The Application for Review
23 The grounds in the application were six-fold as follows:
i) The tribunal erred in law amounting to jurisdictional error in finding that the Applicant does not have any profile that place her on her return back to the country of habitual residence and does not meet the criterion set out in s.36(2) of Act for a protection visa;
ii) Exceeded its jurisdiction in making its decision to affirm the First Respondent's decision'
iii) Constructively failed to exercise its jurisdiction in arriving its decision;
iv) The applicant (me) entitled for a protection visa, Which she has applied.
v) The Applicant have a well founded fear of persecution in the country of her habitual residence i.e. Bangladesh.
vi) The Tribunal has acknowledged that the applicant (me) is of Bihari background but failed to amount of persecution the application (me) will be facing on my return to Bangladesh.
24 These grounds plainly reflected some legal assistance; nevertheless, they failed to descend into any particularity whatsoever beyond assertion of ultimate facts.
25 The first submissions filed on behalf of the applicants were in two parts. One was entitled simply "submissions" and it attached what was described as "written argument" which in turn attached an extract from the decisions in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 in the High Court and SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74 in the Federal Court as well as annexing photocopies of ss 422B and s 424A. The first matter argued in these submissions was that there was actual bias demonstrated by the Tribunal. This was said to be a ground of review under par 476(1)(f). This provision was, of course, repealed in 2001. However, if there were actual bias on the part of the Tribunal, there was no issue that that would amount to jurisdictional error for the purposes of s 39B of the Judiciary Act 1903 (Cth).
26 It is unnecessary to deal in detail with these submissions on actual bias. It is sufficient to say that there is no basis for the foundation in the submissions. The submissions in effect amount to a strong complaint about the fact finding and nothing more.
27 The next basis for complaint was an assertion that Muin provided a basis for setting aside the decision. This was put forward as a legal proposition upon which successful review could be based. No evidence was put forward on behalf of the applicants to ground a submission that they would have done something or failed to do something had they known that some document or documents was or were before the Tribunal or not before the Tribunal. The balance of the submissions were directed to substantiating a position in relation to privative clause decisions in accordance with what the High Court said in S157.
28 In the attached written argument, the applicants made assertions of the genuineness of their claims in terms which do not assist in understanding any particular ground of review under s 39B of the Judiciary Act.
29 At the hearing on 8 April 2003, the male applicant raised a complaint about the conduct of the Tribunal in refusing to make its own enquiry in Bangladesh if it was not satisfied by the documents put forward by the applicants. No such obligation rested on the Tribunal, especially in circumstances where it had perceived fraud in the production of the documents that it had been shown.
30 Paragraph 2(b) of the applicants' submissions (under the actual bias heading) stated the following:
The Tribunal does not accept that any minor misunderstandings or mistranslation, for example once the interpreter interpretation that was of sufficient magnitude as to prevent the Applicant giving evidence or understanding what was said to her or in making herself understood.
31 Upon reading this, I was not clear what this was directed to. It was clear at the hearing of the matter that there was no complaint about any deficiency in the interpreting at the Tribunal hearing.
32 The submissions of the applicants also raised, somewhat obliquely, s 424A of the Act. Mr Smith, most fairly, dealt with the issue, drawing out a possible argument unarticulated by the applicants. I asked Mr Smith to file and serve further submissions on this issue. The issue arose because of the way in which the Tribunal had dealt with the perceived conflict of evidence between the female applicant and the male applicant concerning the former's hospitalisation: see [20] above.
33 Section 424A is in the following terms:
(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.
34 Section 424A can be seen as a surrogate for natural justice. Indeed, a Full Court in WAAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 409 concluded (at [36]) that s 424A must be treated as an exhaustive statement of the Tribunal's obligation to bring information to the attention of a visa applicant, "overriding any wider common law obligation". This case was decided after (and taking into account) the High Court decision in Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 238; 179 ALR 238. Miah was distinguished on the basis that s 424A was not in the Act at the time of the Tribunal decision in question: see WAAJ at [36]. This is true, but as French J pointed out in WAID v Minister for Immigration and Multicultural Affairs [2003] FCA 220 at [55], s 57 of the Act which was in force was relevantly indistinguishable from s 424A.
35 Mr Smith submitted that I need not decide whether this part of WAAJ bound me as part of its ratio. He submitted that on any view both "common law" natural justice and the substantive demands of s 424A(1) had been satisfied. Mr Smith at first put this submission on the basis that there was no evidence to the contrary of this proposition. I indicated to him that if this were to be how he wanted to leave the matter I would want to listen to the tape of the hearing. Mr Smith indicated that the respondent had no objection to this. The applicants agreed to this course. I marked the tape cassettes Exhibits R1 and R2. I listened to the relevant part of the tape recording in which the Tribunal put the applicants on notice that this discrepancy between the evidence of the female applicant and male applicant was a matter of importance.
36 Having listened to the tape I conclude that the matter was raised squarely with the applicants. The matters to which subs 424A(1) directs itself were attended to by the Tribunal. The Tribunal afforded fairness to the applicants in the way it dealt with the issue. However, the strictures of subs 424A(2) were not complied with. For the reasons expressed by the Full Court in NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 102 this procedural omission is not fatal and does not found a ground of review.
37 After Mr Smith filed the supplementary submissions and after the further hearing of the matter on 29 April 2003, the applicants filed further submissions about the matter. These further submissions appeared to deal with the matter afresh. Their preparation appeared to have been assisted by someone with legal knowledge or legal training. Once again, the issue of Muin was taken up. The submissions stated that the "applicant further believed" various matters including the letter provided by the Tribunal to the applicants was misleading because the Tribunal had not read the Part B documents thoroughly upon which the original decision maker had relied. The submissions proceed to explain what the "applicant" believed about the lack of procedural fairness. There was no evidence to support any of these submissions. There was no evidence (or even submission) to indicate what, if any, difference would have been made to either or both applicants had they known of some fact. The submission attempts to develop general propositions from Muin applicable to the applicants' position here. As I have said earlier, there was no evidence from either applicant that he or she would have done something or not have done something had he or she known of some fact related to the transmission or non-transmission of the Departmental file to the Tribunal.
38 I do not know whether these further submissions were provided to the Minister. I am of the view that they do not advance the matter any further. However, I will, for completeness, make a copy available to the Minister's representative after judgment has been handed down.
39 For the above reasons I am unable to ascertain any ground of review which would lead me to conclude that the Tribunal had committed any error.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.