REASONS FOR JUDGMENT
FRENCH AND LEE JJ:
Introduction
1 The appellant is a national of Iran, born in that country on 19 February 1959. She has two daughters who were born in Iran in 1982 and 1986 and a sister born in 1969 who is living in Australia. Her father is deceased but her mother and two other sisters are still living in Iran. She also has a brother who lives in England.
2 The appellant arrived in this country on a visitor's visa on 22 August 1999. She lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 20 October 1999. That application was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 16 March 2000. She applied to the Refugee Review Tribunal ('the Tribunal') for review of that decision on 27 March 2000. On 24 September 2001, the Tribunal affirmed the decision not to grant the appellant a protection visa. The appellant then filed an application in this Court on 13 November 2001 seeking judicial review of the decision of the Tribunal. That application was dismissed by Carr J on 30 October 2002. The appellant now appeals against his Honour's decision.
3 In the proceedings before the Tribunal, the presiding member refused to allow a solicitor employed by the Legal Aid Commission of Western Australia to represent the appellant. The member did so in the erroneous belief that the solicitor, not being a migration agent, was not able to provide 'immigration assistance' within the meaning of the Migration Act 1958 (Cth), by way of representation in the Tribunal. As is now not disputed the statutory restrictions on the provision of 'immigration assistance' did not apply to the solicitor because, as an employee of the Legal Aid Commission, she was a member of the Public Service of the State of Western Australia and hence an 'official' within the meaning of the Migration Act. In the circumstances of this case the denial of representation constituted a breach of procedural fairness. This amounted to jurisdictional error on the part of the Tribunal. For the reasons that follow, the decision of the Tribunal must be set aside and the application for review reconsidered by the Tribunal according to law.
The Claims and Evidence Before the Tribunal
4 The appellant's claims before the Tribunal as summarised in the reasons for judgment of the learned primary judge were as follows:
A. At the start of the Iranian revolution (in 1979), wages due to the appellant's husband were not paid and he wrote a letter of demand. The Iranian Revolutionary Guard labelled him as 'anti-government' and he was thereafter banned from public sector work. However her husband had worked successfully for a private company for the past ten years.
B. In about 1997 the appellant celebrated her daughter's 12th birthday at her home in mixed gender company. Music was played at the party. While the party was underway authorities entered the family home and confiscated equipment including tapes and a keyboard. Guests were detained for a short time and the appellant and her husband were detained for a few hours before being granted bail. Upon their subsequent appearance in court they were fined 200,000 tomans which they subsequently paid.
C. Shortly following the birthday incident the appellant was apprehended and taken to a local prison where she was told that she was being held for a breach of the Islamic dress code. Although the accusation was false she was insulted, detained overnight and taken before a court on the following day. Her husband and a Mullah persuaded her to sign an undertaking, demanded by the investigating authorities, that she would not breach the dress code in the future.
D. When the appellant's husband saw her distress at her treatment in prison he wrote a letter of complaint to local and other clerics about the lack of observance of her basic human rights. He was subsequently detained by members of the Revolutionary Guard for insulting the clergy and sentenced to seventy-five lashes and six months imprisonment, although a payment was eventually made to avoid those penalties. The appellant's husband remained in prison for eight weeks and both of them were placed on conditions requiring them to report monthly and later quarterly to the Revolutionary Guard. The appellant's husband had a nervous breakdown and was hospitalised for three weeks before being sent home for a few weeks of further rest. During the appellant's reporting sessions she was put under pressure by a person who held a key position in the Revolutionary Guard to have a sexual relationship with him. He threatened to kill her husband if she did not accede to his wishes. This person was the source of the appellant's continuing problems with the authorities.
E. The appellant travelled to England in March 1999 and remained there for about five months in order to support her sister-in-law during the birth of a child. The member of the Revolutionary Guard who had importuned her had told her she would not be given a passport. The only way she was able to obtain a passport and depart from Iran was through the payment of bribes. She did not apply for asylum as a refugee in England as she had no intention of trying to remain there. She returned to Iran because she was still required to report to the authorities every three months. Upon her return from England she was interrogated at the airport in Iran for eighteen hours, probably in an attempt to intimidate her further.
F. Since the appellant's departure for Australia her husband has had a court summons issued against him and three summonses and an arrest warrant have been issued against the appellant.
G. The appellant had been influenced in her thinking by her father who was a religious liberal and a socialist. She felt there was a vacuum in her life and this caused her to explore Christianity, first in England and then more actively since her arrival in Australia. She has attended the Uniting Church each Sunday and meets with a retired minister and his wife every week for a couple of hours during which time they discuss the Bible and cultural and religious traditions. She has been baptised in Western Australia, has embraced Christianity and wants to teach others about it. She had not done so in Australia because her husband and children remain in Iran. Although Christians can freely attend church in Iran, she would face persecution there because of her wish to tell others about the Christian faith and because she is a convert. If she were returned to Iran she would feel bound to declare her faith if asked and the local Mullah would give her trouble as he would know who the Christians in the area are. As a Christian she would not accept the Islamic way of dressing and would therefore be at risk of serious punishment.
