FEDERAL COURT OF AUSTRALIA

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

MIGRATION – application for protection visa – Refugee Review Tribunal relied on confidential documents – Refugee Review Tribunal exercised discretion under subs 438(3) of the Migration Act 1958 (Cth) not to disclose confidential documents to applicant - Refugee Review Tribunal took into account advice from the Department of Immigration & Multicultural & Indigenous Affairs in making decision not to disclose documents – whether the advice from the Department was disclosable to applicant – whether non-disclosure of Departmental advice amounts to a breach of procedural fairness – where access to documents denied – where request for Departmental advice made.

PRACTICE & PROCEDURE – subpoena seeking production of documents – documents provided in confidence from China –where documents not directly relevant to any issue sought to be raised in proceeding – where asserted that relevance can only be determined once access is gained – where no apparent connection between case and documents demonstrated.

Migration Act 1958 (Cth), s 438

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

Attorney-General for NSW v Stuart (1994) 34 NSWLR 667 referred to

Young v Quin (1985) 4 FCR 483 referred to

Woodroffe v National Crime Authority (1999) 168 ALR 585 referred to

Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC 327 cited

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 considered

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

Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 195 ALR 502 discussed

Kioa v West (1985) 159 CLR 550 cited

Chu v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 540 cited

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

Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 cited

Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 cited

Linett v McIntyre (2002) 117 FCR 189 cited

VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205 not followed

VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 discussed

Bax v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 55 cited

NAFQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1329 of 2002

MOORE J

SYDNEY

16 MAY 2003

THE COURT ORDERS THAT:

1. A writ of certiorari issue removing to this Court and quashing the decision of the Refugee Review Tribunal of 6 December 2002.
2. A writ of mandamus issue requiring the Refugee Review Tribunal hear and determine the application for review of the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs of 8 March 2001 refusing to grant the applicant a Protection (Class XA) visa.
3. The respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application for prerogative relief in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) of 6 December 2002, affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) refusing to grant the applicant a protection visa.  The applicant, who is a citizen of the People’s Republic of China (“PRC”), most recently arrived in Australia on 5 January 2001.  On 8 January 2001 she lodged an application with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) for a Protection (Class XA) visa under the Migration Act 1958 (Cth) (“the Act”).  On 8 March 2001 the delegate refused to grant the protection visa, and on 7 June 2001 the Tribunal affirmed the delegate’s decision.  The applicant sought judicial review of the Tribunal’s decision.  That application was dismissed by this Court on 1 November 2001.

2                     The applicant appealed.  In the appeal, the applicant was given leave to raise as a new ground, that there had been a breach of procedure under subs 418(3) of the Act in not providing the applicant with a copy of a report by an immigration officer who had interviewed the applicant at Sydney airport on 5 January 2001.  The report had been made available to the Tribunal.  On 17 May 2002 the Minister consented to orders allowing the appeal and remitting the matter to the Tribunal.  This led to the decision of the Tribunal of 6 December 2002, which is the subject of these proceedings. The applicant had, in other proceedings in this Court, obtained orders requiring the production of material from the Department: see NAAO v Secretary, Department of Immigration & Multicultural Affairs (2002) 117 FCR 401.  The judgment of the Full Court was in proceedings the applicant brought concerning the provision of documents under the Freedom of Information Act 1982 (Cth).  The material was information obtained by the Department from the PRC which the Department contended could not be divulged because of s 503A of the Act.

The applicant’s claims

3                     The following is a summary of the applicant’s account of her circumstances on which she has based her claim for a protection visa.

4                     The applicant was born in 1955 in Guangzhou City, in the PRC.  She married in Guangzhou in June 1977.  In 1994, the applicant’s husband became the Deputy Director of the Roads and Traffic Management Centre in Guangzhou (“the RTMC”).  The same year, the applicant became a resident of Hong Kong and commenced a business called Everwell Gain Enterprises.  The couple lived apart but visited each other regularly.  In September or October 1999, the applicant’s husband became the Guangzhou City Public Security Bureau Traffic Police Branch Head.  In early 2000, he became “embroiled in the internal politics of that office”.

5                     In his new position, the applicant’s husband attempted to improve efficiency and eradicate corruption.  On 5 or 6 March 2000, the applicant’s husband was called to a meeting at the RTMC in Guangzhou.  He did not return from this meeting.  The applicant later discovered that her husband had been detained and was being held without charge by the Chinese authorities, ostensibly on suspicion of bribery and corruption.  The applicant maintains that her husband’s detention is politically motivated and fuelled by her husband’s opponents within the Communist party, and by those who want to cover up their own guilt and obtain advantages.  The applicant’s brother-in-law, who worked for the same office as her husband, has also been detained indefinitely, and her sister was detained for a week before being released without charge.  Her brother has also been detained.

6                     On 10 March 2000 the applicant left Hong Kong for Australia.  She entered legally on a temporary visitor’s visa, which was extended until 31 January 2001.  The applicant left Australia on 4 January 2001 to visit her son, who was studying in Canada.  The applicant’s flight to Canada included a stopover in Honolulu.  The applicant was refused entry by US immigration.  Based on what she had been told by her son, the applicant believed she was refused entry because she was going to be denied entry by Canadian immigration in Vancouver.  The applicant was put back on a plane to Australia and arrived at Sydney airport on 5 January 2001.

7                     In her application for a protection visa of 8 January 2001, the applicant said she feared harm from Government authorities and others who opposed her husband.  Her husband was a victim of internal Communist party politics, and that the accusations against him were designed to cover up the guilt of others.  Earlier she had been unsure of her husband’s situation, only knowing that he had been detained.  She became certain of her husband’s political persecution when she returned to Australia on 5 January 2001.

