NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2003-03-31|Before: Downes JJ, Stone JJ

introduction 1 The appellant appeals from orders made by a judge of the Court dismissing his application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal").

background 2 The appellant is a citizen of India who arrived in Australia on 1 September 1999. On 30 September 1999 he lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") under the Migration Act 1958 (Cth) ("the Act"). He claimed to have lived in Tamil Nadu and to be a Muslim and a businessman. The appellant claimed to have been persecuted on the ground of political opinion in connection with his being the president of the "Bharatiya Minorities Surakhsha Mahasangh [BMSM] (Bombay)" Society for his village and an active member of the Indian Union Muslim League ("the IUML") and of the Jihad Movement. He claimed to have been persecuted by the Indian police, by whom he said he had been arrested, detained and assaulted. 3 A delegate of the respondent (respectively "the Delegate" and "the Minister") refused the protection visa on 15 March 2000. On 12 April 2000, through a firm of lawyers and migration agents, the appellant lodged with the Tribunal an application for review of the Delegate's decision. 4 On 5 February 2002 the Tribunal conducted a hearing at which the appellant was assisted by the same firm of lawyers and migration agents. They put to the Tribunal a written submission with documentary evidence attached. 5 The Tribunal made its decision affirming the Delegate's decision on 22 February 2002, and handed down that decision on 19 March 2002. 6 On 9 April 2002 the appellant filed in this Court his application for review of the Tribunal's decision. The grounds of review stated in the application were as follows: "1. The Tribunal erred in law amounting to jurisdictional error in determining that relocation is a reasonable and feasible option for the applicant; 2. The Tribunal erred in law amounting to jurisdictional error in finding that the applicant does not have any profile that places him at risk out side his home town, or out side Tamil Nadu. 3. Exceeded its jurisdiction in making its decision to affirm the First Respondent's decision; 4. Constructively failed to exercise its jurisdiction in arriving at its decision; 5. The Applicant is entitled to a Protection Visa, for which he has applied; 6. The Applicant has a well founded fear of persecution in the country of his nationality i.e. India." 7 The appellant sought writs of prohibition, certiorari and mandamus, and injunctive relief.

THE PROCEEDING AT FIRST INSTANCE 8 Before his Honour, the appellant, who was unrepresented, raised two points. The first was that the interpretation services provided to him on the hearing before the Tribunal were inadequate and gave rise to misinterpretations. The second was that the Member assured the appellant that the Member would write to him following the hearing, giving him an opportunity to make further submissions, yet the Member did not do so.

Alleged misinterpretations 9 The final sentence of the section of the Tribunal's reasons for decision was: "The advisor stated that he had some concerns with some of the interpreting." The appellant said that he speaks Indian Tamil and complained that the interpreter who had assisted him at the Tribunal hearing spoke Sri Lankan Tamil. There was no evidence before the primary judge directed to establishing the alleged misinterpretations. There was, before his Honour, no transcript of the proceeding before the Tribunal and no affidavit or oral evidence of what had taken place in the course of that hearing. Accordingly, the appellant's complaint before his Honour rested in mere assertion. On this ground alone his Honour was entitled to find the complaint of misinterpretation not established. But his Honour did consider the alleged instances of misinterpretation.

10 There were three alleged misinterpretations. The first was that it had been conveyed to the Member by the interpreter that the number of members of the IUML was not two million as the appellant had in fact stated but a number much greater than that. The primary judge pointed out that the Tribunal's reasons for decision make it clear that the Member proceeded on the basis that the appellant had informed the Tribunal that the number of members of the IUML in India was about 1.5 million. On this basis it seemed to his Honour that there was no substance in this alleged misinterpretation. We note that the relevant passage in the Tribunal's reasons for decision was as follows:

