Applicant S291 of 2003 v Refugee Review Tribunal

BACKGROUND 6 The applicant was born on 28 April 1967 at Benghazi. He is a Muslim whose parents and siblings (other than one brother) remain in Libya. He was educated at the Garyounis University and graduated in July 1989 with a degree in electrical engineering. After initial employment by an electrical company and by an oil company he joined the Garyounis University Engineering Department as a demonstrator and was ultimately appointed to the staff of the department. 7 The applicant visited Australia for two months in 1995 as a tourist. He visited Australia for a second time on 24 August 1996 and on 31 October 1996 lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ('the Department'). The application was refused. 8 The applicant claimed that he feared persecution in Libya because of his religion and political opinion. The applicant said that the Libyan government was 'against Islam'. He said that devout Muslims were persecuted by the Government in Libya because of suspicions that they may be involved in anti-government activities undertaken by Islamic fundamentalist groups. The applicant said that he had been detained and questioned on two occasions. He said that he was frequently followed by government agents, that many of his brothers and cousins had been imprisoned by the government, and that several of his co-workers at the university had been arrested. 9 The Tribunal accepted the evidence of the applicant concerning his background and education. The Tribunal also accepted his claim that he had been followed on a number of occasions and that he may have been questioned and detained in 1995. 10 The Tribunal referred to independent country information which stated that the Libyan government continued to act harshly to suppress militant Islamic opposition, and that individuals were arrested and detained if they were suspected of supporting or participating in such activity. The Tribunal also found that it was possible that many ordinary Muslims, unconnected with militant groups, might be arrested and investigated as part of the investigation into the suspected militant activity, and that this may have led to the episodes of questioning which the applicant alleged. 11 However the Tribunal considered that the evidence did not support a finding that the Libyan authorities suspected the applicant of being an Islamic militant. The Tribunal did not believe that the applicant would have been released so quickly on the two occasions when he was arrested, or that he would not have been detained again, if he remained under suspicion of being a militant Islamist. 12 In respect of the applicant's brothers and cousins who had been detained, the Tribunal noted country information which stated that relatives of suspected opponents of the regime could be harassed and detained. However, the Tribunal considered there was insufficient information for it to determine the reasons for the detention of the applicant's relatives. It noted the length of time in between the first time one of his brothers was arrested in 1986 and the limited period and severity of the later detention of the applicant. It was not satisfied that the applicant would face harm on his return to Libya because of his religion on the basis of the experiences of his relatives and friends. 13 In respect of persecution on the basis of his political opinion, the applicant claimed that he is an opponent of the Libyan government. He said he disagreed with the policies of the regime in part because they do not reflect Islam. The Tribunal accepted that the applicant did not support the Libyan regime, but observed that holding political opinions different from the government was not in itself a ground for claiming refugee status.

APPLICANT'S Challenges 14 The applicant makes three challenges to the decision of the Tribunal. Firstly, he submits that he was denied procedural fairness because he was not made aware of the country information in the possession of the Tribunal. He says that if he had been made aware he would have made further submissions and submitted additional material of his own. 15 Secondly, the applicant submits that he was denied procedural fairness because the Tribunal's decision was published on its website with such particularity that it identified the applicant. The applicant claims that such publication breached s 431 of the Migration Act. 16 Thirdly, the applicant claims that he was denied procedural fairness because he was not provided with a Departmental file note which was before the Tribunal. The note referred to information provided to the Department by the applicant's brother, who is also an applicant for a protection visa. The file note recorded that the information provided by the applicant's brother (also an applicant for a protection visa) was inconsistent with the information the applicant had provided to the Department.

