FEDERAL COURT OF AUSTRALIA

NAAX v Minister for Immigration & Multicultural Affairs

[2002] FCA 263

CONSTITUTIONAL LAW – judicial power of the Commonwealth – whether decision to grant or refuse protection visa is exercise of judicial power of the Commonwealth – whether privative clause excludes breach of natural justice from grounds of judicial review is inconsistent with s 75(v) of the Constitution – validity of Migration Act 1958 (Cth) s 474

ADMINISTRATIVE LAW – operation of privative clause – whether breach of rules of natural justice by denial of procedural fairness grounds relief notwithstanding privative clause – Hickman principles – whether Hickman principles exhaustive – whether rules concerning procedural fairness fall within Hickman principles – whether decision made absent procedural fairness made “under the Act” within Migration Act 1958 (Cth) s 474(2)

MIGRATION – protection visas – whether use of undisclosed independent information by Refugee Review Tribunal in a manner adverse to applicant constituted breach of procedural fairness – whether provision of such information governed by Migration Act 1958 (Cth)         s 424A

Commonwealth Constitution ss 71, 75(v)

Migration Act 1958 (Cth) ss 36(2), 52-59, 62, 65, 359A, 359B, 415, 420, 424A, 425, 430,  474, 476(2)

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Judiciary Act 1903 (Cth) s 39B

Migration Reform Act 1992 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Minister for Immigration & Multicultural Affairs;  Ex parte Miah (2001) 75 ALJR 889 applied

Re Refugee Review Tribunal;  Ex parte Aala (2001) 204 CLR 82 referred to

Walton v Ruddock [2001] FCA 1839 referred to

SAAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 101 referred to

R v Hickman;  Ex parte Fox & Clinton (1945) 70 CLR 598 followed

R v Coldham;  Ex parte Australian Workers’ Union (1983) 153 CLR 415 followed

O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 followed

Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 followed

Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 followed

Re Australian Bank Employees Union;  Ex parte Citicorp Australia Ltd (1989) 167 CLR 513 distinguished

Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 not followed

Stock v Grubb (1985) 39 SASR 1 cited

R v Mill & Toon;  Ex parte Visona [1960] Qd R 123 cited

R v Chairman of General Sessions of Hamilton;  Ex parte Atterby [1959] VR 800 cited

R v War Pensions Entitlement Appeal Tribunal;  Ex parte Bolt (1933) 50 CLR 228 referred to

Craig v South Australia (1995) 184 CLR 163 referred to

Australian Coal & Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161referred to

Morgan v Ryland Bros (Australia) Ltd (1927) 39 CLR 517 applied

R v Commonwealth Rent Controller;  Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361 followed

Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 referred to

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 referred to

Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167 referred to

Abebe v Commonwealth (1999) 197 CLR 510 followed

Attorney General (Commonwealth) v Breckler (1999) 197 CLR 83 followed

SZ v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 342 followed

Kioa v West (1985) 159 CLR 550 referred to

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 referred to

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Browne v Dunn (1893) 6 R 67 referred to

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 referred to

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 75 ALJR 1105 referred to

Xu v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 425 cited

Re Minister for Immigration & Multicultural Affairs;  Ex parte Durairajasingham (2000) 74 ALJR 405 cited

Somagahi v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 100 referred to

Heshmati v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 123 referred to

Lek v Minister for Immigration, Local Government & Ethnic Affairs (1993) 43 FCR 100 referred to

David v Minister for Immigration & Ethnic Affairs (unreported, Federal Court of Australia, Wilcox J, 2 October 1995) referred to

Herijanto v Refugee Review Tribunal (High Court application S 97 of 1998) referred to

Re Refugee Review Tribunal;  Ex parte Aala (2001) 204 CLR 82 referred to

Muin v Refugee Review Tribunal (High Court application S 36 of 1999) referred to

Lie v Refugee Review Tribunal (High Court application S 89 of 1999) referred to

Thairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281 cited

Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630 cited

Bitani v Minister for Immigration & Multicultural Affairs [2001] FCA 631 cited

Pannasara v Minister for Immigration & Multicultural Affairs [2001] FCA 570 cited

Re Minister for Immigration & Multicultural Affairs;  Ex parte PT (2001) 75 ALJR 808 referred to

Re Minister;  Ex parte Epeabaka (2001) 75 ALJR 848 referred to

Keller v Drainage Tribunal [1980] VR 449 applied

Minister for Health v Thomson (1985) 8 FCR 213 cited

Kalil v Bray [1977] 1 NSWLR 256 cited

Maloney v National Coursing Association [1978] 1 NSWLR 161 cited

APPLICANT NAAX and APPLICANT NAAV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1467 OF 2001 and N 1468 OF 2001

GYLES J

SYDNEY

15 MARCH  2002

THE COURT ORDERS THAT:

1.                  Each application be dismissed.

2.                  The applicants pay the respondent’s costs of the application, limited to one set of costs.

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

INDEX

REASONS FOR JUDGMENT

1                     These applications relate to decisions of the Refugee Review Tribunal (“the Tribunal”) made on 11 September 2001 but handed down on 2 October 2001, which confirmed the decision of a delegate of the respondent Minister to refuse the applicants protection visas pursuant to the Migration Act 1958 (Cth) (“the Act”).  No point has been taken about the delay in handing down the decision, the effect of which was to ensure that these applications to the Court would be governed by the amendments to the Act made by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).  That amendment inserted new Parts 8 and 8A into the Act which substantially alter the provisions for judicial review of Tribunal decisions.  The applications were filed and heard together before the Tribunal as the applicants were married upon their arrival in Australia.  Despite the subsequent separation of the applicants (and the filing of two applications for review in this Court), the interrelated factual circumstances of each allowed for the applications to be heard concurrently before me.  As required by the new legislative regime, this application proceeds pursuant to s39B of the Judiciary Act 1903 (Cth).

short facts

2                     The applicant NAAV was born in 1972 in Taunggok, Arakan in Burma, and claims Arakan ethnicity and Buddhist religion.  He arrived in Australia on 2 November 1995 pursuant to a visitor visa issued in Rangoon, holding a current Burmese passport.  He was accompanied by his wife, applicant NAAX, and their young daughter.  On 31 January 1996 he applied for a protection (Class A2) visa.  He was represented at all material times by a migration agent, who prepared and presented the statement and statutory declaration upon which his claim to protection was based.

3                     He claimed to have been a political activist from 1988.  He gave an account of his activities which included three arrests and subsequent incarceration and interrogation, including one two-year period in jail.  He said:

“If I return to Burma, I will be arrested for sure at the airport and my passport confiscated.  I am a known political offender and I cannot afford to be arrested one more time, it would mean the end of me.”

He also claimed later to have been active in anti-government circles in Australia.

4                     The applicant NAAX was born in 1972 in Maung Daw in Burma.  She arrived in Australia with her husband, applicant NAAV, on 2 November 1995, with their daughter.  She also had a visitor visa and a current Burmese passport.  She made an application for a protection visa on 31 January 1996 and appointed the same migration agent as applicant NAAV, who prepared and presented a statement and statutory declaration in support of the application.  She claimed to have been a political activist who had attracted the attention of the authorities.  She said:

“If we go back, I am sure we would be arrested as soon as we set down at the airport in Burma.  I fear torture and worse, for myself and my husband.”

She later also claimed to have been active in Australia.

5                     On 29 April 1998 a delegate of the respondent Minister refused to grant a protection visa to either applicant.  Each made an application to the Tribunal for review of the delegate’s decision.  On 11 July 2000 the applicants were invited to a hearing on 9 August 2000, which they attended with their migration agent and a witness.  I shall return to that hearing later.  As I have said, the Tribunal decision was not handed down until 2 October 2001.  Although no complaint as such is made, the delay in dealing with these applications for protection visas made in January 1996 appears to be inordinate.

6                     Although the Tribunal member accepted some of the claims of the applicants, he did not accept the essence of the claim of each to have been and to be a political activist of some profile who had suffered persecution as such.  In forming an unfavourable opinion as to the credibility of the applicants, and so rejecting their respective accounts, the Tribunal member took into account, adversely to the applicants, the following:

1.                  Information gathered from sources other than the applicant and contained in a number of documents (“country information”).

2.                  A particular map of the region.

3.                  In the case of the applicant NAAV, the military experience of the member.

None of this information was disclosed to the applicants or their migration agent.  Applicant NAAV and the migration agent have given evidence as to what they would have said or done differently if the information had been disclosed.

7                     Early in the hearing (at which the applicants and their migration agent were present), the Tribunal member said:

“Now, you have both provided an account of your situation on a number of occasions already, so I have a reasonable idea of what you claim your problems are.  I invited you to this hearing, because I was unable to make a favourable decision on the information before me.  I will not be discussing everything at the hearing today but I will be asking you a number of questions and trying to get as clear a picture of your circumstances as I possibly can.

I may also talk to you about information that I have concerning your country which is independent information.  This is information that comes from various sources and from people who are not at the hearing today.  These people may be experts on or in your country, from the Australian Government and your country, and there may be other information about your country, information from document examiners, cables, articles, experts and that sort of thing.  It may also be information from other governments, and from human rights organisations.

Now, I will be telling you what that information may mean in your case, and giving you an opportunity to make comments about it.  Now, I want to talk to your witness for a moment.”

8                     Later in the hearing, the following exchange took place between the migration agent (Mr McDonnell) and the Tribunal member (Mr Gibson):

 “MR McDONNELL

One other little thing was that you mentioned earlier some independent country information, that could have a bearing on the case, I would ask that that be made available, if it will be taken into consideration.

MR GIBSON

Yes, in fact I should have corrected myself.  In fact, it doesn’t have any, I read it during one of the breaks, that is why I stopped actually, because I thought that it did and when I started reading down I found out that the dates were disparate from the dates that I thought that they were, so no, it has no bearing at all.

MR McDONNELL

No problem then, thank you.

MR GIBSON

It was back in 1988, and I had misconceived that with 1998, so do not worry about it.  It is not germane to the – to any of their claims.  Okay.  Anything else?

…

MR GIBSON

I think we can take it that the Department’s decision is on the file, I have read it, I am not interested in that decision.  I am interested only in the statements and evidence given by the applicants to the Tribunal.  I do not pay any attention to the Department’s form of reasoning, or for that matter, their finding on fact, but the form of the Tribunal’s inquiry is to consider the case all over again, and that is what I will be doing, so you can take it that the submissions you have on the veracity or otherwise of the Department’s decision, will have had no bearing on the decision that I make.

MR McDONNELL

I appreciate that

MR GIBSON

I will go wholly on matters and fact that I through my own inquiries and through the information and evidence given by the applicants and yourself.

Does that make that easier?

MR McDONNELL

Thank you.

MR GIBSON

That is my job anyway, that is what it says in the Act …

MR McDONNELL

Yes.

MR GIBSON

… and that is how I conduct my inquiries.

MR McDONNELL

Okay.”

9                     At the completion of the hearing, the following exchange took place:

 “MR GIBSON

Okay.  Now, submissions.  Do you wish to make any further written submissions in this matter – in these matters, I should say”

MR McDONNELL

I would like to ask if the Tribunal considers there are any issues which it would – it considers problematic or would like to see …

MR GIBSON

No, not this time, no.  but if you wish to make submissions, maybe we can say, fourteen days?

