Minister for Immigration & Multicultural Affairs v Al Shamry

The airport interview. 6 It appears that, on his arrival in Australia, the respondent was interviewed by an officer of the Department of Immigration and Multicultural Affairs ("the Department"). The transcript of that interview was not in evidence before the Court. However, its effect and the use made of it were summarised by the Tribunal in this passage from its reasons, which was reproduced by the learned primary Judge; "As he stated in his airport interviewand in his protection visa application, the applicant was in the army until August 1990 - when he took a job as a journalist - not 28 June 1993. That is, he was already out of the army by August 1990. … The applicant stated in his airport interviewthat he was released from jail on 13 June 1993 after two years in jail. In his protection visa application, he stated he was released on the morning of 25 June 1993. There was no suggestion in the applicant's evidence that he was re-arrested and re-imprisoned in 1994 such that he could have received a second round of visits from the Red Cross on 4 and 11 April 1994, as indicated by the Red Cross certificate. … According to the independent country information, the Kuwaitis take a pragmatic approach to the bidoon problem which basically means that if they don't cause any problems, they are left alone but if bidoons do get caught at check points, they may be held for short periods ranging from hours to a day or two but they are almost always released… Even if the applicant was detained in 1994 and 1995, as he claimed, it did not have any lasting or seriously adverse consequences. The applicant continued in his employment as a journalist and rose to the position of being an editor of Seouff Magazine. … The applicant however, was not arrested in June or July or August 1998. On the contrary, according to the information in his protection visa application, he was released in June 1998 after having served a term in jail of eight months beginning in November 1997 and was not arrested again until 1 January 1999 when he was taken to the police station, detained for one month, and made to sign a document about his identity. On the other hand, in his airport interview, the applicant claimed that the last time he was arrested was in 1998 after somebody outside of Kuwait wrote an article about the tragedy of bidoons." 7 His Honour went on to make these observations about the airport interview; "It was not in dispute between the parties that the existence and relevance of the airport interview was not raised with the applicant at or before the hearing before the Tribunal. Nor was it in dispute that the airport interview was "information" for the purposes of s 424A. It is claimed by the applicant that this amounted to a breach of the Tribunal's obligation under s 424A(1) to inform the applicant that it would be relying on the information contained in the airport interview, to ensure that the applicant understood why that information was relevant, and to invite the applicant to comment on it. However, counsel for the respondent argued that the applicant's complaint was overcome by the operation of s 424A(3)(b) which provides that the section does not apply to information that "the applicant gave for the purpose of the application"." 8 As perceived by the learned primary Judge, the question for his determination in relation to the airport interview was whether that interview constituted "information" for the purposes of the application within the meaning of s 424A of the Act, which 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 invitation must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention. (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 persons is a member; or (b) that the applicant gave for the purpose of the application; or that is non-disclosable information." 9 One of the controversies which had to be resolved at first instance was whether the application referred to in s 424A(3)(b) is the application before the Tribunal or the original application for the issue of a visa. His Honour resolved that question by ruling; "It appears that s 424A intends, for the sake of fairness and efficiency in decision-making and for the associated purpose of administrative completeness, that applicants be provided with all of the information relevant to their claim that they have not themselves provided in connection with the current review application before the Tribunal. The manifestly beneficial purpose of the legislation in question, enacted to meet Australia's obligations under the Convention, supports this construction of s 424A. As counsel for the applicant submitted, in many cases an applicant, upon arrival at the airport, will be in a foreign country, unable to speak English and without a passport. The degree of distress that such circumstances may engender, frequently compounded by tiredness after a long journey, suggests an imputable Parliamentary appreciation that a supposed record of information given under these circumstances ought fairly be provided to an applicant before it is held against him or her. In this case, for example, the applicant appears, from an ambiguity in the immigration officer's report, to have laboured under some confusion upon arrival as to whether he sought a visa on "humanitarian grounds" or as a refugee. In any case, the airport interview cannot in my opinion be classed as information that the applicant provided "for the purpose of" his visa application. At the time the applicant was interviewed, he had not made any such application. The interview was conducted as a matter of departmental policy to detect illegal immigrants. It could hardly be presumed that the applicant would be aware of the information attributed to him in the interrogation, weeks later when he actually made his visa application. For these reasons s 424A(3)(b) does not apply to the airport interview. The failure of the Tribunal to provide the applicant with a copy of it therefore amounts to a failure to observe a procedure required by the Act. Because of the centrality of s 424A to the actual decision-making process of the Tribunal and the fact that the Tribunal based its decision in part on information used by it in contravention of the procedure required by s 424A, it could in my view prima facie be said that a "[procedure] … required by this Act … to be observed in connection with the making of the decision [was] not observed" within the meaning of s 476(1)(a) and is therefore reviewable. The question of whether the decision was made for another reason, independently of this legal error, is considered below."

