FEDERAL COURT OF AUSTRALIA

 

SZEXF v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 1244

MIGRATION – protection visa – appeal from Federal Magistrates Court dismissed – where application for review of Refugee Review Tribunal’s decision to uphold the decision of delegate of Minister – requirement for particulars of information taken from the application visa – whether reason or part of reason for affirming decision under review – discretion attending exercise of grant or refusal of prerogative relief – whether unwarrantable delay

Migration Act 1958 (Cth) ss 424A(1) and (3)(a), 422B and 426A

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162discussed

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

VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102referred to

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507referred to

NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287cited

VNAA v Minister for Immigration and Indigenous Affairs (2004) 136 FCR 407referred to

VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559referred to

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437referred to

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576referred to

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

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 referred to

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 cited and applied

Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 referred to

VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 291

SZHJR v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 203 referred to

R v Commonwealth Court of Conciliation and Arbitration: Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389referred to

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Miah (2001) 206 CLR 57referred to

Peko-Wallsend Ltd v Minister for Aboriginal Affairs (1985) 5 FCR 532cited

SZGZW v Minister of Immigration and Multicultural Affairs [2006] FCA 457 discussed

Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 applied

Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 applied

R v Australian Broadcasting Tribunal; Ex parte Fowler and Ors (1980) 31 ALR 565 cited

SZEXF & OTHERS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 25 OF 2006

 

 

 

CONTI J

18 SEPTEMBER 2006

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESDISTRICT REGISTRY	NSD 25 OF 2006

 

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

 

BETWEEN:	SZEXF FIRST APPELLANT   SZEXG SECOND APPELLANT   SZEXH THIRD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT   REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	18 SEPTEMBER 2006
WHERE MADE:	SYDNEY

 

THE COURT ORDERS THAT:

 

1. The Refugee Review Tribunal be added as a second respondent to the proceedings.

2. The appeal be dismissed.

3. The appellants pay the first respondent’s costs of the proceedings.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALESDISTRICT REGISTRY	NSD 25 OF 2006

 

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

 

BETWEEN:	SZEXF FIRST APPELLANT   SZEXG SECOND APPELLANT   SZEXH THIRD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT   REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

 

JUDGE:	CONTI J
DATE:	18 SEPTEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Context to the case presented on behalf of the appellants by way of appeal from the Federal Magistrates Court

1                     This is an appeal from the judgment of Federal Magistrate Nicholls of the Federal Magistrates Court of Australia delivered on 16 December 2005 (SZEXF & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1980) whereby his Honour dismissed the appellants’ application for review of the decision of the Refugee Review Tribunal (‘the Tribunal’) made on 28 April 2003 and delivered on 21 May 2003. That application was belated in that it was not filed in the Federal Magistrates Court until 14 July 2004. The reason for that lengthy delay of more than one year was not seemingly explained by the appellants, or in any event satisfactorily. Prior to that Tribunal decision, the Minister’s delegate had refused what were successive applications for protection visas made by the appellants, the preceding Ministerial refusal having occurred as long ago as 30 August 2001.

2                     The appellants comprise respectively a husband and wife and their daughter, who claim to be citizens of Bangladesh and who arrived in Australia on 23 June 1997. Initial applications for protection visas had been made by the appellants on 18 July 1997 and refused by the Minister on 23 July 1997, and had been thereafter unsuccessfully pursued by way of appeal to the Federal Court, following upon the refusal of Tribunal intervention on 18 May 1999 by way of administrative review. Accordingly the appellants’ subsequent application for protection visas the subject of this present appeal have involved what may be described as a repeated resort to the Tribunal administrative review process and to the Federal Court appellate process, though on these respective successive occasions, there also occurred an intervening application for review by way of appeal to the Federal Magistrates Court. However the second series of applications was acknowledged to have standing, upon the basis that the first series of applications had been invalidly made. That was said to be because in the context of the appellants’ application for protection visas made on 3 July 2001, their migration adviser Mr Boni Amin claimed that ‘… my client in his initial application… did not put [in] a convention-based claim, which in fact was an invalid application, though it was reviewed by the RRT out of their legal jurisdiction’.

3                     In the foregoing context, and the review and appeal processes thus secondly pursued by the appellants, there occurred additionally the Federal Magistrates Court’s review of that subsequent Tribunal decision of 16 December 2005. As I have indicated, the period of time between the two Tribunal administrative review proceedings was about four years. An elaboration upon the nature and implications of the current series of administrative review and appeals undertaken by the appellants is recorded below. The second Tribunal review undertaken by Nicholls FM comprised 35 paragraphs of reasons, and contained a comprehensive review of authority, involving reference to 32 decisions. The notice of appeal against the Federal Magistrate’s decision was filed by the appellants on 6 January 2006. Shortly prior to the commencement on 29 May 2006 of the hearing of the present appellate proceedings, the appellants filed with the Court an amended notice of appeal, the principal grounds whereof were framed as follows:

‘(1) Breach of s 424A of the Migration Act 1958 (Cth):

(a) There was certain adverse information that was a part of the tribunal’s reasons for affirming the decision under review.

(b) The tribunal did not disclose the particulars of the information to the appellants.

(c) The information in the tribunal’s first reasons for its decision was the first appellant’s:

(i) “employment history information”;

(ii) “residence history information”;

(iii) “date of attack information”;

(iv) “issue of arrest warrant information”;

(d) The information in the tribunal’s second basis for its decision was the first appellant’s:

(i) “date of departure information”;

(ii) “date of lodgement of claim information”;

(iii) “same statutory declaration information”;

(iv) “failure to respond to DIMIA disclosure information”;

(e) The information in the tribunal’s third basis for its decision was the first appellant’s:

(i) “criminal history information”;

(e) The information was specifically about the first appellant;

(g) The information was not given to the tribunal for the purpose of the application for review before the tribunal.’

4                     Section 424A of the Migration Act 1958 (Cth) (‘the Migration Act’), so far as material to the present appeal, reads 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 a 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:

(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.

….’

5                     The appellants were represented at the hearing of the present appeal to the Federal Court by counsel not previously retained, and who appears to have been the author of the written submissions and an amended notice of appeal presented by the appellants to the Court a very short time prior to the commencement of the hearing subsequently to the presentation to the Court of the Minister’s written submissions. The Minister adopted the expedient course of addressing the issues as raised by that fresh material, rather than seek any adjournment to consider the same.

6                     The full text of the orders framed by the appellants’ amended notice of appeal and presently falling for consideration are also reproduced below:

‘(1) Leave be granted to file an amended notice of appeal.

(2) The Refugee Review Tribunal (“the tribunal”) be joined as a party to the appeal.

(3) The first respondent be named the Minister for Immigration and Multicultural Affairs.

(4) The appeal be allowed.

(5) The orders made by the Federal Magistrate [on] 16 December 2005 be set aside and in their place it be ordered that:

(a) The proceeding be remitted to the Federal Magistrates Court for further hearing and determination.

Alternatively,

(b) The tribunal be joined as a party to the application.

(c) There be an order in the nature of certiorari issued to quash the decision of the Refugee Review Tribunal N01/40035 made 28 April 2003 (and handed down 21 May 2003) be set aside.

(d) There be an order in the nature of mandamus issued ordering the tribunal to review the decision of the delegate of the Minister to refuse the protection visa sought by the applicant.

(e) The first respondent pay the costs of the applicant before the Federal Magistrates Court.

(6) The respondent to pay the appellants’ costs of the appeal.’

7                     As I have foreshadowed, counsel for the Minister indicated that no opposition was raised to the filing of the amended notice of appeal, nor to the presentation by the appellants of the case articulated by their counsel in belated written submissions, nor to the joinder of the Refugee Review Tribunal as an additional respondent. That joinder occurred consistently with the view of the High Court expressed in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 to the effect that the Tribunal is an officer of the Commonwealth for the purpose of s 39B of the Judiciary Act 1903 (Cth). Before proceeding further, it is appropriate that I outline the reasons of the Federal Magistrate upon his review of the Tribunal decision below (that is of course the second or later Tribunal decision of 16 December 2005).

