//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[1996] FCA 570
appellant. The Court declared a breach of the rules of natural justice, set aside the Tribunal's decision of 31 March 1994, remitted the matter to the Refugee Review Tribunal to be dealt with in accordance...
The Federal Court (Marshall J) held that the Refugee Review Tribunal denied the applicant natural justice by relying on significant DFAT material (a 6 July 1992 cable and a DFAT report of 17 February 1994) that was not disclosed to the applicant and was not put to him for comment. Because those materials were directly relevant to whether the applicant faced a real chance of persecution on return, the failure to allow him to address them vitiated the Tribunal's decision. The Court set aside the Tribunal decision, remitted the matter for rehearing before a differently constituted Tribunal, and ordered the Minister to pay costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,783 words · generated 18/06/2026
Gurjit Singh, an Indian citizen and Sikh who had been a youthful member of the All India Sikh Students Federation (AISSF), arrived in Australia in May 1992 and sought refugee protection. His initial claim was refused by a delegate and on review the Refugee Review Tribunal (the Tribunal), constituted in this matter by J. Gardner, affirmed that refusal and published reasons on 31 March 1994.
No linked legislation citations have been extracted yet.
The applicant challenged the Tribunal decision in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977. At trial he advanced three grounds, but the principal and successful ground was that the Tribunal breached the rules of natural justice by relying on material that had not been disclosed to him and had not been put to him at the hearing so that he could respond. Specifically, Marshall J identified two items of DFAT material relied upon by the Tribunal which had not been given to the applicant: a DFAT cable dated 6 July 1992 (referred to in the Tribunal's reasons at pp 8-9) and a DFAT report to the Tribunal dated 17 February 1994 (referred to at p 11 of the reasons). Those documents contained passages that bore directly on whether mere membership of AISSF attracted adverse attention and whether an individual who was not an established terrorist or prominent human rights advocate would be at risk of persecution on return.
The Tribunal had sent the applicant a packet of material by letter dated 22 February 1994 and invited comment; most of the material the Tribunal relied upon was in that packet. However the particular passages in the two DFAT documents were not included in the packet and were not put to the applicant at the hearing on 23 March 1994. Marshall J held that by relying upon those passages without putting them to the applicant the Tribunal denied him procedural fairness. The Federal Court set aside the Tribunal's decision, remitted the matter for rehearing before a differently constituted Tribunal and ordered costs for the applicant.
The decision is grounded on core principles of natural justice as applied to administrative decision-making and, in particular, the law governing disclosure and the opportunity to answer adverse material. Marshall J accepted and applied the well-known Kioa v West principle that a person should be alerted to critical issues or adverse material on which the decision is likely to turn so they can address those matters. The Court also adopted Moore J's approach in Xiang Sheng Li that the international nature and significance of refugee determinations requires a high standard of procedural fairness (the Court said it agreed "with respect" with Moore J in Xiang).
Applying those principles, Marshall J treated the key question before the Tribunal, whether the applicant faced a real chance of persecution for a Convention reason on return to India, as one that required the applicant to be given an opportunity to answer any credible, relevant and significant adverse material. The two DFAT passages did precisely that: one stated that mere membership of AISSF would not necessarily bring adverse attention; the other asserted that unless an individual had an established history of terrorist association or a profile as a human rights advocate, the chances of Convention-related difficulties on return would be remote. Because those passages were used adversely by the Tribunal but were never put to the applicant, the Court concluded that the Tribunal had denied procedural fairness.
The Court did not proceed to determine the other grounds the applicant raised, Wednesbury unreasonableness and alleged error in applying Chan Yee Kin, because it was unnecessary after finding the procedural fairness breach. The remedy granted was remittal for rehearing, with the Tribunal to be constituted differently on that rehearing.
Before this decision the controlling authorities on procedural fairness in refugee and immigration settings included Kioa v West (establishing the principle that adverse material should be put to the person affected) and a developing line of authorities recognising that refugee determinations attract a high standard of fairness because of their international and personal significance (as reflected in Xiang Sheng Li and other decisions). Chan Yee Kin also informed the substantive test for refugee status; the applicant raised an argument the Tribunal had misapplied that test, but the Court did not decide that point.