The Red Cross Certificate. 10 The Red Cross Certificate and the facts surrounding its provision to the Tribunal have been fully described in the reasons for judgment of Merkel J, which we have had the advantage of reading in draft. His Honour has also set out at [57] of his reasons that part of the Tribunal's findings which called into question the authenticity of the Red Cross Certificate. 11 The learned primary Judge noted that the respondent had first complained before him that the Tribunal's reasons, as required by s 430(1)(b) of the Act, for rejecting the genuineness of the Red Cross Certificate were inadequate. His Honour regarded that complaint as misconceived because, his Honour observed, in the third sentence of the extract from its reasons which Merkel J has quoted in [57] below, the Tribunal had given a reason for rejecting the Certificate, namely, that the Certificate was inconsistent with the respondent's evidence that he had been released in June 1993 and with the absence of any suggestion by him that he had been in gaol at any time in 1994. Although his Honour regarded that reasoning as curious because of the Tribunal's earlier express refusal to accept that Mr Al Shamry had been imprisoned for two years between June 1991 and June 1993, he appears to have accepted that, in this respect, the Tribunal had complied with s 430. His Honour characterised this part of the respondent's case as "not a complaint about non-observance of a s 430 procedure, but a suggestion that the Tribunal has exercised its powers, as to this matter, so unreasonably that no reasonable person could have so exercised the power. In this Court, that is not a ground for judicial review: s 476(2)(b)." 12 The second formulation of the respondent's complaint at first instance about the Tribunal's treatment of the Red Cross Certificate was that it had failed to exercise any of the powers variously conferred on it by s 424(1), s 424(2), s 427(1)(d) or s 427(3)(a) of the Act for the purpose of investigating the genuineness of the Certificate. In that context, the learned primary Judge agreed with the submission on behalf of the respondent that it was to be inferred from the Tribunal's silence as to why none of those investigative avenues had been pursued that the Tribunal gave no consideration "to whether any such clarificatory exercise of its information-gathering powers was necessary". That, his Honour considered, was, in the circumstances, a breach of the Tribunal's duty under the Act. 13 To support that conclusion, his Honour referred to Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 289, Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 and Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553 at 561, where the circumstances in which the Tribunal might be under a duty to exercise its investigative powers have been discussed. He then concluded; "Although the actual reasoning given by their Honours to support this conclusion, namely reliance on the s 420 obligation to act according to substantial justice, must be regarded as at least questionable after Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 61, there is no reason, having regard to the other authorities referred to, to doubt the validity of the conclusion itself." 14 The conclusion to which his Honour referred was, it seems, that reached by Foster J in Yao-Jing, that, where circumstances so dictate, the Tribunal is under an obligation, on pain of being guilty of reviewable error, to consider whether to obtain further evidence for the conduct of the review. The circumstances in the present case which the primary Judge thought did dictate that the Tribunal should consider the use of its further investigative powers, were noted as including those set out by Merkel J at [59] of his reasons.

The reasoning of the primary Judge. 15 It was also alleged that the Tribunal did not set out its findings as to the applicant's credibility, which, it was claimed, was a material question of fact. His Honour gave effect to the combined effect of the respondent applicant's contentions, saying, at par [40]: of his reasons: Thus it was the combined effect of the problems that the Tribunal had with the applicant's credibility and the independent evidence that influenced its ultimate decision on the bidoon issues. Given the importance of the applicant's credibility to the Tribunal's decision and the use made of the airport interview and the Red Cross Certificate to impugn the applicant's credit, in my opinion, neither the airport interview, wrongfully not given to the applicant, nor the rejection of the Red Cross Certificate, wrongfully undertaken without consideration of the use of investigatory powers to clear the matter up, can confidently be said not to have played a part in the Tribunal's decision. 16 The appellant Minister for Immigration and Multicultural Affairs ("the Minister") appeals from the decision of Madgwick J on essentially two grounds. The first is that the learned primary Judge erred in holding that the Tribunal was required by s 424A(1) of the Act or by its obligation to observe required procedures to have provided the respondent with the information constituted by the airport interview. The second ground advanced on behalf of the Minister was, in essence, that the learned primary Judge had erred in finding that the Tribunal should have accepted the authenticity of the Red Cross Certificate in the absence of further enquiry under s 424(1) and in finding that the failure to consider the making of such further enquiry was a reviewable error under s 476(1) or otherwise a material error in relation to the decision. Related to that second ground was the contention set out in ground 4 of the Minister's notice of appeal that; "The learned trial judge erred in failing to hold that; (1) absent an actual or constructive failure to exercise jurisdiction with respect to the application for review, there was no duty to enquire; (2) there was no failure to exercise jurisdiction in the circumstances of the case; and (3) the accuracy or otherwise of the Red Cross certificate, concerning a possible period of imprisonment in 1994, was not material, in the circumstances, to the satisfaction of the Tribunal that the Respondent did not have a well-founded fear of persecution, as a bidoon, if he were to be returned to Kuwait."