Outline of the reasons of the Federal Magistrates Court the subject of present appeal and my observations in relation to those reasons

8                     Nicholls FM summarised the appellants’ complaints, as outlined to the Federal Magistrates Court by way of the amended application for review by way of appeal filed on 24 November 2004, as follows:

(i) denial of procedural fairness and natural justice, by reason of the Tribunal’s bias or by reason that there was an apprehension of bias;

(ii) withholding by the Tribunal from the appellants of independent country information about Bangladesh, and of the opportunity to comment thereon; and

(iii) failure by the Tribunal to take a ‘fresh look’ into the appellants’ protection visa claim, and a ‘totally ignor[ing]’ by the Tribunal of that claim, which was asserted on behalf of the appellants to be ‘100% true’ and as involving what was alleged by the appellants to be a ‘political crisis within the BNP’, and an absence of protection available to the appellants by what was described as the adult male appellant’s ‘own party’.

In the result, his Honour found no substance or viability in relation to those complaints. However as will be seen from my ongoing summary of the reasons for decision of the Federal Magistrates Court below, it is necessary for me to set out in more detail his Honour’s reasoned findings, given the width of scope of the issues addressed by his Honour.

9                     Nicholls FM ultimately addressed what became the critical discretionary issue as to delay by the appellants in their pursuit of their second Tribunal application, before proceeding to address the three issues broadly formulated as above by his Honour, and which I have outlined in the preceding paragraph. That issue of delay became ultimately the basis for dismissal of the appeal, which occurred at the culmination of his Honour’s consideration of the various other issues raised in the Federal Magistrates Court below. The issue of delay was described by his Honour as ‘unexplained and inconsistent with the action of someone who claims to fear persecution and who claims to be aggrieved by a Tribunal decision which did not recognise these claims’. His Honour referred to authority involving recognition of the element of discretion attending the exercise of the grant or refusal of prerogative relief in a migration law context, in particular in circumstances of unwarrantable delay. An exemplification of High Court authority on the subject of circumstances of unwarrantable delay identified by his Honour was Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [53] and [82] (Gaudron and Gummow JJ). Reference was also made to what was observed subsequently by McHugh J in SAAP at [80] on the matter of delay.

10                  In the light of judicial authority cited by Nicholls FM and in the events which had happened, Nicholls FM concluded that the appellants were disqualified from entitlement to prerogative relief, by reason of the discretionary factor of unwarrantable delay in prosecution of the present proceedings. Nicholls FM emphasised in that regard not only the delay of some 13 months on the appellants’ part in the lodgement of the later (or second successive) appeal from the Tribunal (this time to the Federal Magistrates Court), the filing whereof occurred on 14 July 2004, but pointed additionally to the withholding by the appellants of explanation for that delay, following upon the appellants having been invited by his Honour to make submissions on that issue. Incidentally the husband/father appellant (‘the first appellant’) addressed the Federal Magistrates Court on that occasion in person on behalf of his wife and his daughter, as well as of course of himself. His Honour’s reasons for conclusion on that delay issue so raised by the Minister, being delay in relation of course to the commencement of this second (and current) series of administrative/curial proceedings mounted by the appellants, were as follows:

‘This delay is unexplained, and is inconsistent with the action of someone who claims to fear persecution and who claims to be aggrieved by a Tribunal decision which did not recognise these claims. Further, nor could the applicants argue any unfamiliarity with how to go about making an application to the Court in relation to a Tribunal decision. Clearly the applicants have already been through this process once before in relation to the complaint concerning the first Tribunal’s decision, which was ultimately dismissed by the Federal Court….’

Nicholls FM considered that his finding on delay alone sufficed as a viable basis for dismissal in its entirety of the application for review by way of that appeal to the Federal Magistrates Court from the Tribunal’s second decision. Thereafter his Honour proceeded to discuss at length the remaining grounds of review propounded by the appellants, to which additional grounds I will now turn.

11                  A second ground for review raised below by the appellants in their notice of appeal was that of actual bias or apprehension of bias ‘in the making of the purported decision’. The notice of appeal raised a purported natural justice issue based on actual bias or apprehension of bias. Nicholls FM cited a number authorities of the Federal Court and the High Court upon that subject, and concluded on that issue adversely to the appellants, as follows:

‘I can see no basis for review of the Tribunal’s decision on the basis of actual or apprehended bias. The [appellants] have brought no evidence whatsoever to ground a complaint that the Tribunal did not bring an open mind to the assessment of the claims. It is rarely the case that bias can be made out with reference to the decision record alone, and no further evidence has been provided by the applicant in this respect… .’

In that context his Honour made reference to VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 as an exemplification of those principles, where Kenny J found that a case of apprehended bias had been established adversely to a decision of the Refugee Review Tribunal, but which authority was said to exemplify the difficulty of establishing bias. I am unable to discern any viable footing for the appellants’ case on bias, or reasonable apprehension of bias, to the extent that the same was ultimately pursued (if at all) on the present appeal, which was not entirely clear. As his Honour emphasised in any event, the doctrine of actual bias in the form of prejudgment seemingly invoked by the appellants required evidence of any such prejudgment by the decision-maker, to the extent that he or she is alleged to have been ‘so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented’, his Honour citing thereby Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72] (Gleeson CJ and Gummow J). No such evidence was adduced by the appellants.

12                  A third ground for review raised by the appellants below was that of denial of procedural fairness. Nicholls FM pointed to the matters and circumstances in favour of the Minister’s case in response, and made the observations which I have correspondingly recorded below:

(i) the Tribunal wrote to the male appellant (being of course the husband/father) on 11 September 2001 and set out the process whereby it proposed to deal with what had become a second or further application for refugee status, thereby indicating (inter alia) that the Tribunal ‘… will look at your papers and decide whether it has jurisdiction to consider your application [and] if so, it will then look at your papers along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour’, and further that ‘[i]f the Tribunal cannot make a decision in your favour, you will be asked whether you want to come to a hearing of the Tribunal to give oral evidence and to present arguments…’;

(ii) there was however no evidence ‘… to show that the Tribunal’s invitation to a hearing to put forward further evidence or arguments was anything other than a genuine attempt to focus the applicant’s mind on the unsatisfactory nature of the material he had put forward to that time and to provide any opportunity for that to be addressed’;

(iii) there was no basis demonstrated therefore to the effect that such invitation of the Tribunal was merely ‘a hollow shell or an empty gesture’.

By referring to the ‘applicant’, Nicholls FM inferentially included the wife and child of the applicant husband/father (as elsewhere unless inconsistent with the context), all three being the then applicants (and of course the present appellants). I observe that the full names of all three appellants were recorded in the heading to that Tribunal letter of invitation of 11 September 2001 addressed to the first appellant.

13                  For the reasons which I have thus far outlined, Nicholls FM observed that he had been unable to distil any indication of a denial of procedural fairness on the part of the Tribunal below, notwithstanding the case foreshadowed to the Federal Magistrates Court to that effect. His Honour additionally observed on that subject that the Tribunal, in its later letter of 13 March 2003, had put the first appellant on notice that if he did not attend the Tribunal hearing, the consequences might be that the Tribunal would ‘make a decision on your case without further notice’ (see in that regard what appears in the first paragraph of the Tribunal’s reasons for decision of 28 April 2003 under the heading ‘Finding and Reasons’). So much was described by his Honour as an indication by the Tribunal that any rejection of the invitation would lead to the kind of ‘inevitable consequence’ spoken of by the Full Federal Court in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5] (French, Emmett and Dowsett JJ). However as Nicholls FM recorded, there was no attendance by or on behalf of any one or more of the present appellants, being a non-attendance which was unexplained, with the consequence of the Tribunal being ‘… authorised to proceed to decide the review in the applicant’s absence’, his Honour citing (inter alia) VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 at [16] (Sundberg and Hely JJ), and referring to s 426A of the Migration Act.

14                  A further element of the case for denial of natural justice advanced by the appellants against the Minister in the Federal Magistrates Court below related to the use made beforehand by the Tribunal of the country information upon which it purportedly relied relevantly to its decision-making. The complaints made in that regard, as Nicholls FM recorded in the course of his reasons for decision, were that the Tribunal did not give to the appellants the country information on which it relied, and further that the Tribunal did not extend to the appellants an opportunity to evaluate or make submissions otherwise concerning the use of that information. By reason of those omissions of the Tribunal complained of, the appellants asserted denial of natural justice. His Honour observed that the appellants’ application for review of the Tribunal decision predated the enactment of s 422B of the Migration Actheaded ‘Exhaustive statement of natural justice hearing rule’, with the consequence that ‘[t]he common law rules of procedural fairness are not excluded from applying in the case before me’. Nevertheless as his Honour proceeded to record, ‘… there is no general proposition that the failure to put adverse country information to an applicant, on its own, amounts to a breach of natural justice’, citing thereby the Full Federal Court’s decision in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 at [17] (Gyles and Conti JJ) and [27]-[28] (Allsop J).