MR McDONNELL

Yes, fine.  Thank you.

MR GIBSON

To be perfectly honest, even fourteen days, I’m not going to get around to making my decisions in these cases in the next fourteen days, in any case, because of my hearing schedule, so what is the date today – the date is – today is the 9^th of August – the end of August would be about the earliest that I – I know that exceeds the fourteen days that we normally give, but that is the practicality, so if you wish to make written submissions, then let’s say the 30^th of August, is the closing date for those.

MR McDONNELL

Thank you.

MR GIBSON

That goes for the applicants of course too, if there is any other materials that they wish considered, yes and there is that document there too.

Now, I have asked for the visa application file in Rangoon to be sent to the Tribunal, although I suspect from materials on the file, on the DIMA file, that that has already been asked for, in both their cases, and it’s a matter of tracking that down.

Now, it would be incumbent upon me that if there is any materials there which is inconsistent with any of the evidence given by the applicants, that I would put that to them, in the form of a section 424(A) letter, so if that comes out then, then that will be forthcoming as well.

I do not know what is on those files.  It has not been alluded to at all by the delegate so, mind you, then, the delegate hasn’t made much referral to any materials, actually.

MR McDONNELL

Well, at that time, I don’t know if it was the practice then to look for the …

MR GIBSON

If that material becomes available before I make my decision, and it’s inconsistent or contradicts evidence given by the applicants, then I will write a section 424A letter.

MR McDONNELL

Thank you.

MR GIBSON

That is about all I can think of at the moment.  As I said, I will not be getting around to making a decision before the end of the month, because of my hearing schedule.

MR McDONNELL

Thank you for letter [sic] us know that.

MR GIBSON

I also have several detention cases which I have to deal with too, so, obviously they take priority at this stage.  Okay.  Do you understand all of that?  We’ve been discussing written submissions and when I will be able to make my decision so, I can’t make a decision before the end of the month, so if you wish to make any submissions, you have until the end of the month to do so.

Okay, then based on any written submissions that you might make or any other materials that I might receive in the meantime, I will go from there, so, okay?  You understand?

APPLICANT

A(INTPRTR)

The form are filled out in Rangoon, are usually filled out by the agent.

MR GIBSON

Yes, I appreciate that but if they become available there is no guarantee that we can get them of course.  They may become available, and I will certainly give them the appropriate weight to anything that is said there.

Now, in coming to my decision in both your cases, please understand that I will take into account all the various forms of information and evidence that I have.  Now, this includes the materials contained within the Department’s file.  The information and material in the Tribunal’s files.  Your written submissions, any additional written materials which is forwarded, your oral evidence at the hearing, independent information, a little bit which I put to you during the oral evidence, and of course the definite [sic] of a refugee contained in the Refugee’s Convention.

Now, in coming to my decision, no one piece of information or evidence is more important than any other, but you must realise that I may give different weight to different pieces of information and evidence.  Do you understand that?  Yeah?  So, that is the process that I go through in coming to my decision.

I am also constrained by what the Australian courts have had to say about refugee matters as well and that gets mixed into the decision making as well.”

(emphasis added)

10                  In a letter written shortly after the hearing, the migration agent made a submission which included the following:

“4.       At the hearing, the Tribunal conducted a very thorough enquiry into [applicant NAAX]’s and [applicant NAAV]’s histories.  This involved a detailed probing of [applicant NAAX]’s and [applicant NAAV]’s memories on events that occurred many years back.  In our submission their testimony was coherent, plausible, and essentially consistent in all respects with available country information and with the details given in their prior claims.” (emphasis added)

applicants’ case

11                  The case for the applicants can be simply put.  The use by the Tribunal of undisclosed material in a manner which was adverse to the applicants was a breach of the rules of natural justice in that procedural fairness was not afforded, a result said to follow from the indistinguishable situation considered by the High Court in Minister for Immigration & Multicultural Affairs;  Ex parte Miah (2001) 75 ALJR 889.  A breach of natural justice in this way constituted a jurisdictional error, as decided by the High Court in Re Refugee Review Tribunal;  Ex parte Aala (2001) 204 CLR 82.  Relief pursuant to s 39B of the Judiciary Act should follow.  The privative clause, s 474 of the Act, does not prevent this relief because jurisdictional error of this kind is within the exceptions to the operation of such a clause.  In any event, s 474 is invalid, as conferring judicial power upon the Tribunal contrary to Chapter III of the Constitution or, if construed so as to exclude relief where there has been a breach of natural justice, is invalid as inconsistent with s 75 of the Constitution.

12                  The Solicitor General, who appeared for the Minister, made it clear that he wished to take the opportunity to test the validity and effect of s 474 of the Act.  However, he did not concede that there was a breach of the rules of natural justice in the case of either applicant.  The constitutional issue must be decided.  I regard the questions as to the operation of s 474 and as to whether there was a breach of the rules of natural justice as debatable.  It is therefore appropriate that I deal with both.  When the operation of s 474 is settled, no doubt a different course will be taken.  I will deal first with that issue.

operation of section 474

13                  Section 474(1) of the Act provides:

“(1)     A privative clause decision :

            (a)        is final and conclusive; and

(b)       must not be challenged, appealed against, reviewed, quashed or called into question in any court; and

(c)                is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

14                  A “privative clause decision” is defined by s 474(2):

“(2)     In this section:

            Privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).”

The decision under review before me in this case falls within the definition in s 474(2), and is not excluded by subsections (4) or (5).

15                  Before turning to the substance of this issue, I should note that counsel for the applicants claims there was an inconsistency between s 474 and other parts of amended Pt 8 and an inconsistency between s 474 and other provisions of the Act.  In my view, there is no substance to these claims.  The way in which the provisions operate has been outlined by Merkel J in Walton v Ruddock [2001] FCA 1839 and Mansfield J in SAAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 101. 

16                  It is submitted on behalf of the applicant that a denial of natural justice, being jurisdictional error which has not been validly excluded from judicial review by “plain words of necessary intendment”, is not immune from review because of s 474.  It is submitted that the provision of natural justice, or procedural fairness, is a fetter on the lawful exercise of a power and unless it is expressly excluded by the legislature, obedience to its requirements is a necessary and indispensable prerequisite to the making of a valid decision.  A denial of procedural fairness is an error going to jurisdiction for which prohibition will be granted.  As I have outlined, the breach of the rules of natural justice alleged is failure by the Tribunal to accord procedural fairness in taking into account information adverse to, but not disclosed to, the applicants, but which did not involve breach of the express provisions of the Act governing the procedure of the Tribunal, and the provision of information by it to an applicant (particularly s 424A).  The decision of the High Court in Aala establishes a starting point for these submissions if, for the purposes of the exercise, I assume that it was a breach of the rules of natural justice not to apprise the applicants of the particular information referred to in the reasons of the Tribunal.

17                  The Solicitor General submits that s 474(1) is in substantially similar form to the privative clause considered in R v Hickman;  Ex parte Fox & Clinton (1945) 70 CLR 598, where, in an oft-quoted passage, Dixon J, at 615, said:

“The particular regulation is expressed in a manner that has grown familiar.  Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of [the privative clause] is will established.  They are not interpreted as meaning to set at large the courts or other juridical bodies to whose decision they relate.  Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.” (emphasis added)

18                  It is submitted that Dixon J succinctly identified three pre-conditions to the valid exercise of decision-making powers to which such a clause applies:

“(a)     the decision-maker is required to have made “a bona fide attempt to exercise its power”;

(b)               the decision “relates to the subject matter of the legislation”;  and

(c)               the decision “is reasonably capable of reference to the power given to” the decision-maker.”

These three conditions, the Hickman conditions, Hickman grounds of review or Hickman grounds of exclusion have been restated on many occasions in the High Court:  eg, R v Coldham;  Ex parte Australian Workers’ Union (1983) 153 CLR 415;  O’Toole v Charles David Pty Ltd (1991) 171 CLR 232;  Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168;  and Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602.

19                  It is submitted that the effect of a privative clause is not to oust the jurisdiction of the courts, but to broaden the lawful authority of decision-makers protected by such a clause so that their jurisdiction is defined only by the Hickman conditions.  Apparent restrictions or restraints on power are construed as being directory in nature.  In this way, a decision-maker whose decision is protected by a privative clause of this kind will exceed her or his jurisdiction only if one of the Hickman conditions is breached.  The operation of a privative clause, however, is a rule of construction.  It was accepted that it remains possible, in an appropriate case where parliamentary intent is clear, to establish that a particular restraint expressed in the relevant legislation is also a pre-condition to the valid exercise of power.  In such cases, constitutional writs will, of course, be available for infringement of any such restraint.

20                  The Solicitor General referred to par 16 of the Revised Explanatory Memorandum relating to s 474(1):

“The intention of the provision is to provide decision-makers with wider lawful operation for their decisions such that, provided the decision-maker is acting in good faith, has been given the authority to make the decision concerned (for example, by delegation of the power from the Minister or by virtue of holding a particular office) and does not exceed constitutional limits, the decision will be lawful.”

21                  The Solicitor General also referred to the following explanation in the Second Reading Speech by the Minister:

“The bill gives legislative effect to the government’s long-standing commitment to introduce legislation that in migration matters will restrict access to judicial review in all but exceptional circumstances.  This commitment was made in light of the extensive merits review rights in the migration legislation and concerns about the growing cost and incidence of migration litigation and the associated delays in removal of non-citizens with no right to remain in Australia …

… The result is to give decision makers wider lawful operation for their decisions, and this means that the grounds on which those decisions can be challenged in the Federal and High Courts are narrower than currently.

In practice, the decision is lawful provided:

·                   The decision maker is acting in good faith;

·                   The decision is reasonably capable of reference to the power given to the decision maker – that is, the decision maker had been given the authority to make the decision concerned, for example, had the authority delegated to him or her by the Minister for Immigration and Multicultural Affairs, or had been properly appointed as a tribunal member;

·                   The decision relates to the subject matter of the  legislation – it is highly unlikely that this ground would be transgressed when making decisions about visas since the major purpose of the Migration Act is dealing with visa decisions;  and

·                   Constitutional limits are not exceeded – given the clear constitutional basis for visa decision making in the Migration Act, this is highly unlikely to arise.”

22                  It is submitted that given this clear statement of the object and desired effect of the legislation and given that the privative clause was inserted as an amendment to an existing Act, there is no real scope to contend that any express limitations previously existing in the Act are “inviolable” and not subject to the effect of the privative clause.

23                  It is also submitted that, in the present context, at the very least, Parliament has indicated that the rules concerning natural justice (except to the extent, if at all, that they fall within the Hickman conditions) do not go to the jurisdiction of the Tribunal in the necessary sense.  It is pointed that out that, by contrast with the position which, for example, applies to the Parliament’s power to make laws with respect to “conciliation and arbitration for the prevention and settlement of industrial disputes”, there is no limitation upon the power of the Parliament to exclude the rules of natural justice in making laws with respect to “naturalisation and aliens”.  The Solicitor General submitted that, whilst s 474(1) does not expressly refer to the rules of natural justice, there is no need for it to do so. The Solicitor General also called in aid the existence of the privative provision in denying the application of the rules of natural justice at large to the Tribunal.