The application of s 424A to the airport interview. 17 Counsel for the Minister accepted that a failure to observe the procedure laid down by s 424A is a reviewable error under s 476(1)(a). It was also accepted that where there is information of the kind described in s 424A(1)(a) particulars of that information must be given to the applicant for the purpose of obtaining his or her comments. However, it was said that the information constituted by the airport interview came within the exception created by s 424A(3)(b) in respect of information given by the applicant for the purpose of the application. "Application" in that context, was said to mean "all information given by the applicant to officials in the Department (including that provided to the Tribunal) for the purpose of determining whether to grant a protection visa to the applicant." We disagree. In our view, "applicant" wherever appearing in s 424A means "applicant for review by the Tribunal of a Ministerial decision" and "application" correspondingly means the proceeding before the Tribunal which is the vehicle for such a claim for review. 18 Section 424A(3)(b) finds its place in Div 4 of Pt 7 of the Act. That Division, as its heading indicates, is concerned with the conduct of a review. Accordingly, s 423, which is the first section in the Division, commences with the words "An Applicant for review by the Tribunal may give the Registrar ......". All subsequent references in the Division are to "the applicant" or "an applicant" which must, we consider, be taken to be shorthand expressions for "applicant for review by the Tribunal" as first appearing in the Division in s 423. Moreover, the word "application" appears alone only once in Div 4 of Pt 7 in s 424A(3)(b) in close conjunction with "the applicant". Consistency, therefore, demands that "application" where there appearing be taken to mean "application for review by the Tribunal" which is the full expression used in s 429 where "application" occurs for only the second time in Div 4. This construction is also consistent with Div 5 of Pt 7 which is concerned with decisions of the Tribunal and refers in s 430A(1)(b) and s 430B(1)(b) to "a decision on the application of a person who is in immigration detention", and in s 430D(1) to "an oral decision on an application for review". 19 In certain contexts, the word "application" is inherently ambiguous. As Hill J observed in Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352 at 365; "Also, it is clear that s 54 is referring to an application form when it uses the word "application". However, ss 45 and 46 use the word "application" or "apply" not to refer to an application form, but to refer to the process of application, notwithstanding that the process involves completion of an application form." 20 If, contrary to the view which we have derived from the context of Divs 4 and 5 of Pt 7 of the Act, there is any ambiguity in the expression as used in s 424A(3)(b), it should be resolved against the Tribunal since sub-s (3) operates to relieve the Tribunal from affirmative obligations imposed by s 424A(1) for the benefit of the applicant. Consistently with established principles, a construction should be adopted which preserves, rather than diminishes, that benefit. As well, we agree with Merkel J, for the reasons which he has explained, that a purposive approach to s 424A supports the interpretation favoured by the learned primary Judge. 21 We also agree, for the reasons given by Merkel J, that the appellant has not shown that Madgwick J, having found that a procedure required by the Act had not been observed, had erred in his discretionary assessment, pursuant to s 481(1) of the Act, of the effects of that omission. This conclusion makes it unnecessary to consider whether the Tribunal had been guilty of a further, independent, error of law or procedural omission in relation to the Red Cross Certificate. 22 We would dismiss the appeal with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan and Conti.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

MERKEL J: 23 The present appeal concerns the nature and extent of the obligation of the Refugee Review Tribunal ("the RRT") under s 424A of the Migration Act 1958 (Cth) ("the Act") to afford an opportunity to an applicant for a protection visa to deal with information adverse to the applicant's interests. 24 The appellant ("the Minister") has appealed from the decision of the primary judge, Madgwick J, setting aside a decision of the RRT, inter alia, on the ground that it failed to inform the respondent, Mr Abdulaziz Al Shamry, of information adverse to his interests and to afford him an opportunity to deal with that information. The decision of the RRT set aside by the primary judge affirmed a decision of the delegate of the Minister to refuse to grant a protection visa to the respondent. 25 The respondent, a former resident of Kuwait, is classified in Kuwait as a "Bidoon". Bidoons are a group of about 120,000 people who reside in Kuwait but have no recognised citizenship in that country. The RRT found that Kuwaiti Bidoons are "stateless and harshly treated". The respondent claimed that he has a well founded fear of being persecuted as a Bidoon if he returned to Kuwait. 26 The Minister's appeal is on two grounds. The first ground was that his Honour erred in concluding that the RRT was required by s 424A of the Act to provide the respondent with a copy of the record of an interview between the respondent and an officer of the Department of Immigration and Multicultural Affairs at the airport upon the respondent's arrival in Australia. The second ground was that the primary Judge erred in concluding that the RRT should not have rejected the Red Cross certificate provided by the respondent to the RRT without having considered whether to exercise its power to obtain information in relation to its authenticity. 27 The respondent arrived in Australia at Sydney Airport on 14 June 1999. He was immediately detained and interviewed by an officer of the Department ("the airport interview"). He lodged an application for a protection visa on 25 June 1999. After the application was refused by a delegate for the Minister the respondent applied to have the delegate's decision reviewed by the RRT. The RRT's reasons for its decision to affirm the delegate's decision run to forty two pages. 28 The Minister's submissions on the appeal summarised the factual background to the issues arising on the appeal as follows: "2. The applicant claimed, and the Tribunal found, that he was born, educated and worked in Kuwait, which was his country of former habitual residence. However, as a 'Bidoon', he was not a citizen. His claims of persecution derived from his status as a bidoon and his marriage to an Iraqi woman (with whom he had lost contact in 1990). The RRT extracted extensive independent country information on the position of Bidoons. 