ALLEGED FAILURE TO PROVIDE COUNTRY INFORMATION 17 The applicant claims that he was denied procedural fairness because the Tribunal had in its possession country information which contained details of arrests of professionals which occurred in Libya in 1998. The applicant says that had he been provided with this information he could have informed the Tribunal of his close association with some of those persons. The applicant says that he indicated to the Tribunal that one of his work colleagues, Dr Rajab, had been arrested. He says that some of the independent country information before the Tribunal referred to the wave of arrests in which Dr Rajab was arrested (although Dr Rajab was not mentioned specifically by name in the material before the Tribunal), and if the Tribunal had drawn this information to his attention, he could have explained his association with those whose persecution by the Libyan regime was independently documented. 18 The obligations of the Tribunal are to be determined by reference to the Migration Act as it existed on 7 January 1999, the date of its decision. The Migration Act did not then include s 422B, which provides that Div 4 of Pt 7 of the Migration Act (which relates to the conduct of the Tribunal's review) is taken to be an exhaustive statement of the natural justice hearing rule. It is clear that s 422B of the Migration Act now operates to exclude the requirement for decision-makers to abide by common law principles of procedural fairness: see Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61. However, it is equally clear from decisions of the High Court that common law principles of procedural fairness were not excluded from the Migration Act as it existed prior to the enactment of s 422B: see Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [37]-[38] per Gleeson CJ; at [83] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Re Minister for Immigration and Multicultural Affairs and Anor; Ex parte Miah (2001) 206 CLR 57 at [26] per Gleeson CJ and Hayne J; at [95] per Gaudron J; at [128] per McHugh J; at [188] per Kirby J. Accordingly, it is open to the applicant to raise a breach of common law procedural fairness. 19 The content of procedural fairness requirements will depend upon the circumstances of the exercise of the power: see Wilson J in Kioa and Ors v West and Anor (1985) 159 CLR 550 at 584-5 per Mason J; 601 per Wilson J; 611-2 per Brennan J; 633 per Deane J. However, common law procedural fairness will generally require that an applicant be given the opportunity to comment upon information held by the Tribunal which is adverse to his or her interest. As Mason J said in Kioa at 582: 'It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it …' 20 Nonetheless, it is not always necessary for the Tribunal to provide to an applicant copies of any country information upon which it relies. The Tribunal's obligations may be discharged if it provides to the applicant orally the substance of adverse material: see NAVM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 99 at [31]-[33]. The important element is that the information provided by the Tribunal enables a person to make a submission concerning its relevance or to adduce competing material. 21 In the present case, it is apparent from the transcript that the Tribunal discussed the independent country information at some length with the applicant. In particular, it raised its concerns that the independent country information did not support the contention that the Libyan government persecuted devout Muslims who were not fundamentalists. In my opinion, the applicant clearly was provided with the substance of the information which was contained in independent country information. 22 The applicant suggests that the Tribunal should have drawn his attention to specific passages in the independent country information. It was submitted that those passages were directly related to the applicant's experiences and, had he been able to explain his relationship with those events, the Tribunal would have assessed his risk of persecution differently. This submission must fail. It is not the function of the Tribunal to establish the applicant's case for him. As Gummow and Hayne JJ observed in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 576 [187]: 'The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.' 23 The applicant was obliged to raise all of the factual matters which were relevant to his case. That included providing the Tribunal with sufficient details of his personal experiences to allow the Tribunal to make an assessment of his claim. The Tribunal could not have known whether the independent country information referred to arrests of people close to the applicant (such as Dr Rajab) unless the applicant provided specific details of his associates which would enable the Tribunal to recognise circumstances referred to in the country information. The applicant raised the arrests of university colleagues only briefly and vaguely, and did not provide any particular information. If the applicant had additional material which he wished to place before the Tribunal then it was incumbent upon him to place it before the Tribunal. 24 Furthermore, the vast majority of the independent country information which was relied upon by the Tribunal had in fact been provided by the applicant himself, and following the Tribunal hearing, the applicant was offered the opportunity to provide further information. The applicant took up the offer and provided further independent country information to the Tribunal. It is clear that the applicant was not only afforded the opportunity but also exercised his right to comment before the Tribunal. 25 The applicant suggested that the Tribunal and the applicant had been communicating at cross-purposes, because the applicant would, by virtue of his religious practices, be considered a fundamentalist by the regime, despite the fact that he did not consider himself to be a fundamentalist. However, I do not think that this submission truly alleges procedural unfairness, but goes rather to the merits of the Tribunal's decision, which are not reviewable in this Court. In any event, the decision of the Tribunal clearly considered the possibility that innocent civilians could be 'caught up in waves of arrests and in investigations into suspected militant activity'. The Tribunal considered that the applicant's own brief periods of detention may have resulted from such a cause. However, given the brevity of his arrests and the fact that he had not been detained again, the Tribunal considered that the authorities did not continue to suspect him of involvement with Islamic opposition groups. 26 The Tribunal clearly gave the applicant an opportunity to respond to the independent country information and to provide additional information. It then decided that the independent country information did not support the proposition that the Libyan government persecuted individuals solely because they were devout Muslims. It was a factual finding which was open to the Tribunal, and the Tribunal clearly afforded the applicant procedural fairness in relation to this finding. Accordingly, this ground must be rejected.