The material from China concerning the applicant

8                     On her arrival in Sydney on 5 January 2001, the applicant was interviewed by an immigration officer, assisted by a Cantonese interpreter.  The immigration officer cancelled her visa on the basis that she was not intending to stay temporarily as a tourist.

9                     The applicant was interviewed because a “person alert” had issued in relation to her.  This was apparent from a report prepared by the immigration officer who conducted the interview.  The “person alert” indicated that the Australian Federal Police had been advised by the “Beijing post” that the applicant was wanted in the PRC for diverting over 1 million yuan of company funds and was suspected of bribery.  The alert contained a note indicating that relevant papers were held in the “Investigations Policy & Coordination Section”.  As a result of the Full Court’s orders made in the applicant’s favour in NAAO v Secretary, Department of Immigration (supra), the solicitors for the applicant received copies of documents provided by the Chinese authorities concerning the applicant, but only to the extent that they disclosed the name of the agency which supplied the documents and the specific request for confidentiality.

The relevance of the Chinese documents to these proceedings

10                  During the period leading to the final hearing by the Tribunal on 20 November 2002 when it took evidence from the applicant, the applicant’s solicitors sought certain documents from the Tribunal, including the documents from the Chinese authorities.  They requested that the Tribunal provide access so that the documents could be considered before any hearing.  The Tribunal sought the documents from the Department.

11                  An electronic copy of the report of the immigration officer who interviewed the applicant at the airport was made available to the Tribunal, which was passed on to the applicant’s solicitor.  However the Department advised that the other documents sought were missing from the applicant’s file.  Though the Department could not locate the missing documents, it was able to send to the Tribunal, on a confidential basis, the source documents from which the missing documents were believed to have been copied.  The Tribunal was invited to consider which, if any, of these documents should be released to the applicant.  This material was provided to the Tribunal on 7 November 2002.

12                  It is convenient, at this stage, to set out s 438 of the Act, which provides:

(1)        This section applies to a document or information if:

(a)               the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that  could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)               the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

(2)       If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

(a)        must notify the Tribunal in writing that this section applies in relation to the document or information; and

(b)        may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)       If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

(a)        may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

(b)        may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

(4)        If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.

13                  Under this section, the Tribunal may have regard to any matter contained in a document provided by the Minister (which is non-disclosable): par 438(3)(a), but also has a discretionary power to disclose any matter contained in the document to an applicant: par 438(3)(b).  That latter provision speaks of disclosure of “any matter contained in the document” rather than disclosure of the document itself or its contents by provision of a copy or inspection.  Perhaps this language is used because the legislature had in mind that there could be partial disclosure of the contents of a document in appropriate circumstances, but not disclosure of the entire contents of a document (through a copy or inspection).  Arguably, partial disclosure (constituting disclosure of any matter contained in a document) might be achieved by reproducing (by repetition) part of the document in another document (such as a letter), masking part of a document before it was photocopied or perhaps even paraphrasing the substance of a document in another document.  But it is unnecessary to give greater attention to what is meant by “disclose any matter contained in…” because the issue raised in this application can be determined without doing so.  However I mention this aspect of the language of the provision because in some of the correspondence referred to shortly, reference is made to disclosure of the documents.

14                  After the Tribunal received the material from the Department, it wrote to the applicant’s solicitors on 15 November 2002 informing them that the Tribunal expected to receive written advice from the Department regarding the release to the applicant of the documents from the Chinese authorities.  That letter read:

 I refer to your letter of 14 November 2002.

Further to the Tribunal’s letter of 7 November 2002, the Department has now provided the Tribunal with the documents removed or excised from [the applicant]’s Departmental files.  However, the Department claims that s.438 of the Migration Act 1958 applies specifically on the grounds of s.438(1)(b) of the Act which states:

the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

Additionally, the Department claims that the documents should be treated as non-disclosable information within the meaning of paragraph (c) of the definition of ‘non-disclosable information’ in s.5(1) of the Act which provides:

non-disclosable information means information or matter:

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

and includes any documents containing, or any record, of, such information or matter’

The Tribunal has been advised that the Secretary of the Department will notify it next Monday that s.438 applies to the documents.  The Tribunal also expects written advice about the significance of the documents as provided for by s.438(2)(b) of the Act.  The Tribunal will then decide, in accordance with s.438(3) of the Act, whether to disclose any matter contained in the documents to [the applicant].

At this stage, you have not indicated whether or not you wish to accept the Tribunal’s invitation for you to give evidence and present arguments at the scheduled hearing on 20 November 2002.  In spite of this recent development, and as it is possible that the Tribunal may not disclose any matter contained in the documents, the Member intends to proceed with the scheduled hearing on 20 November 2002, unless [the applicant] informs the Tribunal that she does not wish to appear to give evidence and present arguments relating to her review.

Should it eventuate that some of the documents are released, the Member will allow you adequate time after the hearing to enable you to consider them and make further submissions.  If necessary, a further hearing could be arranged.

The Tribunal would appreciate it if you would give a formal response on [the applicant]’s behalf, either positive or negative, to the invitation issued on 16 October 2002.

[Emphasis added]

The invitation referred to in the last paragraph was an invitation (referred to in the third last paragraph) to the applicant to come to a hearing of the Tribunal to give oral evidence and present arguments in support of her claims.

15                  The applicant’s solicitors replied on 18 November 2002, noting that any such letter from the Department would be disclosable to the applicant.  That letter read:

 We are in receipt of your letter of 15 November 2002 advising that it is expected that the Department of Immigration is expected to attempt to invoke s 438 Migration Act to prevent disclose [sic] of certain documents to [the applicant].

