breach of rules of natural justice?
46 As the operation and validity of s 474 are not beyond debate, it is appropriate that I consider whether relief would be granted pursuant to s 39B absent that provision. If my views as to s 474 are confirmed, there will be need to go through this time-consuming process.
47 The reasons of the Tribunal identify twenty-one sources of country information which were regarded as inconsistent with or adverse to the claims of the applicants but of which neither the applicant nor his migration agent received any notice from the Tribunal member. All but two are sourced. The information came from a range of sources, some in the public domain and some from the Department of Foreign Affairs and Trade. I append to this judgment a summary of those documents prepared by the solicitor for the applicants.
48 It is obvious that the Tribunal member regarded himself as free to consult whatever sources, either public or private, were available to him as to the situation in Burma in the years that the applicant lived there and subsequently. It is also a fair inference that the documents actually referred to in the detailed reasons of the member of the Tribunal could not have been the totality of sources consulted by him, but, rather, were a selection which were regarded as of relevance to the reasoning of the Tribunal member. I may be permitted to say that it is obvious, both from many reported cases concerning proceedings of the Tribunal and from the dozens (or hundreds) of such cases that I have seen, that this process is commonplace. Indeed, this type of material has become known by the generic name "country information".
49 It is useful to select a cogent example. The applicant had given an account of having been imprisoned in Insein Prison, where he was interrogated and mistreated for two weeks, then put into a small cell for two months until being released. He claimed that when he was taken out of his cell he was hooded with a blanket, this accounting for his inability to remember detail about the prison. The Tribunal member said:
"I am unable to accept that the applicant was detained in Insein Jail. I have read reports compiled from first hand accounts of prisoners in Insein jail (see Amnesty International, Myanmar Conditions in prisons and labour camps, September 1995; and ABSDF, Cries from Insein, 1996). I can find no reference to prisoners being hooded whilst being interrogated over the time as the applicant claims he was. Indeed given the nature of the regime then operating in Burma, it is difficult to understand the purpose of hooding prisoners like the applicant. The applicant's lack of knowledge about the prison, inconsistent information and his lack of information in relation to matters of prison life confirmed my view that he was not arrested and then detained in Insein prison as he claimed. He knew little about the prison routine or the jail in general, and avoided having to give such information by claiming solitary confinement and having been hooded by a blanket. I am not satisfied he was ever detained in Insein Prison."
50 The applicant claimed that he was later imprisoned for some two years, again at Insein Prison, where he was in solitary confinement for some months and did not know where he was then or later. The Tribunal member said:
"I am unable to accept that the applicant was detained in Insein Jail. As I have indicated above, I have read reports compiled from first hand accounts of prisoners in Insein jail (see Amnesty International, Myanmar Conditions in prisons and labour camps, September 1995; and ABSDF, Cries from Insein, 1996). There is nothing that indicates that inmates are put immediately into solitary confinement or that they could not know that they are in Insein Jail. The applicant's lack of knowledge about the prison, inconsistent information and his lack of information in relation to matters of prison life confirmed my view that he was not arrested and then detained in Insein prison as he claimed. He knew little about the prison routine or the jail in general, and avoided having to give such information by claiming solitary confinement and incarceration in a cell with two others. I am not satisfied he was ever detained in Insein Prison."
51 The applicant NAAV has given evidence that, if he had known that the Tribunal was to refer to those sources, he could have referred the Tribunal to references to prisoners being hooded in Insein Prison in a book entitled "Tortured Voices - a Personal Account of Burma's Interrogation Centres", published by the All Burma Students Democratic Front in July 1998 - the same organisation that apparently published "Cries from Insein" referred to by the Tribunal member. The publication to which the applicant NAAV refers does have a reference to prisoners in Insein Prison being hooded.
