REASONS FOR JUDGMENT
MERKEL and HELY JJ:
Background
103 The respondents are citizens of Bangladesh. The first respondent claims that because of his political profile with the Bangladesh Nationalist Party ("BNP") he was subjected to violence and false charges laid by political activists from the rival Awami League ("AL"). As a consequence, the first respondent says that he has a well founded fear of political persecution if he were to return to his country of nationality, Bangladesh and, accordingly, he and his wife and child (who are the second and third respondents) are entitled to be granted protection visas.
104 The Refugee Review Tribunal ("the RRT") affirmed the decision of the delegate to refuse to grant protection visas to the respondents. The main aspect of the RRT's decision that is relevant to the present appeal is the rejection by the RRT of the first respondent's claim to have been the target of sustained violence prior to his departure from Bangladesh because of his political profile with the BNP. The relevant findings of the RRT were as follows:
"I accept that the applicant had joined the BNP and that he had risen to the position of joint secretary of his local village branch. I am not satisfied that he was regarded as being a significant political player, given his position. I am not satisfied that he was considered important enough for people from his village to pursue him to Dhaka, as he claims they had done, or anywhere else in the country if he were to relocate and so avoid localised trouble in his village.
I am prepared to accept that the applicant might have been beaten up by thugs belonging to the AL since political violence, like all violence in Dhaka, is of a high level. However, such violence, according to DFAT and American authorities, is mainly experienced by those activists who take part in the mafia-like, criminal vendetta-type activities indulged in by many in the student and youth wings of the political parties, or by those who take part in confrontational actions such as national strikes and major rallies which are prone to violence no matter which party is holding them and which [is] the party in government at the time (Bangladesh: Profile of Asylum Claims and Country Conditions, Part II B, Student and Political Violence, pub'd by United States Bureau of Democracy, Human Rights and Labor, February 1998, CX31417; DFAT CIS Country Information Report No. 497/96 of 7/6/98, CX17304; DFAT cable BGD14088 of 1/5/2000, CX41587). The applicant presents as a sober gentleman and I am not satisfied that he would have been active in those wings of his party which are bent on violence and which thus interact with rival parties on a physical rather than cerebral level. Thus I am prepared to accept that he might have been attacked or hurt in melees once or twice in a sporadic manner, but I am not satisfied that he was the targeted [sic] of sustained violence by political enemies. I am of the opinon that he has fabricated claims to exaggerate the harm that he might have suffered. I find that the applicant would be able to engage in the normal expression of his political opinion by avoiding the thuggish side of politics.
It might be that even if he engaged peacefully in politics and avoid [sic] rough elements, he might be harmed in sporadic and indiscriminate violent actions as Bangladeshi politics is played robustly. What is important here is whether he would be denied protection from such harm?"
105 The RRT doubted, but did not reject the first respondent's claim in respect of the false charges laid against him. However, in respect of that claim, as well as the claim of political violence, the RRT concluded that the first respondent could rely on the courts and the authorities in Bangladesh to provide him with effective protection in respect of any harm he might suffer if he returned to Bangladesh.
106 The respondents were not represented in the Federal Magistrates Court on their application to review the decision of the RRT. However, the Magistrate declared that the decision of the RRT was invalid and issued writs of certiorari and mandamus quashing the decision and requiring the RRT to redetermine the matter according to law. The Magistrate concluded that the RRT's decision was vitiated by jurisdictional error for two reasons:
· the RRT did not give to the first respondent particulars of certain country information upon which it relied in rejecting the first respondent's claims of political violence against him and, as a consequence, the RRT failed to comply with s 424A(1) of the Migration Act 1958 (Cth) ("the Act") and also failed to accord procedural fairness to the respondents;
· as the RRT did not consider the harm the first respondent might suffer if he were to be detained or imprisoned pending any court hearing of the false charges against him, it constructively failed to exercise its jurisdiction.
107 The Magistrate did not regard the RRT's finding that the first respondent had effective protection in respect of any harm he might suffer if he returned to Bangladesh as precluding the respondents' claim for relief as his Honour concluded that the finding did not relate to the "serious and systematic" harm the first respondent claimed to be at risk of suffering.