Could the Tribunal please note the following,

(a)               if the Tribunal exercises the discretion provided for in s 438(3) it must do so judicially, according to the principles enunciated in House v R (1936) 55 CLR 499 at 505ff.

(b)               Any statement given to the Tribunal pursuant to s 438(2)(b) is disclosable to the applicant, because it does not come within s424A.

We would comment, additionally, that the Department has had months to decide how to treat the information requested.  Yet, having (contrary to law) withheld information from her purportedly pursuant to s 503A, thereby causing delays of in excess of 12 months, it appears now to have fastened on to another ruse to refuse access a few days before the hearing.  It is clear that the Department does not have clean hands in this matter, and on behalf of our client we call upon the Tribunal to exercise its independence.

[The applicant] does not like being in detention.  She is also terrified at the prospect of returning to China.  She asserts that she is the victim of a political vendetta based on her husband’s attempts to reform the institution of which he was a leading official.  In support of her claims she has only her own story.  Admittedly she did not do herself any favours in her airport interview, but then she was frightened about revealing her true situation for fear of the consequences.  This was explained in earlier correspondence.

Against her is the weight of allegations received from China.  In our submissions she should be given access to all information to make submissions thereupon.  It is of course possible that part of the information could assist her allegation that she is the victim of a political conspiracy, or could in context be construed as assisting her case.  Our submissions may be of assistance in this respect.

[Emphasis added]

16                  The Tribunal received a letter from the Department on 19 November 2002, which stated that pursuant to par 438(2)(a) of the Act, the documents were received in confidence from the Chinese authorities and the information they contained fell within the meaning of paragraph (c) of the definition of “non-disclosable information”, in subs 5(1) of the Act.  The Department explained why and also explained why the documents should not be disclosed to the applicant.  The letter from the Department to the Tribunal read:

This letter replaces my previous letter dated 19 November 2002.

I am writing concerning the further release or otherwise of any of the documents forwarded to the RRT on 6 November 2002 which the Department believes to be the source documents for those that were excised or removed from [the applicant]’s original case file.

Section 434 of the Migration Act 1958

As previously advised on 6 November 2002 section 438 of the Migration Act 1958  (the Act) applies to the information provided to the RRT, on the grounds stated in s 438(1)(b) of the Act, specifically:

(b) the document, matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

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

Advice under s 438(2)(b) of the Act

Consistent with paragraph 438(2)(b) of the Act and with the Department’s letter of 6 November 2002, I am providing you with the following advice regarding the information that was disclosed in 6 November 2002 [sic].

Given that the information was provided to the Department on the condition that it remain confidential and that the Department accepted that condition, the unauthorised disclosure of the material to the applicant or her representatives by any party that is aware of the obligation of confidentiality attached to that information would be likely to be considered a breach of confidence.

I note that where the disclosure of information would result in an action for breach of confidence, that information is non-disclosable information within paragraph (c) of the definition of ‘non-disclosable information’ in sub-section 5(1) of the Act.  That definition relevantly provides as follows:

non-disclosable information means information or matter:

…

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

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

Because the information is non-disclosable information, it also cannot be disclosed to the applicant under s 424A of the Act.  Section 424A of the Act relevantly 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.

…

(3)       This section does not apply to information:

…

(c)        that is non-disclosable information.

Please note that s 422B of the Act provides that Division 4 of Part 7 of the Act (in which s 424A is located) is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that it deals with.  This means that non-disclosable information cannot be disclosed to the applicant under s 424A.

As mentioned above, where information that has been given under an obligation of confidentiality has been disclosed to another party and that other party has been advised of the obligation of confidentiality, that other party would breach that obligation of confidentiality by disclosing the relevant information without the authority of the person to whom the obligation of confidentiality is owed.

In this case, permission was specifically obtained by DIMIA from the Public Security Ministry, to disclosure the documents to the RRT [sic].  However, please note that the PRC agency did not permit the disclosure of the documents or their contents to the applicant, the applicant’s legal representative or any other entity.  Nor is the Department’s obligation of confidentiality towards the information otherwise affected by the permission given by the Public Security Ministry.

The information provided by the Public Security Ministry is information that appears likely to be used in any prosecution of the applicant by the PRC authorities.  If disclosure were viewed adversely by the PRC authorities it may affect future cooperation.

In addition, the Department obtained the information in the course of considering issues to do with [the applicant]’s character and not her claims that Australia owes her protection obligations.  While it is a matter for you, the Department takes the view that the material provided by the Public Security Ministry bears no reference to her claims for protection.

Lastly, some of the documents contain the personal information (including the details and names) of witnesses and their statements, which may have been provided to the relevant PRC agency under conditions of confidentiality.

In light of these issues, I advise that these documents should not be disclosed to the applicant or the applicant’s legal representative. 

[Emphasis added]

·        Folios 1-9 of the document entitled ‘NOTE’ contains a summary of the background information, the details of the alleged crime committed and a request for the arrest and deportation of the applicant.

·        The document entitled ‘APPENDIK’ [sic], contains the following information:

·        Appendix 1 (ff 123-133) contains identification details of [the applicant].

·        Appendix 2 (ff 105-122) contains the warrant of arrest and case registration details with Guangdong Provincial Procuratorate.

·        Appendix 3 (ff 75-104) contains records of interview and statements of testimony.  These folios contain personal information on people not connected with this application.

·        Appendix 4 (ff 14-74) contains copies of certificates and documents used in transactions.

·        Appendix 5 (ff 1-13) contains copies of statements from PRC Public Security Ministry.

I also ask that you return the documents provided to you, to me on completion of your assessment and to disregard my previous letter of notification also dated 19 November 2002.

17                  The Tribunal’s response to the letter of 18 November 2002 from the applicant’s solicitors was by letter dated 19 November 2002:

The Member reviewing your client’s case has asked me to advise you as follows.