15                  Nicholls FM acknowledged that country information issues raised at the instance of the Minister which gave rise to a breach of common law procedural fairness may in particular occur ‘… where the information is critical to the Tribunal decision, and the applicant is not on notice of the issues raised by the information’, and in those situations, the applicant for relief ‘clearly should not be caught unawares or be in the dark about the case against him’. It was pointed out by his Honour however that ‘[i]n the case before me and in relation to the use of country information in the context of fairness the applicant was given the opportunity to attend a hearing before the Tribunal’, and accordingly ‘[i]n circumstances where the Tribunal had put the applicant on notice that on what was before it, it could not make a decision in his favour… [then] [i]n the context of the common law principles of procedural fairness the applicant cannot now complain when he chose not to take up that opportunity’. Nicholls FM referred in that context to the following passage in the reasons for judgment in NAVX at [5]:

‘In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.’

16                  I should add for completeness, in relation to what the Tribunal had determined in the light of the country information available to it, that Nicholls FM further pointed out that ‘… the Tribunal is not required to invite comment on its thought processes on the way to its decision-making’, the Minister citing in support of that tenet what was said in Re Minister for Immigration and Multicultural Affairs Ex parte Applicant S154/2002 (2003) 201 ALR 437 by Gummow and Heydon JJ at [54] and [57]-[58], and by Kirby J at [85]-[86], and further in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592 by Northrop, Miles and French JJ. It was pointed out further in the joint judgment of Gummow and Heydon JJ in S154/2002 at [56]-[58] that the evidentiary rule in Browne v Dunn ‘has no application to proceedings in the tribunal’, except to the extent that the rule might be exemplified in the requirements of s 424A. In the present case however, so Nicholls FM further pointed out, the Tribunal had foreshadowed explicitly to the appellants the conclusions which were open to be reached on the material in evidence placed before it, and which would be possibly adverse to them, and accordingly that ‘… the applicant could not have been left in the dark as to the risk of an adverse finding being made’.

17                  Furthermore as I have already recorded on related matters, by letter dated 11 September 2001 the Tribunal notified the appellants that once it might decide that it had jurisdiction to consider their application, ‘… it will then look at your papers along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour’. So much was said ‘clearly… [to] have included relevant documents from the [Minister’s] department’ which Nicholls FM thereupon particularised in his reasons. Additionally his Honour drew attention to the Tribunal’s reference to other independent country information related to Bangladesh relied upon by the Minister on the application to the Tribunal for review, in relation to which the appellants ‘would have been on notice of some of the country information used by the Tribunal from the delegate’s reliance on it and… the rest… was… “general information” dealing with such matters as population distribution’. In his Honour’s view therefore, ‘[i]n all the circumstances I cannot see that this complaint can be made out’, in that reference to the country information relied upon by the Tribunal was in reality adequately disclosed. Moreover his Honour further pointed out that ‘[i]n terms of the statutory requirements, the general country information relied on by the Tribunal, and in particular as referred to in its decision record… is clearly information that is excluded by s 424A(3)(a) of the Act from the obligation to put such information to the [appellants] pursuant to s 424A(1)’, being information described by s 424A(3)(a) as ‘not specifically about the applicant or another person and [being] just about a class of persons of which the applicant or other person is a member’.

18                  Nicholls FM addressed the appellants’ complaint that the Tribunal did not have a so-called ‘fresh look’ at the subject claims to refugee status, and observed that the complaint was unsustainable, at least because the claims were framed merely as assertions involving what amounted to submissions in reality as to merits review, his Honour referring in that regard to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. More to the point in relation to the appellants’ case on the present appeal to the Federal Court, his Honour addressed at some length issues tendered by the appellants in relation to the scope of operation of s 424A of the Migration Act, being issues which dominated the appellants’ case raised by their belated written submissions provided purportedly in line with the amended notice of appeal and particulars filed in relation thereto (see again [3] above).

19                  Nicholls FM made the following further observations upon the implications of the common law rules of procedural fairness and also the operation of s 424A in relation to the present appeal:

(i) as to the common law rules of procedural fairness, the documentary material relied upon by the Tribunal, being ‘CX31417’ described as ‘US State Department publication: Bangladesh: profile of asylum claims and country conditions, bureau of democracy, human rights and labor, February 1998’, was ‘exactly the same document’ [as was placed] before the delegate’, and accordingly the appellants ‘would therefore have already known about the existence of this document, given that [they] make reference to the file of the Department… in the application for review to the Tribunal, and [the appellants] were notified of the delegate’s decision by letter attaching the same’; that document was amongst those listed in Part B to the delegate’s decision of 30 August 2001;

(ii) as to the Tribunal’s compilation of reasons relating to the appellants’ behaviour in Bangladesh, that behaviour was inconsistent with persons having a genuine fear of persecution in Bangladesh contexts; in any event as I have elsewhere discussed, the first appellant made claims appertaining only to experience in the Dhaka district, having made no effort to relocate to any of the other 63 districts in Bangladesh beyond Dhaka; and

(iii) the Tribunal found generally that the first appellant’s conduct in pursuing his claims reflected a ‘catalogue of repeated tardiness and failure to co-operate’, which led to the conclusion in his Honour’s view that he had no fear of persecution, being a finding that his Honour considered to have been open to the Tribunal to conclude on the material placed before it, and for which conclusion the Tribunal had in any event given reasons; so much has been elsewhere referred to in these submissions upon the critical issue as to delay.

20                  Nicholls FM observed that the Tribunal had assumed ‘… the first appellant’s claims as to what happened to him up to 1997 in Bangladesh were [still] true’. However the Tribunal had found, by reference to the independent information in evidence available at the time of decision-making compiled some six years after the appellants had left Bangladesh, ‘that the circumstance [in Bangladesh] had changed to the extent that the party [of] which [the first appellant] claim[s] to be a supporter was now in government’. Moreover his Honour considered that after taking into consideration the up-dated country information, the Tribunal concluded that the legal system in Bangladesh had evolved to the stage that ‘… [the appellants] could eventually secure justice in circumstances where [their complaints] may be true’, so much being a further finding described by his Honour as open to the Tribunal to reach on the evidence before it.

21                  Further findings of the Tribunal recorded and relied upon by Nicholls FM below included the following (to which I have already made partial reference but repeat for completeness):

(i) the appellants could safely and reasonably relocate out of their home district (the Dhaka district) in Bangladesh to one of the other 63 districts in Bangladesh;

(ii) the Tribunal was clearly conscious of the relevant test to be applied in considering the issue of relocation, namely that the Tribunal should not merely address whether an applicant could relocate to another area but whether the applicants could reasonably be expected to do so (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442 per Black CJ);

(iii) the Tribunal did look specifically at the relevant country information about population size and dispersal in Bangladesh, the dispersal and spread of relevant political parties, issues relating to politics and violence in Bangladesh, and the judiciary and police and the role they played in Bangladeshi affairs, and also the appellant husband/ father’s ability to ‘support himself and his family in an unfamiliar country (Australia) for almost six years’ and found that it had ‘no doubt’ that the appellant husband had the ability ‘to support himself [and his family] in the country in which he was born, and educated, spent most of his life, and still had family’.

22                  Returning therefore to the operation of s 424A and related matters arising, Nicholls FM found in summary as follows:

‘… in the context of any SAAP/Al Shamry issue (the country information referred to by the Tribunal) the judiciary and politics and in the statutory context clearly fell within the exemption provided in s 424A(3)(a) from the obligation contained in s 424A(1). The Tribunal’s finding on relocation was consistent with the relevant test, and open to it on the material before it.’

The reference above to Al Shamry was to the Full Federal Court decision in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27; I have already of course made brief reference to SAAP.

23                  Nicholls FM next addressed another issue which has arisen with more attention on this appeal, which may be described as whether, even if the Tribunal had not fulfilled the requirements of s 424A of the Migration Act in relation to any ground or set of reasons upon or by reference to which the decision of the Tribunal was made, there existed at least more unimpeachable grounds or sets of reasons on which the decision had been rightly based. The Tribunal was said by his Honour to have ‘clearly differentiated between at least the three sets of reasons that it gave for affirming the decision under review’.