PUBLICATION OF DECISION 27 The applicant submits that the scheme for the publication of decisions pursuant to s 431 of the Migration Act was not followed. At the date of the Tribunal's decision, s 431 of the Migration Act provided: '(1) Subject to subsection (2), and to any direction under section 440, the Registrar must ensure that statements prepared by the Tribunal in accordance with subsection 430(1) are published. (2) The Tribunal must not publish any statement which may identify an applicant or any relative or other dependent of an applicant.' 28 The applicant says that the version of the Tribunal's reasons for decision which was published on the internet enabled him to be identified, because of the small number of Libyans in Australia and the details provided of the applicant. The applicant also says that a Libyan friend mentioned to the applicant that he had seen his information on the internet. The published judgment provides details of the applicant's country of origin; his religion; the year in which he left school; the year in which he gained employment; the fact that he was interrogated twice; the fact that he was required to sign an undertaking that he would not go to a mosque or see certain people, including one person who was imprisoned in 1997; that he returned to Libya in 1997; and that his relatives had been imprisoned. I note that following the request of the applicant, the Tribunal decision was removed from the website. 29 The respondent does not acknowledge that the Tribunal's decision, as published on the internet, contained any statement which might identify the applicant. In view of the findings hereunder, it is not necessary for me to determine whether the applicant could in fact have been identified from these matters. However, I accept that, despite the fact that much of the more detailed material was removed from the Tribunal's reasons before publication of the decision, there is a possibility that the applicant could have been identified from the remaining material. 30 The applicant submits that the failure to comply with s 431 of the Migration Act gives rise to procedural unfairness. He submits that procedural fairness arises at the pre-hearing stage of the Tribunal hearing and continues during and beyond the hearing and until the Tribunal fulfils its statutory functions by the provisions and publication of its decision. He claims the Tribunal's decision was vitiated by its failure to afford him procedural fairness. The applicant relies upon Ainsworth and Anor v Criminal Justice Commission (1992) 175 CLR 564 and Johns v Australian Securities Commission and Ors (1993) 178 CLR 408 as authority for the proposition that procedural fairness may require an opportunity to oppose publication of a decision. 31 I do not accept this submission. The obligations of procedural fairness at common law relate to two 'rules': the bias rule and the hearing rule: see M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action, 3rd ed, Lawbook Co, 2004 at 370. The bias rule prevents a Tribunal from acting in a way which shows actual or apprehended bias towards an applicant. The hearing rule acts to ensure that an individual is given an opportunity to be heard before a decision is taken and to meet the case which is put against him or her: see the passage in Kioa cited at [19] above. The precise content of the hearing rule is dependent upon the context in which the decision is being made. In any event, if an allegation of procedural fairness is to be made out, the applicant must demonstrate that either the bias rule or the hearing rule has been breached by the Tribunal. 32 The decision of the Tribunal to publish its reasons upon the internet, in the form in which it did so, could not vitiate the decision which had already been made by the Tribunal relating to the applicant's refugee status. No suggestion has been made that the Tribunal's decision to publish its reasons indicated bias on the part of the Tribunal. Nor is there any suggestion that the hearing given by the Tribunal had been in some way deficient. If a breach of neither of these principles is alleged, a claim of procedural unfairness is not made out. 33 The applicant's reliance on Ainsworth is misplaced. In that case, the Criminal Justice Commission published a report which made adverse factual findings against Ainsworth, in circumstances where Ainsworth had never been given the opportunity to be heard upon the basis for those findings. The report attracted a duty of procedural fairness because its contents had the potential to 'destroy, defeat or prejudice a person's rights, interests or legitimate expectations' (see Annetts and Anor v McCann and Ors (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ). In contrast, in these proceedings the applicant was given an opportunity to be heard upon the findings which were included in the Tribunal's decision. The Tribunal had invited the applicant to a hearing, which he attended. Accordingly the Tribunal's duty of procedural fairness was discharged in respect of the factual and legal findings which it made in that decision, and ultimately its decision that the applicant was not a refugee. 34 Johns concerns a decision by the Australian Securities Commission to allow transcript of interviews it had conducted with the appellant to be released to the public. In that case, the High Court held that the applicant ought to have been given an opportunity to make submissions before that decision was made and accordingly it was invalid. On this basis the applicant says that the Tribunal's decision to publish its reasons was also a decision which is reviewable. 