The Tribunal has now received written notification and advice from the delegate of the Secretary of the Department under s. 438(2) of the Migration Act 1958 in relation to the documents recently provided to it.  As previously advised, the Department believes these documents to be copies of documents which were the source documents of those excised or removed from [the applicant]’s Departmental files.  Having considered the delegate’s advice and obtained its own legal advice, the Tribunal has decided not to exercise its discretion under s. 438(3) of the Act to disclose the documents to the applicant, on the basis that the documents are non-disclosable information (within the meaning of paragraph (c) of the definition of ‘non-disclosable information’ in s.5(1) of the Act) and to disclose the documents to the applicant would breach confidentiality.

Therefore, the Tribunal will not adjourn the hearing scheduled tomorrow and will proceed unless [the applicant] informs the Tribunal that she does not wish to attend.”

[Emphasis added]

18                  It can be seen from this correspondence that the Tribunal exercised its discretionary power not to disclose “matter in the documents” to the applicant because of a submission made to it by the Department.  At the time it made this decision, the Tribunal had not provided the applicant’s solicitors with a copy of the letter from the Department arguing the case for nondisclosure nor had it invited the applicant to respond to the letter and the contentions advanced in it.

The Tribunal’s decision of 6 December 2002

19                  In a section in its reasons titled “Findings and Reasons”, the Tribunal noted the applicant’s circumstances, and stated that if she returned to Hong Kong, she would almost certainly be extradited to the PRC.  Her claims were assessed on the basis that the PRC was the country of reference.  The Tribunal was not satisfied the applicant was a person to whom Australia owed protection obligations.  It its reasons, it said in relation to the information provided by the Chinese authorities, which was some of the material it took into account:

Although the documents which detail the charges against the applicant constitute “non disclosable information” within the meaning of s 5(1) of the Act, and are documents to which s 438 applies, the Tribunal is entitled to take account of the information in those documents; see paragraph 438(3)(a).  Having studied those documents carefully, the Tribunal has been unable to identify any aspect of them which would support the hypothesis that the charges have been motivated by anything other than evidence of a criminal offence, of which the applicant is alleged to have played an active role.  The documents contain nothing to suggest that there is any Convention-related motivation behind the charges which have been laid against her.

The Tribunal went on to note that it was not convinced that the applicant had no idea about the charges that had been made against her. 

20                  The Tribunal later said:

The Tribunal finds that the applicant is wanted by Chinese authorities in connection with an alleged criminal offence.  It is not satisfied that she is of interest to the Chinese authorities, or that she would be treated differently by those authorities in relation to the alleged offence, for a Convention reason, in particular because of any political opinion (whether real or attributed), or for reasons of her membership of a particular social group.   

21                  The Tribunal affirmed the delegate’s decision.

Application for Review

22                  The application for review in this Court was filed on 12 December 2002.  The applicant sought a writ of certiorari quashing the Tribunal’s decision, a declaration that the Tribunal’s decision was void, a writ of prohibition preventing the Minister from enforcing the Tribunal’s decision, and an order for costs.  To the extent that the application identified the grounds relied on, the accompanying affidavit from the applicant’s solicitor said:

3.         The applicant contends, inter alia, that she was denied natural justice by the Refugee Review Tribunal, and that the Tribunal failed to take into account relevant considerations in deciding to exercise its powers not to disclose documents before it pursuant to s 438 Migration Act.  The applicant also contends that NAAV v Minister for Immigration [2002] FCAFC 228 was incorrectly decided.

23                  This ground was not further particularised either when the application was filed or subsequently.

Subpoena of documents from the Department and the Tribunal

24                  In this proceeding, subpoenas issued (on application by the applicant), to both the Minister and the Tribunal requiring them to produce the documents from the Chinese authorities.  The Tribunal produced its documents to the Court.  The Minister did not, though it was ultimately accepted by counsel for the applicant that, for present purposes (an application for prerogative relief against the Tribunal), it was only the documents in the possession, custody or control of the Tribunal which were or might be relevant.  The Minister filed a notice of motion seeking to set aside the subpoena to the Minister and an order denying access by the applicant to the documents produced by the Tribunal.

25                  The opposition was on two bases.  First, that the applicant had no legitimate forensic purpose in obtaining or using the documents.  A claim for public interest immunity was also raised.  Counsel for the Minister referred to Attorney-General for NSW v Stuart (1994) 34 NSWLR 667, at 675-676:

Where a claim of public interest immunity is made, the judge (or magistrate) is required to consider two conflicting aspects of the public interest:

(i)                 whether harm would be done by the production of the documents, and

(ii)               whether the administration of justice would be frustrated or impaired if the documents are withheld,

and to decide which of those aspects predominates in the particular case.

This balancing exercise can only be undertaken when it appears that

(a) damage would be done to the public interest by producing the documents sought or documents of that class, and

(b) there are or are likely to be documents which contain material which is relevant to the issues raised in the proceedings: Sankey v Whitlam (at 38-39); Alister v The Queen (at 412). This latter issue encompasses what has become known as the legitimate forensic purpose for the party’s desire to have access to the documents: Maddison v Goldrick [1976] 1 NSWLR 651 at 666; R v McPhail (1988) 36 A Crim R 390 at 404; R v Saleam (1989) 16 NSWLR 14 at 18; it involves the need to prevent a fishing expedition in the hope of catching something worthwhile to the defence case: Burmah Oil Co Ltd v Governor and Company of the Bank of England (at 1129); Alister v The Queen (at 414, 455).