5 In a statement in support of her application for a protection visa, the appellant said, inter alia:
'After my release my husband ... wrote a very criticising letter to the local Islamic authorities condemning them of total discrimination against women. Of course he was arrested a few days later without us knowing of his where about. I was called up to the Revolutionary Base in Shahin-Shahz and was explained what the situation was. The person in charge told me what the consequences were. I started beging then for his release but the guards were trying to sexually abuse me. Where I totally said no to them. My husband was imprisoned for 8 week. He was mentally tortured during his prison term, so we hospitilized him in a psychiatric ward for a few weeks. In the begining we were denied passports. But likily seeing a few people and bribing them were issued with passports.' (sic)
6 The appellant also submitted to DIMIA a number of documents translated from Farsi to support her claims in relation to Court processes to which she and her husband had been subjected. These translations were enclosed with a letter dated 27 January 2000 from the Catholic Migrant Centre. One purported to be a translated copy of a court order dated 16 July 1997. It named the appellant and her husband as defendants and then read:
'Charge: Having a mixed (male & female) birthday party on July 7, 1997 for the birth of their child ignoring the Islamic rules and using unlawful musical instruments and songs.
Court Order: On July 13, 1997 at 10am in a closed cournt (sic) in the presence of the defendants, following the hearing of the charge, the defendants' statements and the presentation of the confiscated musical instruments, this court finds the accused guilty and considers a lower degree of penalty. This court orders the accused to pay 2 million Rials in cash and sign a written statement that they will not run such parties in the future.'
The order purported to be signed by a judge of District 2 Islamic Revolutionary Court - Isfahan.
7 The next document was a translation of a purported court order dated 6 September 1997 naming the appellant's husband as defendant. The charge and order were as follows:
'Charge: Contempt of Spirituality and Holiness.
Court Order: At 9am on September 1, 1997 within the closed court, following the hearing of the defendant's statements and reading the file gathered and sent by Shahin Shahr Information Centre, due to defendant's insufficient evidence the accused was charged and found guilty of Contempt of Spirituality & Holiness. He is ordered to receive 75 whip lashes according to the Islamic Law and be serving a jail sentence of six months. Till further notice he is ordered to report to the Security & Information Department of Shahin Shahr every three months.
This order is final and requires action.'
Again the order purported to be signed by a judge of the District 2 Islamic Revolutionary Court - Isfahan.
8 Also attached was a translation of a letter dated 11 January 1998. The letter purported to be from a psychiatrist to the Khorshid Medical Centre at the University of Isfahan. The letter said, of the appellant's husband:
'This is to certify that Mr [] was hospitalised from November 21, 1998 to December 7, 1998 at the psychiatric ward of Khorshid Hospital for treatment following his admission to Mola-Sadr Accident & Emergency.
He required to be on two weeks sick leave starting December 8, 1998.'
Proceedings before the Tribunal
9 As the present appeal raises a question about the fairness of proceedings before the Tribunal, it is necessary to refer to the conduct of those proceedings before turning to the Tribunal's reasons for decision.
10 The appellant applied to the Tribunal for review of the delegate's decision on 27 March 2000. On that same day she was sent a standard letter from the Tribunal advising, inter alia:
'If 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. Some hearings are conducted by video or telephone conference.'
11 The Catholic Migrant Centre sent documentary material to the Tribunal on 16 May 2000, 22 July 2000 and 21 August 2000. This comprised summonses purportedly issued by the Islamic Revolutionary Court of Isfahan and what appeared to amount to a warrant for the arrest of the appellant issued by the same court.
12 On 12 April 2001, Vanessa Moss, an officer of the Legal Aid Commission of Western Australia wrote to the Tribunal in the following terms:
'I advise that I am now acting on behalf of [the appellant] in relation to her application to the Tribunal. I note that her application was made on 27 March 2000.
I advise that at this stage I have not had an opportunity to meet with [the appellant] to obtain her instructions in relation to her application for review. I would be grateful if you could allow me a short period of time within which to familiarise myself with her application prior to any further steps being taken by you to progress her application.
Further, I advise that I work part time and am not available to attend hearings on Wednesdays or Fridays. I would be grateful if you could bear this in mind should you decide to list the matter for hearing.'
13 A request for the 'prioritisation' of the application was lodged by the Australian Red Cross on 20 April 2001. On 9 May 2001, the Tribunal sent a letter to the appellant and a copy to Ms Moss at the Legal Aid Commission in the following terms:
'The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons.'
The date specified for the hearing was Tuesday, 10 July 2001 at 9am. The venue was the office of the Administrative Appeals Tribunal in Perth. The hearing was to be conducted by video conference with the Presiding Member and interpreter located in Melbourne. A 'Response to Hearing Invitation' form was attached for completion and return by the appellant.
