Applicant VEAL of 2002 v Minister for Immigration & Multicultural &... [2003] FCA 437 | Case summary

REASONS FOR JUDGMENT Introduction 1 The applicants, a husband and wife, are nationals of Eritrea who arrived in Australia in June 2000 on a visitors visa to participate in an in vitro fertilisation program. When the applicants departed from Eritrea they both held positions in the Eritrean public service. 2 Significant political changes occurred in Eritrea while the applicants were in Australia. As a result of those changes, in June 2001 the applicants applied for protection visas claiming that they have a well founded fear of political persecution if they were returned to Eritrea. 3 A delegate of the Minister refused to grant the applicants a protection visa and they were unsuccessful in their application to the Refugee Review Tribunal ("the Tribunal") to review the delegate's decision. The applicants have now applied to the Court to review the decision of the Tribunal under s 39B of the Judiciary Act 1903 (Cth). 4 The applicants rely on three grounds of review. The first ground is that the Tribunal's decision involved jurisdictional error as the Tribunal mischaracterised and misunderstood the reason the male applicant feared persecution and failed to deal with his sur place claim of having a well founded fear of political persecution if he were to return to Eritrea. The second ground is that the Tribunal constructively failed to exercise the jurisdiction conferred upon it as its decision was not based on rational and probative material and it made so many errors in the course of its decision that it failed to engage in its task in the manner required by the Migration Act 1958 (Cth) ("the Act"). The third ground was that the Tribunal acted in breach of its obligation to accord procedural fairness to the applicants by failing to disclose the contents of a "dob-in letter" which contained prejudicial information concerning the male applicant. Constructive failure to exercise jurisdiction 5 If the Tribunal mischaracterised and misunderstood the applicants' claim in a manner which resulted in it failing to deal with the claim, that would constitute a constructive failure to exercise jurisdiction and therefore jurisdictional error on the part of the Tribunal: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 ("S157/2002") and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [1], [25], [32], [86]-[89] and [95]. However, the allegation by the applicants that that is what occurred in the present case is easier to make than to establish. 6 The male applicant's claim to have a well founded fear of political persecution was based on political changes that occurred in Eritrea after the departure of the applicants. The changes related to the dismissal and political persecution of a senior minister, Mr Mahmoud Sherifo ("Sherifo"), to whom the male applicant reported while in the public service in Eritrea. It appears that Sherifo, the Minister of Local Government, was sacked by the President in February or March 2001, allegedly for his pro-democracy sentiments. In September 2001 Sherifo and some of his supporters and associates were imprisoned by the government and have been held without charge ever since. 7 The male applicant claimed that an aspect of the government's persecution of Sherifo included the making of false charges of corruption against him and his supporters and associates, and also of some senior members of the public service who were close to him. The male applicant claimed that he fell into the category of an associate or supporter of Sherifo and of a senior member of the public service who was close to him. He claims that Sherifo's role in granting an exit permit to the applicants, the male applicant's relationship with and perceived support for Sherifo and his political profile and senior position in the public service under Sherifo, were likely to lead to similar forms of political persecution of the male applicant were he to return to Eritrea. The applicants also claimed that their exit permit may be used as a vehicle for alleging corruption against them and Sherifo on the basis that they sought the permit to avoid military service. 8 On a fair reading of its reasons the Tribunal properly characterised, understood and dealt with the applicants' claims. It concluded that, even if the corruption allegations in relation to the grant of exit permits to avoid military service had been made against Sherifo, there was not a real chance that Sherifo's involvement in granting an exit permit to the applicants would give rise to any persecution of the applicants. 9 The Tribunal also rejected the male applicant's claim that his association with Sherifo and his supporters, or with others who might have been arrested since the political changes occurred, exposed the male applicant to a similar risk. The Tribunal concluded that the male applicant had exaggerated his association with those persons. It stated: "In light of the length of the applicant's absence from Eritrea, the vagueness of his evidence about the alleged arrest of people at the same administrative level that he occupied in Eritrea, and considering the belated nature of the claim, the Tribunal is not satisfied that such arrests have actually occurred, and continue to do so now, such that the applicant himself, or his wife, would be exposed to a real chance of persecution for any Convention reason. In reaching that conclusion the Tribunal also gives weight to the applicant's recent association and dealings with high level government officials in Australia and in Eritrea. While accepting, as indicated in a letter of 25 March 2002, shortly after the hearing, and purportedly from the organizer of an Eritrean democratic party in exile, that several supporters of Sheriffo and other dissidents have been among those arrested, for reasons outlined immediately above the Tribunal is not satisfied that the applicant or his wife are among any people still facing a real chance of persecution due to the pro-democracy stance taken by Sheriffo and others some time after their departure from Eritrea." 