35 I accept that the decision by the Tribunal to publish its reasons on the internet in the form which it did was a decision which might be challenged. Indeed, after a request by the applicant, the Tribunal removed the reasons from the internet. If the Tribunal had refused to remove its reasons from the internet, it may have been open to the applicant to challenge that decision and seek injunctive relief to restrain the continued publication on the basis that it was inappropriate for the Tribunal to have published its reasons without giving the applicant an opportunity to make submissions about the details which should not be published. That is, the applicant might have successfully made an allegation that procedural fairness had been denied in relation to the decision to publish. However, any errors which may have occurred in the Tribunal's decision to publish were incapable of affecting its decision on the applicant's refugee status, which had been concluded before publication and in respect of which fair procedures had been observed. 36 It follows that this ground of challenge must be rejected.

FAILURE TO DISCLOSE FILE NOTE 37 The applicant's third challenge to the decision relates to the failure of the Tribunal to disclose to the applicant a file note dated 29 April 1998 and made by an officer of the Department, which was provided to the Tribunal. The file note referred to inconsistencies between the applicant's application for a protection visa and that of his brother, whose application for a protection visa was also being determined by the Department. 38 The file note contains information which is potentially adverse to the applicant, in that it suggests the account provided by him is inconsistent with the account provided by his brother. It also incorrectly summarises the information contained in the applicant's protection visa application, stating that he claimed only one brother was detained by authorities, when in fact his application states that the Libyan government 'jailed many of my brothers and cousins since 1984' and refers specifically to two brothers. 39 It is conceded that the file note was not brought to the applicant's attention by the Tribunal. There is no indication that it was relied upon in the Tribunal's decision, and no clear indication that it was considered at the hearing. The transcript records, however, an exchange at the Tribunal hearing as follows: 'TRIBUNAL MEMBER: … Now the other thing that was in your application [applicant's name] was that your brother was gaoled. THE WITNESS: Two of them. TRIBUNAL MEMBER: It said: "They gaoled many of my brothers and cousins, they gaoled my brother [applicant's brother's name] for two years." When was that? THE WITNESS: In [year], I am not sure about the date but when I was studying at the Uni, for about [period of time] and the other one is [applicant's brother's name] for about [period of time]. TRIBUNAL MEMBER: You haven't mentioned that before? THE WITNESS: Sorry? THE INTERPRETER: Yes I mentioned that in my application. TRIBUNAL MEMBER: I see there we are, later [applicant's brother's name], I couldn't read it I am sorry, it was the writing on the front sorry. Later [applicant's brother's name] they gaoled him for [period of time].' 40 This passage is not conclusive of whether the Tribunal specifically referred to the Department file note. However, it was suggested by the second respondent that the Tribunal member's original misconception relating to the number of brothers which the applicant claimed had been arrested may have been derived from the incorrect information contained in the file note. 41 The applicant has submitted that the failure by the Tribunal to provide the file note to the applicant was a breach of procedural fairness by the Tribunal. He relies upon the decision of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 228. 42 The decision in VEAL also concerned a decision made by the Refugee Review Tribunal. In that case, the Department had received an unsolicited letter which contained allegations relating to the appellant. The letter was passed on to the Tribunal by the Department, but the Tribunal did not tell the appellant about the letter or about the allegations contained in it. The Tribunal made a decision refusing a protection visa on the basis that the applicant lacked credibility, but explicitly indicated in its reasons that it had given no weight to the letter in arriving at its decision. 43 The High Court held that the Tribunal had failed to afford the applicant procedural fairness. The Court held that information that was credible, relevant and significant must be provided to an affected person and that an opportunity must be given to the person to deal with the information before a decision was reached: see at [17]. It stated that credible, relevant and significant information was information 'that cannot be dismissed from further consideration by the decision-maker before making the decision' and noted that whether information is credible, relevant and significant does not depend 'upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached': see at [17]. 44 At [19] in VEAL, the Court said: 'As has later been rightly said, "the necessity to disclose such material in order to accord procedural fairness is not based on answering a causal question as to whether the material did in fact play a part in influencing the decision". It follows that asking whether, despite what was said in its reasons, the Tribunal may have been subconsciously affected by the information distracts attention from the relevant inquiry. The relevant inquiry is: what procedures should have been followed? The relevant inquiry is neither what decision should the decision-maker have made, nor what reasons did the decision-maker give for the conclusion reached.'