14 On 21 May 2001, Ms Moss sent a letter to the Tribunal attaching the signed Response to Hearing Invitation. She added that she would be providing statutory declarations or letters from each of the proposed witnesses outlining the evidence they would give, together with a statutory declaration from her client. In the Response to the Hearing Invitation the appellant provided answers to some standard form questions. Asked whether she needed an interpreter she said 'yes', specifying the relevant language as Farsi. Asked whether she wanted the Tribunal to take oral evidence from any witnesses, she answered in the affirmative. She was told she must fill in details on the back of the form and did so, specifying the name of two witnesses. One was Mr Richard Treloar, a Minister of the Uniting Church, who she said would give evidence about her attendance at his church. The other was her sister who she said would give evidence about her own conversion to Christianity and her support for the appellant's conversion.
15 In response to the question whether she wanted to bring someone with her to the hearing, the appellant said she did and specified 'Vanessa Moss, Legal Aid'. The next question was:
'Do you have any special needs for the hearing? (eg wheelchair access, male or female interpreter)'
Her answer was:
'None (apart from requiring female Iranian Farsi interpreter)'
The Tribunal lodged an Interpreter Booking Request on 7 June 2001 and requested a female. It received a confirmation identifying the interpreter as a person by the name of 'Val Akbar".
16 On 18 June 2001, Ms Moss wrote to the Tribunal Member allocated to the case, Mr Graham Brewer, providing a written submission in support of the application for review. In the first paragraph of her letter she said:
'As you are aware, Legal Aid acts for [the appellant] in relation to her application for review. Please note that Ms Janette McCahon from Legal Aid will be attending at the hearing before you on 10 July 2001.'
She enclosed further documentation comprising a statutory declaration by the appellant and her sister and two other documents.
17 In her statutory declaration of 12 June 2001, in support of her application for review by the Tribunal, the appellant again referred to her husband's letter of complaint and its consequences:
'This incident also affected my husband. He wrote a letter to the Committee of Clergy. That letter changed our life. In his letter he objected to the basic rights of women being denied and to my ill treatment. After Sepah received the letter they came and took my husband away. I was in the shower at the time and so had no idea what had happened. For 3 days I did not know where he had gone. After 3 days Sepah asked me to come to Setadeh Aminiyat (the intelligence and security service of Sepah). They told me that my husband had been charged with insulting the Committee of Clergy. My husband then had to attend a court hearing. He was taken from detention to the court.... The penalty was 75 lashes and six months imprisonment. He had to report to the security office every three months. We paid money in lieu of him receiving the 75 lashes. He served 8 weeks in prison and then he had a nervous breakdown. He was taken from the prison to a mental hospital and was there for three weeks. The doctor said he needed to rest for a while. He was then released and spent 4 weeks at home before returning to work.'
18 In her written submission to the Tribunal, Ms Moss referred to the translations of the court documents dated 16 July 1997 and the psychiatrist's report dated January 11, 1998. She pointed out that on the face of those two documents it appeared that the time span between the birthday party and the period of the husband's hospitalisation was approximately sixteen to seventeen months. She then said that she had been informed by an accredited Farsi interpreter, who had interpreted the appellant's statutory declaration, that the English translations of the documents were correct in so far as they referred to the year in which the events had occurred. But when one looked at the Farsi documents corresponding to those translations (copies of which were enclosed with the submission) the dates were all in the Persian year of 1376 so that the time span between the birthday party and the period of hospitalisation was in fact about four to five months. Her client's account in the statutory declaration was consistent with that shorter time span. Ms Moss said she was advised by the interpreter that the discrepancy arose from the way in which dates are translated from the Persian calendar to the Christian calendar. The explanation that followed was not entirely clear. It was said that for the first six months of the Persian calendar year 1376 it is necessary to add 621 years to arrive at the equivalent Christian calendar year of 1997. For the last six months of the Persian calendar year, it was necessary to add 622 years to arrive at the equivalent Christian calendar year of 1998. The Persian year started on 21 March so that July was in fact the fourth month in the Persian calendar. Accordingly, July 1997 was the fourth month of 1376 while November and December 1998 were the eighth and ninth months of 1376. One observation that can be made of that explanation is that it required elaboration.
19 In an affidavit, which was received in evidence before the primary judge and which was not contested, the appellant said that she had been informed by Legal Aid (WA) that she would have a legal representative before the Tribunal 'to assist and present my case and to speak for and on my behalf in making arguments in support of my case'. She was told before the hearing that Ms Moss would be going on maternity leave. She was introduced to Ms McCahon who said she was happy to represent the appellant at the hearing. She told the appellant she would speak on her behalf at the hearing. The appellant was also provided with a Refugee Review Tribunal Handbook dated April 2000. This informed her that her adviser would be asked if he or she wanted to say anything to the Tribunal.
20 At the commencement of the hearing Ms McCahon introduced herself to the Tribunal Member and informed the Tribunal that Ms Moss was on maternity leave and that she was representing the appellant. The Member asked her whether she was a registered migration agent. The following exchange then occurred:
'MS McCAHON: Not currently, no. I am in the process of doing so as is required through Legal Aid, I know.
MR BREWER: Well you can be here as an observer.
MS McCAHON: … I'm an observer. I'm not an official migration agent at this stage, no.