10 The Tribunal also rejected the claim that the male applicant was a well known opponent of the Eritrean President. It stated: "The claim contained in the letter that the applicant is a well-known opponent of the Eritrean president is at odds with the applicant's political history, his lengthy record of public service and his recent use of government contacts in arranging financial and other support for festivals that have been endorsed by prominent representatives of the Eritrean government. In weighing all the available evidence the Tribunal finds that, even if the aforementioned letter were to be genuine, it does not contain persuasive material that the applicant is at risk of persecution. The clear weight of evidence is that the applicant has been a strong supporter of the Eritrean government. The legitimacy of his departure from Eritrea, with governmental approval, the lengthy period of his absence from Eritrea prior to the arrest of Sheriffo, and his overt activities in Australia in arranging independence festivals lead to a conclusion that, notwithstanding his relationship with former minister Sheriffo, he does not face a real chance of persecution for any Convention reason." 11 The above passages demonstrate that the Tribunal did not misapprehend the claims of the applicants. Rather, it rejected them and, in particular, rejected the claim that by reason of the male applicant's political profile and his close or perceived association with Sherifo and his supporters or associates there was a real chance of political persecution of the male applicant were he to be returned to Eritrea. 12 The applicants also claimed that the Tribunal, by referring to the "belated nature" of the sur place claims, the "legitimacy of [the male applicant's] departure from Eritrea" and the fact that "the [male] applicant has not encountered past persecution for any Convention ground" misunderstood the nature of their sur place claims. In my view the criticism is without foundation. The Tribunal dealt with the male applicant's evidence as to the events occurring since his departure from Eritrea, and his political involvement before and after he left, and found that the male applicant had not acquired, and has not been perceived to have acquired, the political profile that he claimed to have. 13 In summary, the male applicant presented a case, based primarily on news items and other material, that he had a well founded fear of political persecution because of his actual or perceived association and public involvement with Sherifo, Sherifo's pro-democracy policies and Sherifo's supporters and associates. That claim was considered and rejected by the Tribunal. Accordingly, I do not accept that the first ground for review has been made out. Factual error 14 The applicants also claimed that numerous factual errors in the Tribunal's decision undermined the probative value of the conclusions it reached, with the consequence that it failed to exercise its jurisdiction to decide the claims of the applicants in accordance with law. 15 A number of aspects of the decision were put forward as errors of fact. However, as has been often stated, determinations of matters of fact are, quintessentially, matters for the Tribunal rather than the Court. While it can be accepted that mistakes in relation to the evidence may be so fundamental to the decision of the Tribunal that it results in a failure to discharge its duty to review the delegate's decision according to law (see W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 at [27]), the alleged errors of fact relied upon in the present case are not within that category. The mistakes alleged involve, inter alia, confusion about the role of witnesses and some parts of the male applicant's claims, and confusion about the detail of the role of the male applicant in Eritrean festivals in Melbourne. The mistakes of fact that the applicants sought to establish do not amount to a failure on the part of the Tribunal to review the delegate's decision according to law and, if such mistakes were made, they are mistakes within jurisdiction. The challenge to the Tribunal's decision on the facts is an impermissible endeavour to review the decision on the merits and does not constitute jurisdictional error of a kind that would entitle the applicants to review the decision: cf NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 at [42]. Accordingly, I am not satisfied that the second ground of review has been made out. Procedural fairness 16 At the conclusion of its reasons the Tribunal referred to a "dob-in letter" that had been forwarded to it by the Department. It stated: "In reaching its findings in this matter the Tribunal gives no weight to a dob-in