SACKVILLE J:
52 Tamberlin and Katz JJ have set out the facts and explained the reasoning of the Refugee Review Tribunal ("RRT") and of the learned primary Judge. I agree with their Honours that the appeal must be allowed.
53 Mr Jordan, in his carefully reasoned submissions on behalf of the respondent, in effect conceded that his Honour's reliance on s 57 of the Migration Act 1958 (Cth) ("Migration Act") could not be supported. The primary Judge held that, in certain circumstances at least, s 57(2) (which requires the Minister give "relevant information" to an applicant) applies to the RRT. As Merkel J observed in Pasini v Boland [1999] FCA 188, at [38], s 57 only applies to information which is to be given by the Minister, or his or her delegate, at the first decision-making stage under the Migration Act. It has no application to the RRT on its review of the application. Section 415 does not alter this position.
54 Nor did the respondent, subject to one exception, attempt to support other aspects of the primary Judge's reasons. The exception was the contention that his Honour had correctly applied the principle that a finding of fact, unsupported by any evidence, is capable of constituting an error of law, and is reviewable pursuant to s 476(1)(e) of the Migration Act: cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 356-357, per Mason CJ; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 (FC), at 552-553. I agree with Tamberlin and Katz JJ that there was clearly some material that supported the critical findings of fact made by the RRT in the present case. With respect, his Honour fell into error in concluding otherwise.
55 Mr Jordan recognised that the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, prevented the respondent relying on any alleged breach of s 420 of the Migration Act as a ground of review under s 476(1)(a). To overcome this obstacle he relied on the endorsement in Eshetu of the following passage from the judgment of Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324:
"There is another argument based on [s]476(2)(a) that leads to the same result. The general law notion of natural justice comprises the 'impartial tribunal' requirement (the 'bias rule') and the 'fair hearing requirement' (the 'hearing rule'). While [s] 476(2)(a) makes clear that these requirements do not provide the basis of a ground of review, [s] 476(1)(f) provides that actual bias is such a ground, while [s] 476(1)(a) and [s] 425(1)(a), taken together, have the effect that a failure to give a genuine opportunity to appear before the [Tribunal] to give evidence, is also such a ground. This suggests that the legislature turned its mind to the twin requirements of natural justice and intended that [s] 476(1)(f) and [s] 425(1)(a) should occupy the field that would otherwise be occupied by the rules of natural justice. It will be clear that I do not agree that the expression in [s] 476(2)(a), 'the rules of natural justice', is to be read down in some way so that it refers to those rules only in so far as they depend on the general law, and does not detract from any generally expressed requirement of the Act which might otherwise be thought to have the effect of mandating observance of those rules."
See Eshetu, at [49], per Gleeson CJ and McHugh J (with whom Hayne J agreed); at [108]-[109], per Gummow J; at [176]-[179], per Callinan J.
56 Section 425(1)(a) of the Migration Act provides that, where s 424 (which allows for "review on the papers") does not apply, the RRT
"must give the applicant an opportunity to appear before it to give evidence."
Section 425 has been repealed and re-enacted in a different form by Schedule 3 to the Migration Legislation Amendment Act (No 1) 1998 (Cth), which took effect from 1 June 1999. However, the present appeal is governed by s 425 in its unamended form.
57 The first step in the respondent's submissions, based on the passage from Sun Zhan Qui,is that s 425(1)(a) of the Migration Act imposes an obligation on the RRT to provide an applicant with "a genuine opportunity to be heard". Mr Jordan argued that the variety and extent of the powers conferred on the RRT showed that it is obliged to follow procedures which are appropriate to achieve a fair and just review in the particular case. While accepting that s 420 does not lay down "procedures required by ... [the Migration Act] … to be observed" for the purposes of s 476(1)(a), Mr Jordan contended that the aspirations expressed in s 420 supported a broad approach to the construction of s 425(1).
58 The second step in the argument is that the RRT had failed to inform the respondent that it had serious reservations about her credibility and, for that reason, was considering rejecting critical aspects of her claims. In particular, the RRT had failed to inform the respondent that it had serious reservations about her claim to have been imprisoned and tortured in 1988 and her evidence that the documents she had submitted to the Australian Embassy in Rangoon were elaborate forgeries, and thus did not accurately record her history. According to Mr Jordan, the failure to raise those concerns and to identify the crucial issues undermined her right to a genuine hearing.
59 Part 8 of the Migration Act, the constitutional validity of which was upheld in Abebe v Commonwealth of Australia (1999) 162 ALR 1, has created what Gummow J has described as a "procedural bifurcation": Eshetu at [153]. The jurisdiction of the Federal Court to review the legality of decisions of the RRT is considerably narrower than that of the High Court to grant prerogative relief under s 75(v) of the Constitution. But this does not mean that the RRT is free to disregard the rules of natural justice or procedural fairness. As Gaudron and Kirby JJ said in Eshetu at [64]:
"The effect of s 476(2) is not to relieve the Tribunal from observance of the rules of natural justice or to authorise the making of unreasonable decisions. Rather, it is to forbid the Federal Court from reviewing a decision on those grounds. A person who wishes to rely on those grounds can do so only in proceedings under s 75(v) of the Constitution which confers jurisdiction in this Court in all matters 'in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth'. The validity of the scheme of judicial review thus mandated was upheld by this Court in Abebe v The Commonwealth."