52 This example shows that the applicant would have been able to refer to apparently credible countervailing material which would support his claims in relation to a not unimportant aspect of his account which was rejected. On the other hand, there are difficulties both in principle and in practice in having the duty to afford natural justice descend to such a level of detail in this statutory context. The difficulty in principle is that an applicant for protection does not have any case to meet. The Tribunal is not a contradictor. There is no adversary proceeding. See, generally, Mason J in Kioa v West (1985) 159 CLR 550 at 587 in a passage cited below; Miah per Gleeson CJ and Hayne J at [31] and [32]; Aala per Gaudron and Gummow JJ at [76]; Abebe per Callinan J at [293]-[295]; Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [142]; and Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 282.` Each applicant had to satisfy the Tribunal that his or her fear of persecution upon return to Burma is genuine and for a Convention reason. Leaving aside matters personal to the individual, and concentrating upon matters pertaining to the circumstances in Burma, the applicant should have the opportunity of presenting all it wishes, both in writing and orally, to corroborate his or her claims. The hearing provided for by s 425 is not an opportunity for confrontation, it is an opportunity for persuasion. The statutory process in Div 4 of Pt 7 of the Act is designed to afford an opportunity to the applicant to produce his or her case, with supporting material, in writing and in person. The case is then considered behind closed doors by the member of the Tribunal performing the function of an administrator. The member of such a tribunal is, or becomes, by way of being an expert in the circumstances of various countries, and must assess what is claimed by the applicant in the light of that knowledge. As such knowledge cannot all be carried in the head, a library of it must be available. Evaluation of the credibility of an account given by an applicant is subjective and depends upon many factors, including observations of an applicant at the hearing, in circumstances where the Tribunal member will usually have considered other cases with a similar claimed history and patterns will often have emerged. There is obviously always a mass of country information available. Much would be taken for granted. Much would be debatable. A selection of that which is relevant to the particular case depends upon the way in which the member views the case. The judgment as to the issues upon which external country information will be relevant is entirely a matter for the Tribunal member. There is no obligation to consider any or any particular country information. Disclosure of particular country information to an applicant is, in essence, to reveal the process of reasoning of the Tribunal.
53 The problems in practice are formidable. The Tribunal is obliged by the Act to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 420). There has been much emphasis in the cases upon the elements "fair" and "just", but little upon the elements "economical", "informal" and "quick". The code of procedure which governs the Minister is also designed for dealing "fairly, efficiently and quickly" with visa applications (s 52). The role of a court is not to prefer one objective over another. To do so is to subvert the will of the legislature. Achieving all of these objectives in a high volume jurisdiction necessarily requires balance and compromise. As this, and many other cases, show, the system has failed lamentably in relation to speed and economy, and perhaps in informality. Delays and cost in finalising applications for visas, including, and perhaps in particular, protection visas, may be assumed to have pernicious effects which courts are ill-equipped to understand.
54 An applicant, in order to satisfy a member of the Tribunal that he or she has a genuine fear of persecution upon return for a Convention reason, will normally need to satisfy the Tribunal member that he or she is telling the substantial truth in the account given. Normal methods of investigation and normal avenues of checking and verifying information are simply not available to test what is put forward. In many cases the very identity of the person making the application and the country from which that person comes will be a matter of grave doubt. The account given by the applicant will often extend over many years in the country of origin (and perhaps other overseas countries). Often (as here) the claimed persecution took place some time ago, but the current situation in the country of origin remains relevant because of the necessity of judging what is likely to happen on return.
55 If a Tribunal member is not satisfied by the material produced by the applicant in writing, there is bound to be a hearing. It is impractical for a Tribunal member to prepare for this hearing as if he or she were preparing for a major cross-examination of a witness in a case, assembling all of the material which might possibly controvert the case put forward, bearing in mind the rule in Browne v Dunn (1893) 6 R 67. Some Tribunal members may have some external information at their fingertips which they can put to applicants, but, more likely, they will have only their own general impressions based upon their experience in other matters and their general reading. Major implausbilities and inconsistencies might or might not be perceived and drawn to the attention of the applicant for an answer. This method of approach would not usually reflect the training or expertise of the Tribunal member. He or she is functioning as an administrator, assessing claims which are made, not acting as counsel assisting a Royal Commission or as a Crown Prosecutor. Indeed, complaint is often made of bias if a Tribunal member is seen as too confrontational.
56 In this case, the Tribunal member, instead of giving a decision on credibility promptly, with the real reasons expressed economically, adjourned for a very considerable time, to ultimately produce a relatively elaborate piece of reasoning which included a detailed refutation of individual facts claimed by the applicant, based on (or backed up by) detailed references to individual pieces of country information. This is typical. The reason is not hard to find. For some years decisions of this Court imposed considerable obligations upon the Tribunal by reference to a version of the so-called "real chance" test (until the decisions of the High Court in Wu Shan Liang and Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559) to s 420 (until the decision of the High Court in Eshetu and to s 430 (until the decision of the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 75 ALJR 1105), accompanied, on occasion, by criticism of the Tribunal member in question. On one view, standards higher than those demanded of judges were imposed (Xu v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 425 at [56]). This has had a natural tendency to encourage elaborate reasons, designed to protect members from such criticism, although there is usually no need for elaborate reasons when evidence is not accepted (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [65]-[67]).
57 If the submission for the applicants is correct, it would not be adequate to simply disclose to an applicant that a particular source was being consulted. To be useful, it would be necessary to go further and make clear what adverse inference or conclusion might be drawn from it. That information would need to be provided to the applicant or the applicant's migration agent in relation to each piece of relevant country information, and a reasonable time set for reply. The response would often involve the provision of further material by or on behalf of an applicant, both personal to the applicant and of a general nature, which would need to be considered. If it, in turn, involved assessment against yet other country information, the substance of that would then have to be provided to the applicant, and so on.