MR BREWER: Okay. Well, as long as that's understood. I mean, I have a submission from Ms Moss and you can remain as an observer.
MS McCAHON: Thank you, sir.'
21 According to the appellant's affidavit the interpreter did not properly interpret for her the exchange between the member and Ms McCahon. She was not told why she could not be represented at the hearing. She said she was upset when Ms McCahon did not assist her at the hearing. She felt as though the Tribunal Member was bullying her during the questioning and that he and the interpreter were against her.
22 After the introductory exchange between the Tribunal Member and Ms McCahon, the Tribunal proceeded to take evidence from the appellant. The interpreter was a male. No objection was taken by the appellant or her representative on that issue at the hearing before the Tribunal. The appellant, however, said in her affidavit before the primary judge that she was upset because she had requested a female interpreter for the hearing and was given no explanation of the failure to meet that request.
23 During the hearing the following exchange occurred:
'MR BREWER: Well, did you have any other difficulties in Iran that you haven't already told me about that you wanted to outline?
THE APPELLANT: Just I wanted to continue by saying that considering the difficulties that I had, if I was to remain in Iran, the difficulty would become greater and heavier and heavier every day, to the extent that I would probably be executed or stoned to death.
MS McCAHON: May I just intervene - one matter about the …
MR BREWER: Well you're here as an observer. I'm letting you stay and you can take notes, but you don't have, I'm afraid, status other than that.
MS McCAHON: I am [the appellant's] solicitor. I'm not - I recognise that I'm not a migration agent. It was just - I just wanted to make one small point about the dates, given that Ms Moss mentioned in her submissions the difficulty of translating the Farsi dates and how that can end up with a period of more than 1 year between dates when that isn't in fact the case. That was the only point I wished to make.'
There was no response from the member to that observation. Instead the member moved directly to put a further question on another matter to the appellant.
24 Later on in the hearing the member asked the appellant whether there was anything else she wanted to say in relation to any problems she had in Iran. This question was asked before the Tribunal moved on to the issue of her religious conversion. The appellant replied that the only thing she wanted to say was, that since she came to Australia, her husband had been summoned to court and that he had told the court she had gone to Australia. Since then she had been summoned on three occasions to attend the court. There followed questions and answers about the appellant's religious conversion.
25 Following these questions and answers, the Tribunal member indicated his intention to adjourn for ten minutes, primarily to give the interpreter a break. He then said:
'I will accept that you've been baptised and that you attend church each Sunday and that you also attend a Bible study class for 2 hours weekly. On that basis it seems to me that I probably would not be assisted by hearing from any of the people outside but that's a matter you can discuss during the break and let the attendant know. Okay?'
The appellant said she just wanted the member to talk to the Reverend Treloar. The member then said they would have a break for ten minutes anyway. He asked what advantage she thought there would be in him talking to the Minister. The appellant said:
'No, I wanted and I wish the minister who baptised me can introduce me much better to you.' (As translated by the interpreter according to the transcript)
The member asked rhetorically what the Minister could say about the appellant's religious practice other than what she had already told him. He asked her to consider this over the break. Following a short adjournment the Tribunal hearing resumed and the Reverend Treloar, a retired Minister of the Uniting Church, was sworn in and gave evidence. At one point the witness said that the appellant understood English better than she spoke it. The member then addressed the appellant saying that if there was anything in evidence given that she didn't understand, she should indicate it and it would be interpreted for her. At this point it appears that the interpreter was not being used. After an exchange of questions and answers between the member and the Minister, the member asked the appellant whether there was anything she wanted to say about the Minister's evidence. Through the interpreter she said that she didn't have anything to say although she could read out an oath that she had made in English if he thought it necessary. After the Reverend Treloar finished his evidence the member told the appellant that he would consider the material on the files and the evidence given by her and Reverend Treloar and would write a decision and reasons for that decision. She would be notified when the decision was made.
26 The appellant said in her affidavit evidence before the primary judge that she had asked that her sister give evidence on her behalf at the hearing. She had been advised by Legal Aid (WA) that such evidence would assist her case. However the Tribunal had not wanted to hear from her sister.
27 She also said that during the hearing the interpreter was not correctly interpreting what she was saying. She was getting frustrated and she was not entirely clear why the member was getting frustrated with her as she was attempting to answer the questions that he was putting to her.
The Tribunal's Findings
28 Although the Tribunal accepted that the appellant's husband had ceased to receive wages due to him at the beginning of the revolution and was for a time thereafter, prohibited from working in the public sector, he had had steady remunerative and pleasurable employment in the private sector for a decade. The appellant herself also had a lengthy history of remunerative employment. The Tribunal found that she had not encountered persecution in relation to her employment.
29 The Tribunal accepted that the appellant and others had been present at a party about four years earlier from which musical equipment was removed and that the party-goers were detained for questioning in relation to matters such as the playing of music. In the case of the appellant, the Tribunal accepted that she had been detained for a few hours before being released on a friend's undertaking. It did not accept as genuine the court document purporting to be a summons or court order directed to the appellant. In any event, any charges that had been laid were in accordance with laws of general application. The same was true of the alleged breach of the Islamic dress code. There was no evidence that these laws had been applied in any discriminatory fashion against the appellant. The Tribunal accepted the probability that the appellant would have been insulted if the circumstances described by her had occurred but did not accept that such an outcome was significant enough to constitute persecution.