3. In large measure, the Tribunal disbelieved the applicant's claims of persecution. In particular, the Tribunal found that contrary to what he claimed: (a) he did not have a genuine fear of returning to Kuwait; (b) he was not unable to register for an ID card (which gave residency, work, free education and health care rights); (c) he was not imprisoned: (i) for 2 years between 1991 and 1993 because his wife was an Iraqi, (ii) for a month after he interviewed the daughter of Kuwat's most famous poet, or (iii) for eight months in 1998, although the Tribunal accepted that he might have been questioned and detained for some periods, as an ordinary incident of security measures following the Iraqi invasion, which detention did have any lasting or seriously adverse consequences; and (d) he had not departed Kuwait using a false passport. 4. The Tribunal's findings were principally based upon: (a) direct inconsistencies between the claims made by the applicant in an interview given on arrival at Sydney Airport, in his protection visa application, in his oral evidence and in written submissions filed after the hearing on his behalf; (b) inconsistencies between the applicant's claims and the independent information about Kuwait; (c) the applicant's failure to leave Kuwait until 1999, notwithstanding that he claimed that he had been considering leaving since 1984; and (d) the applicant's failure to apply for refugee status in Fiji and Thailand prior to his arrival in Australia (where he had stayed for 15 and 20 days respectively). 5. In support of his application, but after the hearing before the Tribunal, the applicant forwarded a document purporting to be a certificate from the International Committee of the Red Cross stating that he had been visited by the Red Cross in the National Security Office in Kuwait in February and March 1993, and on two occasions in April 1994. This was inconsistent with the applicant's own evidence, namely, that he was not in detention in 1994. The Tribunal found that the certificate was not genuine. 6. Only two aspects of the Tribunal's reasoning were challenged in the court below. First, it was said that the Tribunal had erred in not giving the applicant an opportunity to comment on statements which the applicant had made to a department officer when he arrived in Australia. Secondly, it was said that the Tribunal erred in failing to consider whether to exercise its powers under ss 424 and 427 to seek to obtain more information concerning the Red Cross certificate. 7. The court below accepted both of those submissions, and set aside the decision." 29 An application for review of the delegate's decision is required to be made in accordance with s 412. Section 423 provides for the applicant for review to give to the Registrar of the RRT certain documents and written arguments relevant to the review. Under s 424 the RRT may seek additional information, including information from the applicant for review. Section 424A relevantly provides: "(1) Subject to subsection (3), the Tribunal must: (d) 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 (e) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (f) invite the applicant to comment on it. (4) The invitation must be given to the applicant by one of the methods specified in section 441A. However, the subsection does not apply if the applicant is in immigration detention. (5) This section does not apply to information: (c) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other persons is a member; or (d) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information." 30 Section 441A requires that an invitation under s 424A(1)(c) be in writing and be provided to the applicant. While s 424B provides for an applicant's response to an invitation to be given in a number of ways, surprisingly s 424A makes no provision for the invitation itself to be given to an applicant in the course of his or her appearance before the RRT pursuant to s 425. While nothing turns on that matter in the present case, it is a further example of the highly prescriptive nature of the legislative provisions dealing with applications for visas and the review of decisions to refuse to grant them. 31 The RRT found inconsistencies between statements made in the airport interview and subsequent statements made by the respondent at different times. These inconsistencies were held to undermine the credibility of his claims to have been imprisoned and mistreated by the authorities in Kuwait. The primary judge made the following observations at [15] about the airport interview: "It was not in dispute between the parties that the existence and relevance of the airport interview was not raised with the applicant at or before the hearing before the Tribunal. Nor was it in dispute that the airport interview was "information" for the purposes of s 424A. It is claimed by the applicant that this amounted to a breach of the Tribunal's obligation under s 424A(1) to inform the applicant that it would be relying on the information contained in the airport interview, to ensure that the applicant understood why that information was relevant, and to invite the applicant to comment on it. However, counsel for the respondent argued that the applicant's complaint was overcome by the operation of s 424A(3)(b) which provides that the section does not apply to information that "the applicant gave for the purpose of the application"." 32 The Minister accepted that the RRT relied upon information obtained in the airport interview in deciding to affirm the decision under review. The Minister also accepted that a failure to observe the procedure laid down by s 424A is a reviewable error under s 476(1)(a), but claimed that, on the proper construction of s 424A, the airport interview fell within s 424A(3)(b), which does not require disclosure of information given by the applicant to officials in the Department for the purpose of determining whether to grant a protection visa to the applicant. The primary judge, in resolving that question in favour of the respondent, stated at [27]-[30]: "It appears that s 424A intends, for the sake of fairness and efficiency in decision-making and for the associated purpose of administrative completeness, that applicants be provided with all of the information relevant to their claim that they have not themselves provided in connection with the current review application before the Tribunal. The manifestly beneficial purpose of the legislation in question, enacted to meet Australia's obligations under the Convention, supports this construction of s 424A. As counsel for the applicant submitted, in many cases an applicant, upon arrival at the airport, will be in a foreign country, unable to speak English and without a passport. The degree of distress