The Appeal
108 The appellant ("the Minister") has appealed against the judgment of the Magistrate. The grounds of appeal are:
"1. His Honour erred in holding that the Tribunal in reaching its conclusion relied on country information which should have been disclosed to the first respondent, but was not.
2. His Honour erred in holding that sufficient particulars of the country information had not been disclosed to the first respondent.
3. His Honour erred in failing to hold that the country information fell within the exclusion contained in s.424A(3) of the Migration Act 1958 (Cath).
4. His Honour erred in holding that general law principles of procedural fairness required the disclosure of the particular country information.
5. His Honour erred in holding that there was jurisdictional error in the manner in which the Tribunal dealt with the first respondent's claims in relation to the 'false charge' said to have been laid against the first respondent."
Constructive failure to exercise jurisdiction
109 The Magistrate's finding of a constructive failure to exercise jurisdiction can be disposed of briefly. The first respondent's claim of a fear of political persecution in respect of the false charges was stated by the RRT to be as follows:
"In August 1996, while the AL was in government, the applicant's home had been ransacked and his brother beaten up by AL thugs. In September 1998 the applicant had been beaten up by AL thugs. Police had taken no action. At the hearing, the applicant said that he had not been able to identify his attackers. In February 1999 this had happened again. When the applicant's family had gone to the police to lodge a complaint, they had found that a charge had been laid against the applicant. This had caused the applicant to fear for his life, and so he had left Bangladesh for Australia with his wife.
The applicant became vague and evasive when asked what the charge against him had involved. When the question was repeated, he said that he had been accused of involvement in violence at a rally from which he had, in fact, been absent. All this trouble had come from people in his village who had known his family to have been opposed to Bangladesh's independence in 1971 and had been inimical to the applicant's political activities."
110 In his written statement in support of his application for a protection visa the first respondent referred to acts of violence he had suffered and, in particular, to the violence that occurred on 17 February 1999, and stated:
"15. … On 17 February 1999 when I was returning home from Mauchak Market along with my wife a group stop[p]ed our Rickshaw and asked me to go with them. They started punching on my face by their non-stop punching and kicking I lost my sense and my wife with the help of other people sent me to a private clinic. When I was at the clinic, my brother went to police station to file a case. The police told him a case has been filed against me already.
16. After the above mentioned incident I was shocked seriously. I was thinking about leaving the country. Finally I decided to leave the country and obtained visas along with my pregnant wife.
17. My life is not safe in Bangladesh. The authorities in Bangladesh did not protect me at all. My life was in danger in Bangladesh. I am seeking refugee status in light of the United Nations Convention 1951 and 1967 protocol related to the status of refugee."
111 The first respondent did not claim that he feared detention or imprisonment pending the determination of the charges laid against him and his counsel did not take us to any evidence that he was threatened with such detention or imprisonment. In those circumstances the RRT's task was limited to determining whether there was a real chance of the first respondent being subjected to the harm that he claimed to fear if he were to return to Bangladesh and, if so, whether that harm constituted political persecution. As the harm claimed to be feared did not include detention or imprisonment pending the outcome of the charges laid, the RRT was not required to consider whether the first respondent might be so detained or imprisoned. Accordingly, the Magistrate was in error in concluding that the RRT had constructively failed to exercise its jurisdiction by failing to consider that matter.
Section 424A
112 Section 424A provides:
"(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information."
113 Section 441A provides for the notification required by s 424A(1) to be carried out by the delivery of documents whether by hand, prepaid post or by electronic means depending upon an applicant's particular circumstances.
114 Section 424A(1) only requires disclosure of information that would be a reason or part of the reason for the decision of the RRT to affirm the decision of the delegate. As was observed by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 206 ALR 471 ("VAF") at 478 [29] the question of compliance with s 424A(1)(a) "is to be judged retrospectively in light of the tribunal's actual decision". Their Honours stated at 478 [30]:
"The information concerning the appellant's behaviour clearly was not 'the reason' for the tribunal's decision. But was it 'a part of the reason'? As we have indicated, the tribunal considered it to have some relevance to the determination to be made. And the tribunal's treatment of that information (ie the 'significance' attributed to it) equally had a place in its reasoning process. However, it is not necessarily the case that for either or both of these reasons, the circumstances attract the obligation of s 424A(1)(a). The subsection itself requires identification of the reason for affirming the decision under review."