58 The decision in Miah is critical to the case for the applicants. Before examining that decision more closely, it is necessary to say something more about the legislative scheme, including some history. The Minister (including the Minister's delegate) is subject to what is described in the statute as a "code of procedure for dealing fairly, efficiently and quickly with visa applications" (Subdiv AB of Div 3 of Pt 2 of the Act). This includes express provisions in relation to communications to and from the applicant and in relation to the provision to and from the applicant of certain kinds of information and what may or must be done with it (ss 52-58, 62). There can be, but need not be, an interview with the applicant (s 59). Although the Minister must consider information provided by the applicant in accordance with the code, there is no limitation upon other information which the Minister may take into account. He can have regard to whatever information is thought appropriate. Section 57 provides as follows:
"(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." (emphasis added)
59 That code of procedure was introduced as part of the wholesale changes to the visa system introduced by the Migration Reform Act 1992 (Cth). In the Explanatory Memorandum to that bill (par 51) it was stated that subdiv AB aims to:
"… replace the uncodified principles of natural justice with clear and fixed procedures which are drawn from those principles."
60 The Tribunal conducts a de novo merits review of unfavourable decisions made by or on behalf of the Minister in relation to applications for, inter alia, protection visas. If the Minister is satisfied that the requirements of s 65 of the Act have been satisfied, including the criterion laid down by s 36(2), then a visa is to be granted, but if the Minister is not so satisfied, a visa is to be refused. The Tribunal stands in the shoes of the Minister and carries out the same function. The Tribunal may exercise all the powers and discretions that are conferred on the original decision-maker and may, inter alia, affirm or vary the decision or set aside the decision and substitute a new decision (s 415). It is a true administrative tribunal in the function it performs. Although members of the Tribunal are not departmental officers in the ordinary sense, the Tribunal is established to provide a form of review external to the Department. Its members are appointed for a term, do not have to have any particular qualifications and are not subject to ministerial direction (Div 9 Pt 7 of the Act). In reviewing a decision, the Tribunal is not bound by technicalities, legal forms or rules of evidence, and must act according to substantial justice and the merits of the case (s 420).
61 The Act sets out in some detail the procedures which govern the operation of the Tribunal's conduct of a review. Until 1999, these did not include any particular provisions in relation to the manner in which information which the Tribunal was taking into account should be made available to the applicant.
62 The regime in relation to persons claiming to be refugees was quite different up to 1992, in principle and in procedure. The application of the rules of natural justice under the regime as it existed until the 1992 amendments came into force was explored in a series of cases commencing with Kioa v West and including Somagahi v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 100; Heshmati v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 123; Lek v Minister for Immigration, Local Government & Ethnic Affairs (1993) 43 FCR 100 at 128-130; and David v Minister for Immigration & Ethnic Affairs (unreported, Federal Court of Australia, Wilcox J, 2 October 1995) at [21]-[25]. Kioa v West departed from the previous wisdom that the rules of natural justice had no place in relation to decisions under the Act. The actual decision was that persons were entitled to be heard as to prejudicial matters before a deportation order was made against them. The matters which were seen as prejudicial were personal to the deportees. In a significant passage, Mason J said (at 587):
"In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter: In re HK (An Infant)." (emphasis added)
63 Somagahi and Heshmati were unusual cases, involving a personal issue which, it was held, could not have been anticipated. In Lek, no breach was found although extraneous matters had been considered by the Tribunal, essentially because of lack of cogency. In David a breach was found because the Tribunal took into account facts which had occurred in Sri Lanka between the hearing and the time of decision which it said removed the risk of persecution upon return of the applicant, without asking the applicant for comments. There is an interesting discussion in that case as to the difference between information as to public affairs, on the one hand, and information personal to the applicant, on the other. In my view, the obligation considered in these decisions was not so much the provision of documents or the raw material, but to provide the topic and the gist of the adverse material to the applicant. It needs to be borne in mind that, at that stage, the review by the Court was pursuant to s 39B of the Judiciary Act and the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). The Tribunal did not exist.
64 As I have said, the 1992 amendments involved a complete change in the regime relating to visas in general and refugee claims in particular, both as to substance and as to procedure. It is beyond the scope of these reasons to explain all of those changes. The significance of them was stressed by the majority of the High Court in Wu Shan Liang at 263-264 and 274-275, a principal feature being the subjective nature of the new test which substantially changes the approach to decision-making. I have referred to what is described as the code of procedure to be followed by the Minister which was introduced in 1992. The Tribunal was established at the same time to review what can broadly be described as protection visa decisions. There were detailed provisions relating, inter alia, to exercise of the Tribunal's powers and the conduct of the review by the Tribunal. There was no counterpart of s 57. The 1992 Act also introduced a regime of judicial review of certain decisions, including Tribunal decisions, by this Court, on specific grounds not unlike those in the ADJR Act, but with special limitations, including s 476(2):
"The following are not grounds upon which an application may be made under subsection (1):
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power."