that such circumstances may engender, frequently compounded by tiredness after a long journey, suggests an imputable Parliamentary appreciation that a supposed record of information given under these circumstances ought fairly be provided to an applicant before it is held against him or her. In this case, for example, the applicant appears, from an ambiguity in the immigration officer's report, to have laboured under some confusion upon arrival as to whether he sought a visa on "humanitarian grounds" or as a refugee. In any case, the airport interview cannot in my opinion be classed as information that the applicant provided "for the purpose of" his visa application. At the time the applicant was interviewed, he had not made any such application. The interview was conducted as a matter of departmental policy to detect illegal immigrants. It could hardly be presumed that the applicant would be aware of the information attributed to him in the interrogation, weeks later when he actually made his visa application. For these reasons s 424A(3)(b) does not apply to the airport interview. The failure of the Tribunal to provide the applicant with a copy of it therefore amounts to a failure to observe a procedure required by the Act. Because of the centrality of s 424A to the actual decision-making process of the Tribunal and the fact that the Tribunal based its decision in part on information used by it in contravention of the procedure required by s 424A, it could in my view prima facie be said that a "[procedure] … required by this Act … to be observed in connection with the making of the decision [was] not observed" within the meaning of s 476(1)(a) and is therefore reviewable." 33 His Honour concluded that, as it could not confidently be said that the information contained in the airport interview played no part in the RRT's decision, the ground of review based upon s 424A was made out. 34 At the time of the airport interview the respondent had not made an application for a protection visa. The primary judge found that the interview was conducted by a departmental officer "as a matter of departmental policy to detect illegal immigrants". In the interview the respondent appears to have been responding to questions asked of him by a departmental officer. There is no evidence of any purpose on the respondent's part of providing the officer with information for the purpose of an application for a protection visa by the respondent. Furthermore, the information constituting the interview was the Department's record of the interview, which does not appear to have been confirmed as accurate by the respondent. In these circumstances I am not satisfied that the "information" constituted by the airport interview was information given by the respondent for the purpose of an application by him for a protection visa. Thus, even if the Minister's construction of s 424A were correct, the exception in s 424A(3)(b) would not apply to the airport interview. 35 In any event, I agree with the primary judge and with Ryan and Conti JJ (at [17] - [20] above) that "the application" referred to in s 424A(3)(b) is the application for review and not the application for a protection visa. The legislature has been prescriptive about the steps required to be taken in respect of applications for a visa and applications for the review of decisions refusing a visa. An application for a protection visa is required to be made and dealt with in accordance with the requirements of the Act and the Migration Regulations (Pt 2 Div 3 Subdiv AA and AB; ss 45-64). If the application is refused the applicant may apply for a review of the decision to refuse the visa (s 412). The procedures that are required to be followed by the RRT in respect of an application for review of the decision of the Minister, or his delegate, refusing a protection visa are dealt with in Pt 7, Div 4; ss 423-429A. In that context the reference in s 424A(3)(b) to the information "that the applicant gave for the purpose of the application" appears to be a reference to the information given by the "applicant" for review for the purpose of the "application" for review. 36 The meaning I would give the words in question accords with their ordinary and natural meaning having regard to the particular context in which s 424A is to operate. The relevant sections are all within Pt 7 of the Act, which deals with the review of protection visa decisions and, in particular, are within Div 4 of that Part, which deals with the conduct of the review. Part 7 is not concerned with, and contains no reference to, the original application for a protection visa made under s 45 of the Act. Although the application for the protection visa may loosely be described as forming part of the subject matter of the review, it is more accurate to describe the subject matter of the review as the decision of the Minister, or his delegate, to refuse to grant the visa in question. The Minister's contentions are not assisted by s 57, which is the counterpart to s 424A in respect of procedures required to be followed by the Minister, or his delegate, in relation to the decision to grant or refuse to grant a visa applied for pursuant to ss 45-47 of the Act. Thus, there is little, if any, contextual support for the Minister's construction of s 424A(3)(b). 37 Furthermore, s 423(1)(a) provides for an applicant for review to provide to the Registrar of the RRT "a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider;". The applicant may be invited to provide further material in the course of the review: see for example, s 424(3). The exception in s 424A(3)(b) appears to be intended to serve the purpose of exempting information provided by an applicant pursuant to s 423(1)(a), as well as any other additional information provided by an applicant for the purpose of the application for review. 38 I agree with the primary judge that the construction he favoured is also consistent with a purposive approach to s 424A. In Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301 ("Carlos") at [21] I considered the operation of s 424A: "21. The operation of s 424A of the Act, which is the counterpart of s 359A in relation to the Refugee Review Tribunal ("the RRT"), has [been] considered in a number of cases. The following propositions can be taken to have been established: · the obligation to provide the information in question is enlivened when the Tribunal forms the view that there is knowledge communicated about some fact or circumstance that is material to the review and is adverse to the applicant: see Naing v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 336 at [32], Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548 at [58]-[59]; Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [52]-[54], Bhasani v Minister for Immigration and Multicultural Affairs [2000] FCA 1773 at [8]-[9]; · if information adverse to an applicant is relied upon in the reasons of the Tribunal, a failure to have complied with the statutory requirements in respect of that information will found a ground of review: see Naing at [33]; · untested assertions communicated to, or received by, the Tribunal can constitute information irrespective of whether the information received is reliable or has a sound factual basis; thus, the section can apply when the Tribunal has received information "regardless of its source" if it considers the information would be a reason or part of the reason for affirming the delegate's decision: see Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 at [18]-[20]; · the section is concerned with information of which the Tribunal becomes aware, rather than with its subjective decision making process: see Tin at [54]." 