60 The second step in the respondent's argument proceeded on the basis that the RRT's failure to notify the respondent of its reservations about her credibility constituted, in orthodox administrative law terms, a denial of procedural fairness. If this is correct, the breach of the rules of procedural fairness would be remediable by the High Court in the exercise of its constitutionally protected jurisdiction under s 75(v) of the Constitution. The respondent's argument is that the breach is also remediable in this Court, because it constituted a contravention of the requirements laid down by s 425(1)(a) and thus provided a ground of review under s 476(1)(a).
61 It is not necessary, on the view I take of the appeal, to determine whether the RRT breached the rules of procedural fairness. It is enough for present purposes to say that, in the light of observations made by the High Court in Abebe, the respondent faces difficulties in establishing her contention. In Abebe,Gummow and Hayne JJ, with whom Gaudron and Kirby JJ relevantly agreed, rejected similar claims made on an application for prerogative relief (at [187]-[188]):
"The want of procedural fairness was said to lie in the tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the tribunal are adversarial rather than inquisitorial or that in some way the tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out.
In this case the applicant knew that her claims about her detention and rape might not be accepted. The primary decision-maker, the delegate of the minister, said in the reasons for her decision that '...I do not find the applicant to be a reliable witness, and have grave doubts about her credibility, as in South Africa and at the airport, the applicant did not mention that she had been raped or imprisoned in Ethiopia'. After that, there could be no doubt that her story of detention and rape while in detention might not be accepted."
62 In the present case, the Minister's delegate specifically rejected the respondent's claims of detention and torture, on the ground that they had been fabricated by her to support her claims. Other factual claims made by her were also rejected by the delegate. In these circumstances, the respondent knew that her claims might not be accepted by the RRT. It may therefore not be easy to distinguish the case from Abebe. The introductory remarks made by the RRT member at the hearing, on which the respondent relied, appear to have been addressed to the possibility that the RRT might obtain information adverse to the respondent from independent sources, rather than to any doubts the RRT might have had about the respondent's credibility.
63 The question that arises in this case is whether the RRT contravened the requirement in s 425(1)(a) of the Migration Act, that it "give the applicant an opportunity to appear before it to give evidence".
64 Mr Jordan's argument, at least at some points, appeared to assume that s 476(1)(f) (providing a ground of review in cases of actual bias) and s 425(1)(a), when read in combination with s 476(1)(a), cover very near all of the ground occupied by the rules of procedural fairness. This, however, is not a correct reading of Lindgren J's comments in Sun Zhan Qui. When his Honour said that those provisions were intended to "occupy the field that would otherwise be occupied by the rules of natural justice", he was not implying that s 425(1)(a) was to be read as substantially co-extensive with the rules of procedural fairness, except for the rule against bias dealt with in s 476(1)(f). His Honour was merely pointing out that the requirements specified in the Migration Act, so far as the grounds of review available to the Federal Court are concerned, replace the more extensive requirements of the general law. The more extensive rules of procedural fairness continue to apply to the RRT, but breaches of those rules can found a claim for relief only in the High Court, unless they also contravene a specific requirement laid down by the Migration Act or the Migration Regulations. In the latter case, the Federal Court has power to grant relief, since a ground of review is available under s 476(1)(a).
65 In considering the scope of s 425(1)(a), it is necessary to pay careful attention both to the wording of the provision and the context in which it appears. Section 424(1) provides that, if after considering the material contained in documents given to the Registrar by the Secretary and the applicant, the RRT is prepared to make the decision on the review that is most favourable to the applicant, the RRT may make that decision without taking oral evidence. When s 424(1) does not apply (that is, when the RRT is not prepared to make a decision favourable to the applicant "on the papers"), s 425(1) requires the RRT to give the applicant an opportunity to appear before it to give evidence. The RRT is also obliged to notify the applicant that he or she is entitled to appear before it to give evidence: s 426(1)(a). Where such notice is given, the RRT is nonetheless entitled to obtain such other evidence as it considers necessary (s 425(1)(b)) and is not obliged to allow any person to address it orally on the issues arising in relation to the decision under review (s 425(2)). The applicant may give the RRT written notice that he or she wants the RRT to obtain oral evidence from a named person: s 426(2). The RRT must have regard to the applicant's wishes, but is not required to obtain evidence from the named person: s 426(3).