115 And at [33]:
"It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the tribunal's decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a tribunal's reasons are to be evaluated for s 424A(1) purposes, the court as a matter of judgment is required to isolate what were the integral parts of the reasons for the tribunal's decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy - and made the more so by less than explicit indications in the reasons themselves as to what the tribunal itself considered to be integral."
116 The above passages were cited with approval by a Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [51]-[52].
117 The country information that the Magistrate found was required to be disclosed to the first respondent was stated by the RRT to be that, according to DFAT and American authorities, the political violence of the kind claimed to have been suffered by the first respondent:
"… is mainly experienced by those activists who take part in the mafia-like, criminal vendetta-type activities indulged in by many in the student and youth wings of the political parties, or by those who take part in confrontational actions such as national strikes and major rallies which are prone to violence no matter which party is holding them and which [is] the party in government at the time …"
118 The country information appears to have been relied upon by the RRT, together with other matters, to conclude that it was not satisfied that the first respondent had been targeted for violence by his political enemies, and to make the adverse credibility finding against the first respondent that he had "fabricated claims to exaggerate the harm he might have suffered". It is now well established that information that was a reason for the rejection by the RRT of an applicant's credibility may be information the particulars of which is required to be given pursuant to s 424A(1): see VAF at 483 [53] and the cases there cited.
119 Subject to certain observations we make at the conclusion of our reasons we are of the view that, applying the observations of Finn and Stone JJ in VAF at 478 [33], the relevant country information was an integral, and not an inessential, part of the reasoning of the RRT that led it to reject the first respondent's claim to have a well-founded fear of political persecution if he were to return to Bangladesh. Our reasons for that conclusion are:
· the findings by the RRT that it was not satisfied that the first respondent had been targeted for violence by his political enemies and that he had "fabricated claims to exaggerate the harm that he might have suffered" were critical findings against the first respondent as they resulted in the RRT rejecting his primary claim that he would continue to be targeted for political violence because of his political profile with the BNP;
· the relevant country information was relied upon by the RRT, together with the finding about the first respondent's low political profile, to make those findings;
· accordingly, it is appropriate to characterise the relevant country information as a reason for the RRT's rejection of the first respondent's claims and therefore a reason for the RRT affirming the decision under review.
120 It was not contended on behalf of the Minister that the country information was given in accordance with s 424A(2) of the Act, but counsel for the Minister contended, correctly in our view, that non-compliance with that sub-section does not, without more, constitute jurisdictional error: see NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 214 at 219-221 ([23]-[25]). Particulars of the information required to be given may be given to an applicant in the course of the hearing before the RRT (see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [32]), and counsel for the Minister contended that there is no evidence that the relevant information was not given to the first respondent by the RRT during the hearing it conducted.
121 In the usual course the tape or transcript of the hearing before the RRT would reveal whether particulars of the relevant information were given to an applicant in the course of a hearing before the RRT. However, the Minister's tape of the RRT proceedings was defective and this question does not appear to have been raised with the first respondent, who was then not represented, at the hearing before the Magistrate. If that was where the matter stood it would not have been open to the Magistrate to conclude that the information had not been given to the first respondent.
122 However, the reasons of the RRT disclose that specific matters, including country information, which it considered at the time to be significant to the claims of the first respondent, were raised with him. The matters that the RRT stated it raised with the first respondent did not include the relevant country information. In the unusual circumstances of the present case we are prepared to infer, on the balance of probabilities, that the relevant country information was not raised by the RRT with the first respondent. It was therefore open to the Magistrate to conclude, as he did, that the relevant country information was not disclosed to the first respondent prior to the RRT's decision.