24                  Those three grounds or sets of reasons of the Tribunal, being the subject of subpars (c), (d) and (e) of par 1 of the amended notice of appeal extracted in [3] above, and described by the Tribunal as ‘three good sets of reasons for concluding that the applicants have no real chance of persecution for a Convention reason if returned to Bangladesh’,are appropriate to reproduce in sequence and to the extent of virtually their entire text below:

‘First because the claims made by the applicant on key issues have changed from time to time in significant ways. To prove this point it is enough to see the differences in the claims about the applicant’s employment…, place of residence…, when he reported the claimed 19 March 1997 attack… and whether there were arrest warrants issued for him. In addition, whichever version of his place of residence one believes, it is remarkable that in both versions he claims to have been at the one address for significant periods either side of the [June] 1996 election and thus was at that address at a time when he claims that he was attacked several times by the Awami League – it is not credible that a person who is supposedly under serious sustained attack from his enemies would continue to reside at his long-term address, which is no doubt why he modified the claim about residence when he initiated his second case. The differences mentioned and this point about the address lead me to conclude that the applicant has exaggerated or fabricated his political activism and the situation he faced and faces in Bangladesh. I attach no significance to the documents he provided because he undercut the credibility of some of them himself and the country information on page 13 and my own experience of dozens of Bangladeshi cases alert me to the notorious unreliability of such documents.

Second because the applicant’s behaviour before and after his various lodgements of claims (relating to the 1997 case and the 2001 case) has not been consistent with that of a person with a genuine fear of persecution for a Convention reason. The only places which he mentioned in relation to his political activity and the threats to him are in Dhaka district and there is no reason to suppose that he was known or threatened outside Dhaka yet he apparently made no effort to relocate within Bangladesh to one of the 63 districts outside Dhaka. He did not leave Bangladesh until over two months after he obtained his Australian visa… . When he left Bangladesh he left legally and by using a passport in his own name… . His first application for a protection visa was made in July 1997, four weeks after he arrived in June… . He did not supply a set of Convention-related claims until 22 months later, in May 1999. His oral evidence at the RRT hearing in May 1999 was unconvincing (see decision N97/18939). He did not bother to be represented at the Federal Court hearing of his appeal in September 1999. He allowed a gap of 18 months between the final end of his first case (in January 2000) and the initiation of his second case (July 2001). His statutory declaration received by DIMIA in July 2001 was simply a copy of his one submitted 26 months before…. He did not respond to the July 2001 letter from DIMIA… . He has never provided the material which he promised in his September 2001 RRT application... . He did not bother to attend the 28 April 2003 RRT hearing he had promised to attend… . This catalogue of repeated tardiness and failure to co-operate leads me to conclude that the applicant was in no hurry to go anywhere or to do anything because there was no reason for him to be in a hurry because he had and has no fear of persecution.

Third because even if his claims about what happened to him in 1997 and before were true, they have been overtaken by events. He has been out of Bangladesh for six years and I see no reason to suppose that any political enemies he had then would continue to be interested in him. The party which he claims to support is now in government and the country information on pages 10 to 12 leads me to conclude that that confers advantages on its supporters in terms of benevolent treatment from the organs of the state. In terms of any legal action the applicant faces, I note that he has not been convicted of a crime or any offence… . For reasons given elsewhere in this decision I do not believe that his claim that he faces any cases (false or otherwise) is credible but if he does face a case or cases then I conclude from the country information on the judiciary… that he would eventually secure justice. Moreover any cases resulting from the politically-motivated animus of his supposed opponents during the previous Awami League administration would clearly be seen for what they are and be treated accordingly.

There are 64 districts in Bangladesh… . The only district he has mentioned is Dhaka district. The fact that he kept living there for so long despite the supposed threat to him leads me to conclude that he did not fear persecution there because he has exaggerated or fabricated that threat.

…

If for any reason the applicant does not wish to live in Dhaka district, the country information… leads me to conclude that there are many other parts of the country in which it would be reasonable to expect him to be able to relocate. He has managed to support himself and his family in an unfamiliar country (Australia) for almost six years so I have no doubt of his ability to support himself and them in the country in which he was born, was educated, spent most of his life and still has family.

If the applicant wishes to pursue politics in Bangladesh in a manner which does not involve thuggery and criminality of the sort which characterises much of Bangladeshi politics, the material… leads me to conclude that he would be able to do so and have little to fear from rival political groups, especially if he pursued such activities outside of Dhaka district.’

25                  Upon the footing of each of those ‘three good sets of reasons’ so-called by the Tribunal, the Tribunal made supplementary observations to be read in conjunction therewith, including reference to Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 440-443 for the proposition, which I have already foreshadowed, that protection is not available in the case of a well-founded fear in an applicant’s home region where that applicant can ‘nevertheless avail [himself or herself] of the real protection of [his or her] country of nationality elsewhere within that country’. The Court added the qualification that the applicant must also be able to ‘genuinely access domestic protection’, and relocation needs to be a reasonable option in the particular circumstances (see in that regard Beaumont J at 450-1). The Tribunal member concluded his reasons for decision as follows:

‘For the above reasons, I conclude that the applicant does not face Convention-related persecution in Bangladesh because there is nothing credible in his claims to indicate that he has a profile which would lead to him being wanted by the Awami League or the authorities or anyone else outside of Dhaka let alone in Dhaka.

The inadequacies and inconsistencies of the applicant’s claims and of his behaviour in pursuit of his claims lead me to conclude that the applicant did not and does not have a genuine fear of persecution. The reasons set out above lead me to conclude that he has no well-founded fear of persecution within the meaning of the Convention. Accordingly, I am satisfied that he is not a refugee.’

26                  It was partly in the context of the formulation of those ‘three sets of reasons’ of the Tribunal of a fundamentally factual or circumstantial character, and of his Honour’s consideration of the implications thereof, that Nicholls FM concluded his reasons for judgment below by reference to what he described as the critical issue arising on the appeal to the Federal Magistrates Court, explained as follows:

‘The critical issue therefore, even if the Tribunal breached the requirements of s 424A (as understood in the context of SAAP in relation to one ground (“sets of reasons”) upon which the decision was made, is whether there is one or more other grounds on which the decision was based, which cannot, or are not, impeached. That is, was there another separate basis, or bases, upon which the decisions may be supported. The Tribunal itself by the very language that it used clearly differentiated between at least three sets of reasons that it gave for affirming the decision under review. Bearing in mind the relevant authorities even if there is some difficulty in the Tribunal’s first set of stated reasons (the first part of the first set), the second and third reasons, independently and separately from each other, and then the Tribunal’s separate and independent finding in relation to relocation are each not in my view affected by jurisdictional error and can independently support the Tribunal’s ultimate conclusion that the applicant did not satisfy the relevant criteria for a protection visa. Had I not dismissed on the basis of unwarrantable delay, I would have dismissed on this basis in any event.’

I have earlier of course made reference to that delay attributed by the Federal Magistrate to the appellants.

27                  It is of assistance, in the context of the complexity and detail of the reasoning and findings of the Tribunal and of Nicholls FM below, to read the conclusions of his Honour upon the four principal issues identified by his Honour in association with his summary of the Tribunal’s findings appearing in [5] of his reasons for judgment below. Those issues may be described (as has been foreshadowed) first as to exaggerations and fabrications of the adult male appellant in respect of his political activism, secondly as to behaviour inconsistent with his having any genuine fear of persecution, thirdly as to recent independent country information, and fourthly as to the implications of the country information concerning safety of relocation in Bangladesh available to the appellants. Such four themes are not to be read in any mutually exclusive way, as is apparent from the text of the so-called three sets of reasons of the Tribunal (ante).