After this decision the position is reinforced in Australian Federal Court jurisprudence that:
Marshall J's ruling is consistent with and expressly follows Xiang on the need for a high standard, and applies Kioa on putting adverse material.
Plain-English: If the Tribunal used important information that hurt the applicant's case, but the applicant never saw that information and was never asked to respond to it, then the Tribunal failed to be fair.
Plain-English: The main question was whether, if sent back, the applicant would probably be persecuted for reasons the Refugee Convention protects him for. Any evidence affecting that question is very important and must be put to the applicant.
Plain-English: DFAT reported that overall violence in the Punjab had reduced and, unless someone was clearly a known terrorist or a known human rights campaigner, they were unlikely to be persecuted on return. Using that statement without giving the applicant a chance to respond was significant and unfair.
Plain-English: DFAT said that just being a member of AISSF would not on its own get someone into trouble with the authorities. The Tribunal relied on that assertion against the applicant, but the applicant never had an opportunity to explain or challenge that point.
This decision is triggered when an administrative decision-making body (particularly a tribunal conducting refugee or protection assessments) relies upon discrete pieces of evidence, intelligence, or report passages that:
Typical triggers include reliance on country intelligence cables, internal agency reports, or third-party summaries that carry conclusions about the applicant's membership of organisations, the general country situation, or the risk profile attached to individuals with given characteristics, where those conclusions are not otherwise in the material provided to the applicant.
If the tribunal uses such material to reach an adverse conclusion without giving the applicant notice and chance to respond, Marshall J indicates the decision will be vulnerable to being set aside for breach of procedural fairness.
Marshall J explicitly followed the approach in Xiang Sheng Li regarding the high standard of procedural fairness in refugee determinations and applied the longstanding Kioa principles. The Court cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang for the proposition that the key question in a refugee determination is whether the applicant has a real chance of persecution on return, thereby linking the procedural fairness duty directly to that pivotal question.
Because the Court remitted rather than substituted a decision on the merits, the ruling functions as a procedural safeguard precedent. Subsequent courts considering similar fact patterns have continued to apply Kioa-type requirements: where material is credible, relevant and significant, an opportunity to respond is required. The decision reinforces a consistent line: the content of country reports and agency cables may be decisive and cannot be used to the applicant's detriment without disclosure and a chance to answer.
Extent of disclosure: The judgment does not set rigid limits on what must be disclosed in every case. It identifies that discrete, adverse passages that materially affect the outcome should be put to the applicant. What qualifies as "discrete" or as sufficiently material will turn on future fact-sensitive enquiries.
Confirmatory material: The Court accepted that some material in the packet served on the applicant was confirmatory of other material, but it drew a line where the new material contained an express, potentially determinative assertion that was not in the packet. How tribunals should treat overlapping or partly confirmatory material (what may be left out as cumulative) requires further refinement.
National security and confidentiality claims: The judgment does not address situations where disclosure might be resisted for confidentiality or security reasons. Future cases will need to reconcile the duty to disclose with legitimate protections for sensitive intelligence, including whether and how summaries or redacted extracts suffice.
Timing and form of disclosure: The Court did not prescribe a specific timing or format for disclosure beyond the general obligation to give opportunity to consider and comment. Whether short notice disclosure in hearings suffices, or whether contemporaneous written disclosure is required, remains to be developed.
Interaction with statutory procedure: Marshall J noted he found no provision in the Migration Act expressly permitting a lesser standard. If future legislation expressly prescribes truncated procedures, the balance between statutory process and common law natural justice will require further delineation.
Practitioners should take from this decision that tribunals must be vigilant about putting to applicants any material that has a real and adverse bearing on the claim. Where such material originates in country reports, DFAT cables or similar, disclosure and an opportunity to respond are essential unless a clear statutory regime or compelling confidentiality reason justifies otherwise.