123 Accordingly, the remaining issue is whether the relevant country information was information that fell within the exclusion in s 424A(3)(a) because it "is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". The information was not specifically about the first respondent or another person. It was, however, about a class of persons: namely, the persons in Bangladesh who are likely to be targeted for violence by their political enemies. Significantly, the RRT found that the first respondent was not a member of that class. Without reference to authority, and applying a literal meaning to the words used in s 424A(3)(a), the relevant country information can be characterised as information that is not specifically about the appellant or another person and is not about a class of persons of which the applicant or the other person is a member. On that basis the information would not be excluded under s 424A(3)(a) and would therefore be required to be given under s 424A(1).
124 However, the meaning of s 424A(3)(a) has been the subject of controversy and single judges of the Court and Full Courts have expressed differing views as to its meaning.
125 The controversy relates to two areas. The first is whether information is "just about" a class of persons of which the applicant is a member when the information relates not only to that matter but also to other matters: see the discussion in that regard in VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 ("VNAA") at [18]-[24] per Sundberg and Hely JJ and NANF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 292 at [41]-[50] per Sackville J.
126 The second area of controversy relates to whether s 424A(3)(a) contains two criteria, namely that the information is not specifically about the applicant or another person and is just about a class of persons of which the applicant and the other person is a member, each of which must be satisfied. The alternative view is that the reference to the class of persons is not another criterion to be met but, rather, underlines the specificity required in respect of the applicant or another person by precluding any argument that reference to a class can be taken to be a reference to all individuals falling within it. The "two criteria" interpretation was adopted in VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 609 ("VHAJ") at 616-617 [25]-[29] per Moore J and 622-623 [46]-[48] per Kenny J; and NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494 ("NARV") at 509 [30] per Ryan and Finkelstein JJ. The alternative interpretation was adopted in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 ("VHAP") at [14] per Gyles and Conti JJ (with whom Allsop J agreed), VNAA at [32]-[33] per Gyles J, and is also favoured by Beaumont J at [68]-[71] in the present appeal.
127 In order to resolve the controversy it is appropriate to consider the legislative history of s 424A. The genesis of the section can be found in s 57 of the Act which established a similar procedure for the delegate of the Minister in respect of information that is required to be given to a visa applicant. Section 57 provides:
"(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for refusing to grant a visa; and
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c) was not given by the applicant for the purpose of the application.
(2) Subject to subsection (3), the Minister must:
(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c) invite the applicant to comment on it.
(3) This section does not apply in relation to an application for a visa unless:
(a) the visa can be granted when the applicant is in the migration zone; and
(b) this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa."
128 To the extent that s 57 applies it partly 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 must be given an opportunity to deal with information adverse to his or her interests that the repository of the power proposes to act upon in deciding upon its exercise: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 ("Miah") at 96-97 [139]-[140] per McHugh J. However, the statutory procedures the Minister (or his or her delegate) were required to follow did not exclude the application of the common law rules of natural justice: see Miah at 83-88 [90]-[104] per Gaudron J, 95-98 [131]-[143] per McHugh J and 111-115 [178]-[188] per Kirby J. The information included under s 57(1)(b) is information "specifically about the applicant or another person". Thus, the exclusion in respect of the class of persons of which the applicant or another person is a member merely ensures that information about that class is not treated as information specifically about the applicant or the other person.
129 When s 424A (and its counterpart in respect of the Migration Review Tribunal, s 359A) was enacted by the Migration Legislation Amendment Act (No 1) 1998 it was clear that the legislature intended to introduce a procedure for both the RRT and the Migration Review Tribunal that was similar to that which applied to decisions by the Minister (or his or her delegate): see the Second Reading Speech, Commonwealth, Parliamentary Debates, House of Representatives, 2 December 1998, 1122 (Phillip Ruddock, Minister for Immigration and Multicultural Affairs) at 1123. Importantly, the Explanatory Memorandum at [117] states:
"[The Amending Act] also inserts six new sections into the Migration Act. Of these sections 424, 424A, 424B and 424C provide a code of procedure which the [Refugee Review] Tribunal is to follow in conducting its review:
…
new section 424A ensures that an applicant is given particulars of any information that would be the reason or part of the reason for affirming the decision under review, and is asked to comment on that information. The information must be specifically about the applicant or another person and not just about a class of persons of which the applicant or the other person is a member. Paragraphs 424A(3)(b) and (c) provides respectively that information given by the applicant and non-disclosable information are not included in this section;" [Emphasis added]
130 Although the Explanatory Memorandum makes it quite clear that the information that must be provided under s 424A was intended to be equivalent to the information required to be given under s 57, for some reason s 424A was drafted quite differently to s 57. Rather than employ the simple expedient of requiring that the information that is to be provided must be information that would be a reason for the decision and is specifically about the applicant or another person, s 424A required that particulars of the information described in s 424A(1) is to be provided unless it is excluded under s 424A(3). In our view that exclusionary approach resulted in the literal meaning of ss 424A(1) and 3(a) not being equivalent to s 57(1)(b). The reason for that is that a literal interpretation of s 424A(3)(b) requires that both of the two criteria stipulated in the sub-section be met for the exclusion to apply.