Outline of the appellants’ case presented on the appeal to the Federal Court, being principally related to contraventions or otherwise by the Minister of s 424A – my observations and responses contextually appearing

28                  The material presented in writing by the appellants at the hearing of the appeal from the decision of the Federal Magistrates Court consisted of an amended notice of appeal and written submissions, which were provided by the appellants only several days prior to the hearing of the appeal. It is appropriate that I reproduce the text or substance (as the case may be) of the appellants’ written submissions, and address such oral submissions of additional significance, as ultimately pursued by the appellants. The issues raised by the appellants in the amended notice of appeal were framed mainly in relation to their contentions as to the operation of s 424A of the Migration Act in circumstances postulated by the respective parties, and did not explicitly address the critical issue of unwarrantable delay on the part of the appellants, which latter issue was however the subject of oral submissions. The Minister submitted that the appeal could be dismissed on the basis that the issue of unwarrantable delay was not touched upon in the notice of appeal or the amended notice of appeal.

29                  Much has been written about the scope and purpose of operation of s 424A, but in my opinion two aspects thereof may be conveniently emphasised, each being highlighted in the joint judgment of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471at [23]:

‘First the Tribunal must possess [the] “information”.’

‘Secondly, the Tribunal must consider that that information “would be the reason, or part of the reason” for affirming the decision under review.’

30                  Moreover when it becomes necessary or appropriate for the Tribunal to make findings and formulate conclusions cumulatively, though in stages, and being unavoidable in situations involving some measure of complexity of evidentiary material, such as here exemplified in relation to the three so-called ‘sets of reasons’ of the Tribunal (and reproduced already in these reasons at [24] above), it is of practical assistance to an implementation of the s 424A(1)(a) process, to bear in mind the following further observations appearing in the joint reasons for judgment of Finn and Stone JJ in VAF at [33] and [41] respectively:

‘33. It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the Tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the Tribunal’s decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a Tribunal’s reasons are to be evaluated for s 424A(1) purposes, the Court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal’s decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy – and made the more so by less than explicit indications in the reasons themselves as to what the tribunal itself considered to be integral.’

‘41. Considered in the context of the Tribunal’s reasoning process and having regard to the aggregate of findings made that rejected both that the appellant had been persecuted for a Convention reason and that his situation was such as to give rise to a well founded fear of persecution, reference to the information as to his behaviour in Australia can only be categorised as being relatively minor and unimportant in the scheme of things. It was not so integral to the reasoning process rejecting the appellant’s claim as to require as a matter of fairness that the appellant be told that information (cf s 424A(1)(a)) and why it was relevant to the review (cf s 424A(1)(b)).’

31                  It was stated widely by the appellants at the threshold of their written submissions that Nicholls FM found that the so-called first set of reasons appearing in the Tribunal’s decision ‘was affected by a breach of s 424A of the [Migration Act]… as a consequence of the tribunal using information given by the first appellant [husband/father] in his protection visa application as a part of its reasons for affirming the decision of the delegate’. That first set of reasons addressed the implications of what the Tribunal described as the claims made by the applicant on key issues having ‘changed from time to time in significant ways’ by reason of the circumstances thereby exemplified. His Honour summarised those circumstances attending the first set of reasons as comprising or involving differences, or inconsistencies, found between details that the first appellant had put to the delegate and the account given to the Tribunal which led the Tribunal to conclude that the first appellant had exaggerated or fabricated his political activism and the situation of harm that he faced in Bangladesh. Nicholls FM observed that the Tribunal relied on the inconsistencies in the appellants’ claim in its reasons for decision rather than the information contained in the visa application and that ‘in the alternative that even if [the first set of reasons] of the Tribunal’s decision did not contain jurisdictional error, it did not have necessary consequence in the ultimate decision to affirm the delegate’s decision, because of other independent reasons given for affirming the delegate’s decision’.

32                  The submissions of the appellants by way of response to the so-called second and third sets of reasons commenced to the effect that ‘[i]n considering whether to grant relief, the Federal Magistrate found the other two sets of reasons for affirming the decision were not affected by the breach [of s 424A]’, and were said to have provided ‘an alternative basis upon which the decision could be made’. The applicants referring thereby apparently to the Tribunal’s decision that the first appellant could ‘secure justice in circumstances where’ he faced ‘false charges’ in Bangladesh,and to the Tribunal’s finding as to the appellants’ absence of effort to relocate outside the Dhaka district of Bangladesh to elsewhere in ‘one of the 63 districts’ of that country.

33                  His Honour summarised the circumstances attending the so-called second set of reasons as being ‘based on [the first appellant’s] behaviour both before and after the lodgement of claims in 1997 and 2001’ and on the‘Tribunal’s finding that his actions were not consistent with a genuine fear of persecution for Convention reasons’. His Honour observed that the Tribunal characterised ‘these actions… [on the part of the appellants] as a repeated failure to provide documents and claims as promised, “unconvincing oral evidence” and a “catalogue of repeated tardiness and failure to co-operate”’ (referring thereby to page 15 of the Tribunal’s reasons).

34                  His Honour summarised those circumstances attending the so-called third set of reasons as being ‘based on the Tribunal finding that even if the [first appellant’s] claims about what happened to him in 1997, and previously, were true, that the events and situations giving rise to those claims have been overtaken by more recent events, [and that] [i]n particular the Tribunal relied on independent country information which showed that the party which the [first appellant] claimed to support was at the time of the Tribunal’s consideration in government, and further that the independent information led it to conclude that this conferred an advantage on its supporters in terms of the level of treatment from the organs of the State’. That summary of his Honour continued further that ‘the Tribunal found that… it did not believe the [first appellant’s] claim that he faced “false cases” as being credible, but even in the event that he did face some charges, then the Tribunal concluded from the country information available to it… that he would eventually secure justice (referring thereby to pages 15 and 16 of the Tribunal’s reasons).

35                  Lastly his Honour summarised the circumstances further attending the Tribunal’s reasons generally that the Tribunal ‘… also looked at the issue of relocation and whether protection was available in another part of Bangladesh’, and ‘found that as the [first appellant] had only referred in his claims to one (Dhaka) of the 64 districts in Bangladesh [and] based on independent country information available to it (pages 9 and 13 of the Tribunal’s reasons appearing under the heading ‘Country information’), the [first appellant] would be able to safely relocate to another part of Bangladesh and that it would be reasonable to expect him to so relocate (pages 16 and 17 of the Tribunal’s reasons). I should interpolate to point out the compelling force of that location observation.

36                  It was in any event in the context of the appellants’ case for contravention of s 424A that the appellants drew attention to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [230]-[234] (Allsop J), where in the light of what was said in Aala and SAAP, his Honour observed as follows as to consequences flowing generally from a beach by the Minister of s 424A:

‘230 Section 424A not having been complied with, the appellant is entitled to statutory writs under s 39B(1) of the Judiciary Act 1903 unless a legitimate reason to withhold such relief can be identified.

231 … subject to what follows, if s 424A is not complied with, the Court does not engage in an enquiry as to whether the breach was so trivial as not to warrant relief. The failure to comply with the statutorily mandated provisions leads to the conclusion that there was a lack of statutory authority to make the decision. In the operation of s 424A and the principles of procedural fairness, adherence to mandated process and procedure is vital… as a matter of discretion, relief will be withheld for reasons going to the conduct of the applicant as discussed in Aala and SAAP. No such considerations apply here… if it can be shown that there is a basis, otherwise unimpeached, upon which the decision was reached, unaffected by the failure to accord procedural fairness or to comply with the required statutory procedure, relief can be withheld.

232 … What the majority in SAAP stated was that one did not engage in an evaluative analysis of the triviality or seriousness of the failure to observe the statutory requirements. The same was said by Gaudron and Gummow JJ in Aala. However, Aala and SAAP leave open… the basis to refuse relief if it can be shown that grant of relief would lack utility. The examples given… in Aala… were:

(a) where the decision-maker was bound by the governing statute;

(b) where the submissions could only have been answered, as a matter of law, against the person denied the opportunity of making them; and

(c) if the decision under review has no legal effect.

233 If it can be shown that there was a basis for the Tribunal’s decision which can be seen to be entirely independent of the failure to follow s 424A, in my view, that is sufficiently analogous to the first of the alternatives referred to in…Aala to warrant withholding of relief.

234 The federal magistrate concluded that the Tribunal found that “even if the claims made by the applicant were true he was not a refugee”. Unlike the federal magistrate, I am unable to discern such a clear basis upon which the failure to follow s 424A had no possible effect. The influence of credit appears to me to pervade the whole of the reasons of the Tribunal. The failure to comply with s 424A has not been shown to be entirely separate from an unimpeached basis for the decision.’