30 The Tribunal then gave consideration to the appellant's claim about the letter of complaint which her husband had written to the authorities and the consequences of that letter. It observed that the appellant's initial statement of 20 October 1999 in support of her application for a protection visa and her statutory declaration of 12 June 2001, indicated a close temporal connection between her arrest for a breach of the Islamic dress code and the letter of complaint. In the statutory declaration she had claimed that her arrest for breaching the dress code occurred about three weeks after the party held on 7 July 1997. The Tribunal referred to the purported Court Order recording her husband's conviction for the offence described as 'contempt of Spirituality & Holiness'. That order was dated 6 September 1997, six weeks after the appellant's alleged arrest that gave rise to the protest letter. The Tribunal referred to the gaol sentence of six months which, according to the appellant, had been reduced to eight weeks. It also referred to the statement in her statutory declaration that her husband was taken from the prison to a mental hospital and was there for three weeks. It then said:
'On that basis the applicant's husband would have entered a mental hospital at the start of November 1997. A letter purportedly from a treating psychiatrist states that the applicant's husband was admitted to the hospital on 21 November 1998 and discharged on 7 December 1998. The purpose of the psychiatrist's letter, dated 11 January 1998, is puzzling.'
The Tribunal continued:
'While accepting that transposing dates from the Persian to the Christian calendar can pose some problems the sequence of events outlined by the applicant is at odds in several key respects with that indicated by the documentation. Additionally, the court report in relation to the applicant's husband's charge is vague and improbable. In weighing all the evidence the Tribunal finds that the applicant has fabricated her claims regarding her husband's problems following her own alleged punishment for a breach of the dress code. Accordingly, it does not accept that either she or her husband were placed on reporting conditions. The fact that the applicant was subsequently permitted to depart Iran underscores that finding.'
31 It followed, so the Tribunal found, that it did not accept that the appellant was prevailed upon during reporting sessions to engage in a sexual relationship with a member of the Revolutionary Guard. Even had she been so prevailed upon it is manifest, so the Tribunal held, that she would have been able to seek the protection of the State. This conclusion followed from her own evidence that religious police and others are ceaseless in their endeavour to stamp out licentious behaviour.
32 The Tribunal also found it implausible that the appellant would have been able to obtain a passport and pass through all airport checks if she was wanted by the authorities especially in relation to any political matter. There was neither a social nor political impediment of any significance at all to the appellant's freedom of movement. Her voluntary return to Iran in 1999 was said to underscore the Tribunal's finding that she had fabricated claims of being on reporting conditions. The three summonses and the arrest warrant said to have been issued after her departure from Iran all contained wording that was vague about why there was allegedly an official interest in her or her husband. The Tribunal found these documents not to be genuine.
33 In relation to the appellant's conversion to Christianity, the Tribunal was not wholly satisfied that she had genuinely embraced that faith rather than engaging in a conversion for convenience. But even accepting that she had done so, the available evidence indicated that if she were to practice as a Christian in Iran she would be able to do so in ways she has practiced her faith in Australia without raising a real chance of persecution. Although she claimed at the hearing that she wanted to tell others in Iran about her faith more than she had sought to do in Australia, the Tribunal found that the evidence was that she was able to do so without facing any serious repercussions provided she does not proselytize. A requirement to proselytize was not a core component of her faith or indeed essential to it.
The Decision of the Learned Primary Judge
34 The grounds of the application for review as it stood before the learned primary judge were seven in number which his Honour summarised as follows:
'1. Error of law constituting jurisdictional error.
2. No evidence or other material to justify making the decision.
3. Error of law "being an incorrect interpretation of the law to the facts as found by the Tribunal".
4. Error of law in making erroneous findings.
5. Further error of law as to what amounted to persecution.
6. Failing to have regard to relevant material.
7. Further alleged error in failing to have regard to whether there was a potential risk of persecution if the applicant were returned to Iran.'
35 His Honour observed however that it soon emerged in argument that the appellant's main contention was that the Tribunal had wrongly prevented her from being represented before it by Ms Janette McCahon who was a solicitor employed by Legal Aid WA. In the event, the respondent conceded that Ms McCahon was entitled to appear before the Tribunal. The respondent also accepted that the Tribunal had barred her from participating in the hearing although she had been allowed to remain as an observer. A further ground was developed on the basis that the Tribunal had relied upon a document in which dates had been incorrectly translated when rejecting the appellant's claims. Counsel for the appellant also submitted that a tape-recording of proceedings before the Tribunal disclosed that the Tribunal had said it believed the appellant's conversion to Christianity was legitimate and corroborated.