"The Tribunal asked the applicant if the IUML is legal? The applicant stated that it is. The Tribunal asked the applicant how many members it has in Tamil Nadu? The applicant stated about 450,000 people. The Tribunal asked the applicant how many members it has nation-wide? The applicant stated that about 1.5 million." (our emphasis) 11 The second alleged misinterpretation related to the question of possible relocation of the appellant to a safe place in India. His Honour did not make plain the precise nature of the misinterpretation alleged in this respect, and it may be that the appellant had not made that plain before his Honour. His Honour stated: "This matter was considered by the Tribunal and the issue was raised and dealt with. Again, in my view, it cannot be said that it has been demonstrated that there was any error in principle in dealing with this matter." We note that under the heading in its Reasons for Decision, "Internal flight/relocation", the Tribunal addressed the possibility of relocation within India over some four pages of its reasons. 12 The third and final alleged misinterpretation related, according to his Honour, to "the departure of the [appellant] from India and the reference to an amount of 300,000 Indian Rupees. Of this alleged misinterpretation, his Honour stated: "This matter was discussed by the Tribunal in its reasons. I am not satisfied that any error has been shown in relation to this matter and therefore the misinterpretation alleged in relation to it has not been shown to have given rise to a reviewable error." In its Reasons for Decision, the Tribunal recorded that the appellant had acknowledged that he had departed India on his own passport. The Tribunal noted information provided by Australia's Department of Foreign Affairs and Trade ("DFAT") that airport checks in India are thorough and that it was unlikely that anyone of concern to the authorities, and for whom an arrest warrant was in force, would be able to leave the country either undetected or by bribery (the appellant had alleged that criminal charges were outstanding against him on which he had been released on bail, and that the charges were unresolved when he departed India). The Tribunal invited the appellant to comment on the DFAT information and it referred to his response as follows: "The applicant stated that in India anything is possible through bribery. The applicant stated that anything is possible if the right amount is paid - in this case 300,000 IR."

Foreshadowed letter inviting further submissions 13 We turn now to the second matter of complaint. His Honour described this as a complaint arising out of a statement by the Member that she would give the appellant the opportunity to address the following matters, which, the appellant informed his Honour, had been raised in the course of the hearing before the Tribunal: (a) inconsistencies relating to the appellant's claims which the Tribunal found to be important; (b) problems of interpretation; (c) the fact that the appellant was able to depart India freely and lawfully; (d) the appellant's ability to relocate to a safe place within India. 14 In relation to the matter of inconsistencies, his Honour noted that the Member had raised these with the appellant and asked him questions about them, and referred to evidence which was not in accordance with the evidence which the appellant had given before the Tribunal. The primary judge said that he was "therefore satisfied that no unfairness or breach of procedure [had] occurred in relation to this particular matter". 15 In relation to the remaining three matters, his Honour noted that he had referred to them when dealing with the first complaint (misinterpretation). He said he was not satisfied that any of the alleged misinterpretations could have made any difference to the outcome of the hearing before the Tribunal; that the matter of the appellant's departure from India "was raised and considered by the Tribunal taking into account the [appellant's] submissions in reaching a decision adverse to the [appellant]"; and that he was satisfied that the appellant's "ability to relocate" was also dealt with by the Tribunal. 16 Finally, his Honour said he was satisfied that, in the circumstances of the case, s 474 of the Act applied and that the appellant had not shown that "the principles laid down in that section have not been satisfied so as to render it inapplicable".

DEVELOPMENTS BETWEEN THE HEARING AT FIRST INSTANCE AND THE HEARING OF THE APPEAL

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 17 Since the primary judge's decision was given on 22 July 2002, the High Court has decided in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 ("S157") that the expression "decision[s] made under this Act" in the definition of "privative clause decision" in subs 474(2) of the Act must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction, nor an excess of the jurisdiction conferred by the Act; per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [75], [76]. Their Honours noted that the exclusion of decisions involving a failure to exercise jurisdiction or an excess of the jurisdiction conferred was required, not just as a matter of statutory construction, but as a matter of general principle, because, as the High Court had previously held, an administrative decision involving "jurisdictional error" is "regarded in law, as no decision at all" (at [76], citing Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 at [51] per Gaudron and Gummow JJ, [63] per McHugh J, [152] per Hayne J). Accordingly, their Honours observed that if there was jurisdictional error because, for example, of a failure to discharge "imperative duties" or to observe "inviolable limitations or restraints", the decision in question could not properly be described in the terms used in subs 474(2) as "a decision ... made under this Act" and would therefore not be a "privative clause decision" as defined in subss 474(2) and (3) of the Act. 18 We will return to the question of the effect of subs 474(1) below.