131 Counsel for the respondents submitted that the two criteria approach gives effect to the ordinary and natural meaning of the words used in s 424A(3)(a) and that if the legislature had wished to replicate s 57 it would have been a simple matter for it to do so. Although there is some force in that submission it is difficult to see any rationale for excluding from the operation of s 424A information which is just about a class of persons of which the applicant or the other person is a member, but not excluding such information if those persons were not members of the class. Yet, the two criteria approach has that anomalous result.
132 Four factors have led us to conclude that by enacting s 424A (and s 359A) Parliament intended to substantially replicate the effect of s 57(1). First, that is clearly stated as the intention in the Explanatory Memorandum. Second, the literal meaning of s 424A, as drafted, would result in the anomalous outcome described above. Third, the procedural "code", of which s 424A formed part, did not exclude the rules of natural justice: see Miah and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at 178 [30]. Thus, it was not unreasonable or anomalous for the legislature to require that, in so far as s 424A formed part of that procedural code, the section was only to apply to information specifically about the applicant or another person, leaving the rules of natural justice to apply to other information. While that situation may have changed as a result of the subsequent enactment of s 422B, which seeks to excludes the rules of natural justice at least in respect of matters dealt with in the procedural code relating to the conduct of reviews by the RRT, the later legislative amendment cannot affect the proper construction of s 424A, which has remained in its unamended form since it was enacted. Finally, there is no obvious reason why the legislature would seek to impose a substantially different mandatory disclosure requirement on the RRT to that imposed on the Minister (or his or her delegate).
133 The remaining question is whether, having regard to the intention of the legislature in respect of s 424A it is open to the Court to depart from the literal meaning of s 424A(3)(a). There is a substantial body of authority to the effect that where a judge concludes that the legislature could not having intended that a statute operate according to its literal meaning since that meaning would defeat the manifest object or purpose of the legislation, then an alternative interpretation must be preferred. In Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 ("Cooper Brookes") several members of the Court declined to adopt a literal construction which would defeat the object or purpose of the enactment. At 311 Stephen J declined to adopt a literal application when to do so would:
"…in the words of Fry L.J., be to construe 'the Act in order to defeat its object rather than with a view to carry its object into effect'; Curtis v. Stovin".
134 In a much cited passage at 320-321 Mason and Wilson JJ said that departure from the ordinary grammatical sense is not restricted to cases of absurdity or inconsistency. Their Honours said at 321 that -
"when the judge labels the operation of the statute as 'absurd', … 'extraordinary', 'capricious', 'irrational' or 'obscure' he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.
Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."
135 Those principles were applied in MacAlister v The Queen (1990) 169 CLR 324 by Mason CJ and Dawson, Toohey, Gaudron and McHugh JJ who said at 330:
"To give the words 'an offence' in s. 77 their literal meaning would defeat the purpose of the legislation and produce the unreasonable result that there was no right of appeal from the County Court against a s. 70(b) order. Such a result was certainly not intended. On the other hand, if the words 'an offence' are read as 'his or her offence', as we think their context and the apparent intention of the section suggest they should be read, the provision has a sensible meaning which gives effect to its evident purpose. In Luke v. Inland Revenue Commissioners, Lord Reid, when confronted with a similar problem, said:
'The general principle is well settled. It is only where the words are absolutely incapable of a construction which will accord with the apparent intention of the provision and will avoid a wholly unreasonable result, that the words of the enactment must prevail.'"