letter that has been sent to the Department and forwarded to the Tribunal. The writer of that letter makes clear that the material therein is provided confidentially. The Tribunal has been unable to test the claims made in the letter and, accordingly, gives it no weight. The Tribunal has decided this matter solely for reasons outlined above. In the present case the material referred to immediately above was provided in confidence to the Department and the Tribunal considers it is in the public interest that the content of the letter be regarded as 'non-disclosable information' for the purpose of S424A(3)(c) of the Act. If the material in the letter should happen to be true then disclosure of it might possibly in the present case expose the author of it to serious harm. Accordingly, the Tribunal has taken the unusual step of ordering, in accordance with s440(1) of the Act, that the content of folio 32 of the Tribunal file not be published or disclosed." 17 The letter, which was sent by the Department to the Tribunal shortly prior to the hearing, was written by a named individual who claimed to have a personal association with the applicants. I ordered that a copy of the letter be produced to the applicants' counsel and, save for its production to the Court and subject to any further order, that its content not be disclosed to any person other than the applicants' counsel and solicitors. Subsequently, counsel for the applicants tendered the letter as part of their evidence in the proceeding. 18 The applicants' primary contention was that the Tribunal was under a duty to give particulars of the "dob-in letter" under s 424A(1)(a) of the Act and to afford the applicants an opportunity to comment on it. The difficulty with that contention is that the subsection only applies to information the Tribunal: "considers would be the reason, or a part of the reason, for affirming the decision that is under review". 19 The Tribunal, in its reasons, stated that the letter did not form part of its reasons for affirming the decision under review. It must follow that the information contained in the "dob-in letter" was not considered by the Tribunal to be "part of the reason" for affirming the delegate's decision, with the consequence that s 424A(1) cannot apply to the letter. 20 However, that conclusion does not answer the applicants' alternative contention that the non-disclosure of the contents of the letter resulted in the Tribunal acting in breach of its obligation to accord procedural fairness to the applicants which, at the time of the decision of the Tribunal, formed part of the obligations owed by the Tribunal to an applicant for review: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 ("Miah"); Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 ("Aala") and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ("VAAC") at [27] - [32]. 21 The applicants contended that the Tribunal remained under an obligation to afford them an opportunity to deal with the gravamen of the allegations contained in the "dob-in letter", notwithstanding that the Tribunal disavowed any reliance on the letter. In that regard, in Kioa v West (1985) 159 CLR 550 ("Kioa") at 629, Brennan J stated: "Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account." 22 In Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550 at 552 Foster J observed: "Whilst a decision-maker can, by an effort of will, exclude from his conscious deliberations the effect of material of this kind and even convince himself that he has totally ignored it, the potential of influence at a subconscious level remains, with the possibility of the creation of an adverse attitude towards the party at whom the material was directed." 23 In Roderick v Australian and Overseas Telecommunications Corporation Ltd (1992) 39 FCR 134 at 145 Hill J, with Keely and O'Loughlin JJ agreeing, observed that if there is a risk of prejudice for evidence to be given in the absence of the applicant it would be "no answer to this to say that the Tribunal was of the opinion that it was not affected by the evidence". 24 In NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561 at 585-586 [94] Allsop J helpfully summarised the relevant principles as follows: "First, if there is a real risk of prejudice in the decision-making process in not disclosing the substance of material before the decision-maker, bona fide disavowal of reliance on it will not be sufficient to warrant the non-disclosure of the material. The sufficiency of the existence of a real risk of prejudice reflects what the Court of Appeal said in Johns [v Release on Licence Board (1987) 9 NSWLR 103], that the inquiry is whether the material could have influenced the decision, not whether in fact it did influence it. Secondly, there will generally be such risk where the material is, in the particular circumstances, credible, relevant and significant to the decision. This is to be judged leaving aside the disavowal. Relevant to this assessment will be, amongst other things, the quality of the material and the risk of subconscious influence. Also relevant to this assessment will be the degree to which the fairness of the process is likely to be thrown into question on revelation of the existence of the material and that it was before the decision-maker. Thirdly, if one member of a decision-making organ takes the undisclosed material into account, that will suffice as a ground to set aside the decision if it is of the kind earlier described. Fourthly, as reflected by the use of the adjective 'real' in the phrase 'real risk of prejudice', a merely theoretical possibility of prejudice will not suffice." 