On 15 August 1990 the applicant and other Sikh students were celebrating the 50th anniversary of "Independence Day" when they were beset upon by police wielding batons. The applicant was amongst approximately 30 students, out of the 100 or so students present when the police came, who were taken away by the police. Those arrested were all members of AISSF. The applicant was released after his father paid a bribe of 5,000 rupees. The police demanded that the applicant resign from AISSF. He wanted to resign but was not able to bring himself to do so as a result of peer pressure from other students. However, he reduced his involvement in AISSF and spent less time at school, attending on merely sufficient occasions to obtain his relevant certificates. Under pressure from his father, the applicant gave up his studies in late 1991 and stayed at home helping with farming duties. The applicant's cousin, Sukjit, was arrested for his involvement in AISSF towards the end of 1990. He was tortured by police and was unable to walk for about three months after his release. Two friends of the applicant, Gurpit and Jatinder, suffered at the hands of police in 1991. Both Sukjit and Jatinder were more active in AISSF affairs than the applicant. From late 1991 until his departure to Australia, the applicant either helped his father on the farm and/or spent time hiding in relatives' homes from the police, although it seems that the police did not make a concerted effort to locate the applicant. APPLICATION FOR REFUGEE STATUS On 19 June 1992 the applicant lodged applications with the first respondent for refugee status and for a Domestic Protection (Temporary) Entry Permit. He was interviewed by Departmental officers on 11 August 1992. On 7 December 1992, his applications were rejected by a delegate of the first respondent. An application for review of the decision of the delegate was lodged with the Refugee Status Review Committee ("RSRC") on 11 January 1993. On 1 July 1993 the Refugee Review Tribunal ("the Tribunal") superseded the RSRC. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang and others ("Wu") (1996) 136 ALR 481, 485.
On 22 February 1994, the Tribunal wrote to the applicant forwarding certain information to him which was relevant to his application before the Tribunal and invited comment upon it should he desire to do so. A hearing took place before the Tribunal, constituted by the second respondent, on 23 March 1994 at which the applicant, his uncle and his grandfather gave evidence. On 31 March 1994 the second respondent published a decision in which he affirmed the decisions of the delegate. COURT PROCEEDING On 26 April 1994 the applicant filed in the Victorian District registry of the Court an application for an order to review the decision of the Tribunal, pursuant to the Administrative Decisions (Judicial Review) Act 1977. Only three grounds of the application were pressed before the Court at trial. They were as follows:- ·. that a breach of the rules of natural justice had occurred in connection with the making of the decision;
·. that the exercise of power by the Tribunal was so unreasonable that no reasonable decision maker could have so exercised the power; and ·. that the decision involved an error of law in that the decision-maker failed to properly apply the test in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 in determining whether or not the applicant was a refugee within the meaning of the Convention relating to the Status of Refugees (Geneva, 28 July 1951). At the outset of the hearing of the proceeding before the Court, the applicant was given leave, by consent, to amend the particulars of his application which related to the topic of natural justice. As originally cast, those particulars provided as follows:- "Following a hearing conducted by the decision-maker on the 23rd of March 1994 the decision-maker had regard to a variety of materials touching upon critical issues, which materials were never indicated to the Applicant, and which materials were adverse to the Applicant's case. See decision-maker's Reasons, 31st of March 1994, p.9, where reference is made to Department of Foreign Affairs and Trade cable 0.ND86328 of 2nd February 1993; p.10, Current Affairs Articles, (i) Punjab Pacified (Far Eastern Economic Review 1.4.93) and (ii) Punjab Picking up the Pieces (India Today, 15.6.93); p.10, US Department of State Country Report for 1991 (Far Eastern Economic Review 1.4.93); p.10, information supplied by Professor Robin Geoffrey, Chairperson of the Politics Department of Latrobe University, Melbourne; p.12, telephone interview with Dr. Oliver Mendellson, Senior Lecturer in the Department of Legal Studies at Latrobe University, 8th November 1993; p.11, D.F.A.T. Report to the Tribunal of the 17th of February 1994." The amendments to the particulars added a reference to "a cable from the Australian High Commission in New Delhi, O.ND84486 of 6 July 1992" referred to at page 8 of the Tribunal's decision and also at page 9 where it is referred to as "advice from DFAT". DFAT is short for the Department of Foreign Affairs and Trade. The 6 July 1992 cable insofar as it was referred to by the Tribunal at page 8 said that:- "The increasingly violent campaigns of Sikh terrorists, including attacks on police and security personnel, assassination of government officials and informers, and mass slayings of Hindus, non-Punjabis and untouchable Sikhs (Ramgarhia or Mazhabi Sikhs) have resulted in a new tough law and order approach. Extra judicial actions by local police, notably torture and 'encounter' killings have been well documented by human rights groups. The disturbing number of civilian killings - 3,300 in 1991 alone - indicates that average Punjabis have reason to fear violence in their State." At page 9 of the decision, the Tribunal quoted the following portion of the cable:-