65 The Second Reading Speech by the Minister included the following:
"The Labor Government has already been the author of significant reform of immigration policies and laws. In 1989 my predecessor, Senator Robert Ray, took a major step towards legislative implementation of the recommendations of the CAAIP report. In spite of the 1989 reforms, a major issue confronting the government is border control. There are people who are intent on bypassing the established categories of entry into this country. Some do this by trying to avoid immigration processing altogether by arriving in Australia without authority. The boat people are a good example. Owing to weaknesses which have been inherent in our migration laws for many years, these people are often successful. Many manage to stay here, even though they do not fall within the specific visa categories, which is the only lawful way to enter and stay in Australia. At the very least, many manage to delay the substantive decision on their case and, as a consequence, their departure, by using the courts to exploit any weaknesses they can find in our immigration law. This must stop.
In the Migration Reform Bill currently before the House I propose a range of measures to enhance the Government's control of people who wish to cross our borders. The Bill sets out more effective means of regulating entry, detention and removal of people who do not establish an entitlement to be in Australia. The reforms are complemented by an enhanced scheme of independent merits review rights.
A primary objective of the Migration Act is to regulate, in the national interest, the entry and presence in Australia of persons who are not Australian citizens. The Government views it as essential that all provisions and policies under the Act be interpreted in a way which furthers this objective. An objects provision will be inserted in the Act to remind the community, the administrators and the courts of this intention.
…
The measures I have announced so far will lead to greater precision in our efforts to control the border. Under the reforms, decision making procedures will be codified. This will provide a fair and certain process with which both applicant and decision maker can be confident. Decision makers will be able to focus on the merits of each case knowing precisely what procedural requirements are to be followed. These procedures will replace the somewhat open-ended doctrines of natural justice and unreasonableness.
The Reform Bill proposes significant extensions to the current system for review of migration decisions. Credible independent merits review will ensure that the Government's clear intentions in relation to controlling entry to Australia, as set out in the Migration Act, are not eroded by narrow judicial interpretations. Under the Reform Bill, the following people who are adversely affected by a decision will be entitled to independent merits review: onshore refugee claimants; onshore cancelled visa holders, except those cancelled at the border; onshore applicants for a visa, except those detected at the border; and an Australian sponsor of an offshore applicant for a visa.
As now, people offshore will not be entitled to merits review. A specialist refugee review tribunal will be established to provide independent and determinative merits review of onshore refugee status decisions. The tribunal will be non-adversarial, operating along similar lines to the IRT, with power to hold hearings and record its decisions in writing.
…
As I have indicated, the Government wishes to make the application of the legal concepts of migration decision making predictable. Judicial review rights for decisions on the grant or cancellation of a visa will be set out in the Migration Act. Judicial review will only be possible after the applicant has pursued all merits review rights or where merits review is not available. Grounds for review will include failure to follow the codified decision making procedures set out in the Act. As the codified procedures will allow an applicant a fair opportunity to present his or her claims, failure to observe the rules of natural justice and unreasonableness will not be grounds for review." (emphasis added)
66 The High Court jurisdiction pursuant to s 75 of the Constitution remained throughout, but I have not been referred to any decision in point prior to Miah.
67 In 1999, a regime similar to that which applied to the provision of information to applicants by the Minister was introduced into the procedures of the Tribunal, the critical provision, for present purposes, being s 424A, which provides as follows:
"(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 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 person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information."
68 The Second Reading Speech by the Minister upon introduction of the bill in December 1998 included:
"The bill also includes certain safeguards for applicants by introducing a code of procedure for both the Migration Review Tribunal and the Refugee Review Tribunal which is similar to that already applying to decisions made by the department. This code includes such matters as the giving of a prescribed notice of the timing for a hearing, and a requirement that applicants be given access to, and time to comment on, adverse material relevant to them."
69 I note that the matter of Herijanto v Refugee Review Tribunal (High Court application S 97 of 1998) had been commenced in the High Court's original jurisdiction in 1998, claiming that the Tribunal had failed to accord procedural fairness to the applicants. This may have provoked a close examination of the then regime. Miah had not yet been decided. Even if commenced, the ultimate result is unlikely to have been predicted.