36 The appellant was granted an adjournment by his Honour with leave to file and serve an affidavit setting out any part and annexing any parts of the transcripts of the hearing before the Tribunal upon which she sought to rely, together with a supplementary submission. Ultimately, the only affidavit filed was by the respondent annexing the transcripts of the hearing of the application before the Tribunal. The appellant was also granted leave to amend her application at the start of the resumed hearing to add a further ground of review namely:
'That the interpreter failed adequately or properly to interpret the proceedings before the Refugee Review Tribunal and her request for a female interpreter was not granted, with the result that the applicant did not receive a fair hearing.'
37 The primary judge characterised the essence of the appellant's case as being 'such a denial of procedural fairness as to amount to jurisdictional error'. At the time his Honour made his decision the Full Court had delivered its judgment in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449. He therefore regarded himself as bound by that judgment, the High Court, at that time, not having given judgment in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
38 In additional submissions made following the judgment of the Full Court in NAAV, the appellant contended that the Tribunal's decision could be reviewed on the basis that:
. the Tribunal did not make a bona fide attempt to exercise its powers;
. the decision was not reasonably capable of reference to the power given to the Tribunal; and
. the Tribunal acted in breach of an inviolable limitation upon the powers given to it.
His Honour rejected an objection by the respondent that the grounds of review did not accommodate these contentions. He identified the issues to be decided in the case as follows:
. That by commencing and persisting with the view that the appellant was not entitled to be represented at the hearing the Tribunal showed want of good faith as its conduct indicated a degree of capriciousness and a failure to endeavour in good faith to review the delegate's decision.
. The question of legal representation before the Tribunal was one of law and the correct answer to that question was in the nature of an inviolable limitation upon the power given to the Tribunal member and as such its determination was reviewable notwithstanding s 474.
39 The primary judge considered whether the Tribunal had made a bona fide attempt to exercise its powers. He accepted that the Tribunal had wrongly excluded Ms McCahon from appearing for the appellant at the hearing before the Tribunal. A key factor in its adverse finding about the appellant's credibility was the date discrepancy reflected in the psychiatrist's letter of 11 January 1998 which purported to state that her husband was admitted to hospital on 21 November 1998 and discharged on 7 December 1998. His Honour referred to Ms McCahon's attempted intervention on this point. He adverted to the Tribunal member's statements about the appellant's religion-based claim and the fact that Reverend Treloar had given evidence following an adjournment of the hearing. He referred to the affidavit sworn by the appellant's sister, which did not seem to him to bear on the question of whether the Tribunal acted in good faith. He also referred to correspondence following the hearing between Ms McCahon and the Tribunal in letters dated 16 July 2001, 26 July 2001 and 2 August 2001.
40 The primary judge considered the supplementary submissions which had been filed in Court on behalf of the appellant referring to the Tribunal's delay in handing down its decision, the effect of which was to ensure that the application for judicial review by this Court would be governed by amendments to the Act which came into force on 2 October 2001. Although no specific complaint was raised in the grounds of appeal in relation to that matter, his Honour approached it on the basis that the appellant relied upon it as evidence of bad faith. He then said:
'In my view, the evidence upon which the applicant relies does not demonstrate a lack of good faith on the Tribunal's part. In relation to the matter of legal representation, there was an error of law, in my opinion, a serious error of law. But that on its own does not show bad faith.'
Indeed, the appellant's counsel had characterised the Tribunal as operating under a continuing misunderstanding about the position of the Legal Aid Commission and its representative in the Tribunal. The failure to call the appellant's sister did not amount to any evidence of bad faith. In so concluding his Honour did not ignore the possibility that the sister might possibly have given evidence that the appellant would, if returned to Iran, have been likely to proselytize, thus putting herself at risk of very serious persecution.
41 The fact that a male interpreter was provided did not indicate bad faith. There was simply no evidence as to how and by whom that choice was made or whether a female interpreter was appointed. His Honour also said:
'I must say that in the context of the Tribunal's attitude towards Ms McCahon's attempt to represent her client, the Tribunal's delay in publishing its reasons aroused my suspicions. The Tribunal had a letter from a social worker outlining the stress which the delay was causing to the applicant and requesting an indication of when the Tribunal's decision would be given. The Tribunal had responded with an approximate date (21 September 2001). It was widely known at the time that amendments to the Act were proposed which would severely curtail review of the Tribunal's decision and in that context, having made its decision on 24 September 2001, the decision was not notified to the applicant until 19 October 2001.'
He accepted however that that evidence was equally consistent with administrative oversight within the bureaucracy of the Tribunal. Taking all of the circumstances together he did not think that the appellant had established that the Tribunal did not make a bona fide attempt to exercise its powers. He also rejected the contention that the decision was not reasonably capable of reference to a power given by the Tribunal.
42 The primary judge noted that the facts upon which the appellant relied in establishing the ground that the Tribunal had breached an inviolable limitation or restraint upon its authority were the same as those in respect of the bad faith allegation other than the alleged delay in handing down the decision. On the state of the authorities as they then stood, he concluded that those matters did not involve questions of inviolable limitations or restraints upon the Tribunal's authority. He said:
'That is the case, whether one adopts the narrower view of von Doussa and Beaumont JJ in NAAV or the views of Black CJ, Wilcox and French JJ in the same case - see also Heerey J in VDAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1071 at [27].'