"The AISSF itself is not a proscribed organisation. Mere membership of or support for the AISSF would not attract any adverse attention of the authorities. The AISSF proper is one voice among many 'mainstream' Sikh political factions, who align and splinter from day to day. Last year the AISSF was given permission by the Punjab administration to hold a unity summit in Amritsar." Counsel for the applicant, Mr Niall, conceded that the applicant had been afforded an opportunity to comment upon the material referred to in the particulars of the natural justice ground apart from the item referred to at page 11 of the Tribunal decision entitled "DFAT Report to the Tribunal of 17 February 1994" and the 6 July 1992 cable. Copies of all the other material were included in the 22 February 1994 correspondence referred to above. During the course of the hearing before the Tribunal, the second respondent asked the following question of the applicant:- "The Tribunal sent to you some information two or three weeks ago about the current situation in the Punjab. That information indicates that the situation has improved very much. Do you have any comments to make about that information?"
The applicant queried whether he should believe that information or contrary information received from his father. Mr McLeish, counsel for the first respondent, contended that the two documents from DFAT which were not included in the 22 February 1994 correspondence, were merely confirmatory of information which was so included. The "information" which was attached to the letter of 22 February 1994 provided as follows:- "Recent reporting from the Australian High Commission in New Delhi indicates that there has been substantial improvement in the overall security situation in the Punjab. For example, the Department of Foreign Affairs and Trade (DFAT) cable 0.ND86328 of 2 February 1993 comments: 'Media observers of the recent Panchayat elections in the Punjab have commented favourably on the changed mood of the state ... Massive police operations have destroyed most of the activists' leadership, curtailed their effectiveness and resulted in the collapse of new recruitment. Fewer insurgents, and fewer police are now being killed. There is a slow return to normalcy of basic institutions, movement of the populace at night, evening operation of cinemas and a proliferation of meat and liquor stalls once more (a section of the militants had launched a strong anti-meat, anti-liquor drive two years ago). Human rights abuses certainly persist on both sides, with human rights groups continuing to question certain 'encounter' killings by the police, or sporadic round-up and brief detention of young Sikh males. The militants still terrorise and detain their opponents, but in recent months have chosen 'soft' targets such as Hindus or low-cast Sikhs rather than the police. With the decline in power of the militants, the human rights situation in Punjab is improving, but State (and Central) government officials' refusal to acknowledge that continued abuses of official power can lead to disaffection indicate that there is still some way to go before the Punjab truly returns to normalcy.' Two current affairs articles, (i) 'Punjab Pacified' (Far Eastern Economic Review 1.4.93) and (ii) 'Punjab: Picking Up the Pieces' (India Today 15.6.93), provide some confirmation of the DFAT information. (i) In 'Punjab Pacified' Hamish McDonald reports that the number of persons killed by militants has declined from over 2,500 in 1991 to about 1,500 in 1992 and less than 30 in January to March 1993. Large numbers of militants have been killed, captured or forced to surrender over this period. The article describes the return to a more normal lifestyle for the inhabitants of the Punjab. It notes that Punjabis are now able to work at night, wear non-traditional clothing and consume alcohol (activities banned by the militants). The article also details the conflicting reports about the reasons for the return to stability. The Indian authorities attribute the decline of militancy to improved police methods, programs to reduce the general population's fear of the police, the return to a democratically elected government and public disillusionment with militant atrocities. However, contrary to the authorities' version, human rights groups and some Sikh politicians allege that massive use of force and widespread human rights violations by the police have been responsible for the return of stability in the State (McDonald 1993: 17, 18). (ii) In 'Punjab: Picking Up the Pieces', Sandhu Kanwar gives an account of the devastating impact of a decade of militant activity on the lives of the population of the Punjab. It refers to the 'decline of terrorism' and states that large numbers of militants have laid down their arms and returned to mainstream life. The article attributes this both to police pressure and to the restoration of an elected government in the State. A new police operation called 'Healing Touch', designed to bring the police and the general population closer together, is cited as an example of the new mood in the Punjab (Sandhu 1993: 46-53).