The further issues remain therefore, first as to whether in all the circumstances, the Tribunal did contravene s 424A in the light of what was held at [233] of SZEEU above as to ‘a basis for the Tribunal’s decision which [is]… entirely independent of the failure to follow s 424A’, and in any event, whether any discretionary factor (being delay in particular) should so operate as to deny relief to the appellants. As to the existence of any contravention of s 424A, there remains of course the issue of an absence or otherwise of operation of subsection (1) thereof in any of the circumstances excepted by the terms of subsection (3) thereof relating to ‘… information… not about the applicant… and… just about a class of persons of which the applicant… is a member’, or, ‘information… that the applicant gave for the purpose of the application…’.

37                  It was asserted by the appellants that irrespective of the validity of the findings of the Federal Magistrate in respect of the issues raised on the appeal from the Tribunal, ‘the Federal Magistrate actually dismissed the application on the basis of unwarrantable delay on the part of the appellants’, and in that regard the appellants referred to the matters I have discussed in [9]-[10] above concerning what ultimately became the decisive issue of delay on the part of the appellants in their unsuccessful pursuit of the initial application for review by way of appeal to the Federal Magistrates Court. I will later address the implications of the issue arising as to delay.

38                  As to the existence of any such basis for the Tribunal’s decision which was entirely independent of a failure to follow s 424A(1) (see again [233] of SZEEU extracted above), the Minister referred to a number of Federal Court authorities exemplifying denial of relief in circumstances constituting an independent basis for a decision unaffected by breach of s 424A(1), including VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 291 (see in particular [54]-[55] per Gray J). Upon that footing, the Minister pointed out that Nicholls FM had concluded that not only the relocation findings, but also the remaining aspects of the Tribunal’s so-called ‘three good sets of reasons’, which I have reproduced earlier at [24] of my reasons, ‘were unaffected by any breach of s 424A that existed in relation to the first of those separate and independent bases’.

39                  The appellants submitted in any event that ‘on the basis of the following principles, an examination of the sets of reasons shows that all three sets of reasons forming the parts of the reasons for affirming the decision of the Tribunal are affected by [a] breach of s 424A’, the appellants thereby referring to the reasons I have reproduced at length in [24] above. It was asserted by the appellants that ‘[i]nformation given to the Minister’s Department [and] obtained by the Tribunal from the Department and not from [the appellants] is not subject to s 424A(3)(b)’, and I was referred in that regard to the Full Court’s reasons for judgment in Al Shamry at [17]-[18] per Ryan J and myself jointly, and at [40]-[41] per Merkel J. I reproduce below [17] of the reasons in Al Shamry for ease of reference:

‘17. Counsel for the Minister accepted that a failure to observe the procedure laid down by s 424A is a reviewable error under s 476(1)(a). It was also accepted that where there is information of the kind described in s 424A(1)(a) particulars of that information must be given to the applicant for the purpose of obtaining his or her comments. However, it was said that the information constituted by the airport interview came within the exception created by s 424A(3)(b) in respect of information given by the applicant for the purpose of the application. “Application” in that context, was said to mean “all information given by the applicant to officials in the Department (including that provided to the Tribunal) for the purpose of determining whether to grant a protection visa to the applicant.” We disagree. In our view, “applicant” wherever appearing in s 424A means “applicant for review by the Tribunal of a Ministerial decision” and “application” correspondingly means the proceeding before the Tribunal which is the vehicle for such a claim for review.’

40                  It was then submitted by the appellants that ‘[s]uch information that the tribunal uses to make an adverse appraisal of the applicant’s case requires disclosure if the appraisal is a part of the reason for affirming the decision of the delegate’. My reservation with that submission concerns the interpolation of the expression ‘appraisal’ in the context of the wording of s 424A(1)(a). In any event in that context, the appellants cited SZEEU at [20] and [34] per Moore J, at [157]-[165] per Weinberg J, and at [221]-[225] per Allsop J for the proposition that ‘a subsidiary and minor part only’ of the reasons will suffice. It suffices for me to point in particular to the dictum of Weinberg J (at [164]) to the effect that the ‘information’ in question ‘played a part’,and to Moore J’s reasons where his Honour used less definitive descriptions (at [20]-[21]). The appellants asserted further that the conclusion that ‘all three sets of reasons for the decision are affected by a breach of s 424A is readily determinable because the tribunal has clearly indicated in its reasons where and when it has obtained the information from the protection visa’. The appellants’ submissions continued that ‘[t]he tribunal made no disclosure of this adverse information and in accordance with the following principles as such the whole of the decision is affected by a breach of s 424A’.

41                  As I have earlier foreshadowed, the appellants argued that the Tribunal’s so-called first set of reasons constituted a breach of s 424A because the Tribunal used information given by the first appellant in his protection visa application as part of its reasons for affirming the decision of the Minister’s delegate. In the course of oral submissions, counsel for the appellants pointed to the Tribunal’s reliance on information regarding the first appellant’s employment history, place of residence and previous arrest warrants, all being information gleaned from the first appellant’s application for a protection visa, and which was purportedly used by the Tribunal in the formulation of its first set of reasons without the appellants being given prior particulars of that information, as stipulated by s 424A(1). That reliance of the Tribunal was undertaken in order to demonstrate differences or inconsistencies between information that the appellants had provided to the delegate of the Minister and the information subsequently given to the Tribunal, being discrepancies that consequently formed the basis of the Tribunal’s finding that the first appellant had ‘exaggerated or fabricated his political activism and the situation of harm that he faced in Bangladesh’.

42                  In support of the contention that information given to the Minister’s Department that is obtained by the Tribunal from the Department, and not from an applicant for refugee status, is not subject to the exception contained in s 424A(3)(b) and therefore falls within s 424A(1), the appellants pointed to Merkel J’s following observations at [40]-[41] in Al Shamry:

‘40. An applicant for a protection visa will have provided information relevant to the outcome of the application prior to applying for the review of a delegate’s decision… [f]urther, the information given may be supplemented by information provided subsequently to the Department or to the delegate of the Minister. An applicant may have no record of the information provided, but, more importantly, may not be aware of its significance to the review ultimately to be conducted by the RRT. It is therefore understandable that the legislature would require that, in fairness, any adverse information provided prior to review, the significance [his Honour’s emphasis] of which the applicant may be unaware, be disclosed to the applicant to enable him or her to respond to it… .

41. For the above reasons the construction of the primary judge and I regard as correct gives effect to the beneficial purpose of s 424A of affording an applicant with the opportunity to respond to the gravamen or substance of any adverse information upon which the RRT proposes to act, the significance of which the applicant may be unaware. It is consistent with that purpose to take a narrow, rather than a broad, view of the exceptions in s 424A(3).’

Given those observations of his Honour not being explicitly or implicitly inconsistent with the reasoning of the majority, which I will assume for the purpose of the argument, those observations underline the need for the appellant to be given particulars of any adverse information submitted prior to the application for review and on which the Tribunal proposes to rely.

43                  Further to the foregoing contention of the appellants, it was next said on their behalf that SZEEU provides authority for the proposition that s 424A will be engaged in situations where the Tribunal finds as relevant to its reasoning some inconsistency or incompatibility between earlier information provided by an applicant and evidence provided thereafter by that applicant. Weinberg J observed at [165] of SZEEU as follows:

‘The appellant’s credibility was of critical importance to his claim. Any “information” that the Tribunal considered as casting serious doubt upon his credibility, whether referred to in the early stages of its reasons, or as fortifying its earlier conclusions, seems to me likely to have played “a part” in the decision. For that reason, the Tribunal’s failure to provide the appellant with notice, in writing, of its intention to rely upon that “information” gave rise to a breach of s 424A, and in accordance with SAAP, to jurisdictional error.’

By the expression ‘intention to rely’, I assume that his Honour thereby referred to reliance in decision-making. Moreover Allsop J said at [225] as follows:

‘If the Tribunal finds as relevant to its reasoning some inconsistency or incompatibility between earlier information and evidence to it as relevant to its reasoning that may well engage s 424A if such inconsistency or incompatibility can be seen to have been a part of the reason for affirming the decision.’

