to’.

q                   As to the second question (i.e. were the Chinese authorities aware that the documents may have had to be read by a judge?), this appears to be irrelevant.

q                   As to the third question, ‘it is strange [in the light of the litigation in NAAO] that the appellant would request [that] the Tribunal [make] an inquiry … of the Department of a matter that [she had] already been provided with by … Court [order] in litigation [in which she was a] party … .’

q                   As to the fourth question (i.e. is the Department saying that no document from an overseas law enforcement agency can ever be given to an applicant in any circumstances?), as a ‘generality [this] has no relevance whatsoever … [and] all of these questions are nothing more than a fishing expedition … .’

q                   As to the Tribunal’s duty to make inquiries, the general position (as explained by the Full Court in Luu v Minister for Immigration & Multicultural Affairs (2002) 127 FCR 24 (at [50]) is that where it is ‘obvious that material is readily available which is centrally relevant …’, to proceed to a decision without making any attempt to obtain it may be ‘unreasonable’. But it will be a ‘relatively rare case’ in which a statutory decision is vitiated for this reason.

q                   Such a ‘rare case’ is ‘not triggered simply by a suggestion [as the appellant has done] of some questions of doubtful relevance without explanation’. Although an ‘extensive explanation’ has now been provided to the Full Court, that explanation was not provided to the Tribunal ‘where one might think, if these questions really were so relevant, the reasons [for asking the question] would [then] have been made known.’

q                   If the Court ‘were to be minded to entertain an argument about the applicability of [s] 424A [the Minister] would seek leave to make submissions and, if necessary, lead evidence as to the exception in [s] 424A(3)(c) applying … . [The Minister] did not [do this at trial] because the point wasn’t raised … .’

The appellant’s oral reply

120               Mr Basten finally submitted:

·                    The Full Court’s decision in Luu should be read in conjunction with the observation of Gummow and Callinan JJ in Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088 (at [24]) that ‘[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was … to fail to accord … natural justice’; with the statement by Kirby J (at [88]) that ‘where … [a] mistake [in understanding the facts, or in applying the law] is essentially definitional, and amounts to a basic misunderstanding of the [applicant’s] case, the resulting flaw is so serious as to undermine the lawfulness of the decision … in a fundamental way’.

·                    The judgment in NAAO was given on 20 March 2002. The Secretary’s Advice, which was written on 19 November 2002 still (despite what had been conceded before the Full Court in NAAO) relied upon s 422B. Since the letter ‘is subsequent to NAAO … one can[not] seek to rely upon anything said in that case in relation to the way in which the Tribunal addressed this matter’.

Conclusions on this part of the appeal

121               In our opinion, this part of the appeal raises essentially similar issues to those considered earlier. That is to say, in our view, whether considered under the general law, or by virtue of the relevant statutory provisions, a confidential document may, in the interests of procedural fairness be capable of explication (without undermining the substance of the confidence) to an applicant in the form of describing the gist of the material without breaching the confidence. This process is permitted under the general law and, in terms under s 438, in both instances where it is ‘appropriate’ to do so. In other words, it may be possible to reconcile the parties’ different interests when regard is had to the substance of the information, rather than the form of any documentation.

122               Here also, assuming the material is truly confidential, and given the comments we have made in this connection in our remarks at the end of the first part of the appeal, nonetheless the Tribunal should have addressed the question whether it was appropriate to proceed in the way we have indicated.

123               If it were necessary to do so, we would add that we do not suggest that the questions raised in the appellant’s solicitors’ Enquiry Request were, or were not, appropriate. It will be a matter for the Tribunal, after finding a confidence, to address, in a fashion which the Tribunal deems appropriate, whether it is practicable to reconcile the competing interests involved.

124               For the reasons already given, in our view, the appellant was, to this extent, not accorded natural justice.

Orders

125               Accordingly, in accordance with our conclusions, the appellant is entitled to appropriate relief in the form of orders as follows:

1. Appeal allowed, with costs.

2. Set aside the orders made at first instance; in lieu thereof, order that the decision of the Refugee Review Tribunal dated 20 August 2003 be quashed; and that the matter be remitted to the Tribunal, differently constituted, for reconsideration in accordance with these reasons for judgment.

Associate:

Dated: 17 June 2004