25 At the outset it is necessary to consider whether the information contained in the "dob-in letter" was credible, relevant and significant to the decision. The letter discloses that it was written by a person who claimed to have a personal association with the applicants and to be in a position to provide the information contained in it, some of which was said to have been provided by the male applicant to the author. Further, there is nothing about the nature of the information contained in the letter that suggests that it lacks credibility. Finally, the Tribunal did not suggest the information was not credible. Rather, it stated that it was provided "in confidence" and was therefore non-disclosable information for the purposes of s 424A(3)(c). It also took the "unusual step" of directing, pursuant to s 440(1) of the Act, that it was in the public interest that the content of the letter "not be published or disclosed". Although the Tribunal acknowledged it was unable to test the claims in the letter I doubt that it would have made that direction if it considered that the information in the letter was not credible. In the circumstances, I am of the view that the information contained in the letter should be regarded as credible. 26 The next question is whether the information contained in the letter is relevant and significant. The letter contained allegations about the male applicant's activities in Australia that were highly derogatory of him and were clearly prejudicial to his claim: cf Kioa at 588, 602 and 628. It also contained information alleging that the male applicant engaged in continuing activities since his arrival in Australia in support of the Eritrean government, including that he was an organiser of the Eritrean government funded Eritrean festival in Australia in 2002. The allegations are relevant as they impact directly on the male applicant's credibility and also upon his claim that he is, and would be imputed to be, a well-known opponent of the Eritrean government. Credibility was a significant issue, particularly as the Tribunal found that the male applicant had "exaggerated" his association with Sherifo and his supporters and, by necessary implication, the basis for him being perceived to be an opponent of the Eritrean government. Credible allegations of pro-Eritrean government activities by the male applicant in Australia of the kind set out in the letter are plainly relevant and significant to the male applicant's claim that since Sherifo's arrest he faced a risk of political persecution by being, and being perceived to be, a supporter of Sherifo and an opponent of the Eritrean government. Further, the allegation that the male applicant was an organiser of the Eritrean festival in 2002, which was supported by the Eritrean government, is not consistent with his claim that he had ceased to have any relevant or significant official involvement with the festival by that time. 27 In its reasons the Tribunal found that "the clear weight of evidence is that the [male] applicant has been a strong supporter of the Eritrean government" and, in rejecting his claims, gave "weight to the [male] applicant's recent association and dealings with high level government officials in Australia and in Eritrea." It specifically found that the male applicant "was, even in 2002 and well after the arrest of former Minister Sheriffo and some others, able to use his influence with high up Eritrean officials, in Eritrea and in Australia, even to obtain funding from the Eritrean government in his role as chair of the festival committee." The above findings were relied upon by the Tribunal in its rejection of the male applicant's claims. The allegations contained in the letter related to the above matters. 28 In the circumstances I am satisfied that the information contained in the letter was credible, relevant and significant. Most of the information was clearly prejudicial to the male applicant's claims and the disclosure of the letter to the Tribunal constituted a real risk of prejudice to the applicant in that it could have subconsciously influenced the mind of the Tribunal member, or at least, given rise to an appearance of a real risk of prejudice. As was emphasised by Carr and Sundberg JJ in Chu v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314 at 337-338 in an analogous context, a person who has an entitlement to be accorded procedural fairness is entitled to a decision-maker who is unbiased in fact and in appearance. 29 Thus, the disavowal of reliance on the letter is not sufficient to justify the failure of the Tribunal to provide any of the information contained in the letter to the applicants. It would follow that, in the usual course, procedural fairness would require that the gravamen of the prejudicial allegations contained in the letter be brought to the applicants' attention. In Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 [70] I said: "It is sufficient that the gravamen or substance of the issue or factor is brought to the applicant's attention, or that the applicant is on notice of its 'essential features': see Mocan v Refugee Review Tribunal (1996) 42 ALD 241 at 247; Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 at 123; Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 at 230; McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 at 600-601; Chu v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 540 at 548." 