70 There is a question whether Div 4 of Pt 7 of the Act, in particular s 424A and s 424B, can be construed differently to sub-division AB of Div 3 of Pt 2 of the Act, dealing with the procedure to be undertaken by the Minister and, in particular, the role played by s 57 and s 58 in that scheme. There are also matching provisions in relation to the Migration Review Tribunal in Div 5 of Pt 5, in particular s 359A and s 359B. The most significant difference between the sets of procedure is that the Tribunal is bound to invite applicants to appear if it is not satisfied on paper (s 425), whereas a Minister may give the opportunity for an interview where there is an invitation to give further information or comments. As was said by Kirby J in Re Minister for Immigration & Multicultural Affairs; Ex parte A [2001] HCA 77 at [47], no decision of the High Court determines whether the scope of s 424A(3)(a) is such as to apply the rule of procedural fairness that, in the case of the delegate, was held to apply by the Court's decision in Miah to the proceedings of the Tribunal. His Honour did point out that in the cases of Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (High Court applications S 36 and S 89 of 1999), in which judgment was reserved by the Full Court on 10 October 2001, a similar point arose but as at a point of time prior to the coming into force of s 424A.
71 However, I find it difficult to see any real point of distinction between subdivision AB of Div 3 of Pt 2 on the one hand, and Div 4 of Pt 7 on the other, such as to lead to any different construction of s 424A, compared with s 57. There is authority that s 424A will be construed in the same fashion as s 57. See, for example, Thairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281 at [10]-[16] and the authorities referred to in that decision. The operation of s 424A has also been discussed in Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630 and Bitani v Minister for Immigration & Multicultural Affairs [2001] FCA 631. See also Pannasara v Minister for Immigration & Multicultural Affairs [2001] FCA 570 at [51]-[54]. If, as submitted, the High Court held in Miah that information must be given by the Minister to an applicant for a visa even if that information is not 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 pursuant to a duty to afford natural justice, then I see no escape from the conclusion that the same result would follow in relation to information so far as the Tribunal is concerned, notwithstanding that the information would fall within s 424A(3)(a). This makes it essential to understand precisely what was decided by the High Court in Miah.
72 The short facts in Miah are summarised in the following passage from the judgment of Gleeson CJ and Hayne J at [27]:
"The substance of the prosecutor's complaint may be stated quite shortly. The application for a protection visa was made in April 1996. It was not determined until May 1997. The application was made at a time when the BNP was the ruling party in Bangladesh. The information it gave concerning the prosecutor's fear of persecution was directed in part to the past record of the BNP, and its relationship with Islamic fundamentalists. The delegate decided against the prosecutor, partly on the basis that there had been a material change in circumstances resulting from the June 1996 elections. The delegate, in par 3.4.1, accepted that there may have been an alliance between the BNP and the fundamentalists. But he considered that circumstances had changed, and that "[t]he current government" would protect the prosecutor. The contention is that fairness required that, before the delegate decided against the prosecutor on the basis of a material change in circumstances since the lodging of the application, he should have warned the prosecutor of the possibility, and given him an opportunity to comment. It may have been sufficient to say: "Do you wish to put anything to me about the change of government in Bangladesh?" But the delegate said nothing to the prosecutor. He considered the material referred to in his decision, noted the change of circumstances, which he regarded as important, and found against the prosecutor."
73 The critical portions of the judgment of Gleeson CJ and Hayne J are as follows:
"51. The relevance of that question flows from the nature of the relief sought by the prosecutor. The contention is that the delegate's decision was made in excess of jurisdiction. The basis of that contention is that the power to refuse to grant a visa was conditioned upon the observance of a duty which was not fulfilled. The duty, it is said, was a duty to invite the prosecutor to comment upon a change of circumstances which occurred between the application and the decision, alerting him to the fact that the delegate considered the change to be potentially material to the decision.
…
53. The true construction of the statute will determine not only whether the rules of natural justice apply, but also what those rules require. In some cases, a statute may have little or nothing to say about the second question, and its provisions may merely constitute the background against which a court is to determine the practical requirements of fairness. But that is not the case. Where, as in the present case, the statute addresses the subject of procedure with particularity, manifesting an intention to address in detail the presently relevant requirements of procedural fairness, then the intention of Parliament as to the issue that has arisen will be decisive.
54. The provisions of s 54(3), read subject to the presently irrelevant qualifications in ss 56 and 57, and read together with s 69, show a clear intention that the decision-maker is not required to invite submissions on a matter regarded as potentially adverse to an applicant's case, whether the matter is based on a change in circumstances since the application or on any other relevant consideration."