136 In Saraswati v The Queen (1991) 172 CLR 1, after referring to the passages from the judgment of Mason and Wilson JJ in Cooper Brookes set out above, McHugh J said at 22:
"Moreover, once a court concludes that the literal or grammatical meaning of a provision does not conform to the legislative purpose as ascertained from the statute as a whole including the policy which may be discerned from its provisions, it is entitled to give effect to that purpose by addition to, omission from, or clarification of, the particular provision: see Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd.; Jones v. Wrotham Park Settled Estates; Cooper Brookes; In re Lockwood."
137 Finally, Lord Diplock observed in "The Courts As Legislators" The Lawyer and Justice (Sweet & Maxwell 1978) at 274:
"if...the Courts can identify the target of Parliamentary legislation their proper function is see that it is hit; not merely to record that it has been missed."
138 As is demonstrated by the differences of opinion within the Court to which we have referred, s 424A is not incapable of a construction that gives effect to the intention of the legislature. Accordingly, albeit for reasons that differ from those expressed in VHAP and by Beaumont J, we are also of the view that the reference in s 424A(3)(a) to the class of persons is not another criterion to be met but, as is the case with s 57(1)(b), is designed to underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals (including for example, an applicant) falling within it: see VHAP at [14]. It follows that the Magistrate was in error in failing to find that the relevant country information fell within the exclusion in s 424A(3)(a), and in finding that the RRT failed to comply with s 424A(1).
139 Our view gives effect to the intention of the legislature when s 424A was enacted. However, the consequence of the subsequent enactment of s 422B is likely to be that there is no longer an obligation on the part of the RRT to afford applicants before it a fair hearing, in so far as that requires the RRT to give those applicants an opportunity to deal with relevant matters adverse to their interest the disclosure of which is not required by s 424A(1), but which the RRT proposes to take into account in affirming the delegate's decision to refuse to grant a protection visa. Plainly, that is a highly undesirable outcome. Nonetheless, although the RRT might no longer be obliged to afford applicants a fair hearing, that is not a reason for it not to afford a fair hearing to all applicants appearing before it. Those observations, however, do not apply to the present case because the RRT's decision was handed down prior to the commencement of s 422B. Accordingly, it is necessary to consider whether the RRT did not accord procedural fairness to the respondents.
Procedural Fairness
140 In NARV, which was also concerned with country information, Ryan and Finkelstein JJ stated at 503 [15]:
"The principal aspect of the rules of natural justice with which this case is concerned is covered by the following statement by Brennan J (as he then was) in Kioa (at CLR 629; ALR 380): '[i]n 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.' This statement has been adopted in later cases: see, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, 96-97, 116; 179 ALR 238 at 269, 285-6; Muin v Refugee Review Tribunal (2002) 190 ALR 601, 631, 653; 68 ALD 257 at 286-7, 308-9. Brennan J's statement of the applicable principle is in conformity with the statement of principle found in earlier cases: see, for example, De Verteuil v Knaggs [1918] AC 557 at 562-563; Kanda v Government of the Federation of Malaya [1962] AC 322 at 337; R v Industrial Injuries Commissioner; Ex parte Howarth (1968) 4 KIR 621 at 626; Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255 at 1260; Mahon v Air New Zealand Ltd (PC) [1984] AC 808 at 820-821; (1983) 50 ALR 193; National Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296 at 316; 52 ALR 417 at 431."
141 In Miah, which was concerned with information about a change in government, Gaudron J stated (at 86 [99]):
"The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her. Mr Miah was not given the opportunity to put a case by reference to the change in government in Bangladesh or to answer the case made against him by reference to that change. Procedural fairness required that he be given that opportunity."
142 McHugh J (at 96-97 [140] stated:
"A basic principle of the common law rules of natural justice is that a person whose interests are likely to be affected by an exercise of power must 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. This does not mean that all material which comes before the decision-maker must be disclosed but, '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.'"