It should be here recorded that the Minister’s submissions conceded that ‘[i]n the light of SZEEU, [Nicholls FM] may have erred in the first part of [28] where he seems to accept a distinction between relying upon inconsistencies to reach a conclusion rather than the underlying information’. However Nicholls FM went on to observe (at [28]), germane to the issues here arising for resolution, as follows:

‘Further, I am also persuaded… in the alternative that even if this part of the Tribunal’s decision did contain jurisdictional error, it did not have necessary consequence in the ultimate decision to affirm the delegate’s decision… For the reasons set out below, the Tribunal’s decision can be upheld on the basis of other independent sets of reasons given by the Tribunal, and that any such error, if it does exist in this first set of the Tribunal’s reasons, cannot be a basis for setting aside the Tribunal’s decision.’

His Honour referred in that regard to VEAJ (ante).

44                  Counsel for the appellants in oral submissions further contended that the second and third sets of reasons (see again [24] above) were also affected by a breach of s 424A because they similarly relied upon information obtained from the appellants’ protection visa application. The Tribunal’s statement that the appellant ‘did not leave Bangladesh until over two months after he obtained his Australian visa’ was asserted by the appellant to be one of the observations within the Tribunal’s second set of reasons that was based on information contained in the protection visa application and which was said by the appellants to have involved a breach of s 424A. The appellants’ further contended that such a finding amounted to ‘a part’ of the reason of the Tribunal, SZEEU at [158] per Weinberg J and at [225] per Allsop J being relied upon to support their argument that ‘a minor and subsidiary part’ of the reasons is all that is needed for a breach of s 424A to arise. There is some force in that submission by the appellant.

45                  The breach of s 424A that was said by the appellants to arise out of the Tribunal’s third set of reasons for decision (see again [24] above) was related to the first appellant’s claim that he would face legal action if he returned to Bangladesh. In rejecting that claim, the Tribunal member observed that ‘[i]n terms of any legal action the applicant faces, I note that he has not been convicted of a crime or any offence’. The appellants submitted that the Tribunal relied on information contained in the first appellant’s protection visa application that indicated he had not been convicted of any crimes, and that such a finding formed ‘part of the [Tribunal’s] reason, because it goes to an integer of the claim and [is] information which requires disclosure under section 424A…’. The Minister contended that while the information regarding the first appellant’s previous criminal convictions is ‘on the face of it…something which the applicant said to DIMIA’, the subsequent statement made by the Tribunal suggested that independent country information formed the basis of the reasoning used to dispel the appellants’ claim regarding possible future criminal prosecution. The Tribunal stated in that regard as follows:

‘For reasons given elsewhere in this decision I do not believe that his claim that he faces any cases (false or otherwise) is credible but if he does face a case or cases then I conclude from the country information on the judiciary on page 12 that he would eventually secure justice.’

The Minister submitted that ‘because of that word “but”… and reading that paragraph in context, the Tribunal is saying, well, on the one hand I note that he has not been convicted of any crime or offence, but then saying even if he had been, then because of the independent [country] information on the judiciary no harm is going to come to him’. There is force in that submission of the Minister, and upon reading that paragraph as a whole, it would appear that the Tribunal’s reasoning was indeed based on independent country information, rather than the first appellant’s application visa. The Tribunal’s findings in relation to relocation contained in the final or third of the three sets of reasons were in any event not visited with jurisdictional error, since they were based on country information that fell within the exception to disclosure contained in s 424A(3)(b).

The Tribunal’s findings additionally as to the appellants’ delay and otherwise as to discretion factors – the respective submissions of the parties

46                  On the footing of the appellants’ case that all three of the Tribunal’s so-called ‘three good sets of reasons’ were to no avail because of the Minister’s contravention(s) of s 424A of the Migration Act, the appellants asserted that ‘… the determinative issue on appeal is whether there was unwarrantable delay on the part of the appellants disentitling them from the grant of relief’. I would interpolate the description ‘ultimate’ for ‘determination’, for what that may matter. I have already summarised the evidentiary material bearing upon that issue of delay. The appellants seemingly acknowledged that Nicholls FM ‘found the delay unwarrantable because it was for a period of 13½ months between notification of the decision of the tribunal and the application for review’, and further that his Honour found that ‘no explanation for the delay was given despite being sought’, and moreover that the appellants ‘were not unfamiliar with the application process’ and their delay ‘… was inconsistent with the action of someone who fears persecution and claims to [be] aggrieved by the Tribunal’. So much may be in any event inferred from the evidence placed before his Honour. The rejoinder of the appellants to those findings of the Tribunal was, somewhat confusingly, that Nicholls FM ‘… miscarried in his discretion to not grant the relief sought’, because ‘[r]ather than ask whether the circumstances of the delay justified withholding the relief in the event that [the] appellants established that the tribunal had committed a jurisdictional error, the Federal Magistrate proceeded on the basis that the appellants were required to satisfy the Court that the discretion should be exercised in [their] favour having regard to the fact that the delay exceeded 13½ months’. The reality apparent from the objective circumstances was that the appellants had no viable answer to the Minister’s case on delay.

47                  Reliance was placed by the appellants upon what was said by Sackville J in SZHJR v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 203, where his Honour held at [19] and [22] as follows (so far as is material):

‘19 …It seems to me that the Magistrate proceeded on an erroneous assumption, namely, that the appellant had to persuade the Court to exercise a discretion in his favour before it could consider whether the RRT had indeed committed a jurisdictional error. The correct position was that the Magistrate had a discretion to withhold relief on various grounds, including unjustified delay, even if the appellant established that the RRT’s decision was affected by a jurisdictional error.

22 The difficulty with the approach of the Magistrate is that he did not ask whether the circumstances of the delay justified the withholding of relief in the event that the appellant established that the RRT had committed a jurisdictional error. Rather, the cases upon which he relied suggest that he required the appellant to satisfy the Court that discretion should be exercised in his favour, having regard to the fact that the delay exceeded one year.

23 On any view, the appellant was guilty of long delay and no satisfactory excuse was or could be proffered for that delay. But the question asked by the Magistrate, in my view, was not the correct one and this led to his miscarrying of this issue.’

In my opinion and contrary to the thrust of the appellants’ submissions, Nicholls FM did enquire as to whether the circumstance of the delay justified the withholding of the relief in the event that the appellants established that the Tribunal had committed a jurisdictional error, and hence his Honour did meet the substance of the test as articulated by Sackville J above. Nicholls FM invited the appellants to comment on why their application was delayed, an invitation that ultimately led the first appellant to respond ‘I have nothing to say regarding this matter’. His Honour proceeded thereafter to explore the issue of jurisdictional error. Incidentally I do not understand Nicholls FM to have relied merely on the fact of 13½ months per se, but rather upon the circumstances which he had otherwise comprehensively reviewed in his reasons for judgment contextually to that delay.

48                  The appellants contended next that what his Honour was primarily required to consider was whether ‘the circumstances of the case made the withholding of [relief] the proper course’, given that ‘[t]he writ issues as of right unless it is unjust to withhold it’, the appellants citing in that regard R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400, and Aala at [51]-[52] and [56] per Gaudronand Gummow JJ. In cases of unwarrantable delay, so the appellants’ submissions on the subject of delay proceeded, the exercise the Court was required to undertake included ‘weighing the primary consideration of ensuring the legality of government action against the secondary consideration of the finality of litigation’, the appellants further citing respectively Aala at [55] (Gaudron and Gummow JJ). That scope of finding by Nicholls J referrable to delay was however in my opinion clearly open to his Honour to find, at least in the circumstances to which his Honour referred. I am unable to accept that his Honour did not pay regard to considerations that were appropriate to the circumstances of the case.

49                  Further as to any issue concerning the grant or withholding of relief in the exercise of discretion, the appellants submitted that the onus rests on the Minister to persuade the court not to grant the relief sought by the appellants, assuming of course the existence of any such entitlement to relief, the appellants referring thereby to relief in their favour that the decision of the Tribunal be quashed, and that the Tribunal thereafter proceed to review the Minister’s refusal of the protection visa according to law. The appellants cited in that context Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [151] per Kirby J, where the majority decision of the High Court inclusive of his Honour was to the effect that the Minister’s delegate had failed to accord natural justice to an applicant for migration relief. The appellants’ submissions continued that ‘[w]hilst the Federal Magistrate did seek an explanation from the appellant, his approach was erroneous [and] did not demonstrate an onus on the [Minister], [and] further the answers of the appellant[s] made reference to some fault in an authority yet given his lack of advice on the point it is not clear under what apprehension as to the purpose of the questioning the appellant was under’. The appellants’ submissions continued further to the effect that ‘[a] broad common sense approach is appropriate when the conduct of a party seeking review is impugned for the purpose of establishing that there are discretionary reasons why the relief should not be granted’, and further that ‘[t]he applicant is entitled to take advantage of particular circumstances as they appear to him at the time without losing the right to have an unlawful decision set aside’, the appellants citing inter alia thereby Peko-Wallsend Ltd v Minister for Aboriginal Affairs (1985) 5 FCR 532 at 561 per Sheppard J. The appellants yet further contended that ‘the weight that can be placed upon the explanation is diminishable and affects the required confidence of the Court in refusing relief’. To the extent that those submissions were not somewhat tautological or at least confusing, I am unable to distil any force therein, and have only recorded the submissions by way of deference to counsel.