Further insight may be gained from the outcome of elections in the Punjab. When elections were held in 1991, 23 candidates were killed by militants (U.S. Department of State Country Report for 1991: 1389). In February 1992, when state elections were called to end 6 years of direct rule by the central authorities, the militants ordered a boycott and only 20% of voters took part in voting. In contrast in January 1993, when elections for village councils were held, 82% turned out to vote (Far Eastern Economic Review, 1/4/93: 18). Professor Robin Jeffrey, Chairperson of Politics Department at Latrobe University, Melbourne, was contacted by the Tribunal's Research Desk on 5 November 1993 in regard to the above information. Professor Jeffrey is a scholar of Indian politics and spent several days in Jalandhar, Punjab, in May 1993. Prof. Jeffrey indicated that there continues to be a certain degree of tension in the city: in May there was a continuing need for those who had been targeted by the separatists to receive stringent police protection; and there continue to be occasional reports of heavy-handed police methods against separatists. However, notwithstanding such legacies of the period of strife, Professor Jeffrey noted that life in Jalandhar has largely returned to normal. He indicated that there is dramatic contrast between the present situation in Jalandhar and the situation that prevailed in the recent past. Whereas in September 1992 there was little evidence of movement at night or of robust commercial activity, in May 1993 night-time life had largely returned to normal. Professor Jeffrey confirmed that the improvement in conditions reported by DFAT and the media was reflective of the actual situation. Professor Jeffrey noted that a BBC World Service broadcast on or around November 5 1993 had reported the arrest of the last of the leading separatists, Dr Sohan Singh. He suggested that, whilst there might still be some acts of retribution and revenge rooted to the period of civil strife, it appeared that the curtain may have been brought down on the period of pervasive violence. This intelligence was confirmed by Dr Oliver Mendelsohn, Senior Lecturer in the Department of Legal Studies at Latrobe University, in a telephone interview with the Tribunal's Research Desk on 8 November 1993. Dr Mendelsohn confirmed that the journalistic reports of an improved situation in the Punjab were reflective of a dramatic improvement in the actual situation in the State. He agreed with Professor Jeffrey's assessment of the situation."
At page 11 of the Tribunal's decision, the DFAT report of 17 February 1994 is referred to. A passage of the report, which quotes a part of a report from the High Commissioner of 10 January 1994 following a meeting with the Chief of Police in the Punjab, provides as follows:- "Virtually all parties - official/media/NGO would agree that the level of general unrest in the Punjab is much reduced ... a prominent human rights activist ... also suggested in relation to asylum claimants generally, that unless an individual had some established history of terrorist association or an established profile as a human rights advocate the chances of he/she facing Convention related difficulties on return would be remote." (emphasis supplied) It is difficult to accept that the highlighted portion of the DFAT report of 17 February 1994 is confirmatory of the information sent to the applicant on 22 February 1994. The highlighted portion of the report is material upon which the applicant was not given an opportunity to address the Tribunal. It was never squarely put to him that his chances of being persecuted on return to India would be remote because he was not a human rights advocate or a terrorist.