74 Gaudron J found that the Minister's delegate had constructively failed to exercise jurisdiction, and said that although it was not strictly necessary to consider whether there was also a denial of procedural fairness, the question was appropriate to be considered. The reasoning of her Honour appears from the following passages:
"97. Of course, if a Minister rejects an application simply because he or she is not satisfied as to some or all of the information provided by an applicant, there will be no occasion for him or her to consider the exercise of his or her power to invite further submissions or further information. However, if he or she has regard to information other than that provided by the applicant, a question will arise whether procedural fairness requires that the powers conferred by ss 54(3) and 56(2) be exercised to permit the applicant to put submissions or provide further information. Inevitably, the answer to that question must depend on the nature of the claims made by the applicant and the information to which the Minister has had regard.
98. In the present case, the delegate did not simply reject the claims made by Mr Miah. Indeed, he barely considered them. Rather, he had regard to the recent elections and change of government in Bangladesh and drew inferences from limited and, to some extent, equivocal information which he seemed to think rendered Mr Miah's claims virtually irrelevant. A questions, thus, arose whether, as subdiv AB contemplates, he should have invited further information or submissions from Mr Miah to ensure procedural fairness.
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."
75 McHugh J held as follows:
"140. 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 the 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". Thus, the Federal Court has held that information of a non-personal nature relating to changed political circumstances that was decisive to the outcome of a refugee decision ought to have been put to the applicant. Nothing in the Act, or in s 56 in particular, indicates a clear intention to exclude this principle of natural justice.
141. Section 56 is not a mandatory power, but a permissive power. It says nothing as to what must be done with the information that the Minister obtains under s 56(1). Nothing in the section states, expressly or by necessary implication, that once the delegate chooses to exercise the power, natural justice does not condition its exercise. In some cases, exercises of the power, although conditioned by the rules of natural justice, will not require that the applicant have an opportunity to comment on the material. Examples of material that would not require comment by the applicant would include non-adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application. But there are cases where the exercise of this power does require that the applicant be given an opportunity to comment on the material. An example is where the delegate proposes to use new material of which the applicant may be unaware and which is or could be decisive against the applicant's claim for refugee status. The need for disclosure by the delegate is even stronger where the material concerns circumstances that have changed since the date of application and is being used after considerable delay. It is stronger still when the material is equivocal or contains information that the applicant could not reasonably have expected to be used in the way the delegate uses it.
142. Here the new material was undoubtedly decisive of the prosecutor's claim. The material was totally new. The election took place in Bangladesh more than two months after the application was made in April 1996. The reports relied on by the delegate were issued three months and nine months respectively after the application was made. The delegate's decision was made more than 13 months after the date of the application. But over and above these considerations is the fact that it was seemingly irrelevant to the prosecutor's fears whether or not the Awami League or the BNP were in government. Both political parties were arguably unable or unwilling to offer the prosecutor protection from the Islamic fundamentalists --according to the prosecutor they were in coalition with them. This was made clear in the prosecutor's application. It was also apparent from one of the very reports that the delegate relied on in using the material. Furthermore, the prosecutor could not reasonably have expected this type of information to be used. Certainly, he could not reasonably have been expected to provide information about a matter that he reasonably perceived as irrelevant to his situation. In other words, this is a case where "the requirements of procedural fairness may be of added importance … in that they ensure an opportunity of raising for consideration matters which are not already obvious".
143. The rules of natural justice are flexible and adaptable to the particular circumstances of each case. In the particular circumstances outlined above, they required the delegate, in exercising power under subdiv AB, to inform the prosecutor that he was contemplating using information about the election results and to offer the prosecutor an opportunity to comment. There was, accordingly, a breach of the rules of natural justice. The "code" argument fails."
76 Kirby J stated the relevant issues as follows:
"170. The foregoing facts and the applicable legislation, considered together with the principles of natural justice (procedural fairness), present the following issues for decision by this Court.
1. Is the code of procedure contained in the Act (the Code) an exhaustive statement of the applicable rules of natural justice, such that no additional requirement (relevantly, to bring information of general relevance concerning supervening events regarded as critical to the decision to be made to the notice of the person affected) may be implied in the Act or added by the common law to the provisions of the Code?
2. If not, did the delegate, in determining the prosecutor's application for a protection visa, breach an applicable requirement of the rules of natural justice by failing to draw such information to the prosecutor's attention for his submission or comment if so desired?
…"
77 His Honour concluded as follows:
"193. Fourthly, whilst the position might be different in other circumstances, here there were special considerations which suggested that the delegate was obliged to call the information on which he acted to the notice of the prosecutor: (1) the very long delay between the application and the primary decision, which was not the result of anything the prosecutor did and which suggested that an opportunity of comment could have been afforded without unreasonably retarding an efficient decision; (2) the fact that the information was not confidential or secret; (3) the fact that it was judged of crucial importance, even determinative, for the outcome of the application; (4) the consideration that the delegate's decision would have been better informed had he enjoyed the benefit of a submission on the information concerned; and (5) the fact that the delegate would have been aware that the decision was very important for the prosecutor and would have known that, for practical purposes, as in most cases, it represented, and was intended by the Act ordinarily to be, the final decision in the case.