24                  The Solicitor General starts with the proposition that neither natural justice nor procedural fairness are referred to by Dixon J in Hickman and submits that there is no qualification of the principle in this respect in any later decision of the High Court.  He drew my attention to the decision in Re Australian Bank Employees Union;  Ex parte Citicorp Australia Ltd (1989) 167 CLR 513 in which the High Court granted a writ of mandamus notwithstanding a privative clause providing that an order of the Conciliation and Arbitration Commission was not subject to mandamus in any court on any account.  It was held that such a clause had no effect in a case where there was no decision and the failure to give a decision constituted a failure to perform a public duty, relying upon s 75(v) of the Constitution.  In that case, the Commission had declined to permit a party to put a case based upon an express statutory provision.  I agree that that somewhat cryptic decision has nothing to say about the present debate. 

25                  Counsel for the applicants drew my attention to the following statement from Dawson J in O’Toole v Charles David Pty Ltd at 305:

“Whilst it must be possible to call evidence in support of a contention that an award has not been made bona fide (I would take the requirement of bona fides to embrace at least some aspects of natural justice) or in support of a contention that does not relate to the subject matter of the legislation, this does not open an award to attack upon the basis of some mere defect or irregularity which is not such as to deny the power to make it.” (emphasis added)

His Honour did not spell this out any further and it was not relevant in the particular case.  I shall return to this remark later.  Counsel sought to make something of the comment in the same case by Deane, Gaudron and McHugh JJ at 287:

“Putting to one side breach of the rules of procedural fairness, the requirement that the award be “reasonably capable of being referred to the power” will be satisfied if, on the face of the record, it appears that the award was made by the Commission in purported exercise of the power of conciliation or arbitration conferred by the Act.” (emphasis added)

I cannot attribute any significance to that statement.

26                  Counsel for the applicants also pressed me with the decision of the High Court in Aala.  That decision certainly establishes that a breach of the requirements of natural justice of the kind involved in that case goes to jurisdiction in the sense of founding the prerogative (or constitutional) writs.  As there was no relevant privative clause then applicable, the decision is neutral so far as the present issue is concerned.  Counsel for the applicants also relied upon obiter dicta of Spigelman CJ in Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 at [102]-[112].  In that case, a council, in seeking to amend an environmental planning instrument, followed the statutory requirements but they did not require that the particular form of the amendment be publicly exhibited.  This led to affected owners complaining of a breach of the rules of natural justice.  The majority of the Court (Meagher and Powell JJA) separately held that compliance with the statutory scheme was sufficient and that there was no further duty of according natural justice or procedural fairness.  Spigelman CJ took a different view.  This meant that he then had to consider the effect of s 35 of the Environmental Planning & Assessment Act 1979 (NSW), which provided:

“The validity of an environmental planning instrument shall not be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date of its publication in the Gazette.”

The proceedings had been commenced more than three months after the date of publication of the relevant environmental planning instrument.  A range of opinions had been expressed by judges of the Land and Environment Court of New South Wales as to the effect of s 35.  Spigelman CJ took the view that the clause was not a time-bar clause, but rather a privative clause which would be very strictly construed and favoured the view that it did not exclude denial of natural justice as that was a jurisdictional error “in its original narrow sense”.  His Honour referred directly and indirectly to a number of authorities.  Those most helpful to the applicants here are:  Stock v Grubb (1985) 39 SASR 1;  R v Mill & Toon;  Ex parte Visona [1960] Qd R 123;  and R v Chairman of General Sessions of Hamilton;  Ex parte Atterby [1959] VR 800.

27                  Spigelman CJ concluded that the words of the privative clause in Vanmeld did not reflect “a plain intendment” to impinge on the fundamental principle reflected in the requirements of procedural fairness.  In doing so, he gave particular consideration to the statute in issue.  He concluded (at [174]):

“However, it is the importance that Australian case law on procedural fairness has given to the presumption that parliament does not intend to abrogate the common law duty to accord procedural fairness in the exercise of public power, which determines the outcome of this case.  The law of statutory construction requires that a privative clause should be subject to a particularly strict construction when the issue is whether parliament intended an ouster or privative clause to impinge on the applicability of fundamental principles.  The Environmental Planning and Assessment Act does not contain a sufficient indication that such was intended.”

28                  As the manner in which Spigelman CJ dealt with Hickman is important, I shall set out what he had to say on that topic:

 “141  However, nothing in these authorities suggests that the R v Hickman principle is intended to be an exhaustive statement of the categories of legal error in which a privative clause will be subject to particular stringency in the course of strict construction.  The stringent standards applicable to the core categories of jurisdictional error, referred to in R v Hickman, may also be applicable to other categories of error.

142            The fact that the three matters specifically identified in R v Hickman are not to be regarded as an exhaustive statement of the circumstances in which a particularly stringent application of the principles of strict construction of privative clauses is appropriate, is confirmed in some of the reasoning in the subsequent authorities which apply R v Hickman.  In Aronson and Dyer, Judicial Review of Administrative Action (1996) at 968-969, two additional categories are identified in subsequent decisions by Sir Owen Dixon himself and the subsequent authorities:  see R v Coldham (at 419), per Mason A-CJ and Brennan J;  (at 427-429), per Deane J and Dawson J;  O’Toole (at 274-275), per Brennan J;  (at 305), per Dawson J;  Richard Walter (at 195), per Brennan J.

…

161            Indeed, breach of the common law obligation of procedural fairness may fall within the R v Hickman principle, as it has been interpreted and extended beyond the original threefold formulation of Sir Owen Dixon.  In O’Toole, Deane J, Gaudron J and McHugh J contemplate that rules of procedural fairness could be encompassed within the third R v Hickman principle, that is, “reasonably capable of being referred to the power” (at 287.5).  Dawson J suggested that some aspects of procedural fairness fell within the concept of bona fides (at 305.5).

162            Furthermore, the requirements of procedural fairness which the common law attaches to the exercise of all public power, fall within the scope of the general description of the R v Hickman principle found in some recent judgments.  Subject to “express words of plain intendment” (the Commissioner of Police v Tanos formulation), procedural fairness can be described as an “inviolable limitation or restraint” (Coldham (at 419);  O’Toole (at 274-275)), or as a defect which does “deny the power”:  O’Toole (at 305);  Deputy Commissioner of Taxation (Cth) v Richard Walter (at 180).

163            R v Hickman may not be directly applicable, because the task is not one of reconciling two, apparently contradictory, statutory provisions.  However the approach to statutory construction reflected in the R v Hickman line of cases is, in my opinion, determinative of the issue that must be decided in this case.”

29                  Something of a conundrum lies at the heart of the debate.  Prohibition does not lie save for jurisdictional error.  Anything less than jurisdictional error will not found prohibition.  On the other hand, it is clear that if Hickman is correct, then there are jurisdictional errors and jurisdictional errors, in the sense that some will, whilst others will not, be affected by a privative clause.  The work which Hickman does is to define those jurisdictional errors which will found the prerogative writs notwithstanding the privative clause.  It is not as if Hickman had been decided before the application of the prerogative writs to administrative bodies for what might be called constructive failure to exercise jurisdiction.  Hickman was decided in 1945.  In 1933 Sir Owen Dixon had been one of the majority in R v War Pensions Entitlement Appeal Tribunal;  Ex parte Bott (1933) 50 CLR 228 who, in an oft-repeated passage (at 242-243) said: 

“A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed.  If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him.  In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal.  It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void.  But the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal’s decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded.”

The Second World War had seen an explosion of litigation as to the validity of administrative action. 

30                  Merely because if a privative provision is ignored there would be jurisdictional error such as to ground entitlement to prohibition it does not follow that the privative provision may be ignored and prohibition granted despite it.  To conclude that prohibition will go in all cases of jurisdictional error of the type identified in Craig v South Australia (1995) 184 CLR 163 particularly at 179 and all cases of breach of the rules of natural justice would be to ignore the clear distinction drawn in Hickman and render s 474 and like privative clauses virtually devoid of content (see Zines, Constitutional Aspects of Judicial Review of Administrative Action, (1998) 1 Constitutional Law and Policy Review 50 at footnote 41).  It should be recalled that in Hickman Dixon J (at 615) expressly referred with approval to a passage precisely in point from the judgment of Starke J in Australian Coal & Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 at 182:

“In my opinion, reg 17 [the privative clause] excludes any appeal whatever from any award or order of the Conciliation Commissioner in relation to industrial disputes referred to him under s 16 of the Industrial Peace Regulations.  Effect can only be given to reg 17 by treating the words, award, order or determination, as meaning acts in fact done by the tribunal in the supposed exercise of the powers entrusted to it.  To confine the meaning of those words to acts done lawfully and within the jurisdiction of the tribunal ignores the clear, distinct and unmistakable intent of the regulation.  Prohibition at common law was the appropriate remedy for restraining inferior Courts from exceeding their jurisdiction, and yet this remedy is withdrawn by the regulation:  See Baxter’s Case;  Morgan v Ryland Bros (Australia) Ltd;  Clancy v Butchers’ Shop Employees Union;  Colonial Bank of Australasia v Willan.”

The decision in Morgan v Ryland Bros (Australia) Ltd (1927) 39 CLR 517, referred to by Starke J, is also precisely in point.

31                  Another way that this issue was put on behalf of the applicants was to submit that if a decision is made without jurisdiction in the wider sense, it is not made “under the Act” as required by s 474(2) of the Act, relying upon the following passage from the judgment of Gaudron and Gummow JJ in Darling Casino Ltd at 635:

“There is one point we should add, because the Court of Appeal appears to have proceeded on a contrary view.  It concerns the content of the phrase in s 155(1), “a decision of the Authority under this Act”.  The phrase is not “under or purporting to be under this Act”.  Section 11 obliges the Authority to have regard to certain matters.  Section 12 forbids the Authority to grant an application unless satisfied of the matters there specified and for that purpose the Authority is to consider the items specified in s 12(2)(a)-(h).  Section 13 contains a definition of “close associate”, a term used in s 12.  Sections 11, 12 and 13 are central to the legislative scheme.  Section 155 cannot fairly be construed as declaring an intention of the legislature that the Authority is empowered and protected in respect of determinations under s 18 reached other than upon satisfaction of the conditions which enliven its power.  Those decisions would not have been made “under this Act”.”

I read this passage as relating to the express requirements of a statute, not to the kind of extended jurisdictional error identified in Craig or to all the common law requirements of affording natural justice.  It is framed in that way.  There is no suggestion that their Honours were intending to cast doubt upon the line of authority in the High Court to which I have just referred.  I should add that a discussion at the hearing about other statutes in which the words “under this Act” have been held to include acts which purported to be done under an Act  was not followed up by the Solicitor General.