143 Kirby J stated at 117-118 [194]:
"The requirement of disclosure, relevant to a case such as the present, has been expressed by the Full Court of the Federal Court in terms that I accept:
'[The] entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.'"
144 We are satisfied that, applying the principles set out above, the relevant country information was required to be disclosed by the RRT to the first respondent, as it was the foundation for the RRT's conclusion that the first respondent he 'has fabricated claims to exaggerate the harm that he might have suffered'. However, counsel for the Minister contended that the RRT's reasons for its decision reveal that it raised with the first respondent the questions of his low political profile and, of effective protection being provided by the authorities, and, in the course of doing so, it made it obvious to the first respondent that country information about political violence, which was used by the RRT, was relevant to his claims and should be addressed by him. We do not accept that submission. There is nothing in the reasons of the RRT or in the material to which we were taken that suggests that the relevant information, or the use to which it was put, was so obvious to the first respondent that he should have been aware that it was incumbent upon him to address that information: see Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 633 [131] per McHugh J, 664 [276] per Hayne J (with whom Gummow J agreed: see [171] at 640) and 670 [301] per Callinan J; cf Gleeson CJ at 610-612 [26]-[31], Gaudron J at 618 [64] and Kirby J at 653-655 [226]-[236].
145 Accordingly, we are satisfied that the Magistrate was correct in concluding that the failure of the RRT to disclose the relevant country information upon which it relied resulted in the RRT failing to accord procedural fairness to the respondents. Thus, the Minister has failed to make out the ground of appeal upon which she relied in respect of procedural fairness. Subject to the further observations we make below it follows that the Minister's appeal, in so far as it relates to procedural fairness, must be dismissed.
Further observations
146 In these reasons we qualified our conclusions that the relevant country information was a reason for the decision of the RRT and that the Minister's appeal, in so far as it relates to procedural fairness, must be dismissed. The qualifications were made because of the concluding finding of the RRT, which was as follows:
"In summary, I find that whether or not the applicant had faced insurmountable problems over his political views before leaving Bangladesh, he would not face such problems now given that there is a new government, of his own party, which is determined to prevent political thuggery. I find that the applicant can avail himself of the protection of the police in relation to any threat of harm, and that the courts would act fairly and strongly in protecting him from false charges. For all these reasons, I am not satisfied that the applicant has a well-founded fear of persecution under the Convention in Bangladesh."
147 It may well be that the finding of effective protection in respect of "any threat of harm", in relation to "political thuggery", and also in relation to "false charges" was dispositive of the first respondent's claims to be entitled to a protection visa (see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at 496 [29]). If that were the case the relevant country information may not have been part of the reason for the decision of the RRT.
148 The finding of effective protection was also potentially relevant to the respondents' claims in respect of a denial of procedural fairness. The reason is that, even if there were such a denial, the Court may nonetheless refuse to grant relief if the respondents' claim to be entitled to a protection visa must have failed in any event: see Stead v State Government Insurance Commission (1986) 161 CLR 141 and Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 at 41 [42] and the cases there cited.
149 Although the Minister did not raise either of the above matters at the hearing of the appeal we have considered whether it is appropriate for the Court to raise them with the parties. However, for the following reasons, we have concluded that it was not appropriate to do so. Counsel for the Minister submitted to the Magistrate that, even if the respondents established a breach of s 424A(1) or a denial of procedural fairness, relief should be denied because the RRT determined that the first respondent could avail himself of effective State protection if he was the subject of political violence. The Magistrate rejected that argument on the ground that the finding only related to the "sporadic and indiscriminate violent harm to which anybody could be subject" and not to the "more serious harm to which [the RRT] had previously found the [first respondent] was not at risk of suffering". Although there may be some doubt about the Magistrate's reasoning it was not challenged by the Minister in her notice of appeal or in the course of argument. In those circumstances we have concluded that the Court should proceed on the basis that the Minister has elected not to challenge the Magistrate's decision in relation to effective protection and that the Court should, in all the circumstances, determine the Minister's appeal on the basis of the case presented by the Minister, rather than on the basis of the case that might have been open to, but was not presented by, the Minister.
Conclusion
150 For the above reasons the appeal is to be dismissed with costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Merkel and Hely .