39 Section 424A does not require the RRT to provide to an applicant all of the information upon which it proposes to act, other than information provided by an applicant for the purpose of the review. Rather, the section requires the RRT to provide the applicant with "particulars of any information" that the RRT considers would form part of its reason for refusing the application for review, to explain to the applicant why that information is relevant to the review and to invite a response to it. Thus, s 424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise: see Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah (2001) 179 ALR 238 at 269 per McHugh J. By enacting s 424A and its counterparts elsewhere in the Act, the legislature has accepted that fairness dictates that an opportunity must be provided to applicants for visas or for review to respond to, or deal with, the adverse information. 40 An applicant for a protection visa will have provided information relevant to the outcome of the application prior to applying for the review of a delegate's decision. Such information may, in some cases, have been provided prior to the application for a visa. The prescribed application form requires that the basis for the application be stated. Further, the information given may be supplemented by information provided subsequently to the Department or to the delegate of the Minister. An applicant may have no record of the information provided but, more importantly, may not be aware of its significance to the review ultimately to be conducted by the RRT. It is therefore understandable that the legislature would require that, in fairness, any adverse information provided prior to review, the significance of which the applicant may be unaware, be disclosed to the applicant to enable him or her to respond to it. That approach has particular importance in the context of the inquisitional and non-adversarial nature of proceedings before the RRT: see Paramanathan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 62-63. 41 For the above reasons the construction the primary judge and I regard as correct gives effect to the beneficial purpose of s 424A of affording an applicant with the opportunity to respond to the gravamen or substance of any adverse information upon which the RRT proposes to act, the significance of which the applicant may be unaware. It is consistent with that purpose to take a narrow, rather than a broad, view of the exceptions in s 424A(3). 42 Accordingly, the primary judge was correct in concluding that the ground of review under s 476(1)(a) was made out. It does not follow, however, that the Minister's appeal on this ground must fail. Even if a ground of review is made out the grant of relief under s 481(1) is discretionary. It is a proper exercise of the discretion conferred by s 481(1) to decline to grant relief if the RRT's findings of fact lead to the conclusion that the applicant would have failed in any event: see Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213 and Minister for Immigration and Multicultural Affairs v X [2001] FCA 858 at [28]-[29]. Further, the procedural breach of failing to comply with s 424A is analogous to a breach of the rules of natural justice. In such cases the applicant for relief may be required to establish that the breach denied him or her the possibility of a successful outcome: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Giretti v Commissioner of Taxation (1996) 70 FCR 151 at 164-166; Abriel v Australian Guarantee Corporation [2001] FCA 165 at [18] and Carlos at [59]. 43 Applying these principles to the present case, it is appropriate to consider whether the RRT's failure to comply with s 424A denied the respondent the possibility of a successful outcome. 44 Statements in the airport interview were relied upon by the RRT in making adverse findings in relation to the respondent's credit. Those findings constituted a substantial reason for the RRT's rejection of the respondent's claim to have a well-founded fear of persecution as a Bidoon if he were to return to Kuwait. The RRT concluded: "In view of my problems with the applicant's credibility and the changed circumstances prevailing in Kuwait regarding the status of the bidoons, I am not satisfied the applicant has a well founded fear of persecution". [Emphasis added] 45 The Minister contended that the information provided in the airport interview did not affect the outcome of the review. In particular, it was said that part of the information contained in the interview was also provided by the applicant in his application for a protection visa or in the course of the review and, to the extent information was not so provided, it did not form an essential or significant part of the RRT's reasons for affirming the decision under review. In view of my construction of s 424A(3)(b) it would be no answer to a breach of s 424A to say the information was also provided in the application for a protection visa. I need not pursue this aspect further as I have concluded that the RRT's reliance upon the airport interview is sufficient to warrant the grant of relief. I will briefly explain my reasons for that conclusion. 46 The RRT made several references to information contained in the airport interview in its decision. At the beginning of its reasons it set out details of the interview under a discrete heading in its summary of "Claims and Evidence". In its reasons, the RRT referred to the interview as follows: "As he stated in his airport interviewand in his protection visa application, the applicant was in the army until August 1990 - when he took a job as a journalist - not 28 June 1993. That is, he was already out of the army by August 1990. … The applicant stated in his airport interviewthat he was released from jail on 13 June 1993 after two years in jail. In his protection visa application, he stated he was released on the morning of 25 June 1993. There was no suggestion in the applicant's evidence that he was re-arrested and re-imprisoned in 1994 such that he could have received a second round of visits from the Red Cross on 4 and 11 April 1994, as indicated by the Red Cross certificate." 