43 His Honour's reasons contain no finding on the question whether there had been procedural unfairness. This was entirely understandable in the light of the majority decision in NAAV which took the view that procedural unfairness was not available as a ground of review following the enactment of s 474 of the Migration Act.
The Grounds of Appeal
44 The grounds of appeal in the Amended Notice of Appeal, amended by order of the Court at the hearing of the appeal, are in the following terms:
'2. The learned primary judge erred in failing to construe s474 of the Migration Act to mean that the Tribunal's decision if made in jurisdictional error, including a denial of procedural fairness, was not a "privative clause decision" and was therefore subject to review by the Court under s39B of the Judiciary Act.
3. The learned primary judge erred in law and in fact in failing to determine that the Tribunal failed to accord the Appellant natural justice in making its Decision.
PARTICULARS
a) The Tribunal denied the Appellant legal representation at the hearing before the Tribunal.
b) The Tribunal refused and/or failed to comply with the Appellant's request for a female interpreter.
c) The Tribunal refused and/or failed to allow the Appellant to put her case to the Tribunal at the hearing by terminating her evidence in order to hear from a witness and then terminating the hearing.
d) The Tribunal did not call and did not permit the Appellant to call witnesses which the Appellant had requested the Tribunal to call, alternatively the Tribunal misled the Appellant into not requesting the Tribunal to call her sister [M] as a witness.
e) The Tribunal did not permit the Appellant or her adviser to clarify the Translation and/or calendar conversion error in the dates.
f) There were errors of interpretation during the Tribunal hearing which meant that the Tribunal was misled or confused as to the Appellant's evidence to the Tribunal and such errors contributed to the Tribunal forming an adverse view of the Appellant's credibility.'
Statutory Framework
45 The grounds upon which decisions of the Tribunal can be reviewed are affected by the operation of s 474 of the Migration Act. Section 474(1) provides:
'474(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.'
Subsection 474(2) defines 'privative clause decision' thus:
'privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).'
46 Subsection 474(3) sets out a number of matters included in the definition of 'decision'. It is not in dispute that a decision of the Tribunal affirming a decision of a delegate refusing an application for a protection visa is a 'decision' for the purposes of s 474. But, as appears below, if affected by jurisdictional error, it is not a decision made under the Act for the purposes of the definition of privative clause decision in s 474(2).
47 The Tribunal is conditionally obliged to afford an applicant for review the opportunity of a hearing. Section 425 provides:
'425(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.'
If the applicant is invited to appear before the Tribunal, the Tribunal must give notice of the date, time and place at which he or she is scheduled to appear (s 425A). It must specify in the notice that the applicant is invited to appear to give evidence and that he or she may give the Tribunal written notice of his or her wish that the Tribunal obtain oral evidence from a person or persons named in the notice (s 426). The applicant may give notice of his or her wish that the Tribunal obtain oral evidence from another person or persons (s 426(2)). However, s 426(3) provides:
'426(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.'
48 Section 427 of the Migration Act which deals with powers of the Tribunal provides, inter alia:
'427(1) For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation; or
(b) adjourn the review from time to time; or
...
(6) A person appearing before the Tribunal to give evidence is not entitled:
(a) to be represented before the Tribunal by any other person; or
(b) to examine or cross-examine any other person appearing before the Tribunal to give evidence.
(7) If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during her or her appearance proceed through an interpreter.'
49 The classes of person who may provide representation before the Tribunal are affected by the restrictions on the provision of 'immigration assistance'. 'Immigration assistance' includes the use or purported use of knowledge of, or experience in, migration procedures to assist a visa applicant by representing the visa applicant in proceedings before a court or review authority in relation to the visa application (s 276(1)(d)).
50 'Immigration legal assistance' is defined in s 277. A lawyer gives 'immigration legal assistance' if the lawyer represents the visa applicant in proceedings before a court in relation to the visa application. This does not extend to the provision of advice to a visa applicant for the purpose of proceedings before a review authority in relation to the visa application. The restriction upon providing immigration assistance is imposed by s 280 of the Migration Act which provides in the relevant parts:
'280(1) Subject to this section, a person who is not a registered agent must not give immigration assistance.
Penalty: 50 penalty units
…
(3) This section does not prohibit a lawyer from giving immigration legal assistance.
(4) This section does not prohibit an official from giving immigration assistance in the course of his or her duties as an official.
(5) This section does not prohibit an individual from giving immigration assistance if the assistance is:
(a) not given for a fee or other reward; and
(b) not given in his or her capacity as an employee of, or a voluntary worker for, another person or organisation; and
(c) not given in the course of, or in association with, the conduct of a profession or business.'
Subsections (1A), (2), (6) and (7) are not relevant for present purposes. In s 275, which is the interpretation provision for Pt 3 of the Migration Act relating to migration agents and immigration assistance, the term 'official' is defined as follows:
'official means:
(a) a person appointed or engaged under the Public Service Act 1999; or
…
(c) a member of the public service of a State or Territory; or
(d) a member of the staff of a Parliamentarian.'