32                  The recognition that Hickman is, at heart, a rule of statutory construction (see Darling Harbour Casino per Gaudron and Gummow JJ at 631) is of no assistance to the applicants in the present case. There is no express provision of the Act inconsistent with s 474(1) which arises in the present case. This point recalls the analysis by Dixon J in Hickman at 616-617:

“It is, of course, quite impossible for the Parliament to give power to any judicial or other authority which goes beyond the subject matter of the legislative power conferred by the Constitution.  The relevant subject matter in the present case is naval and military defence.  It is equally impossible for the legislature to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition.  But where the legislature confers authority subject to limitations, and at the same time enacts such a clause as is contained in reg 17, it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity.  In my opinion, the application of these principles to the Regulations means that any decision given by a Local Reference Board which upon its face appears to be within power and is in fact a bona fide attempt to act in the course of its authority, shall not be regarded as invalid.

In considering the interpretation of a legislative instrument containing provisions which would contradict one another if to each were attached the full meaning and implications which considered alone it would have, an attempt should be made to reconcile them.  Further, if there is an opposition between the Constitution and any such provision, it should be resolved by adopting any interpretation of the provision that is fairly open.

In speaking of s 31 of the Commonwealth Conciliation and Arbitration Act, Isaacs and Rich JJ, in Waterside Workers’ Federation of Australia v Gilchrist, Watt & Sanderson Ltd, expressed views to the effect that s 31, although leaving it to the ordinary courts to apply any appropriate remedy to an excess of jurisdiction by the Arbitration Court before it made an order or award, meant that once the order or award was made that instrument then should be regarded as within jurisdiction, provided that it did not exceed the limits of the Constitution or, presumably, deal with matters to which the Arbitration Court was an entire stranger.  Possibly this view may to too far, but, having expressed it, their Honours proceeded to say that the jurisdiction given by s 75(v) of the Constitution continues to exist “but it needs a proper case for its exercise.  Such a case exists wherever Parliament evinces its intention that curial action shall bind only when certain conditions are satisfied”.  They point out that, if in one provision it is said that certain conditions shall be observed, and in a later provision of the same instrument that, notwithstanding they are not observed, what is done is not to be challenged, there then arises a contradiction, and effect must be given to the whole legislative instrument by a process of reconciliation.

In my opinion, these general principles are sound and are not at variance with what was actually decided in the case of Gilchrist, Watt & Sanderson.  Accordingly, I think that under the Coal Mining Industry Employment Regulations the decisions of a Reference Board should not be considered invalid if they do not upon their face exceed the Board’s authority and if they do amount to a bona fide attempt to exercise the powers of the Board and relate to the subject matter of the Regulations.” (emphasis added)

33                  The same point is lucidly made by Latham CJ and Dixon J in R v Commonwealth Rent Controller;  Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361 at 369:

“When Commonwealth legislation confers powers upon an officer a provision such as reg 38 cannot be construed as intended to provide that his powers are absolutely unlimited.  Such a construction would raise questions of the validity of the legislation.  Such a provision cannot help to give effect to any legislation which it is beyond the power of the Commonwealth Parliament to enact.  Further, even where no question of validity arises, the effect of such a provision in a particular case depends upon the construction of the relevant statute taken as a whole.  If a legislature gives certain powers and certain powers only to an authority which it creates, a provision taking away prohibition cannot reasonably be construed to mean that the authority is intended to have unlimited powers in respect of all persons, and in respect of all subject matters, and without observance of any conditions which the legislature has attached to the exercise of the powers.  Such a provision will operate to prevent prohibition going in cases of procedural deficiencies where the authority whose powers are in question is in substance dealing with the matter in respect of which the power is conferred upon it.  But if, upon the construction of the legislation as a whole, it appears that the powers conferred upon the authority are exercisable in certain cases, and definitely that they are not exercisable in other cases, and that any attempt to exercise them was intended to be ineffective, then a provision taking away prohibition will not exclude the jurisdiction of this Court under s 75(v) of the Constitution in a case of the latter description:  see R v Hickman;  Ex parte Fox.”  (emphasis added)

34                  Indeed, this analysis supplies the correct approach in the present case.  It should be clear that I am considering only that kind of procedural fairness (or lack thereof) which may be involved in the use of the kind of information in question here by the Tribunal.  I am not intending to answer an abstract question as to whether a privative clause can exclude natural justice.  The Act must be construed as it now stands, including s 474 and including the express prescriptive provisions governing the procedure of the Tribunal in Div 3, Div 4 and Div 5 of Pt 7.   In the case of a breach of any of those express provisions, a question of statutory construction would arise as to reconciliation of that provision with s 474.  A good example would be if the facts in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 arose now.  The process of construction would include application of the principles enunciated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.  This was the approach in principle taken by Mansfield J in Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167.  The particular result in that case is of no consequence to the argument in this case.

35                  I accept the substance of the submissions of the Solicitor General.  In my opinion,      s 474 operates according to its terms, which are inconsistent with the existence of implied duty to afford procedural fairness by supplying information going beyond the requirements of Div 4 of Pt 7 of the Act, no matter upon which theory any such implication would be drawn.  This conclusion is reinforced by the passages from the Explanatory Memorandum and Second Reading Speech to which I have referred.  In my opinion, it is not legitimate to construe the Act on the basis that s 474 did not exist, particularly in relation to a version of the Act which had radically different judicial review provisions, conclude that a duty to afford natural justice existed and then ask whether s 474 takes away the corresponding right.

36                  The course of High Court decisions has established the Hickman exceptions as authoritative and exhaustive.  The principles have been referred to very recently by Gaudron and Gummow JJ in Minister for Immigration & Multicultural Affairs v Bhardwaj at [47], with whose reasons in this respect McHugh J agreed, and by Gaudron J in Miah at [102].  Even if teased out in the manner favoured by the authors of Aronson & Dyer, Judicial Review of Administrative Action, 2^nd Ed, at p 691, the exceptions do not include breach of an implied duty to accord procedural fairness of the type that is alleged here.  The remark by Dawson J in O’Toole most naturally relates to bias, as at least some, and perhaps all, examples of bias would negate the bona fides of the decision and so fall within the first Hickman exception.

37                  In my respectful opinion, the obiter dicta opinion of Spigelman CJ in Vanmeld involves a variation and extension of the Hickman exceptions which are binding upon me and too well entrenched for extension, short of the High Court, particularly in relation to a clause which is, and is designed to be, indistinguishable from that considered in Hickman and many of the cases which have followed it.  It is also not clear to me where his Honour would draw the line short of all jurisdictional error which would found the prerogative (or constitutional) writs.  I acknowledge that some of the authorities in the State courts referred to directly and indirectly by Spigelman CJ give support to his view.  They relate to variously framed privative clauses in various statutes.  None of them bind me, and the task of reconciling them with Hickman and the cases which follow it is not for me.

constitutional invalidity

Judicial power

38                  It is submitted by counsel for the applicants that s 474 of the Act invalidly vests part of the judicial power of the Commonwealth in persons who are not judges appointed in terms of s 71 of the Constitution and in bodies which are not courts in terms of s 71 of the Constitution.  The gist of the argument for the applicants is as follows.  A decision of the Tribunal is a decision as to whether a person satisfies the definition of a refugee.  Thus, it is a determination of an existing right or status, not the creation of a new right or a new status.  On the Minister’s explanation of s 474, as expressed in the Explanatory Memorandum, Parliament intended that the decision of the Tribunal be conclusive of the matters arising on the review, save for lack of bona fides, narrow jurisdictional error and exceeding constitutional limits.  The conclusive determination of current rights is the province of the judiciary.  There are situations where administrative powers and judicial power overlap, in that both involve adjudication, ascertainment of fact and deciding on the application of law to a specific set of facts.  In such cases, there is normally provision for appeal, either de novo or by way of rehearing.  It is submitted that although there appears to be little authority on the issue, an administrator will not be exercising judicial power if there is an appeal on questions of law to a Chapter III Court.  This is because the final and conclusive determination of the rights of the parties is left to judicial determination.  In the case of s 474 of the Act, the application of the Minister’s interpretation of the Hickman doctrine puts the administrator in a position where he or she is final arbiter, not only on questions of his or her procedure but on questions involving the interpretation of an international Convention (the Refugees Convention) and the domestic law governing the administrator’s decision-making power.  The effect of s 474 is thus to make the Tribunal the final arbiter on questions of law.  It is, emphatically, the province and duty of the legal department to say what the law is.  On the Minister’s interpretation of s 474, that duty, reserved under Chapter III of the Constitution to Courts, has been given to an administrative decision-maker.  It is submitted that the provision is thus inconsistent with Chapter III.  Counsel for the applicants referred to a number of authorities of the High Court as to judicial power in his written and oral submissions. 

39                  The Solicitor General submitted that it was a common, if not essential, characteristic of judicial power that it involves the making of a binding, authoritative and enforceable decision as to existing legal rights, and cited a number of authorities for that well-established proposition, the most recent being Abebe v Commonwealth (1999) 197 CLR 510 at [164] and Attorney General (Commonwealth) v Breckler (1999) 197 CLR 83 at [41].  He then submitted that that characteristic is not present in the decision to grant or refuse a protection visa under the Act, as the determination is only as to whether a new right should be granted.  He submitted that this is established by the decision of the Full Court in SZ v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 342. 

40                  In my opinion, this submission is plainly correct, as the following extracts from the judgment of Branson J (agreed in by Beaumont J and Lehane J) illustrate:

 “37.   It is principally because an applicant for a protection visa has no existing right to enter or remain in Australia, but only such rights as are given to him or her by the Act, that the applicant’s contention that paragraph 65(1)(b) of the Act is invalid, and paragraph 415(2)(a), in so far as it applies to a decision to refuse to grant a protection visa, is invalid is unsustainable.  The Minister, or on review the Tribunal, in granting or refusing to grant a visa is not making a binding determination as to the applicant’s existing rights (Attorney-General (Cth) v Breckler (1999) 163 ALR 576 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at para 41-42).

…

40.       No aspect of the power granted to the Minister by s 65(1)(b) or to the Tribunal by s 415(2)(a) has been demonstrated to involve the exercise of the judicial power of the Commonwealth.

41.       It may be observed that the decision to grant or to withhold visas, or their equivalent, has for a long time been seen to be an appropriate exercise of executive power both in this country and internationally.  The argument that the Tribunal exercises the judicial power of the Commonwealth has been rejected, in my view, correctly, by a number of judges of this Court (N44 v Minister for Immigration and Multicultural Affairs [1999] FCA 1127; Marshood v Minister for Immigration and Multicultural Affairs [1999] FCA 1415; Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; Lu v Minister for Immigration and Multicultural Affairs [2000] FCA 40 and Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 485).”

The Solicitor General expanded, in his submissions, upon the point made in the first sentence of [41] by Branson J.

41                  Counsel for the applicants accepts that I am bound by the decision of SZ and formally submits that it is incorrectly decided.  He seeks to distinguish that decision by reference to the fact that it related to the Act as it stood prior to the amendments in 2001, the effect of which lie at the heart of this case.  He also suggests that aspects of the argument that he has put do not appear to have been argued and considered in the case of SZ.  So far as the latter submission is concerned, I indicated during the course of the hearing that, in my view, I could not decline to follow SZ, if it otherwise applied, because of a new argument, except perhaps in the clearest case of a straightforward error.  That is certainly not present in this case.  