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."
195. I do not agree that the prosecutor was obliged, speculating on the delegate's decision-making processes, to provide the delegate with a running commentary on events in Bangladesh that might influence the decision. The fact that the political intelligence about the situation in Bangladesh, relied on by the delegate, was said to be powerful and convincing did not relieve the delegate of a duty to disclose it. In a sense, the greater the significance of the information, the more pressing became the necessity to disclose it to the prosecutor for his submission or comment.
196. It follows that the prosecutor ought not to have been taken by surprise, as he was. To conclude in this way does not imply that every delegate, receiving any update of political information, would be obliged, before deciding a refugee application, to call such information to the notice of the person affected for comment. That requirement would add unacceptable inflexibilities to the efficient performance by delegates of their functions under the Act. But, in this case, the combination of circumstances which I have mentioned rendered it substantially unjust for the delegate, as the repository of statutory power, to proceed in the way that he did. The prosecutor has therefore established that, in reaching the decision to refuse him a visa, the delegate acted in breach of the rules of natural justice. What follows?"
78 The orders in Miah were as follows:
"1. Order absolute for a writ of prohibition directed to the first respondent prohibiting him from acting upon or giving effect to or proceeding further upon the decision of the first respondent by his delegate the second respondent dated 13 May 1997.
2. Order absolute for a writ of certiorari directed to the first and second respondents to quash the decision of the first respondent by his delegate the second respondent dated 13 May 1997.
3. Order absolute for a writ of mandamus directed to the first respondent requiring him to determine the prosecutor's application for a protection visa under the Migration Act 1958 (Cth) according to law.
4. First respondent to pay the costs of the prosecutor."
79 The differences in expression in the judgments, and the bland nature of the orders made, leave some room for doubt as to precisely what was decided in Miah. It was certainly decided that what the statute described as a code of procedure, and was described by successive Ministers as a code intended to replace the uncertain common law requirements of natural justice, was not such a code. In my opinion, the gravamen of the decisionis that the delegate should have informed the applicant that he was proposing to take into account the new circumstances constituted by the election results and the effect of the change of government upon the current security situation in Bangladesh in considering whether protection would be afforded if the applicant returned to Bangladesh, and given the applicant the opportunity of commenting upon that and providing such information as he wished in relation to that matter. Put shortly, the applicants should have been advised of the substance of the possibly adverse (and critical) issue. I do not regard the decision as requiring production of the country information which the delegate had bearing upon that issue to the applicant. Apart from the fact that this is what I deduce from a fair reading of the critical portions of the judgments, this understanding best fits with the express provisions of subdiv AB. A distinction can be drawn between appraising an applicant of the substance of the case which has to be met, on the one hand, and the provision of "information" on the other, the latter being dealt with by s 57 (particularly s 57(1)(b)) but also by ss 54, 55, 56 and 58. It is not possible to ignore those express provisions or obliterate the distinction which they draw between personal and general information, particularly as that distinction echoes that drawn by Mason J in the passage from Kioa I have set out above. This would also give some effect to the clear legislative intent reflected in the Second Reading Speeches of Ministers in successive governments. In my opinion, the decision in Miah does not travel beyond the facts of the case before the Court - a new event or circumstance which arose after the last communication between the delegate and the applicant. It was submitted on behalf of the Minister that s 424A governed the topic of provision of information as such to an applicant. In my opinion, on the basis I have explained, that is correct and is not inconsistent with Miah. If it were, the correctness of that decision is not a matter for me to consider.
80 I am fortified in my view as to this by my reading of the decision of Kirby J in Ex parte A particularly at [47]-[55] and (to a lesser extent) by reading the transcript of argument in the full High Court in the cases of Muin and Lie. See also Kirby J in Re Minister for Immigration & Multicultural Affairs; Ex parte PT (2001) 75 ALJR 808:
"25. …
4. Nor does the material disclosed in the delegate's decision suggest a failure on the delegate's part to put something important to the applicant which might otherwise have been unexpected or surprising and to which the applicant should have been given an opportunity to respond. For example, the "country information" on Sri Lanka is unremarkable and apparently balanced. It does not suggest a sudden alteration in the security situation or other developments that would reasonably have come as a surprise to the applicant and caught her off guard when first read in the decision."