50                  Counsel for the appellant advanced the yet further submission that the manner in which the Federal Magistrate ‘obtained the explanation for the delay [from the appellant] was not judicial because he took the information from the bar table’. It was submitted in that regard that by obtaining the husband/father’s explanation for the relevant delay in that manner, the Federal Magistrate was putting himself ‘in the position of an advocate or an inquisitor and…that [that] process [was] not sufficiently judicial…’. In support of that submission, reliance was placed on what appears from the unreported reasons for judgment of Jacobson J in SZGZW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 457, where at [45], his Honour observed, in relation to a delay of eight years from 1996 to 2005 in applying for review of an adverse Tribunal decision, as follows:

‘45. It follows from what I have said, that the discretion to refuse relief miscarried within the well known principle stated in House v R (1936) 55 CLR 499 at 504-505. It was not open to the learned Federal Magistrate to find that the appellant’s delay was lengthy or unsatisfactory upon the basis of untested statements made from the bar table.’

51                  Aside from whatever may have been the content of the ‘untested statements made from the bar table’ in SZGZW, and irrespective of what the objective circumstances might have evinced in any event, the context of the present case can be distinguished from that addressed by Jacobson J in SZGZW, in thathis Honour was there addressing circumstances where the Tribunal had challenged an assertion made by the appellant upon the basis solely of statements made by that appellant from the bar table. Jacobson J observed at [39]-[40] and [41] of SZGZW (so far as is material) as follows:

‘39. … the difficulty with the approach which the Federal Magistrate adopted was that he made findings of fact without hearing any evidence from the appellant. He acted solely upon submissions from the bar table and without testing any of the statements which were made to him by an unrepresented applicant.

40. … as a general rule, the judicial power of the Commonwealth cannot be exercised to deny relief for admitted jurisdictional error, consisting as it does in this case, of a denial of statutory procedural fairness, without evidence tested in the ordinary way.

41. That is especially so in the present case because the learned Federal Magistrate apparently did not believe the explanation proffered from the bar table. The appellant’s overall explanation for his delay was that he did not know of the decision until 28 November 2005. The Federal Magistrate cannot have believed this because he proceeded on the basis that the appellant knew of the decision either from 1996 or at least when the unsuccessful request was made under s 417.’

52                  In the decision below, Nicholls FM did rely upon the content of the appellants’ application and amended application filed with the Federal Magistrates Court when determining the issue of unwarrantable delay, rather than merely ‘relying solely on submissions from the bar table’, and his Honour invited the appellant to address or explain the delay otherwise prima facie objectively evident, yet the appellants declined to provide any such explanation. Nicholls FM stated at [9] of his reasons for decision as follows:

‘In the case before me the applicant clearly confirmed having notice of the Tribunal decision complained of on 21 May 2003. This is clearly stated both in the application and amended application. The application to this Court was filed well over 13 ½ months later on 14 July 2004. At the hearing before me I specifically drew the applicant’s attention to the issue of delay in bringing these proceedings to this Court and the possibility of how the discretion to grant or refuse the relief sought may be affected by this. I urged the applicant to address or explain the delay. The applicant’s response was:

“I won’t say anything regarding this long period, like 12 to 13 month’s delay, I have nothing to say whatsoever”.

When I pressed the issue he made a reference to “some authority who made the delay”. But when I sought an explanation the final response was:

“I have nothing to say regarding this matter”.’

I do not think that the observations of Jacobson J made in SZGZW may be transposed to the context in which this first appellant responded as above as recorded by Nicholls FM. No factors or circumstances have been advanced by the appellants which would in my opinion operate to require the exercise of discretion in their favour upon any basis articulated on the appeal.

Conclusions

53                  In making observations upon and responses otherwise to the numerous evidentiary and forensic issues arising, I have borne in mind the distinction drawn by Sackville J in Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109, and later approved in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [95] by Allsop J (Heerey J agreeing), to the effect that the information of which particulars must be provided to the appellant by the Tribunal, in accordance with s 424A, does not include the subjective appraisal or thought process of the Tribunal. I have also borne in mind that the subsection extends not just to the reason but also to a part of the reason.

54                  I am of the opinion that it was open reasonably to Nicholls FM to have dismissed the appellants’ application for review of the Tribunal decision below at least upon the basis, objectively found by his Honour, as to unwarrantable delay, particularly in the light of no reasonable nor realistic endeavour on the appellants’ part to establish any justifiable basis for that evident delay. The circumstances reviewed by his Honour and earlier summarised in [9]-[10] above operate to adequately support that finding of his Honour. Apart from the objective circumstances relied upon by his Honour in exemplification of unwarrantable delay, being circumstances mainly of the adult male appellant which are to be correspondingly attributable in principle to his wife and child appellants in the circumstances of the case, there was present the factor, as the Tribunal additionally mentioned and his Honour duly accepted, of his extent of familiarity with the Tribunal process gained in the context of his prior invocation of that process four years earlier, and of his prior unsuccessful application for review of that process by the Federal Court back in 1999. Although it is evident that the adult male appellant was the dominant litigant, his wife and child must bear the consequences of his role in the curial applications and appeals which have been undertaken by each of them as applicants/appellants. As the Minister rightly submitted, a refusal of relief on discretionary grounds, in particular as to delay, may occur at the instance of the decision-maker in a context of administrative review (or indeed subsequent appeal), with or without the need for the Court to determine whether or not there may have been independently established jurisdictional error in relation to the relevant decision-making of the Tribunal and Federal Magistrate that has occurred. I am unable to distil any prevailing facts or circumstance which have operated to subvert the implications and consequences of that delay. It is established by authority, which need not be cited, that a discretionary ground for withholding prerogative relief includes that of delay in the seeking of that and any associated relief. One example cited was R v Australian Broadcasting Tribunal ex parte Fowler (1980) 31 ALR 565 at 570 (Barwick CJ, Gibbs, Stephen, Mason and Aickin JJ).

55                  Independently of the factor of delay, I am in any event of the opinion, for reasons appearing cumulatively in the course of my consideration and appraisal already of the s 424A issues extensively raised by the appellants and debated seriatim by the respective parties, being the issues I have already discussed at some length, that the appellants have not established that all three of the Tribunal’s independent grounds for dismissing the appellants’ visa applications, as articulated in the Tribunal’s ‘three good sets of reasons’, breach s 424A of the Migration Act. Reference should again be made in that regard to SZEEU at [231], where Allsop J observed that where there can be shown an independent basis, ‘otherwise unimpeached, upon which the decision was reached… relief can be withheld’. The existence of the unimpeached third set of reasons of the Tribunal’s reasons for judgment thus operates as a basis upon which relief can be withheld, regardless of any finding of unwarrantable delay. In the present litigation, the task of the second Tribunal in establishing and assigning significance to the extensive array of circumstances placed before it was a formidable one, as the three grounds or sets of reasons of the Tribunal below, extracted in [24] above, have duly exemplified.

56                  No sufficient or adequate basis for any successful appeal from the reasons for decision of the Federal Magistrates Court have been established by the appellants, for the reasons apparent from my analysis of the issues arising and circumstances prevailing, and which I have addressed in the two preceding segments of these reasons. Because of the number and extent of the issues raised by the appellants on this appeal, and which I have resolved in favour of the Minister, it is unnecessary to repeat the same in the context of these conclusions.

57                  The appeal must be dismissed, and the appellants ordered to pay the Minister’s costs of the appeal.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 18 September 2006

Counsel for the Appellant:	Mr A B Slattery
Counsel for the Respondent:	Mr G T Johnson
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	29 May 2006
Date of Judgment:	18 September 2006