47 The RRT noted that the respondent's statement that he had been in the army until 1990 was inconsistent with the claim in another part of his evidence that he had not resigned from the army until June 1993. The respondent's claim that he was in the army until 1990 was contained in the airport interview and in his application for a protection visa. 48 The RRT also noted that the respondent stated in the airport interview that he had been released from gaol on 13 June 1993. That statement differed from the claim in his application for a protection visa that he had been released on 25 June 1993. However, the RRT observed: "I have considered the remarks about relatively minor inconsistencies in dates in Sundaraj v Minister for Immigration and Multicultural Affairs [1999] FCA 692, (Spender, Emmett & Hely JJ, 14 May 1999). I accept that this might apply to the difference between the date of the applicant's alleged release, given variously as 13 June 1993 and 25 June 1993" The RRT also referred to the airport interview in the following passage: "I do not accept the claim made in the applicant's protection visa application (statement of 25 June 1999) that he was arrested and jailed for one month after he interviewed the daughter of Kuwait's most famous poet. He stated in his protection visa application (statement of 25 June 1999) that he conducted the interview in November or December 1996 and that he was arrested immediately after the interview was published. In the normal course of events, this would mean he was arrested in early 1997 but the copy of the magazine containing the relevant interview (submitted to the Tribunal at the hearing) was dated June 1998. The applicant however, was not arrested in June or July or August 1998. On the contrary, according to the information in his protection visa application, he was released in June 1998 after having served a term in jail of eight months beginning in November 1997 and was not arrested against until 1 January 1999 when he was taken to the police station, detained for one month, and made to sign a document about his identity. On the other hand, in his airport interview, the applicant claimed that the last time he was arrested was in 1998 after somebody outside of Kuwait wrote an article about the tragedy of the bidoons. I have considered the remarks about relatively minor inconsistencies in dates in Sundaraj v Minister for Immigration and Multicultural Affairs [1999] FCA 692, (Spender, Emeett & Hely JJ, 14 May 1999). However, I find that the inconsistencies are too numerous and too significant to be discounted as merely minor mistakes by the applicant." 49 The RRT, in the passage just quoted, highlighted the inconsistency between statements made by the respondent in the airport interview and other statements made by the respondent, including those made in support of his visa application. 50 The RRT also appears to have relied upon information provided by the respondent in the airport interview to the effect that he had worked as a journalist after August 1990. The RRT did so as part of its reasons for rejecting the respondent's claim that he had been imprisoned for two years between June 1991 and June 1993. The relevant passage from the RRT's decision is as follows: "As he stated in his airport interview and in his protection visa application, the applicant was in the army until August 1990 - when he took a job as a journalist - not 28 June 1993. That is, he was already out of the army by August 1990". 51 Counsel for the respondent claimed that the only place where the respondent claimed to have worked as a journalist after August 1990 was in the airport interview in which he stated that "[h]e was a soldier in the Kuwaiti army for about 13 years until 1990, after which he said he was a journalist". 52 A substantial reason given by the RRT for affirming the delegate's decision was that it rejected the respondent's claims to have been imprisoned and mistreated by the authorities in Kuwait on numerous occasions during the 1990's. The rejection of those claims was based largely upon the RRT's adverse conclusions as to the respondent's credit as a result of the "numerous" inconsistent statements it found had been made by him. 53 As the primary judge observed, at the conclusion of the hearing the RRT thanked the respondent for being an "honest witness". In its reasons for decision the RRT did not regard the respondent as having been an honest witness and, as a result, rejected his claims of imprisonment and mistreatment by the authorities in Kuwait. It is a reasonable inference that the change in the RRT's approach to the respondent's claims and credibility came about largely because the RRT regarded the detail of the claims made for the purpose of the review to be inconsistent with earlier claims made by the respondent in, amongst other places, the airport interview. It is precisely in such circumstances that s 424A is to have a role as, if the relevance of the information had been pointed out to the respondent, he may have been able to explain the inconsistencies. He was denied that opportunity. As was pointed out by Megarry J in John v Rees [1970] Ch 345 at 402, the law is strewn with examples of unanswerable charges which, in the event, were completely answered and inexplicable conduct, which, in the event, was fully explained. The RRT's failure to comply with s 424A deprived the respondent of the opportunity afforded him by the Act to answer or explain the things he was reported to have said in the airport interview. 54 In the above circumstances I am not satisfied that the failure to comply with s 424A did not deprive the respondent of the possibility of a different outcome. Also, having regard to the substantial role of the RRT's findings as to credibility in its decision, it cannot be concluded that the RRT's other findings would have led to the claim failing in any event. Accordingly, there is no proper basis for the Court to exercise its discretion under s 481(1) to refuse relief in the present case. 55 The second ground of the Minister's appeal concerned the Red Cross Certificate which was forwarded to the RRT by the respondent on 8 October 1999, after the oral hearing on 24 August 1999 but before the RRT announced its decision. An accompanying letter recited that the Certificate had been obtained with the assistance of a named officer of the Sydney office of the Australian Red Cross. The Certificate was on the letterhead of the International Committee of the Red Cross Regional Delegation for the Arabian Peninsula - Kuwait. It was addressed "To Whom It May Concern" and recited: "The International Committee of the Red Cross (ICRC) certifies that the following person: Name : ABDELAZIZ SALEH MNAHI ALSHOMMARI Nationality : STATELESS Date of birth : 02.08.1959 ICRC number : KWK - 308729 was registered by the ICRC in the Criminal Investigation Department in Kuwait on 20.02.1993. He was visited by the ICRC in the National Security Office in Kuwait on 22.02.1993 and 01.03.1993. He was revisited by the ICRC in the National Security Office in Kuwait on 04.04.1994 and 11.04.1994." 