30 However, the respondent contended that withholding information can be justified where the information was provided to the Department, and by it to the Tribunal, in confidence. But, even where information is provided in confidence procedural fairness may, nonetheless, require that the substance of the information be disclosed to the applicant. As Lord Denning MR observed in R v Gaming Board for Great Britain; Ex parte Benaim and Khaida [1970] 2 QB 417 at 431: "Much of [the information provided to the Gaming Board] will be confidential. But that does not mean that the applicants are not to be given a chance of answering it. They must be given the chance, subject to this qualification: I do not think they need tell the applicant the source of their information, if that would put their informant in peril or otherwise be contrary to the public interest. … But, without disclosing every detail, I should have thought that the board ought in every case to be able to give to the applicant sufficient indication of the objections raised against him such as to enable him to answer them. That is only fair. And the board must at all costs be fair. If they are not, these courts will not hesitate to interfere." 31 See also Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 ("Kurtovic") at 197, 205 and 223; and Chu Sing Wun v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 540 ("Chu Sing Wun") at 544-548. In Gilson v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Lehane J, BC9703148, 21 July 1997) at 8-9 Lehane J referred to Kurtovic and Chu Sing Wun and observed: "I do not think Kioa v West, Kurtovic or Chu [Sing Wun] offers any encouragement to a proposition that if, in circumstances such as the present, information is available which is adverse to an applicant on a crucial issue, but both the documents containing the information and its substance are protected entirely from disclosure by public interest immunity, the information may nevertheless be made available to the decision-maker and taken into account against the interests of the applicant. In my view all three decisions are authority strongly to the contrary of such a proposition. If the material was to be before the Tribunal - that is, if the Tribunal was to be made aware of its content - then the Kioa principle required that it be put to Mr Gilson. If in such circumstances information is of so sensitive a kind that it, or its substance, cannot by any means be put to an applicant, then it should not be before the Tribunal at all. 32 However, the Minister also contends that the relevant content of procedural fairness in the present case is derivative, inter alia, from the applicable statutory framework which does not require the Tribunal to disclose the letter as it was "non-disclosable information" under s 424A(3)(c), and was also the subject of a direction not to publish or disclose the document made under s 440(1) of the Act. WAFG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 93 ("WAFG") at [45]-[46] and Li v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1527 ("Li") at [32] afford some support for the Minister's contention. 33 WAFG concerned disclosure of an annexure to a report, which was accepted by the Court to contain non-disclosable information for the purposes of the Act. RD Nicholson J stated at [45]: "There is the further aspect namely, whether there have been and will continue to be a breach of the requirements of natural justice unless annexure J is provided, with the consequence that jurisdictional error arose or arises from non-provision of it to the applicant. The relevant content of procedural fairness (and hence the rules of natural justice) is derivative from the applicable statutory framework, the nature of the decision to be made, the subject matter being dealt with and the facts and circumstances of the case: Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 per McHugh J at [129]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gaudron and Gummow JJ at [60]; McMullen v Commissioner for Superannuation (1985) 61 ALR 189 at 209. In this case it is the statutory framework which is particularly determinative of the application of the rules of natural justice in the circumstances." 34 His Honour referred to s 501G which provides for the giving of reasons, "other than non-disclosable information", to a person who has been refused the grant of a visa or whose visa has been cancelled by the Minister. His Honour then stated at [46]: "Similar provisions apply in relation to review by the Administrative Appeals Tribunal; the Migration Review Tribunal and the Refugee Review Tribunal (see s 500(6F)(c) and (d); s 359A(4) and s 424(3) of the Act). In common with those provisions, s 501G provides that non-disclosable information is not required to be provided to an applicant. The consequence is, in accordance with the well established law previously referred to, it was not a breach of the rules of natural justice for the respondent to refuse to disclose annexure J." 35 In Li Gray J observed at [32] with respect to s 359A, which is in the same terms as s 424A: "It would be a strange result if the Tribunal, not being bound by s 359A to provide information to a person as part of the process required by that section, should then be required by the principles of natural justice to undermine s 359A by showing the document containing the information to the applicant at the hearing." See also S157/2002 at 32-33 [25] per Gleeson CJ. 36 It is to be noted that the observations of RD Nicholson J relate to disclosure of non-disclosable information and not to whether procedural fairness may require that an opportunity be afforded to an applicant to respond to the gravamen or substance of the prejudicial allegations contained in that information. 