In order to determine whether there is such a legitimate forensic purpose, it is not appropriate for the judge to inspect the documents simply because of a bare unsupported assertion that upon such an inspection something may be found which is helpful to the accused: Alister v The Queen (at 414, 439, 454). In Alister’s case, the documents were eventually inspected by the High Court because - applying the criterion suggested in Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 439 - the majority were satisfied that there was some concrete ground for a belief that the documents did contain information which would materially assist the accused, or (as Gibbs CJ put it, at 414) it was “on the cards” that they would do so: see also R v Saleam (at 17-18). It is necessary for a party seeking to overcome a claim of public interest immunity to demonstrate his legitimate forensic purpose for seeing the documents before the judge proceeds to the balancing process: Burmah Oil Co Ltd v Governor and Company of the Bank of England (at 1113-1114, 1129); Alister v The Queen (at 412, 414, 438).

26                  The Minister’s claim of public interest immunity was supported by an affidavit from Ms Haughton, an acting Assistant Secretary of the Department.  Counsel for the applicant sought to cross examine Ms Haughton on aspects of her affidavit.  This application was resisted by the Minister on the basis that it would be exceptional to allow cross examination in such a situation.  Reference was made to Young v Quin (1985) 4 FCR 483 in which Sheppard J said at 489:

…I am firmly of the view, applying the practice which exists in relation to claims for immunity from production of documents, that only in exceptional circumstances should cross-examination be allowed.  That is principally because it will be impossible for any cross-examination to take place without the matters in respect of which the claim is made becoming the subject of it and thus being revealed.  The fact that such a cross examination could be conducted in camera provides no satisfactory solution to the problem.

27                  This approach was endorsed by a Full Court of this Court in Woodroffe v National Crime Authority (1999) 168 ALR 585, where the Drummond, Sundberg & Marshall JJ said at 589:

The learned primary judge recognised correctly that there was a discretion to permit cross-examination of a deponent in support of a claim to public interest immunity, observed that “those circumstances will be rare” in which cross-examination will be appropriate and said it will be a matter for the court in each instance to address the particular circumstances to see if cross-examination should be permitted.

28                  Ultimately it became unnecessary to deal with the question of whether Ms Haughton could be cross examined. During the course of argument, counsel for the applicant accepted that the question of whether the documents were being sought for a legitimate forensic purpose could be considered as a first step in dealing with the claim for public interest immunity.  As to the legitimate forensic purpose, counsel for the applicant submitted that was established by the fact that the documents had been before the Tribunal, they were relied upon by the Tribunal, and that they related specifically and directly to the applicant.  However counsel for the applicant was not able to explain how the documents might be relevant to any issue sought to be raised in this proceeding.  The clear import of his submissions, at least as I understood them, was that the relevance of the documents would only be apparent to the applicant and her legal advisers once access was given to the documents.  However the applicant, in my opinion, had to demonstrate some possible connection between the documents and the case sought to be maintained.  In a case such as the present it might ultimately be unnecessary for an applicant to show anything more than some link or connection however tenuous or remote.  But the applicant could not even do that: for what might be thought to be an analogous situation, see Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC 327. I was not satisfied that access to the documents was required by the applicant for a legitimate forensic purpose.  Accordingly I refused access to the documents produced by the Tribunal and made an order setting aside the subpoena directed to the Minister.

Remaining issues in the application

29                  After the ruling on the subpoenas, counsel for the applicant effectively abandoned the case he had proposed to advance though he sought to raise one further point.  It concerned the letter of 19 November 2002 from the Department to the Tribunal.  The way the argument was ultimately put was that before the Tribunal exercised its discretion under par 438(3)(b) and decided not to disclose any matter contained in the documents from the Chinese authorities, it should have given the applicant the opportunity of answering the case advanced by the Department (for nondisclosure) in the letter of 19 November 2002.  Its failure to do so constituted a denial of procedural fairness.  In the result, the applicant was denied the opportunity to advance a case for the release of the documents, which may have aided her application for a protection visa. 

30                  In correspondence after the hearing, the applicant described the ground in the following way:

The applicant was denied natural justice.

Particulars

(a)               Neither the Department’s letter to the Refugee Review tribunal dated 19 November 2002 (RD 288-290), nor the information in that letter was disclosed to the applicant or her lawyers prior to the making of the Tribunal decision on the application for review, and,

(b)               That non-disclosure caused prejudice to the applicant.

31                  An affidavit of Ms Ho, who is an employed solicitor of the firm representing the applicant, was read by counsel for the applicant.  She said that had she been provided with the letter of 19 November 2002, counsel would have been able to make submissions on the letter to the Tribunal.  In cross-examination, she agreed that there had been no request for the letter to be provided other than in the letter of 18 November 2002 from the applicant’s solicitors to the Tribunal.  The hearing took place before the Tribunal on 20 November 2002.  The applicant was then accompanied by both a barrister and Ms Ho, the principal of the firm Ms Ho worked for as well as her migration agents.  The question of whether the applicant should have access to the Chinese documents was not raised at the hearing or subsequently.

32                  The point concerning the letter of 19 November 2002 was only raised, in this proceeding, by counsel for the applicant during the hearing.  Ultimately, I invited the parties to make further written submissions on the issue.  In those submissions, counsel for the applicant repeated the submission that the applicant had been denied an opportunity to respond to the Department’s letter of 19 November 2002 and this constituted a denial of procedural fairness.  He submitted that an applicant is entitled to relief if the denial of procedural fairness could have affected the outcome, referring to Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 88 per Gleeson CJ, 116-7 per Gaudron & Gummow JJ, 122 per McHugh J (who dissented, but not on this point), Kirby J at 130-1.  He also referred to the judgment of Gaudron J in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 86:

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.