66 Section 425(1)(a), as its language and context make clear, is directed to ensuring that the applicant has an opportunity to appear before the RRT to give evidence, in cases where the RRT cannot decide in favour of the applicant simply on the papers. It is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear to give evidence. Procedural irregularities of that kind, whatever other consequences they may have, do not constitute a breach of s 425(1)(a) and thus do not provide a ground of review under s 476(1)(a) of the Migration Act. As Tamberlin and Katz JJ have pointed out, the procedural entitlements of an applicant appearing before the RRT are carefully delineated by the Migration Act. They plainly do not include the full panoply of procedural protections that may be available in other forums.
67 This is not to minimise the significance of the statutory right conferred by s 425(1)(a). In Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193, a Full Court described the legislative direction in s 425(1)(a) as a "central feature of a fair system of administrative merits review": at [31]. As Tamberlin J pointed out in Budiyal v Minister for Immigration and Multicultural Affairs [1998] FCA 243, at 9, an oral hearing may be of considerable importance to an applicant. It gives him or her an opportunity to create a favourable impression and to counter concerns held by the RRT, foreshadowed by its refusal to make a decision "on the papers" alone.
68 The authorities are consistent with the comment of Lindgren J in Sun Zhan Qui that the opportunity afforded to the applicant must be "genuine". Thus, in Budiyal,an unreasonably short period of notice of a hearing date was held to have deprived the applicant of the opportunity to appear before the RRT to give evidence. In Capitly, the Court held that an applicant who had been sick on the appointed day and could not attend the hearing had not been given the requisite opportunity. Their Honours said this (at [34]):
"In the present context an opportunity to give evidence is not given once and for all by the notification to an applicant of a hearing date in the future. The opportunity must be a continuing opportunity and take account of the circumstances which from time to time exist, up until the opportunity is either availed of or not. For example, if an applicant who had received a letter such as that sent to Mr Capitly on 8 July 1997 had been severely injured in a car accident so that he could not attend the hearing on the day on which it was scheduled, he could hardly have then relevantly been given an opportunity to appear before the Tribunal to give evidence. That opportunity is one which must exist throughout the period until review, including the date on which it occurs."
If the RRT gives inadequate notice to the applicant of the proposed hearing, it may contravene s 425(1)(a) (as well as s 426(1)(a)), even though the applicant attends the hearing and gives evidence. For example, Moore J has taken the view that an applicant is entitled to sufficient time to reflect on the evidence he or she is to give: Sook Rye Son v Minister for Immigration and Multicultural Affairs (1999) 161 ALR 612 (FC), at 624-626.
69 These cases illustrate that s 425(1)(a) is primarily directed to the requirement that the RRT ensures that the applicant not only knows of his or her entitlement to give evidence (see s 426(1)(a)), but receives adequate notice of the hearing and is not unfairly impeded by the RRT from taking advantage of the statutory entitlement. Ordinarily, the RRT complies with s 425(1)(a) if the applicant receives timely notification of his or her statutory entitlement and of the hearing at which that entitlement may be exercised. If the applicant does not appear, otherwise than through reasons beyond his or her control and of which the RRT is aware, there will generally be no breach of s 425(1)(a). If the applicant does appear in response to the timely notification, and gives evidence before the RRT, there will likewise generally be no breach of s 425(1)(a).
70 It does not necessarily follow that the effect of s 425(1)(a) is exhausted once the RRT actually commences to hear the applicant's evidence, adequate notice of the hearing having been given. There may be circumstances - although I think that they are likely to be rare - where the RRT conducts the hearing itself in a manner which denies the applicant the genuine opportunity contemplated by s 425(1)(a). To take a hypothetical example, the RRT, having given the applicant timely notification of the statutory entitlement and the hearing, might inform the applicant at the hearing itself that he or she will not be permitted to give evidence on a particular claim within the applicant's own knowledge. If the RRT were to reject the application on the ground that it had not been satisfied of the particular claim, it would not be difficult to conclude that the applicant had been denied the opportunity contemplated by s 425(1)(a). The applicant, although permitted to appear before the RRT and to give evidence, would have been denied the opportunity to appear and give evidence on an issue the RRT itself considered to be critical to the outcome of the case.
71 While there may be limited circumstances in which conduct at an RRT hearing will constitute a contravention of s 425(1)(a), the present is not such a case. Nothing happened at the hearing to curtail the applicant's opportunity to appear before the RRT to give evidence. The applicant received timely notification of her statutory entitlement. She took advantage of that opportunity and gave evidence before the RRT. She was accompanied by her solicitor at the hearing. The RRT member told the applicant at the outset that, at the end of the hearing, she and her adviser would be given an opportunity to make further comments or submissions. That opportunity was in fact afforded, although the applicant and her solicitor chose to make only brief additional observations. She was in no way impeded from giving evidence before the RRT. In these circumstances, if the hearing were attended by any procedural deficiencies, they did not include a contravention of s 425(1)(a) of the Migration Act.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.