37 In order to deal with the Minister's contention it is necessary to carefully consider the statutory framework that is applicable to the circumstances of the present case. 38 Section 424A provides: "(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. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (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. 39 Non-disclosable information, which is defined in s 5, means information: "(a) whose disclosure would, in the Minister's opinion, be contrary to the national interest because it would: (i) prejudice the security, defence or international relations of Australia; or (ii) involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or (b) whose disclosure would, in the Minister's opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or (c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence; and includes any document containing, or any record of, such information or matter." 40 Under the Act non-disclosable information is not required to be provided to a person whose interests are affected by certain visa decisions (see ss 57(1), 66(2)(c), 119(1)(a), 120(1), 129(1)(b), 359A(4)(c), 424A(3)(c)) and is not required to be set out in the reasons for decision to refuse to grant a visa or to cancel a visa (see ss 501C(2), 501G(2)(f)). 41 Section 438 provides: "(1) This section applies to a document or information if: (a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or (b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence. (2) If, in compliance with a requirement of or under the Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary: (a) must notify the Tribunal in writing that this section applies in relation to the document or information; and (b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information. (3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal: (a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and (b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant. (4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information." 42 Finally, s 440 provides: "(1) If the Tribunal is satisfied, in relation to a review, that it is in the public interest that: (a) any evidence given before the Tribunal; or (b) any information given to the Tribunal; or (c) the contents of any document produced to the Tribunal; should not be published or otherwise disclosed, or should not be published or otherwise disclosed except in a particular manner and to particular persons, the Tribunal may give a written direction accordingly. (2) If the Tribunal has given a direction under subsection (1) in relation to the publication of any evidence or information or of the contents of a document, the direction does not: (a) excuse the Tribunal from its obligations under section 430; or (b) prevent a person from communicating to another person a matter contained in the evidence, information or document, if the first-mentioned person has knowledge of the matter otherwise than because of the evidence or the information having been given or the document having been produced to the Tribunal. (3) A person must not contravene a direction given by the Tribunal under subsection (1) that is applicable to the person." 43 It is well established in relation to decisions of the Tribunal made prior to the amendment of the Act on 3 July 2002 that the presence of a provision such as s 424A does not, of itself, exclude the obligation of the Tribunal to accord procedural fairness: see VAAC at [30]. In VAAC a Full Court held that the failure to provide information that was not disclosable by reason of s 424A(3)(a) (but was not "non-disclosable information"), constituted a failure to accord procedural fairness. Thus, the mere fact that the Act does not require that information be provided to an applicant does not lead to the conclusion that the duty to accord procedural fairness does not apply to that information. 44 The Act, however, generally provides that "non-disclosable information" is not required to be disclosed to an applicant. In WAFG at [46] RD Nicholson J stated that it is not a breach of the rules of natural justice if the annexure in question, which his Honour was satisfied constituted non-disclosable information, is not disclosed to a person who would otherwise have been entitled to be provided with that information. However, his Honour was not called upon to consider or deal with the discrete question of whether procedural fairness was required to be accorded in respect of any of the information contained in the annexure. 