42                  SZ did concern the Act as it stood in 1999.  The point sought to be developed by counsel for the applicants is that the effect of the 2001 amendments, in particular s 474, is to radically alter the nature of the function played by the Tribunal by effectively removing court control, so making the Tribunal the final arbiter of rights.  The difficulty with this submission is that the amendments, in particular s 474, have not altered the function to be played by the Minister (or his delegate) and the Tribunal, which conducts a de novo merits review, standing in the shoes of the Minister.  It was precisely that situation which was analysed by the Full Court in SZ.  The fact that it has now become more difficult to review the decisions of the Tribunal by the courts has no effect upon the nature of the function being performed by the Minister and the Tribunal.  In my opinion, the decision of SZ remains authoritative on the point at issue here.  This relieves me from considering the various High Court authorities to which I have been referred.  This basis for challenge to the validity of s 474 fails. 

Section 75

43                  It is then submitted for the applicant that s 474 is inconsistent with ss 75(iii) and         75(v) of the Constitution.  It is submitted that if s 474 is construed as the Solicitor General contends it ought (and as I have now held), then it narrows the scope of the writs contemplated by s 75(v) to the point where it has no practical application.  This amounts to a de facto withdrawal of jurisdiction from the High Court, contrary to the Constitution. 

44                  The fallacy inherent in this submission has been explained in the High Court decisions to which I have referred, from Hickman on, when dealing with the operation of       s 474.  See also Zines (above) and Kirk, “Administrative Justice and the Australian Constitution” in Creyke and McMillan (eds) Administrative Justice – the Core and the Fringe (AIAL) 2000.  So far as the present case is concerned, there is no constitutional inhibition upon the legislature defining the procedure of a tribunal so as to exclude all the rules of natural justice that might otherwise be implied.  As Hayne J put it recently in Aala at [166]:

“… the Parliament may lawfully prescribe the kind of duty to which an officer of the Commonwealth is subject and may lawfully prescribe the way in which that duty shall be performed.”

45                  As a postscript, it is not clear to me how that success on this aspect would lead to this Court having jurisdiction under s 39B of the Judiciary Act.

breach of rules of natural justice?

46                  As the operation and validity of s 474 are not beyond debate, it is appropriate that I consider whether relief would be granted pursuant to s 39B absent that provision.  If my views as to s 474 are confirmed, there will be need to go through this time-consuming process.

47                  The reasons of the Tribunal identify twenty-one sources of country information which were regarded as inconsistent with or adverse to the claims of the applicants but of which neither the applicant nor his migration agent received any notice from the Tribunal member.  All but two are sourced.  The information came from a range of sources, some in the public domain and some from the Department of Foreign Affairs and Trade.  I append to this judgment a summary of those documents prepared by the solicitor for the applicants.

48                  It is obvious that the Tribunal member regarded himself as free to consult whatever sources, either public or private, were available to him as to the situation in Burma in the years that the applicant lived there and subsequently.  It is also a fair inference that the documents actually referred to in the detailed reasons of the member of the Tribunal could not have been the totality of sources consulted by him, but, rather, were a selection which were regarded as of relevance to the reasoning of the Tribunal member.  I may be permitted to say that it is obvious, both from many reported cases concerning proceedings of the Tribunal and from the dozens (or hundreds) of such cases that I have seen, that this process is commonplace.  Indeed, this type of material has become known by the generic name “country information”. 

49                  It is useful to select a cogent example.  The applicant had given an account of having been imprisoned in Insein Prison, where he was interrogated and mistreated for two weeks, then put into a small cell for two months until being released.  He claimed that when he was taken out of his cell he was hooded with a blanket, this accounting for his inability to remember detail about the prison.  The Tribunal member said:

 “I am unable to accept that the applicant was detained in Insein Jail.  I have read reports compiled from first hand accounts of prisoners in Insein jail (see Amnesty International, Myanmar Conditions in prisons and labour camps, September 1995;  and ABSDF, Cries from Insein, 1996).  I can find no reference to prisoners being hooded whilst being interrogated over the time as the applicant claims he was.  Indeed given the nature of the regime then operating in Burma, it is difficult to understand the purpose of hooding prisoners like the applicant.  The applicant’s lack of knowledge about the prison, inconsistent information and his lack of information in relation to matters of prison life confirmed my view that he was not arrested and then detained in Insein prison as he claimed.  He knew little about the prison routine or the jail in general, and avoided having to give such information by claiming solitary confinement and having been hooded by a blanket.  I am not satisfied he was ever detained in Insein Prison.”

50                  The applicant claimed that he was later imprisoned for some two years, again at Insein Prison, where he was in solitary confinement for some months and did not know where he was then or later.  The Tribunal member said:

 “I am unable to accept that the applicant was detained in Insein Jail.  As I have indicated above, I have read reports compiled from first hand accounts of prisoners in Insein jail (see Amnesty International, Myanmar Conditions in prisons and labour camps, September 1995;  and ABSDF, Cries from Insein, 1996).  There is nothing that indicates that inmates are put immediately into solitary confinement or that they could not know that they are in Insein Jail.  The applicant’s lack of knowledge about the prison, inconsistent information and his lack of information in relation to matters of prison life confirmed my view that he was not arrested and then detained in Insein prison as he claimed.  He knew little about the prison routine or the jail in general, and avoided having to give such information by claiming solitary confinement and incarceration in a cell with two others.  I am not satisfied he was ever detained in Insein Prison.”

51                  The applicant NAAV has given evidence that, if he had known that the Tribunal was to refer to those sources, he could have referred the Tribunal to references to prisoners being hooded in Insein Prison in a book entitled “Tortured Voices – a Personal Account of Burma’s Interrogation Centres”, published by the All Burma Students Democratic Front in July 1998 – the same organisation that apparently published “Cries from Insein” referred to by the Tribunal member.  The publication to which the applicant NAAV refers does have a reference to prisoners in Insein Prison being hooded.

52                  This example shows that the applicant would have been able to refer to apparently credible countervailing material which would support his claims in relation to a not unimportant aspect of his account which was rejected.  On the other hand, there are difficulties both in principle and in practice in having the duty to afford natural justice descend to such a level of detail in this statutory context.  The difficulty in principle is that an applicant for protection does not have any case to meet.  The Tribunal is not a contradictor.  There is no adversary proceeding.  See, generally, Mason J in Kioa v West (1985) 159 CLR 550 at 587 in a passage cited below; Miah per Gleeson CJ and Hayne J at [31] and [32];  Aala per Gaudron and Gummow JJ at [76];  Abebe per Callinan J at [293]-[295];  Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [142];  and Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 282.`  Each applicant had to satisfy the Tribunal that his or her fear of persecution upon return to Burma is genuine and for a Convention reason.  Leaving aside matters personal to the individual, and concentrating upon matters pertaining to the circumstances in Burma, the applicant should have the opportunity of presenting all it wishes, both in writing and orally, to corroborate his or her claims.  The hearing provided for by s 425 is not an opportunity for confrontation, it is an opportunity for persuasion.  The statutory process in Div 4 of Pt 7 of the Act is designed to afford an opportunity to the applicant to produce his or her case, with supporting material, in writing and in person.  The case is then considered behind closed doors by the member of the Tribunal performing the function of an administrator. The member of such a tribunal is, or becomes, by way of being an expert in the circumstances of various countries, and must assess what is claimed by the applicant in the light of that knowledge.  As such knowledge cannot all be carried in the head, a library of it must be available. Evaluation of the credibility of an account given by an applicant is subjective and depends upon many factors, including observations of an applicant at the hearing, in circumstances where the Tribunal member will usually have considered other cases with a similar claimed history and patterns will often have emerged.  There is obviously always a mass of country information available.  Much would be taken for granted.  Much would be debatable.  A selection of that which is relevant to the particular case depends upon the way in which the member views the case.  The judgment as to the issues upon which external country information will be relevant is entirely a matter for the Tribunal member.  There is no obligation to consider any or any particular country information.  Disclosure of particular country information to an applicant is, in essence, to reveal the process of reasoning of the Tribunal.

53                  The problems in practice are formidable.  The Tribunal is obliged by the Act to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 420).  There has been much emphasis in the cases upon the elements “fair” and “just”, but little upon the elements “economical”, “informal” and “quick”.  The code of procedure which governs the Minister is also designed for dealing “fairly, efficiently and quickly” with visa applications (s 52).  The role of a court is not to prefer one objective over another.  To do so is to subvert the will of the legislature.  Achieving all of these objectives in a high volume jurisdiction necessarily requires balance and compromise.  As this, and many other cases, show, the system has failed lamentably in relation to speed and economy, and perhaps in informality.  Delays and cost in finalising applications for visas, including, and perhaps in particular, protection visas, may be assumed to have pernicious effects which courts are ill-equipped to understand. 

54                  An applicant, in order to satisfy a member of the Tribunal that he or she has a genuine fear of persecution upon return for a Convention reason, will normally need to satisfy the Tribunal member that he or she is telling the substantial truth in the account given.  Normal methods of investigation and normal avenues of checking and verifying information are simply not available to test what is put forward.  In many cases the very identity of the person making the application and the country from which that person comes will be a matter of grave doubt.  The account given by the applicant will often extend over many years in the country of origin (and perhaps other overseas countries).  Often (as here) the claimed persecution took place some time ago, but the current situation in the country of origin remains relevant because of the necessity of judging what is likely to happen on return.

55                  If a Tribunal member is not satisfied by the material produced by the applicant in writing, there is bound to be a hearing.  It is impractical for a Tribunal member to prepare for this hearing as if he or she were preparing for a major cross-examination of a witness in a case, assembling all of the material which might possibly controvert the case put forward, bearing in mind the rule in Browne v Dunn (1893) 6 R 67.  Some Tribunal members may have some external information at their fingertips which they can put to applicants, but, more likely, they will have only their own general impressions based upon their experience in other matters and their general reading.  Major implausbilities and inconsistencies might or might not be perceived and drawn to the attention of the applicant for an answer.  This method of approach would not usually reflect the training or expertise of the Tribunal member.  He or she is functioning as an administrator, assessing claims which are made, not acting as counsel assisting a Royal Commission or as a Crown Prosecutor.  Indeed, complaint is often made of bias if a Tribunal member is seen as too confrontational. 

56                  In this case, the Tribunal member, instead of giving a decision on credibility promptly, with the real reasons expressed economically, adjourned for a very considerable time, to ultimately produce a relatively elaborate piece of reasoning which included a detailed refutation of individual facts claimed by the applicant, based on (or backed up by) detailed references to individual pieces of country information.  This is typical.  The reason is not hard to find.   For some years decisions of this Court imposed considerable obligations upon the Tribunal by reference to a version of the so-called “real chance” test (until the decisions of the High Court in Wu Shan Liang  and Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559) to s 420 (until the decision of the High Court in Eshetu and to s 430 (until the decision of the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 75 ALJR 1105), accompanied, on occasion, by criticism of the Tribunal member in question.  On one view, standards higher than those demanded of judges were imposed (Xu v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 425 at [56]).  This has had a natural tendency to encourage elaborate reasons, designed to protect members from such criticism, although there is usually no need for elaborate reasons when evidence is not accepted (Re Minister for Immigration & Multicultural Affairs;  Ex parte Durairajasingham (2000) 74 ALJR 405 at [65]-[67]).