56 Then followed a rubber stamp impression in the form of a seal, bearing the words "International Committee of the Red Cross" above the typewritten inscription "Trading Agency Regional Delegation for the Arabian Peninsula". The Certificate was dated "Kuwait, 14.09.1999". 57 The RRT did not accept the authenticity of the Red Cross Certificate. The member stated: "I do not accept the genuineness of the Red Cross certificate sent to the Tribunal after the hearing. It follows therefore that I do not accept the submission from the applicant's adviser that this document supports the claim that the applicant was imprisoned for two years, as claimed. According to the details on the certificate, the applicant was visited by the Red Cross in the National Security Office of Kuwait on 22 February and 1 March 1993 and again on 4 and 11 April 1994. However, according to his own evidence, the applicant was not in detention in 1994 as he was released on either 13 June or 25 June 1993. I have considered the remarks about relatively minor inconsistencies in dates in Sundaraj v MIMA [1999] FCA 692, (Spender, Emmett & Hely JJ, 14 May 1999). I accept that this might apply to the difference between the date of the applicant's alleged release, given variously as 13 June 1993 and 25 June 1993; or the date of the first Red Cross visit, given in his statement of 25 June 1999 as 20 February 1993 and twice after that, whereas the Red Cross certificate gave the first visit as 22 February and three time[s] thereafter. However, I find the inconsistency between the inference in the Red Cross certificate that the applicant was in jail in 1994 and his claim that he was released in June 1993 is too significant to be overlooked. The applicant stated in his airport interview that he was released from jail on 13 June 1993 after two years in jail. In his protection visa application, he stated he was released on the morning of 25 June 1993. There was no suggestion in the applicant's evidence that he was re-arrested and re-imprisoned in 1994 such that he could have received a second round of visits from the Red Cross on 4 and 11 April 1994, as indicated by the Red Cross certificate." 58 The respondent claimed at first instance that the RRT failed to exercise any of the powers variously conferred on it by s 424(1), s 424(2), s 427(1)(d) or s 427(3)(a) of the Act for the purpose of investigating the genuineness of the Red Cross Certificate. The primary Judge inferred that the RRT "gave no consideration to whether any such clarificatory exercise of its information-gathering powers was necessary" and concluded that, in the circumstances, that failure constituted a breach of the RRT's duty under the Act. 59 The circumstances which the primary Judge relied upon to conclude that the RRT should have considered the use of its investigative powers, included: · "The applicant had been told by the Tribunal that it considered him an honest witness. ... ... ... ... ... · The authenticity of the certificate was not raised with the applicant; · The apparent provenance of the certificate was impressive; · That provenance was likely to be easily, quickly and cheaply able to be checked; · There was no existing objective or independent material to cast doubt on the certificate; · The certificate was relevant to a relevant claim by the applicant - to have been imprisoned for reasons other than breach of the criminal laws of Kuwait; and · It was unfair to the applicant for the Tribunal to act on some unverified suspicion when means of verification or otherwise were readily at hand." 60 Section 427(1)(d) does not impose any duty on the RRT to make further enquiries (Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [86]). In any event, in Anthonypillai the Full Court at [87]-[91] appeared to accept that, where the RRT had serious doubts as to the authenticity of a document and sets out in its reasons why it rejected it, it could not be criticised for not making further enquiries concerning the document under s 427(1). 61 In the present case the RRT doubted the authenticity of the Red Cross Certificate and explained in its reasons why it did not accept it as accurate. I doubt that, in those circumstances, it could be inferred that the RRT did not consider whether to make further enquiries as to the validity of the Certificate. In any event, in the circumstances of the present case, I doubt that the RRT was under any duty to consider whether to make any such enquiries. However, as the RRT's findings in relation to the applicant's credibility, and information given in the airport interview, were also relied upon, in part, by the RRT as part of its reasons for rejecting the certificate, the failure of the RRT to comply with s 424A also impinges upon the validity of its conclusions in relation to the Red Cross Certificate. It is unnecessary to pursue these issues as the failure of the Minister on his first ground of appeal means the appeal must be dismissed in any event. 62 For the above reasons I would dismiss the appeal with costs. 63 Before departing from the present case I would make certain observations about the increasing reliance by the RRT on prior inconsistent statements as a reason for rejecting an applicant's claim. As has been observed on numerous occasions the RRT should approach such statements with caution, making due allowance for linguistic, cultural and other difficulties confronting applicants for refugee status who are required to pursue their claims in an alien environment that they are likely to perceive as hostile. While such matters are for the RRT, as the arbiter of fact, to assess, the same consideration does not apply in respect of s 424A which, subject to s 424A(3), requires the RRT to afford applicants an opportunity to explain such statements. If the refugee determination process in Australia is to remain a fair one, it is essential that the RRT discharges its duties under s 424A which, together with its other counterparts in the Act, is there to ensure no more than "fair play in action" (Furnell v Whangarei High Schools Board [1973] AC 660 at 679 per Lord Morris). I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Merkel.

Counsel for the Appellant: Mr J Basten QC with Mr M Leeming

Solicitor for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Mr R Killalea with Mr L Karp

Solicitor for the Respondent: McDonnells Solicitors