45 It is far from clear whether the statutory provisions that provide that non-disclosable information need not be disclosed, implicitly, if not explicitly, oust any natural justice or procedural fairness obligations to afford an applicant the opportunity to respond to that information. However, it is well established that, if the rules of natural justice would otherwise be applicable, a clear legislature intent to exclude the rules of natural justice is required: see Miah at 75 [53], 85 [95], 96-98 [139]-[143] and 111-115 [178]-[188]. The statutory provisions referred to above (at [40]) in respect of non-disclosable information, in general, do not require that a decision-maker not provide non-disclosable information or not set out the details of such information in the reasons for decision. Rather, they provide that such information is not required to be provided as part of the statutory scheme that prescribes the circumstances and manner in which certain information, which is not non-disclosable information, is to be provided to a person affected by visa decisions. Significantly, the applicable provisions, other than s 500(6F)(d), do not prohibit the disclosure, directly or indirectly, of that information. Rather, they prescribe the information that must be given to applicants. However, s 500(6F)(d) relates to non-disclosable information which must be disclosed by the Minister to the Administrative Appeals Tribunal, and provides that: "the Tribunal may have regard to that non-disclosable information for the purpose of reviewing the decision, but must not disclose that non-disclosable information to the person making the application." [Emphasis added] 46 Thus, in the one instance in which the legislature clearly intended that non-disclosable information must not to be disclosed to a person affected by a decision under the Act, it expressly stated that it not be disclosed. 47 Further s 438(3), which relates to information that is likely to overlap with and include non-disclosable information, specifically empowers the Tribunal to disclose that information to an applicant in the circumstances there set out, although when the Tribunal does so it is required to give a direction under s 440 prohibiting publication or disclosure of that information. That may be of some relevance in the present case as the "dob-in letter" appears to fall within s 438(1)(b) as a document given in confidence to an officer of the Department, although there is no evidence that the Secretary gave the requisite notice pursuant to s 438(2). Nonetheless, the Minister is claiming that the information in the letter cannot be disclosed because it is confidential information and is therefore non-disclosable information. 48 While I agree with RD Nicholson J in WAFG at [45] that the legislative scheme of the Act is relevant to the content of procedural fairness in relation to non-disclosable information, save possibly for s 500(6F)(d), that scheme does not demonstrate a clear legislative intent to exclude the obligation to accord procedural fairness altogether in respect of such information. In that regard it is significant that the Tribunal may be able to state the gravamen of a particular allegation or information in a confidential communication, or afford an applicant an opportunity to respond to the particular allegation or information, without revealing or compromising any of the information that led to the communication constituting non-disclosable information. In the present case the information provided by the informant could have been revealed in a manner that did not disclose that person's identity or otherwise place that person in peril: cf Kurtovic at 223. 49 There is a further issue for consideration. The requirement to accord procedural fairness in respect of a decision made under a statute is flexible and, even when governed by relevant statutory provisions, can be modified or adapted to the circumstances of the particular case: see Kioa at 615 per Brennan J and 633 per Deane J and Boucher v Australian Securities Commission (1996) 71 FCR 122 at 128-129. It is plainly arguable that the legislature might have intended that the particulars or full details of non-disclosable information should not have to be disclosed to an applicant although, as explained above, that is difficult to accept in respect of information given in confidence which is able to be disclosed to an applicant pursuant to s 438(3)(b). Further, as explained above there may be a significant distinction between information that is not required to be disclosed in the prescribed manner and circumstances (ss 359A and 424A) and information that is not to be disclosed (s 500(6F)(d)). However, in either case it does not follow that the Tribunal is thereby relieved of its obligation to accord procedural fairness in respect of that information. In that regard, as explained above in respect of confidential information, in the usual course the Tribunal will be able to ensure that an applicant is afforded an opportunity of responding to the gravamen of the allegations made without frustrating any legislative purpose in providing for non-disclosable information, as such, not to be disclosed. In the rare case where that is not achievable the issue may arise as to whether the content of procedural fairness has been reduced to nothing (see Johns v Australian Securities Commission (1993) 178 CLR 408 at 472), to the "irreducible minimum" (see Kioa at 615) or whether the information should not be before the decision-maker at all (see Gilson at 9). See also Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 55-57. 