45 The second respondent submits that VEAL is distinguishable from the present case on the basis of Bennett J's decision in SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53. In that decision, Bennett J distinguished the decision in VEAL on the basis that although procedural unfairness had been established in respect of one basis of the Tribunal's decision, there was a separate and independent basis for its conclusion which was not affected by procedural unfairness: see at [28], [40]-[41]. 46 I accept that, for the purposes of determining the applicant's credibility, the information contained in the file note was credible, relevant and significant. The information in the file note had the potential to affect findings on the applicant's credibility. That information should have been provided to the applicant, and he should have been given an opportunity to comment upon it. However, in my opinion, had that information been provided to the applicant, it could not have made any difference to the Tribunal's decision. 47 In arriving at this conclusion, I am mindful of the observations of the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141. In that case, the Court considered the circumstances in which it was appropriate not to order a new trial because it would inevitably result in the making of the same order as that made at the first trial. Whilst the Court observed that 'not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial', it cautioned at 145: 'Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact … it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference …. when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution.' 48 The procedural unfairness alleged in the present case is directed to a finding of fact, namely a finding as to the applicant's credibility. However, I am nonetheless satisfied that this is a case in which the provision of the information could have made no difference to the result, because the applicant's credibility was determined in his favour. 49 The Tribunal made no adverse findings on the applicant's credibility, but rather believed his factual account. The applicant submitted that the Tribunal impliedly made adverse credibility findings, because it did not find that he had a well-founded fear of persecution. However, the examples pointed to by the applicant were those in which the Tribunal did not agree with the applicant's assessment of events, not where it disbelieved his account of the facts. The Tribunal accepted that the applicant and his brothers and cousins had been detained by the Libyan government. It accepted his description of what had occurred at his place of work and the details of his education. What it did not agree with was the applicant's explanation for these events. While the applicant believed that they resulted from religious persecution, the Tribunal disagreed. The Tribunal did not believe the applicant was lying about the facts. It just considered that he was wrong in his interpretation of them. In terms of the applicant's credibility, the Tribunal clearly found in the applicant's favour. 50 The material contained in the file note was credible, relevant and significant only in respect of the issue of the applicant's credibility. It could not have been relevant to any of the other findings made by the Tribunal. The Tribunal's decision did not include any adverse findings upon the applicant's credibility, but rather was based upon its assessment of his risk of persecution in Libya, derived from independent country information and from its assessment of his personal circumstances. Giving the applicant an opportunity to comment upon the file note could not possibly have altered the Tribunal's findings in respect of matters unrelated to his credibility. 51 For these reasons, I consider that this ground must also be rejected. Regardless of whether a breach of procedural fairness has in fact occurred, I consider that to order the matter to be remitted to the Tribunal would be futile and if a breach of procedural fairness were in fact established, I would exercise my discretion not to order a re-hearing. Accordingly, this ground must fail.

Conclusion 52 In view of the above, the applicant's application must fail, and the applicant should pay the second respondent's costs. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 27 July 2006, 17 August 2006