And later, McHugh J at 96:

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 relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise: Kioa v West(1985) 159 CLR 550 at 628, citing Kanda v Government of Malaya[1962] AC 322 at 337; Ridge v Baldwin[1964] AC 40 at 113-114; De Verteuil v Knaggs[1918] AC 557 at 560, 561. 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”:Kioa v West(1985) 159 CLR 550 at 629.

33                  Counsel for the Minister, in his submissions in reply, referred to the circumstances described earlier and submitted that the Tribunal was under no obligation to disclose the advice received from the Department.  In addition, it was submitted that the applicant had ample opportunity to request the letter from the Department or make submissions on access to the documents, and did not do so.  There has been no substantial unfairness or practical injustice to the applicant resulting from the Tribunal’s actions.  Reference was made to Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 195 ALR 502.  No submission was made by the Minister that s 422B of the Act had any bearing on the issue raised by the applicant.  That section relevantly provides that s 438 is to be taken to be an exhaustive statement of the requirements of natural justice hearing rule in relation to the matters the section deals with in so far as they relate to Division 4 (which concerns the conduct of a review by the Tribunal).  It emerged from later written submissions that it was common ground that s 422B was not relevant because of the time at which the decision in the present case was given.

34                  Section 438 has to be read in conjunction with s 418.  Subsection (3) of that latter section requires, in the event that an application for review is made to the Tribunal, the Secretary of the Department to forward to the Registrar of the Tribunal documents relevant to the review.  This general obligation is qualified by the prohibition in s 437 which prevents the Secretary giving the Tribunal a document or information which is the subject of a Ministerial certificate of the type referred to in that section.  However s 438 would appear to serve the purpose of enabling other sensitive documents or information (the subject of a certificate by the Minister under par 438(1)(a) or information which was confidential in the way contemplated in par 438(1)(b)) to be given to the Tribunal on the basis that it would not be disclosed unless the Tribunal thought it should be.  Subsection 438(3) confers on the Tribunal a discretionary power to disclose to an applicant “any matter contained in [a] document” or information to which the section applies.  It is of importance, for present purposes, that in exercising this discretionary power, the Tribunal should have regard to any advice given by the Secretary under subs 438(2).  That advice concerns “the significance of the document or information”.

35                  Ordinarily an inquisitorial decision maker such as the Tribunal should give a person directly affected by the decision an opportunity to comment on adverse material (sourced from a third party) concerning the person and on which the decision maker might base its decision: see Kioa v West (1985) 159 CLR 550 at 587 and also Caulton v Minister for Immigration and Ethnic Affairs (unreported, Lockhart J, 12 August 1987), Pattanasri v Minister for Immigration, Local Government & Ethnic Affairs (1993) 34 ALD 169 cf: Chu v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 540, for a recent discussion of the question of non-disclosure of material by the Tribunal leading to a denial of procedural fairness, see Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 437.  Thus the exercise of the statutory power conferred on the Tribunal by subs 438(3) to have regard to “matter contained in [a] document” without disclosing the matter to an applicant has the effect of depriving the applicant of an opportunity that might otherwise be expected to exist (at least if it is adverse material or information personal to the applicant).  Because the provision operates this way, the discretionary power to disclose the information is of potentially considerable significance.  Given the consequences of a decision not to disclose based on advice of the Secretary, it might be expected that an applicant would be able to comment on the advice of the Secretary in order to persuade the Tribunal to disclose the matter in the document or information on which the Tribunal might ultimately base its decision.  It is true that the section does not expressly provide that an applicant should be given an opportunity to comment on the advice of the Secretary.  However the section does not expressly exclude the possibility that an applicant might comment and, in my opinion, to deny an applicant the opportunity involves a denial of procedural fairness: see Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483 at 504. 

36                  Percerep v Minister for Immigration & Multicultural Affairs was an appeal from the Administrative Appeals Tribunal affirming a criminal deportation order under s 201 of the Act.  Prison files concerning the applicant were produced to the Tribunal on a summons issued at the request of the Minister.  Twenty-one pages were not produced on the return date for the summons.  The documents which were produced were inspected by the applicant’s legal adviser.  The twenty-one pages were apparently provided to the Tribunal later the same day.  A confidentiality order concerning the twenty-one pages was made a little over a week later by the Presidential member who ultimately determined the appeal (adverse to the applicant).  The applicant and his legal advisers were, in fact, not aware that the twenty-one pages had been provided to the Tribunal nor were they aware, in fact, that the confidentiality order had been made (a copy of the order was sent to the legal representatives of the applicant by the Tribunal but the solicitor acting for the applicant did not see the letter).  The Court was satisfied that the Presidential member read or perused the twenty-one pages.  Their existence or content were not referred to at the hearing or in the Tribunal’s reasons.

37                  On the question of whether the applicant should have been heard before the confidentiality order was made in the circumstances set out above, Weinberg J said (at 504):

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

[Emphasis added]

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

39                  Counsel for the Minister submitted the applicant was not denied the opportunity to make submissions on whether the discretionary power conferred on the Tribunal by par 438(3)(b) should be exercised in her favour.  In Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298, Gaudron J said at 305:

As was pointed out by Deane J. in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given ‘a reasonable opportunity to present his case’ and not that the Tribunal ensure ‘that a party takes the best advantage of the opportunity to which he is entitled’.

See also McCarthy v Law Society of NSW (1997) 43 NSWLR 42 at 62.

40                  It is to be recalled that in their letter of 18 November 2002, the applicant’s solicitors noted that any statement by the Secretary under par 438(2)(b) (advice concerning the significance of the documents) was disclosable to the applicant.  While there was no express and unambiguous request that the applicant be provided with the statement, this observation should probably be treated as such a request and viewed as such by the Tribunal.  At the very least, it put the Tribunal on notice that the applicant had an interest in any advice it might receive from the Secretary which might bear upon the exercise of the discretionary power (to disclose “matter” contained in the documents) conferred by par 438(3)(b).  The applicant only knew of how the discretionary power might be exercised when her solicitors were informed the following day that the Tribunal had decided against disclosure.