Similarly, the material contained in the DFAT cable of 6 July 1992 contained, at page 9 of the Tribunal's decision, is not confirmatory of any material provided to the applicant prior to the hearing before the Tribunal. The relevant portion of the cable asserts that membership in AISSF would not attract adverse attention from the authorities. This allegation was never put to the applicant. However, the Tribunal relied upon it to determine the matters before it adversely to him. At pages 8-9 of the decision it said:- "Membership of the AISSF by itself did not and would not lead to further police action. In concluding this, the Tribunal has taken into account advice from DFAT in cable ND84486 of 6/7/92 ..." THE NATURAL JUSTICE (PROCEDURAL FAIRNESS) ISSUE It was common ground that in exercising its powers pursuant to the Migration Act 1958 and the Migration (Review) Regulations, the Tribunal was obliged to observe the rules of natural justice and procedural fairness. In Xiang Sheng Li v Refugee Review Tribunal and Another ("Xiang") (1994) 36 ALD 273, 285-286, Moore J said as follows:-
"In Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225, Drummond J said, in relation to the determination of whether a person is a refugee: The international aspect of such a determination, combined with its significance for the individual concerned requires that a high standard of procedural fairness be observed in the determination process: see Zhang De Yong v Minister for Immigration, Local Government and Ethic Affairs (1993) 118 ALR 165 at 190. Whilst those remarks were made in relation to a determination by a delegate of the minister and not the tribunal, they remain apt, in my opinion, to a consideration of an applicant's status by the tribunal, though that standard of procedural fairness must yield to any legislative provisions regulating the procedures of the tribunal that expressly permit of a lesser standard." I agree, with respect, with the approach of Moore J in Xiang. Moreover, I am unable to find any provision in the Migration Act 1958 expressly permitting a lesser standard of procedural fairness. In not affording the applicant an opportunity to consider and comment upon highly relevant material which was adverse to his interests, the Tribunal did not accord him procedural fairness. A critical issue relied upon by the Tribunal, that "mere" membership of AISSF would not necessarily attract adverse consequences, was not a matter upon which he was invited to comment. Further, a critical factor taken into account by the Tribunal, that the applicant was not a prominent human rights advocate or a terrorist and consequently would not be persecuted on return to the Punjab, was not a matter upon which he was invited to comment. See Kioa v West ("Kioa") (1985) 159 CLR 550 at 587 per Mason J where his Honour said: "... recent decisions illustrate the importance which the law attaches to the need to bring a person's attention, the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it." Further as Brennan J said in Kioa at 629:- "... in the ordinary case ... an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made." The critical issue before the Tribunal was whether the applicant had a real chance of persecution on return to his homeland for a Convention stipulated reason. See Wu at 484. The highlighted portion of the 17 February 1994 report and the portion of the DFAT cable of 6 July 1992 contained at page 9 of the reasons of the Tribunal each bear directly on that critical issue. In the circumstances, I find that the applicant was denied procedural fairness. OTHER ISSUES Having regard to the views of the Court on the question of denial of natural justice or procedural fairness, it is not necessary, and perhaps inappropriate, to deal with the other two issues pressed by the applicant and set out above, as the applicant's claim for refugee status will be pressed before the Tribunal. ORDERS It is appropriate to order that the decision of the Tribunal be set aside and that the matter be remitted to it to be dealt with in accordance with law. It is also appropriate to order that the Tribunal be differently constituted in its further dealing with the applicant's claims. The Court also orders that the first respondent pay the costs of the applicant to be fixed by the District Registrar.
I certify that this and the preceding 15 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall. Associate: Date: 5 July 1996 Counsel for the Applicant: R. Niall Solicitor for the Applicant: Baker and Armstrong Counsel for the First Respondent: S. McLeish Solicitor for the First Respondent:Australian Government Solicitor The Second Respondent agreed to abide by the order of the Court Date of hearing: 26 June 1996 Date of judgment: 5 July 1996
Chan Yee Kin
Minister for Immigration and Ethnic Affairs
(1989) 169 CLR 379
(1985) 159 CLR 550
(1996) 136 ALR 481
(1993) 118 ALR 165
The Court declared a breach of the rules of natural justice, set aside the Tribunal's decision of 31 March 1994, remitted the matter to the Refugee Review Tribunal to be dealt with in accordance with law, ordered the Tribunal be differently constituted on remittal, and ordered the Minister to pay the applicant's costs.