51 The Legal Aid Commission Act 1976 (WA) establishes the Legal Aid Commission of Western Australia under s 6. The Commission is established as a body corporate. Amongst its functions are the provision of legal assistance in accordance with the Act (s 12(1)). The office of Director of Legal Aid is a statutory office created by s 18 of the Act. Appointment to the office is by the Governor on the recommendation of the Commission. The Director's conditions of service are such as the Legal Aid Commission determines (s 18(3)(b)). The Commission is empowered, after consultation with the Public Service Board, to classify positions to be held by members of the staff of the Commission and to define the duties to be performed by the holders of those positions (s 20(1)). It is empowered to employ, as members of staff of the Commission, such practitioners and other persons as it considers fit to hold the positions mentioned in subs 20(1) (s 20(2)). The terms and conditions of employment of staff of the Commission are referred to in s 21 of the Act. They are to be such terms and conditions as the Commission, after consultation with the Public Service Board, determines (s 21(1)).
52 As appears from the preceding, the Commission is a statutory authority which employs staff on conditions determined by it but subject to consultation with the Public Service Board. It is to be noted also that for the purposes of the Superannuation and Family Benefits Act 1938 (WA) and for those purposes only, the Commission is declared to be a 'department' within the meaning of that Act (s 22(1)).
The Issues for Determination
53 Following delivery of his Honour's judgment, the High Court gave judgment in Plaintiff S157/2002 v Commonwealth. The effect of that decision was to overrule NAAV. The propositions which emerged from the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ were summarised by the Full Court in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 359 at 371:
'1. Parliament cannot give power to any judicial or other body in excess of constitutional power.
2. Parliament cannot impose limits on the authority of a body with the intention that any excess of that authority means invalidity and at the same time deprive the High Court of authority to restrain the invalid action by prohibition.
3. If legislation purports to impose limits on authority and contains a privative clause it is a question of interpretation of the whole legislative instrument whether the transgression of the limits (if bona fide and bearing every appearance of an attempt to pursue the power) necessarily spells invalidity.
4. The Hickman principle is simply a rule of construction allowing for the reconciliation of apparently conflicting statutory provisions.
5. The meaning of a privative clause must be ascertained from its terms and if that meaning appears to conflict with the provision pursuant to which some action has been taken or some decision made its effect will depend entirely on the outcome of its reconciliation with that other provision.
6. The protection which a privative clause purports to afford will be inapplicable unless the three Hickman provisos are satisfied:
(i) that there has been a bona fide attempt to exercise the power in question;
(ii) that the decision relates to the subject matter of the legislation;
(iii) that the decision is reasonably capable of reference to the power.
7. Section 474 does not effect an implied repeal of all statutory limitations or restraints upon the exercise of the power or the making of a decision under the Act.
8. It may be, by reference to the words of s 474, that some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of the decision. That is a matter which can only be determined by reference to the requirement in issue in a particular case.
9. The words "under this Act" in s 474(2) are not apt to refer either to decisions purportedly made under the Act or decisions that might be made under the Act.
10. The expression "decision[s] … made under this Act" appearing in s 474 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.
11. An administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all".
12. 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 s 474(2) of the Act.
13. Section 474 requires an examination of limitations and restraints found in the Act. There will follow the necessity to determine 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.
14. A decision flawed for reasons of a failure to comply with the principles of natural justice is not a 'privative clause decision" within s 474(2) of the Act.'
54 As appears from these propositions a failure of procedural fairness can constitute jurisdictional error amenable to review under s 75(v) of the Constitution or s 39B of the Judiciary Act 1903 (Cth). Subject to the provisions of recent amendments to the Migration Act want of procedural fairness in the processes of the Tribunal can constitute jurisdictional error - Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. What constitutes procedural fairness varies according to the relevant statutory framework and, within that framework, according to the circumstances of the particular case - Aala at 109. It is necessary, of course, to bear in mind the observation of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 (at 511):
'Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.'
This may be seen as an expression of the way in which the content of procedural fairness varies according to the circumstances of the case. Denial of a remedy in respect of the acts or omissions of a delegate on the basis that there was no practical injustice may amount to little more than a recognition that there was no procedural unfairness in the decision under review. This approach is reflected in the observations of Gaudron and Gummow JJ in Aala at 109 where their Honours said:
'Cases said to turn upon "trivial" breaches are often better understood on other grounds. In particular, it is trite that, where the obligation to afford procedural fairness exists, its precise or practical content is controlled by any relevant statutory provisions and, within the relevant legislative framework, this will vary according to the circumstances of the particular case.'
55 The grounds of appeal, in effect, contend that the decision of the Tribunal was vitiated by jurisdictional error arising from a denial of procedural fairness to the appellant. That denial of procedural fairness is said to have arisen from a combination of factors set out in pars (a) to (f) of ground 3 in the Amended Notice of Appeal. It is necessary now to consider these matters to determine whether any one or more of them taken together amounted to a denial of procedural fairness.
Representation before the Tribunal - Appeal Ground 3 Particular (a)