See also the guarded remarks of Gleeson CJ, McHugh, Gummow and Hayne JJ in Re Minister; Ex parte Epeabaka (2001) 75 ALJR 848 [27]-[28]. In the same case, Kirby J said (at [66]):
"In some ways, the freer hand given to an independent member of the Tribunal, to secure information and to use it without necessarily disclosing it to the person affected, imposes practical requirements of manifest impartiality greater than in the case of judges and like decision-makers. Judicial office is controlled by centuries of tradition. Judges are obliged to sit in public. They are required to accept the legal representatives of the parties. They are controlled by settled procedures and rules of evidence. Their orders are reviewable by superior courts. If members of the Tribunal are authorised to act in some respects by inquisitorial procedures, that fact does not, of itself, exempt them from the rules of natural justice prohibiting bias." (emphasis added)
81 I have not been referred to any authority which imposes an obligation upon the Tribunal to bring to the attention of an applicant any general information concerning the country which the applicant has left and fears to return to, relating to circumstances up to the time of the hearing before the decision-maker.
82 Care needs to be taken in transposing concepts which were developed in relation to bodies having a duty to act judicially to ordinary administrative decisions. In the classic judicial or quasi-judicial model where the body concerned decides issues between contending parties, the notion that a decision-maker should not act upon material adverse to one side without it being disclosed to the other was regarded as one of the fundamental aspects of natural justice - see, for example, Keller v Drainage Tribunal [1980] VR 449 at 453. Whilst the Tribunal has some of the trappings of a quasi-judicial body, it does not conform to that model. In my opinion, an applicant for a visa should expect that his or her claim will be critically examined by the Minister and, if applicable, the Tribunal, in the light of relevant country information which is known to or available to the decision-maker. If there is a new circumstance or event which the Tribunal proposes to consider, Miah may require that the applicant be advised accordingly depending upon circumstances. I do not consider that any of the country information relied upon by the member in these cases could conceivably fall into the Miah principle or any realistic extension of it. The example to which I referred concerning Insein Prison was as favourable to the applicants as any other instance.
83 I should mention some other aspects of the applicants' case. Firstly, there is a submission that the Tribunal member misled the applicants by what he said in relation to country information, leading them to believe that no country information would be utilised, seeking to rely upon the decision of the High Court in Aala. Having read the portions of the transcript which are relevant (and set out above) in context, I do not agree. Whilst there may have been room for misunderstanding at an earlier stage, by the completion of the hearing I think it is clear that the Tribunal member was intending to refer to country information in accordance with well-established practice. This is not put in issue by the migration agent who appeared.
84 Secondly, in the course of his reasons, the Tribunal member referred to his own military experience in assessing some evidence and there is more than a hint that he used it on another occasion for a similar purpose. That military experience had not been referred to during the course of proceeding. In Keller v Drainage Tribunal at 453 Murray J said:
"There is, however, a clear distinction between cases in which a tribunal obtains evidence without the knowledge of a party and cases in which a tribunal or a member of a tribunal has knowledge of facts relevant to the matter in dispute and acts upon such knowledge on the one hand and cases in which a tribunal simply brings expert knowledge to bear upon the evidence presented by the parties on the other hand. It is well established that a tribunal, of which some or all of the members are experts in a particular field, may use its expertise in interpreting and weighing evidence and reaching conclusions on technical matters …"
This is well established in what might be called "expert tribunals" (eg, Minister for Health v Thomson (1985) 8 FCR 213, Kalil v Bray [1977] 1 NSWLR 256 at 261, Maloney v National Coursing Association [1978] 1 NSWLR 161 at 173). This is not an expert tribunal in that sense. A Tribunal member does not have to have any particular qualifications. Backgrounds and experience will vary. A member is no different from an ordinary administrator or jury person. I see no difficulty in such a person using his or her knowledge and experience to assess the credibility of what is put before them. It is not realistic to expect compartmentalisation of knowledge. It is not feasible to disclose all such knowledge or experience. It may be different if, for example, due to involvement in some particular experiment or incident out of the ordinary course, a particular fact was known.
85 Thirdly, the Tribunal member disclosed in the course of his reasons that he had used a particular map to check the applicants' version of events and that this caused him to doubt the veracity of those events. The evidence from the applicant NAAV is that if he had known of some of the conclusions drawn by the Tribunal member from that map he could have tendered other material which would have corrected misconceptions of the Tribunal member and similar evidence is given on behalf of applicant NAAX. It is submitted for the Minister that, when this is analysed, the most that it could amount to was that the member was wrong about some geography, which was something well within jurisdiction. In my opinion, it must be expected that a Tribunal member will resort to maps and the like in assessing what he or she is told. There could, no doubt, be endless arguments as to which map is more accurate or more up-to-date. It will not assist very much to be simply told which map is to be used unless the use to be made of it is known. I cannot distinguish the map from other country information.