57                  If the submission for the applicants is correct, it would not be adequate to simply disclose to an applicant that a particular source was being consulted.  To be useful, it would be necessary to go further and make clear what adverse inference or conclusion might be drawn from it.  That information would need to be provided to the applicant or the applicant’s migration agent in relation to each piece of relevant country information, and a reasonable time set for reply.  The response would often involve the provision of further material by or on behalf of an applicant, both personal to the applicant and of a general nature, which would need to be considered.  If it, in turn, involved assessment against yet other country information, the substance of that would then have to be provided to the applicant, and so on.

58                  The decision in Miah is critical to the case for the applicants.  Before examining that decision more closely, it is necessary to say something more about the legislative scheme, including some history.  The Minister (including the Minister’s delegate) is subject to what is described in the statute as a “code of procedure for dealing fairly, efficiently and quickly with visa applications” (Subdiv AB of Div 3 of Pt 2 of the Act).  This includes express provisions in relation to communications to and from the applicant and in relation to the provision to and from the applicant of certain kinds of information and what may or must be done with it      (ss 52-58, 62).  There can be, but need not be, an interview with the applicant (s 59).  Although the Minister must consider information provided by the applicant in accordance with the code, there is no limitation upon other information which the Minister may take into account.  He can have regard to whatever information is thought appropriate.   Section 57 provides as follows:

“(1)     In this section, relevant information means information (other than non-disclosable information) that the Minister considers:      

(a)                would be the reason, or a part of the reason, for refusing to grant a visa;  and

(b)                is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member;  and

(c)                 was not given by the applicant for the purpose of the application.

(2)               Subject to subsection (3), the Minister must:

(a)               give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances;  and

(b)               ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application;  and

(c)                invite the applicant to comment on it.

(3)               This section does not apply in relation to an application for a visa unless:

(a)               the visa can be granted when the applicant is in the migration zone; and

            (b)       this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.” (emphasis added)

59                  That code of procedure was introduced as part of the wholesale changes to the visa system introduced by the Migration Reform Act 1992 (Cth).  In the Explanatory Memorandum to that bill (par 51) it was stated that subdiv AB aims to:

“… replace the uncodified principles of natural justice with clear and fixed procedures which are drawn from those principles.”

60                  The Tribunal conducts a de novo merits review of unfavourable decisions made by or on behalf of the Minister in relation to applications for, inter alia, protection visas.  If the Minister is satisfied that the requirements of s 65 of the Act have been satisfied, including the criterion laid down by s 36(2), then a visa is to be granted, but if the Minister is not so satisfied, a visa is to be refused.  The Tribunal stands in the shoes of the Minister and carries out the same function.  The Tribunal may exercise all the powers and discretions that are conferred on the original decision-maker and may, inter alia, affirm or vary the decision or set aside the decision and substitute a new decision (s 415).  It is a true administrative tribunal in the function it performs.  Although members of the Tribunal are not departmental officers in the ordinary sense, the Tribunal is established to provide a form of review external to the Department.  Its members are appointed for a term, do not have to have any particular qualifications and are not subject to ministerial direction (Div 9 Pt 7 of the Act).   In reviewing a decision, the Tribunal is not bound by technicalities, legal forms or rules of evidence, and must act according to substantial justice and the merits of the case (s 420).

61                  The Act sets out in some detail the procedures which govern the operation of the Tribunal’s conduct of a review.  Until 1999, these did not include any particular provisions in relation to the manner in which information which the Tribunal was taking into account should be made available to the applicant.   

62                  The regime in relation to persons claiming to be refugees was quite different up to 1992, in principle and in procedure.  The application of the rules of natural justice under the regime as it existed until the 1992 amendments came into force was explored in a series of cases commencing with Kioa v West and including Somagahi v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 100;  Heshmati v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 123;  Lek v Minister for Immigration, Local Government & Ethnic Affairs (1993) 43 FCR 100 at 128-130;  and David v Minister for Immigration & Ethnic Affairs (unreported, Federal Court of Australia,    Wilcox J, 2 October 1995) at [21]-[25].  Kioa v West departed from the previous wisdom that the rules of natural justice had no place in relation to decisions under the Act.  The actual decision was that persons were entitled to be heard as to prejudicial matters before a deportation order was made against them.  The matters which were seen as prejudicial were personal to the deportees.  In a significant passage, Mason J said (at 587):

“In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play.  The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward.  But if in fact the decision maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter:  In re HK (An Infant).” (emphasis added)

63                   Somagahi and Heshmati were unusual cases, involving a personal issue which, it was held, could not have been anticipated.  In Lek, no breach was found although extraneous matters had been considered by the Tribunal, essentially because of lack of cogency.  In David a breach was found because the Tribunal took into account facts which had occurred in Sri Lanka between the hearing and the time of decision which it said removed the risk of persecution upon return of the applicant, without asking the applicant for comments.  There is an interesting discussion in that case as to the difference between information as to public affairs, on the one hand, and information personal to the applicant, on the other.  In my view, the obligation considered in these decisions was not so much the provision of documents or the raw material, but to provide the topic and the gist of the adverse material to the applicant.  It needs to be borne in mind that, at that stage, the review by the Court was pursuant to s 39B of the Judiciary Act and the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).   The Tribunal did not exist.

64                  As I have said, the 1992 amendments involved a complete change in the regime relating to visas in general and refugee claims in particular, both as to substance and as to procedure.  It is beyond the scope of these reasons to explain all of those changes.  The significance of them was stressed by the majority of the High Court in Wu Shan Liang at 263-264 and 274-275, a principal feature being the subjective nature of the new test which substantially changes the approach to decision-making.  I have referred to what is described as the code of procedure to be followed by the Minister which was introduced in 1992.  The Tribunal was established at the same time to review what can broadly be described as protection visa decisions.  There were detailed provisions relating, inter alia, to exercise of the Tribunal’s powers and the conduct of the review by the Tribunal.  There was no counterpart of s 57.  The 1992 Act also introduced a regime of judicial review of certain decisions, including Tribunal decisions, by this Court, on specific grounds not unlike those in the ADJR Act, but with special limitations, including s 476(2):

“The following are not grounds upon which an application may be made under subsection (1):

(a)               that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)               that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.”

65                  The Second Reading Speech by the Minister included the following:

“The Labor Government has already been the author of significant reform of immigration policies and laws.  In 1989 my predecessor, Senator Robert Ray, took a major step towards legislative implementation of the recommendations of the CAAIP report.  In spite of the 1989 reforms, a major issue confronting the government is border control.  There are people who are intent on bypassing the established categories of entry into this country.  Some do this by trying to avoid immigration processing altogether by arriving in Australia without authority.  The boat people are a good example.  Owing to weaknesses which have been inherent in our migration laws for many years, these people are often successful.  Many manage to stay here, even though they do not fall within the specific visa categories, which is the only lawful way to enter and stay in Australia.  At the very least, many manage to delay the substantive decision on their case and, as a consequence, their departure, by using the courts to exploit any weaknesses they can find in our immigration law.  This must stop.

In the Migration Reform Bill currently before the House I propose a range of measures to enhance the Government’s control of people who wish to cross our borders.  The Bill sets out more effective means of regulating entry, detention and removal of people who do not establish an entitlement to be in Australia.  The reforms are complemented by an enhanced scheme of independent merits review rights.

A primary objective of the Migration Act is to regulate, in the national interest, the entry and presence in Australia of persons who are not Australian citizens.  The Government views it as essential that all provisions and policies under the Act be interpreted in a way which furthers this objective.  An objects provision will be inserted in the Act to remind the community, the administrators and the courts of this intention.

…

The measures I have announced so far will lead to greater precision in our efforts to control the border.  Under the reforms, decision making procedures will be codified.  This will provide a fair and certain process with which both applicant and decision maker can be confident.  Decision makers will be able to focus on the merits of each case knowing precisely what procedural requirements are to be followed.  These procedures will replace the somewhat open-ended doctrines of natural justice and unreasonableness.

The Reform Bill proposes significant extensions to the current system for review of migration decisions.  Credible independent merits review will ensure that the Government’s clear intentions in relation to controlling entry to Australia, as set out in the Migration Act, are not eroded by narrow judicial interpretations.  Under the Reform Bill, the following people who are adversely affected by a decision will be entitled to independent merits review:  onshore refugee claimants;  onshore cancelled visa holders, except those cancelled at the border;  onshore applicants for a visa, except those detected at the border;  and an Australian sponsor of an offshore applicant for a visa.

As now, people offshore will not be entitled to merits review.  A specialist refugee review tribunal will be established to provide independent and determinative merits review of onshore refugee status decisions.  The tribunal will be non-adversarial, operating along similar lines to the IRT, with power to hold hearings and record its decisions in writing.

…

As I have indicated, the Government wishes to make the application of the legal concepts of migration decision making predictable.  Judicial review rights for decisions on the grant or cancellation of a visa will be set out in the Migration Act.  Judicial review will only be possible after the applicant has pursued all merits review rights or where merits review is not available.  Grounds for review will include failure to follow the codified decision making procedures set out in the Act.  As the codified procedures will allow an applicant a fair opportunity to present his or her claims, failure to observe the rules of natural justice and unreasonableness will not be grounds for review.” (emphasis added)

66                  The High Court jurisdiction pursuant to s 75 of the Constitution remained throughout, but I have not been referred to any decision in point prior to Miah.

67                  In 1999, a regime similar to that which applied to the provision of information to applicants by the Minister was introduced into the procedures of the Tribunal, the critical provision, for present purposes, being s 424A, which provides as follows:

“(1)     Subject to subsection (3), the Tribunal must:

(a)               give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review;  and

(b)               ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review;  and

(c)                invite the applicant to comment on it.

(2)               The invitation must be given to the applicant by one of the methods specified in section 441A.  However, this subsection does not apply if the applicant is in immigration detention.

(3)       This section does not apply to information:

(a)               that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member;  or

(b)               that the applicant gave for the purpose of the application;  or

(c)                that is non-disclosable information.”

68                  The Second Reading Speech by the Minister upon introduction of the bill in December 1998 included:

“The bill also includes certain safeguards for applicants by introducing a code of procedure for both the Migration Review Tribunal and the Refugee Review Tribunal which is similar to that already applying to decisions made by the department.  This code includes such matters as the giving of a prescribed notice of the timing for a hearing, and a requirement that applicants be given access to, and time to comment on, adverse material relevant to them.”

69                  I note that the matter of Herijanto v Refugee Review Tribunal (High Court application S 97 of 1998) had been commenced in the High Court’s original jurisdiction in 1998, claiming that the Tribunal had failed to accord procedural fairness to the applicants.  This may have provoked a close examination of the then regime.  Miah had not yet been decided.  Even if commenced, the ultimate result is unlikely to have been predicted.