50 For the above reasons I have concluded that the Tribunal was under a duty to accord procedural fairness to the applicants in respect of the "dob-in letter". In the context of the statutory scheme (including s 438(3)) and the flexibility of the requirements of procedural fairness the Tribunal may have discharged that duty by disclosing, in an appropriate manner, the gravamen of the relevant prejudicial allegations without revealing the identity of, or otherwise exposing the informant. Alternatively, because the Tribunal decided not to rely on those allegations and there was no overriding consideration of necessity (see Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 299-300), the Tribunal may have discharged its duty by taking the necessary steps to have the matter dealt with by a differently constituted Tribunal which had not seen the letter. As neither course was followed by the Tribunal it failed to accord procedural fairness to the applicants and thereby fell into jurisdictional error: see Aala at 89 [5], 101 [41], 135 [142], 143 [170], and 153 [210]; and S157/2002 at 32 [25], 47 [83]. Confidential information 51 There is an alternative path by which the same conclusion can be reached. The letter was gratuitously provided by the informant to the Department under the heading "To Whom it May Concern" and after providing certain information concluded with the "advice" that the Department keep the "information secret". The "dob-in letter" was only capable of being non-disclosable information to the extent it contained information the disclosure of which would found an action by the informant in equity for breach of confidence (see subpara (c) of the definition of "non-disclosable information" in s 5 of the Act). In Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 in an analogous context, at 443 Gummow J considered the criteria for a case of confidence protected in equity: "It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff: (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; and must also be able to show that (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of that information: Saltman Engineering Co Ltd v Campbell Engineering Co (1948) 65 RPC 203 at 215; [1963] 3 All ER 413n, at 415; The Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39 at 50-51; O'Brien v Komesaroff (1982) 150 CLR 310 at 326-328. It may also be necessary, as Megarry J thought probably was the case (Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 48), and as Mason J (as he then was) accepted in the Fairfax decision was the case (at least for confidences reposed within government), that unauthorised use would be to the detriment of the plaintiff." Although his Honour was in dissent on the outcome in that case the matter on which he differed from the majority is not relevant to the confidentiality issue under consideration in the present case. See also Dart Industries Inc v David Bryar and Associates Pty Ltd (1997) 38 IPR 389 at 405-406. 52 The only information contained in the letter that is capable of meeting the criteria set out by Gummow J is information concerning the identify of the informant. However, as explained above, that is not information that would be required to be disclosed to the applicants in order to accord procedural fairness to them. Thus, the information that was required to be disclosed was not confidential information and therefore was not non-disclosable information as defined in s 5 of the Act. In that regard it is relevant to note that the applicability of subpara (c) of the definition of non-disclosable information in s 5, which concerns confidential information, is not conditioned on the opinion of the Minister or his delegate. Section 440 53 The Tribunal's direction under s 440 is also of no assistance to the Minister. The Tribunal cannot, merely by making such a direction, which is within its discretion, relieve itself of its obligation to accord procedural fairness. Put another way, the lawful exercise of the discretionary power conferred by s 440 is conditioned upon, or must be balanced against, the observance of the requirement to accord procedural fairness. Further, as explained above, ss 438 and 440, when read together, provide for the Tribunal to inform an applicant of the detail of information given in confidence, notwithstanding that that information must otherwise be the subject of a direction against publication or further disclosure under s 440. I doubt that the Secretary's failure to provide the notification required by s 438(2) could have the result that the Court is to ignore that section's role in the statutory scheme. 54 Finally, the Tribunal's exercise of power under s 440 was not intended by it to be balanced against the applicants' entitlement to be accorded procedural fairness. Rather, it regarded its disavowal of reliance upon the letter as sufficient to discharge any duty it might have owed to the applicants in respect of the letter. As explained above I am satisfied that the disavowal did not have that consequence. Conclusion 55 For the above reasons the Tribunal fell into jurisdictional error and its decision is to be set aside and the matter is to be remitted to a differently constituted Tribunal to be determined in accordance with law. Costs should follow the event with the consequence that it is appropriate to order that the Minister pay the applicants' costs of and incidental to the application. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

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