41                  In my opinion, it is no answer to say that the applicant had the opportunity to make submissions before the discretionary power was exercised and, in a sense, did so in the letter of 18 November 2002.  Central to any decision to exercise the discretionary power is the advice given by the Secretary.  The Tribunal is obliged to have regard to that advice.  In my opinion, the opportunity to put the case in support of the exercise of the discretionary power in an applicant’s favour would ordinarily involve an applicant being given a copy of the advice and afforded an opportunity to comment on it.  In the present case, nothing was said by or on behalf of the applicant which suggested she did not wish to see the advice and comment on it (indeed, as earlier noted, the letter from her solicitors probably should be understood to be a request to see it).  The applicant was not given this opportunity.

42                  It is true, as counsel for the Minister pointed out, that at no stage thereafter did the applicant or her legal advisers ask the Tribunal to provide the Secretary’s advice or reconsider its decision concerning disclosure.  But by that time, the decision not to disclose had been made.  The applicant was confronted with a Tribunal which had made its decision (to exercise the discretionary power to keep confidential the documents) and it would be unrealistic to think that the applicant might thereafter (assuming, as is probably the case, that the Tribunal could exercise again the discretionary power) persuade the Tribunal to change its mind: see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [150].

43                  Counsel for the Minister also submitted that even if there had been jurisdictional error, it must be one which affects the Tribunal’s exercise of its power and, in this case, the Tribunal’s decision under par 438(3)(b) was preliminary to its exercise of power to review the delegate’s decision.  Reference was made to Linett v McIntyre (2002) 117 FCR 189 at [34] and [87].  However, as I have endeavoured to show, the course adopted by the Tribunal had a direct bearing on the opportunity the applicant had to answer material which was central to the Tribunal’s ultimate decision to affirm the delegate’s decision, which was adverse to the applicant.

44                  A final issue remains to be determined.  Section 474 must be considered.  Counsel for the Minister submitted that even if there had been a denial of procedural fairness, any such denial could not be said to constitute a failure to exercise jurisdiction nor involve an excessive jurisdiction.  It is only in those last mentioned circumstances that s 474 would be effective.  Particular reliance was placed on the recent judgment of Ryan J in VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205.

45                  In a recent judgment of a Full Court in VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 at ([31]) it is simply said (without elaboration or discussion) that a failure to accord procedural fairness constitutes jurisdictional error.  In that case the Tribunal had relied on a letter from the Afghan Consulate concerning whether the Consulate could renew an Afghan passport issued in 1994 and renewed in 1996.  The consulate indicated it could.  The appellant had not been made aware of the letter. It had been part of the appellant’s case that he could not have effective protection in India without a valid Afghan passport.  He would be at risk, so the appellant had contended, if he had to approach the Afghan authorities to obtain a passport.  Thus the letter provided, at least in the view of the Tribunal, an answer to this contention.  The Full Court concluded that as the appellant had not been made aware of the letter, nor given an opportunity to comment on it, he had been denied procedural fairness.  This arose in a context (as described by the Full Court at [28]) where the Tribunal had used the ability of the appellant to return to India as the reason to affirm the decision to refuse the appellant a protection visa.  Accordingly, the Full Court allowed the appeal, ordered that the decision of the Tribunal be set aside and ordered that the application be referred to the Tribunal for further consideration.  As it was an application under s 39B of the Judiciary Act 1903 (Cth), it can be assumed that these orders constitute short form prerogative writs.  Observations to similar effect (that a decision in which there has been a failure to accord natural justice is not a privative clause decision for the purposes of s 474) were made by a Full Court in Bax v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 55 at [24] (a judgment of 27 March 2003).

46                  In VBAC v Minister for Immigration & Multicultural & Indigenous Affairs (supra), Ryan J was not satisfied there had been any denial of procedural fairness.  It would appear that his Honour’s judgment (given on 17 March 2003) was not drawn to the attention of the Full Court in VAAC v Minister for Immigration & Multicultural & Indigenous Affairs (supra)(which gave judgment on 17 April 2003).  Having regard to the facts considered by the Full Court, Ryan J’s analysis may not have been of critical importance.  I should add that his Honour’s discussion of what might constitute jurisdictional error probably does not form part of the ratio and I am not strictly bound to follow it.  Nonetheless it is a considered discussion of a relevant issue which should be given due weight.  It is convenient to set out his Honour’s reasoning in full rather than endeavouring to paraphrase it.  Ryan J said (at [24]-[29]):

In S157/2002, in the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ, their Honours at [62] rejected in these terms an argument advanced on behalf of the Commonwealth as to the proper interpretation of s 474;

‘On behalf of the Commonwealth, it was contended that s 474 should first be construed as meaning and intended to mean that decisions are protected so long as there has been a bona fide attempt to exercise the power in question, that they relate to the subject-matter of the legislation and are reasonably capable of reference to the power.  Then it is said that, being a later provision than those by which particular powers are conferred, s 474 should be construed as impliedly repealing all limitations on those powers leaving only constitutional limitations and those which derive from s 474.  In terms, the argument was that s 474 “enlarges the powers of decision-makers so that their decisions are valid so long as they comply with the three Hickman provisos”.’