70                  There is a question whether Div 4 of Pt 7 of the Act, in particular s 424A and s 424B, can be construed differently to sub-division AB of Div 3 of Pt 2 of the Act, dealing with the procedure to be undertaken by the Minister and, in particular, the role played by s 57 and s 58 in that scheme.  There are also matching provisions in relation to the Migration Review Tribunal in Div 5 of Pt 5, in particular s 359A and s 359B.  The most significant difference between the sets of procedure is that the Tribunal is bound to invite applicants to appear if it is not satisfied on paper (s 425), whereas a Minister may give the opportunity for an interview where there is an invitation to give further information or comments. As was said by Kirby J in Re Minister for Immigration & Multicultural Affairs;  Ex parte A [2001] HCA 77 at [47], no decision of the High Court determines whether the scope of s 424A(3)(a) is such as to apply the rule of procedural fairness that, in the case of the delegate, was held to apply by the Court’s decision in Miah to the proceedings of the Tribunal.  His Honour did point out that in the cases of Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (High Court applications S 36 and S 89 of 1999), in which judgment was reserved by the Full Court on 10 October 2001,  a similar point arose but as at a point of time prior to the coming into force of s 424A.

71                  However, I find it difficult to see any real point of distinction between subdivision AB of Div 3 of Pt 2 on the one hand, and Div 4 of Pt 7 on the other, such as to lead to any different construction of s 424A, compared with s 57. There is authority that s 424A will be construed in the same fashion as s 57.  See, for example, Thairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281 at [10]-[16] and the authorities referred to in that decision.  The operation of s 424A has also been discussed in Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630 and Bitani v Minister for Immigration & Multicultural Affairs [2001] FCA 631.  See also Pannasara v Minister for Immigration & Multicultural Affairs [2001] FCA 570 at [51]-[54].    If, as submitted, the High Court held in Miah that information must be given by the Minister to an applicant for a visa even if that information is not specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member pursuant to a duty to afford natural justice, then I see no escape from the conclusion that the same result would follow in relation to information so far as the Tribunal is concerned, notwithstanding that the information would fall within s 424A(3)(a).  This makes it essential to understand precisely what was decided by the High Court in Miah. 

72                  The short facts in Miah are summarised in the following passage from the judgment of Gleeson CJ and Hayne J at [27]:

“The substance of the prosecutor’s complaint may be stated quite shortly.  The application for a protection visa was made in April 1996.  It was not determined until May 1997.  The application was made at a time when the BNP was the ruling party in Bangladesh.  The information it gave concerning the prosecutor’s fear of persecution was directed in part to the past record of the BNP, and its relationship with Islamic fundamentalists.  The delegate decided against the prosecutor, partly on the basis that there had been a material change in circumstances resulting from the June 1996 elections.  The delegate, in par 3.4.1, accepted that there may have been an alliance between the BNP and the fundamentalists.  But he considered that circumstances had changed, and that “[t]he current government” would protect the prosecutor.  The contention is that fairness required that, before the delegate decided against the prosecutor on the basis of a material change in circumstances since the lodging of the application, he should have warned the prosecutor of the possibility, and given him an opportunity to comment.  It may have been sufficient to say:  “Do you wish to put anything to me about the change of government in Bangladesh?”  But the delegate said nothing to the prosecutor.  He considered the material referred to in his decision, noted the change of circumstances, which he regarded as important, and found against the prosecutor.”

73                  The critical portions of the judgment of Gleeson CJ and Hayne J are as follows:

“51.    The relevance of that question flows from the nature of the relief sought by the prosecutor.  The contention is that the delegate’s decision was made in excess of jurisdiction.  The basis of that contention is that the power to refuse to grant a visa was conditioned upon the observance of a duty which was not fulfilled.  The duty, it is said, was a duty to invite the prosecutor to comment upon a change of circumstances which occurred between the application and the decision, alerting him to the fact that the delegate considered the change to be potentially material to the decision.

…

53.              The true construction of the statute will determine not only whether the rules of natural justice apply, but also what those rules require.  In some cases, a statute may have little or nothing to say about the second question, and its provisions may merely constitute the background against which a court is to determine the practical requirements of fairness.  But that is not the case.  Where, as in the present case, the statute addresses the subject of procedure with particularity, manifesting an intention to address in detail the presently relevant requirements of procedural fairness, then the intention of Parliament as to the issue that has arisen will be decisive.

54.              The provisions of s 54(3), read subject to the presently irrelevant qualifications in ss 56 and 57, and read together with s 69, show a clear intention that the decision-maker is not required to invite submissions on a matter regarded as potentially adverse to an applicant’s case, whether the matter is based on a change in circumstances since the application or on any other relevant consideration.”

74                  Gaudron J found that the Minister’s delegate had constructively failed to exercise jurisdiction, and said that although it was not strictly necessary to consider whether there was also a denial of procedural fairness, the question was appropriate to be considered.  The reasoning of her Honour appears from the following passages:

“97.    Of course, if a Minister rejects an application simply because he or she is not satisfied as to some or all of the information provided by an applicant, there will be no occasion for him or her to consider the exercise of his or her power to invite further submissions or further information.  However, if he or she has regard to information other than that provided by the applicant, a question will arise whether procedural fairness requires that the powers conferred by ss 54(3) and 56(2) be exercised to permit the applicant to put submissions or provide further information.  Inevitably, the answer to that question must depend on the nature of the claims made by the applicant and the information to which the Minister has had regard.

98.              In the present case, the delegate did not simply reject the claims made by Mr Miah.  Indeed, he barely considered them.  Rather, he had regard to the recent elections and change of government in Bangladesh and drew inferences from limited and, to some extent, equivocal information which he seemed to think rendered Mr Miah’s claims virtually irrelevant.  A questions, thus, arose whether, as subdiv AB contemplates, he should have invited further information or submissions from Mr Miah to ensure procedural fairness.

99.              The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her.  Mr Miah was not given the opportunity to put a case by reference to the change in government in Bangladesh or to answer the case made against him by reference to that change.  Procedural fairness required that he be given that opportunity.”

75                  McHugh J held as follows:

“140.  A basic principle of the common law rules of natural justice is that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with the relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise.  This does not mean that all material which comes before the decision-maker must be disclosed but, “in the ordinary case … an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made”.  Thus, the Federal Court has held that information of a non-personal nature relating to changed political circumstances that was decisive to the outcome of a refugee decision ought to have been put to the applicant.  Nothing in the Act, or in s 56 in particular, indicates a clear intention to exclude this principle of natural justice.

141.          Section 56 is not a mandatory power, but a permissive power.  It says nothing as to what must be done with the information that the Minister obtains under s 56(1).  Nothing in the section states, expressly or by necessary implication, that once the delegate chooses to exercise the power, natural justice does not condition its exercise.  In some cases, exercises of the power, although conditioned by the rules of natural justice, will not require that the applicant have an opportunity to comment on the material.  Examples of material that would not require comment by the applicant would include non-adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application.  But there are cases where the exercise of this power does require that the applicant be given an opportunity to comment on the material.  An example is where the delegate proposes to use new material of which the applicant may be unaware and which is or could be decisive against the applicant’s claim for refugee status.  The need for disclosure by the delegate is even stronger where the material concerns circumstances that have changed since the date of application and is being used after considerable delay.  It is stronger still when the material is equivocal or contains information that the applicant could not reasonably have expected to be used in the way the delegate uses it.

142.          Here the new material was undoubtedly decisive of the prosecutor’s claim.  The material was totally new.  The election took place in Bangladesh more than two months after the application was made in April 1996.  The reports relied on by the delegate were issued three months and nine months respectively after the application was made.  The delegate’s decision was made more than 13 months after the date of the application.  But over and above these considerations is the fact that it was seemingly irrelevant to the prosecutor’s fears whether or not the Awami League or the BNP were in government.  Both political parties were arguably unable or unwilling to offer the prosecutor protection from the Islamic fundamentalists -–according to the prosecutor they were in coalition with them.  This was made clear in the prosecutor’s application.  It was also apparent from one of the very reports that the delegate relied on in using the material.  Furthermore, the prosecutor could not reasonably have expected this type of information to be used.  Certainly, he could not reasonably have been expected to provide information about a matter that he reasonably perceived as irrelevant to his situation.  In other words, this is a case where “the requirements of procedural fairness may be of added importance … in that they ensure an opportunity of raising for consideration matters which are not already obvious”.

143.          The rules of natural justice are flexible and adaptable to the particular circumstances of each case.  In the particular circumstances outlined above, they required the delegate, in exercising power under subdiv AB, to inform the prosecutor that he was contemplating using information about the election results and to offer the prosecutor an opportunity to comment.  There was, accordingly, a breach of the rules of natural justice.  The “code” argument fails.”

76                  Kirby J stated the relevant issues as follows:

“170.  The foregoing facts and the applicable legislation, considered together with the principles of natural justice (procedural fairness), present the following issues for decision by this Court.

1.                  Is the code of procedure contained in the Act (the Code) an exhaustive statement of the applicable rules of natural justice, such that no additional requirement (relevantly, to bring information of general relevance concerning supervening events regarded as critical to the decision to be made to the notice of the person affected) may be implied in the Act or added by the common law to the provisions of the Code?

2.                  If not, did the delegate, in determining the prosecutor’s application for a protection visa, breach an applicable requirement of the rules of natural justice by failing to draw such information to the prosecutor’s attention for his submission or comment if so desired?

…”

77                  His Honour concluded as follows:

“193.  Fourthly, whilst 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.

194.     The requirement of disclosure, relevant to a case such as the present, has been expressed by the Full Court of the Federal Court in terms that I accept:

                       “[The] entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker.  It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made.  The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.  Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”

195.          I do not agree that the prosecutor was obliged, speculating on the delegate’s decision-making processes, to provide the delegate with a running commentary on events in Bangladesh that might influence the decision.  The fact that the political intelligence about the situation in Bangladesh, relied on by the delegate, was said to be powerful and convincing did not relieve the delegate of a duty to disclose it.  In a sense, the greater the significance of the information, the more pressing became the necessity to disclose it to the prosecutor for his submission or comment.

196.          It follows that the prosecutor ought not to have been taken by surprise, as he was.  To conclude in this way does not imply that every delegate, receiving any update of political information, would be obliged, before deciding a refugee application, to call such information to the notice of the person affected for comment.  That requirement would add unacceptable inflexibilities to the efficient performance by delegates of their functions under the Act.  But, in this case, the combination of circumstances which I have mentioned rendered it substantially unjust for the delegate, as the repository of statutory power, to proceed in the way that he did.  The prosecutor has therefore established that, in reaching the decision to refuse him a visa, the delegate acted in breach of the rules of natural justice.  What follows?”

78                  The orders in Miah were as follows:

“1.      Order absolute for a writ of prohibition directed to the first respondent prohibiting him from acting upon or giving effect to or proceeding further upon the decision of the first respondent by his delegate the second respondent dated 13 May 1997.

2.                  Order absolute for a writ of certiorari directed to the first and second respondents to quash the decision of the first respondent by his delegate the second respondent dated 13 May 1997.

3.                  Order absolute for a writ of mandamus directed to the first respondent requiring him to determine the prosecutor’s application for a protection visa under the Migration Act 1958 (Cth) according to law.