Their Honours went on at [74]–[78] to make these observations:

‘…However, s 474(1)(c) cannot be read in isolation from the definition of “privative clause decision” in s 474(2).  That definition relevantly confines “privative clause decision[s]” to decisions “made, proposed to be made, or required to be made ... under this Act”.  …

When regard is had to the phrase “under this Act” in s 474(2) of the Act, the words of that sub-section are not apt to refer either to decisions purportedly made under the Act or, as some of the decisions made on behalf of the Commonwealth might suggest, to decisions of the kind that might be made under the Act. …

Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression “decision[s] ... made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act.  Indeed so much is required as a matter of general principle.  This Court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”.  Thus, if there has been jurisdictional error because, for example, of a failure to discharge “imperative duties” or to observe “inviolable limitations or restraints”, the decision in question cannot properly be described in the terms used in s 474(2) as “a decision...made under this Act” and is, thus, not a “privative clause decision” as defined in ss 474(2) and (3) of the Act.

To say that a decision that involves jurisdictional error is not “a decision ... made under [the] Act” is not to deny that it may be necessary to engage in the reconciliation process earlier discussed to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction.

The effect of s 474 is to require an examination of limitations and restraints found in the Act.  There will follow the necessity, if s 474 is constitutionally valid and if proceedings are brought by the plaintiff in accordance with the draft Order Nisi, to determine, in those proceedings, whether, as a result of the reconciliation process, the decision of the Tribunal does or does not involve jurisdictional error and, accordingly, whether it is or is not a “privative clause decision” as defined in s 474(2) of the Act.’ (Footnotes omitted.)

That analysis seems to indicate that, on an application for review by this Court of a decision to refuse a protection visa, the correct place to start is with an assessment of whether there is a limitation imposed by the Act that has been transgressed, or a statutory requirement which has not been observed.  If there has been such a legal error, and it is one which would have deprived the Tribunal of jurisdiction, then the Tribunal has not, legally, made a decision at all and the purported decision cannot be protected by s 474.  However, whether or not an error deprives the Tribunal of jurisdiction will depend on a reading of the relevant provisions of the Act (including s 474), which may have the effect that certain provisions are not to be treated as essential to the exercise of jurisdiction.  In each case it will be necessary to consider whether the procedural or other requirement which an applicant alleges has been disregarded is, as a consequence of s 474, to be construed as “not essential to the validity of a decision”:  S157/2002 at [69] per Gaudron, McHugh, Gummow, Kirby, and Hayne JJ.

Where s 474 is found not to apply to prevent review of a decision, the consequence will be that “jurisdiction otherwise conferred upon federal courts by the laws specified in s 476(1) in respect of such decisions will remain, to be given full effect in accordance with the terms of that conferral” and this Court will be able to review that decision: S157/2002 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [96].  In S134/2002 Kirby and Gaudron JJ undertook (at [72]) this further examination of the availability of judicial review where jurisdictional error can be demonstrated;

‘…for the reasons given in Plaintiff S157/2002 v The Commonwealth of Australia, s 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as “a decision ... under [the] Act”.  However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s 474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s 474’s restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.’

Thus, a decision purportedly made by the Tribunal, where it has not followed all procedural steps which it is obliged to follow (in the sense that there is nothing in the scheme of the Act to suggest that those steps are “not essential to the validity of a decision”), is a decision made without jurisdiction.  In this limited sense, a denial of procedural fairness can constitute jurisdictional error, but not every case will disclose such a denial.  What is required is more than an infraction of a rule of natural justice;  it is a failure to exercise a jurisdiction, which the Tribunal was bound to exercise, in the manner in which it was bound to do so. 

A recent illustration of the type of denial of procedural fairness which amounts to jurisdictional error has been furnished by the judgment of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117.  In that case, the Tribunal, through a serious administrative oversight, had failed to give the applicant a hearing, as it was obliged to do before coming to a final decision.  Nevertheless, it purported to make a final decision.  By failing to undertake the necessary step of conducting a hearing, the Tribunal was held to have acted without jurisdiction and its decision was not validly made.  In law the duty to make a decision remained unperformed, and the Tribunal, in fact, made no decision at all:  Bhardwaj at [53] per Gaudron and Gummow JJ, McHugh J (agreeing), at [153]-[155] per Hayne J and at [165] per Callinan J.

[Emphasis added]

47                  I would respectfully view the matter somewhat differently.  In Re Refugee Review Tribunal; Ex parte Aala (supra) at [41], Gaudron and Gummow JJ indicated that if an officer of the Commonwealth exercises a power conferred by statute and does not accord procedural fairness then the officer exceeds jurisdiction in a sense necessary to attract prohibition (unless the statute authorises that course).  This passage was cited with apparent approval by McHugh and Gummow JJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (supra) at [42].  Accordingly, when Gaudron, McHugh and Gummow JJ joined in the judgment in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24 (at [76] in the third paragraph of the second passage quoted by Ryan J above) in which they indicate there would be no decision on which s 474 would operate if it was a decision made in excess of jurisdiction, I should proceed on the basis that what their Honours had in mind included a decision arrived at in circumstances where there had been a denial of procedural fairness.  This conclusion gains support from the approach of Gummow and Callinan JJ (at [32] – [33] (with whom Hayne J agreed) and Kirby J (at [86] to [89])) in Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26.  That said, in proceedings for prerogative relief in relation to a decision on which s 474 did not operate (because, for example, it was arrived at after a denial of procedural fairness), whether relief issued would still raise discretionary considerations in an appropriate case: see Re Refugee Review Tribunal; Ex parte Aala (supra).  Accordingly, I proceed on the basis that a decision made following denial of procedural fairness, is a decision on which s 474 does not operate.

48                  That being so, the applicant is entitled to relief (in circumstances where no submission was made on behalf of the Minister that relief should not issue as a matter of discretion).  The Tribunal’s decision should be quashed and it should be required to decide the application according to law.  The Minister should pay the applicant’s costs.

Associate:

Dated:              16 May 2003