4.         First respondent to pay the costs of the prosecutor.”

79                  The differences in expression in the judgments, and the bland nature of the orders made, leave some room for doubt as to precisely what was decided in Miah.  It was certainly decided that what the statute described as a code of procedure, and was described by successive Ministers as a code intended to replace the uncertain common law requirements of natural justice, was not such a code.  In my opinion, the gravamen of the decisionis that the delegate should have informed the applicant that he was proposing to take into account the new circumstances constituted by the election results and the effect of the change of government upon the current security situation in Bangladesh in considering whether protection would be afforded if the applicant returned to Bangladesh, and given the applicant the opportunity of commenting upon that and providing such information as he wished in relation to that matter.  Put shortly, the applicants should have been advised of the substance of the possibly adverse (and critical) issue.  I do not regard the decision as requiring production of the country information which the delegate had bearing upon that issue to the applicant.  Apart from the fact that this is what I deduce from a fair reading of the critical portions of the judgments, this understanding best fits with the express provisions of     subdiv AB.  A distinction can be drawn between appraising an applicant of the substance of the case which has to be met, on the one hand, and the provision of “information” on the other, the latter being dealt with  by s 57 (particularly s 57(1)(b)) but also by ss 54, 55, 56 and 58.  It is not possible to ignore those express provisions or obliterate the distinction which they draw between personal and general information, particularly as that distinction echoes that drawn by Mason J in the passage from Kioa I have set out above.  This would also give some effect to the clear legislative intent reflected in the Second Reading Speeches of Ministers in successive governments.  In my opinion, the decision in Miah does not travel beyond the facts of the case before the Court – a new event or circumstance which arose after the last communication between the delegate and the applicant.  It was submitted on behalf of the Minister that s 424A governed the topic of provision of information as such to an applicant.  In my opinion, on the basis I have explained, that is correct and is not inconsistent with Miah.  If it were, the correctness of that decision is not a matter for me to consider.

80                  I am fortified in my view as to this by my reading of the decision of Kirby J in Ex parte A particularly at [47]-[55] and (to a lesser extent) by reading the transcript of argument in the full High Court in the cases of Muin and Lie.  See also Kirby J in Re Minister for Immigration & Multicultural Affairs;  Ex parte PT (2001) 75 ALJR 808:

“25.     …

4.                  Nor does the material disclosed in the delegate’s decision suggest a failure on the delegate’s part to put something important to the applicant which might otherwise have been unexpected or surprising and to which the applicant should have been given an opportunity to respond.  For example, the “country information” on Sri Lanka is unremarkable and apparently balanced.  It does not suggest a sudden alteration in the security situation or other developments that would reasonably have come as a surprise to the applicant and caught her off guard when first read in the decision.”

See also the guarded remarks of Gleeson CJ, McHugh, Gummow and Hayne JJ in Re Minister;  Ex parte Epeabaka (2001) 75 ALJR 848 [27]-[28].  In the same case, Kirby J said (at [66]):

“In some ways, the freer hand given to an independent member of the Tribunal, to secure information and to use it without necessarily disclosing it to the person affected, imposes practical requirements of manifest impartiality greater than in the case of judges and like decision-makers.  Judicial office is controlled by centuries of tradition.  Judges are obliged to sit in public.  They are required to accept the legal representatives of the parties.  They are controlled by settled procedures and rules of evidence.  Their orders are reviewable by superior courts.  If members of the Tribunal are authorised to act in some respects by inquisitorial procedures, that fact does not, of itself, exempt them from the rules of natural justice prohibiting bias.” (emphasis added)

81                  I have not been referred to any authority which imposes an obligation upon the Tribunal to bring to the attention of an applicant any general information concerning the country which the applicant has left and fears to return to, relating to circumstances up to the time of the hearing before the decision-maker.

82                  Care needs to be taken in transposing concepts which were developed in relation to bodies having a duty to act judicially to ordinary administrative decisions.  In the classic judicial or quasi-judicial model where the body concerned decides issues between contending parties, the notion that a decision-maker should not act upon material adverse to one side without it being disclosed to the other was regarded as one of the fundamental aspects of natural justice – see, for example, Keller v Drainage Tribunal [1980] VR 449 at 453.  Whilst the Tribunal has some of the trappings of a quasi-judicial body, it does not conform to that model.  In my opinion, an applicant for a visa should expect that his or her claim will be critically examined by the Minister and, if applicable, the Tribunal, in the light of relevant country information which is known to or available to the decision-maker.  If there is a new circumstance or event which the Tribunal proposes to consider, Miah may require that the applicant be advised accordingly depending upon circumstances.  I do not consider that any of the country information relied upon by the member in these cases could conceivably fall into the Miah principle or any realistic extension of it.  The example to which I referred concerning Insein Prison was as favourable to the applicants as any other instance.

83                  I should mention some other aspects of the applicants’ case.  Firstly, there is a submission that the Tribunal member misled the applicants by what he said in relation to country information, leading them to believe that no country information would be utilised, seeking to rely upon the decision of the High Court in Aala.  Having read the portions of the transcript which are relevant (and set out above) in context, I do not agree.  Whilst there may have been room for misunderstanding at an earlier stage, by the completion of the hearing I think it is clear that the Tribunal member was intending to refer to country information in accordance with well-established practice.  This is not put in issue by the migration agent who appeared. 

84                  Secondly, in the course of his reasons, the Tribunal member referred to his own military experience in assessing some evidence and there is more than a hint that he used it on another occasion for a similar purpose.  That military experience had not been referred to during the course of proceeding.  In Keller v Drainage Tribunal at 453 Murray J said:

“There is, however, a clear distinction between cases in which a tribunal obtains evidence without the knowledge of a party and cases in which a tribunal or a member of a tribunal has knowledge of facts relevant to the matter in dispute and acts upon such knowledge on the one hand and cases in which a tribunal simply brings expert knowledge to bear upon the evidence presented by the parties on the other hand.  It is well established that a tribunal, of which some or all of the members are experts in a particular field, may use its expertise in interpreting and weighing evidence and reaching conclusions on technical matters …”

This is well established in what might be called “expert tribunals” (eg, Minister for Health v Thomson (1985) 8 FCR 213, Kalil v Bray [1977] 1 NSWLR 256 at 261, Maloney v National Coursing Association [1978] 1 NSWLR 161 at 173).  This is not an expert tribunal in that sense.  A Tribunal member does not have to have any particular qualifications.  Backgrounds and experience will vary.  A member is no different from an ordinary administrator or jury person.  I see no difficulty in such a person using his or her knowledge and experience to assess the credibility of what is put before them.  It is not realistic to expect compartmentalisation of knowledge.  It is not feasible to disclose all such knowledge or experience.  It may be different if, for example, due to involvement in some particular experiment or incident out of the ordinary course, a particular fact was known. 

85                  Thirdly, the Tribunal member disclosed in the course of his reasons that he had used a particular map to check the applicants’ version of events and that this caused him to doubt the veracity of those events.  The evidence from the applicant NAAV is that if he had known of some of the conclusions drawn by the Tribunal member from that map he could have tendered other material which would have corrected misconceptions of the Tribunal member and similar evidence is given on behalf of applicant NAAX.  It is submitted for the Minister that, when this is analysed, the most that it could amount to was that the member was wrong about some geography, which was something well within jurisdiction.  In my opinion, it must be expected that a Tribunal member will resort to maps and the like in assessing what he or she is told.  There could, no doubt, be endless arguments as to which map is more accurate or more up-to-date.  It will not assist very much to be simply told which map is to be used unless the use to be made of it is known.  I cannot distinguish the map from other country information.

CONCLUSION

86                  I find that the applicants have not made good any challenge to the decisions of the Tribunal.  Each application will be dismissed.  The applicants are to pay the costs of the respondent, limited to one set of costs. 

Associate:

Dated:              15 March 2002

ANNEXURE

SOURCES OF INFORMATION

(a)                The document numbered CX 8570 referred to at paragraphs 122 and 131 of the Tribunal’s reasons.

(b)               The document numbered CX 9957 referred to at paragraph 94, where it is identified as “DFAT [Department of Foreign Affairs and Trade], ‘Myanmar; Request for Information:  Refugees: Burma Profile’, cable RA 1782, 1 Feb 1995” and at paragraphs 122 and 131 of the Tribunal’s reasons, where it is identified as “DFAT, 1995, CX 9957”.

(c)                Record of a telephone conversation between Amanda Zappia, co-ordinator of Australia-Burma Council and the Tribunal, 24 February 1994, referred to at paragraphs 122 and 131 of the Tribunal’s reasons.

(d)               Amnesty International, “Myanmar Conditions in prisons and labour camps” September 1995, referred to at paragraph 139 of the Tribunal’s reasons.

(e)                ABSDF, Cries from Insein, 1996, referred to at paragraph 139 of the Tribunal’s reasons.

(f)                 An article by McPhedran in The Canberra Times, 19 August 1997, CX 25011, referred to at paragraph 88 of the Tribunal’s reasons.

(g)                DFAT cable RA 7682, dated 23 June 1995, CX 9489 referred to at paragraph 89 of the Tribunal’s reasons.

(h)                DFAT, Human Rights Update, 28 January 2000, CX 39784, referred to at paragraph 90 of the Tribunal’s reasons.

(i)                  An otherwise unidentified DFAT report to the effect referred to at paragraph 95 of the Tribunal’s reasons in relation to the issue of Burmese passports.

(j)                 DFAT, 1996 Country Profile referred to at paragraph 96 of the Tribunal’s reasons in relation to immigration controls in Burma.

(k)               DFAT cable RA 7927 referred to at paragraphs 97 and 98 of the Tribunal’s reasons in relation to the issue and non issue of passports to various Burmese citizens.

(l)                  DFAT report 094, 9 June 2000, referred to at paragraph 100 of the Tribunal’s reasons.

(m)              DFAT Country Information Report, “Information on the Current Situation With Respect To Passport Issue And Departure from Burma”, No 285/00, 2 June 2000 referred to at paragraph 101 of the Tribunal’s reasons.

(n)                DFAT cable RA 1782, cited at paragraphs 102 and 152 of the Tribunal’s reasons.

(o)               DFAT, “Processing of passport renewal applications”, CIR No 113/00, 15 March 2000, CX 41129 referred to at paragraph 105 of the Tribunal’s reasons.

(p)               DFAT, “Human Rights Update”, 2000, CX 39784, referred to at paragraphs 104, 105 and 152 of the Tribunal'’ reasons.

(q)               The Tribunal Burma Workshop transcript (paper given by Andrew Selth) referred to at paragraphs 106-110 and 152 of the Tribunal’s reasons.

(r)                 Unidentified “independent information” cited by the Tribunal at paragraph 123 of its reasons to the effect that “all schools were closed by the authorities at [the relevant time in 1989] …”.

(s)                Terrell Oung, Central/International Co-ordinator, Australia Burma Council, letter to the Tribunal, 30 May 2000, referred to at paragraph 111 of the Tribunal’s reasons.

(t)                 Trevor Edmond, Secretary, Friends of the NLD in Australia Inc, letter to the Tribunal, 2000, undated, referred to at paragraphs 109-110 of the Tribunal’s reasons.

(u)                DFAT, 1992, “Minute from DFAT concerning Burmese demonstrators in Australia”, 24 September, CX 8069 referred to at paragraph 112 of the Tribunal’s reasons.