The notice of appeal 19 The notice of appeal filed on 12 August 2002 set out the following grounds: "2. His Honour erred in finding that the Tribunal had given the Appellant a reasonable opportunity to address the issues before it. (a) At the end of the hearing, the appellant's Adviser questioned the adequacy of the interpretation provided at the hearing. He said some of the Appellant's answers had been lengthy and not fully translated. The Tribunal member told the Appellant's Adviser that she will write to the Appellant within a few days, because of the inconsistencies in the Appellant's evidence and give me 21 days to answer questions she would pose. She said the Appellant could provide any further information Appellant's [sic] wanted with his reply. 3. His Honour should have found that the Tribunal erred by conducting its hearing with an Interpreter who failed to translate fully the evidence. (a) The Appellant is an Indian Tamil Muslim and he speaks Tamil and the Interpreter presented at the hearing was a Sri Lankan Tamil. Though he spoke Tamil it was also different in accent and also several differences in the use of words and understanding them. (b) The Tribunal Member said she would write to the Appellant within a few days of the hearing and would give the Appellant twenty-one days to comment on the inconsistencies the Tribunal Member found in the Appellant's evidence and address the problems with the interpreter and she never did this. 4. His Honour should have found that the Tribunal erred by not complying with its undertaking at the hearing to give the Appellant an opportunity to address the issues in written submissions. (a) The Appellant's case is that the Migration Review Tribunal exceeded its jurisdiction or constructively failed to take into account relevant considerations; namely the Tribunal did not permit the Appellant to give evidence in accordance with Section 425 of the Migration Act 1958 and this was raised at the end of the hearing by the Appellant's Adviser. (b) If given an opportunity to make submissions the Appellant would have dealt with the: · inconsistencies regarding the evidence; · problems with the interpreter; · ability to leave India; and · difficulty to relocate in India." 20 While the appellant's written submissions referred to the Tribunal's not having made "a bona fide attempt to act in the course of the Tribunal's authority" or observed the obligation imposed on it by s 424A of the Act, the written submissions again made the two major complaints: inadequacy of the interpretation and failure to give the promised opportunity to make further submissions.

Two preliminary matters 21 In his written submissions the appellant, who was not represented in the appeal, stated that he required an interpreter who spoke "Tamil with Indian Tanjur dialect". In fact the Court's registry had requested a speaker of "Indian Tamil" but unfortunately the organisation which supplies interpreters to the Court sent a speaker of Sri Lankan Tamil. Doubly unfortunately, the person was the very person who had interpreted at the Tribunal hearing. In saying this, we do not intend to indicate a view that there is substance in the appellant's complaint, but it was obviously appropriate to attempt to obtain an Indian Tamil interpreter in view of nothing more than the fact that he was making that complaint. Happily, one of the court officers in the New South Wales District Registry of the Court, although not certified by the National Association of Translators and Interpreters ("NATI"), speaks Indian Tamil and had in fact performed a considerable amount of interpretation work for the United Nations Organisation. We followed the course of having both the interpreter who had interpreted before the Tribunal and the court officer sworn as interpreters and both sat with the appellant at the bar table. We invited the former to perform the role of primary interpreter and the latter to contribute as he saw fit if any difficulty arose. 22 In relation to the other matter of complaint, we were concerned to know whether, as a matter of fact, a statement by the Member of the kind referred to by the appellant had in fact been made. The solicitors for the Minister obtained the audio record of the Tribunal hearing. During a short adjournment in the hearing of the appeal, the parties listened to the relevant part of the audio record. On the resumption of the hearing, the parties informed the Court that it was common ground that the Member had stated as follows at the end of the hearing: "Tribunal: Given that there are some inconsistencies with regard to the dates of the detentions and the number of detentions, I will have to write to you about those (interpreted). Tribunal: So what I will do is to write to you in the next couple of days and you will have 21 days in which to respond to my questions and to put any more information that you wish to the Tribunal."

Alleged misinterpretations 23 We are not persuaded that the primary judge erred in the way in which he treated this complaint. The appellant did not make out his allegations. First, as noted earlier, there was no evidence before his Honour of the alleged misinterpretations. Secondly, the appellant did not, apart from the matter of the number of members of the IUML in India, specify any part of his testimony before the Tribunal which was misinterpreted to, and therefore misunderstood by, the Member. Before us, as apparently before the primary judge, the appellant merely made very general complaints about certain issues on which the Tribunal had made findings or comments adverse to him. The primary judge was left with the record of the Tribunal in respect of those issues in its Reasons for Decision and was entitled to conclude that, for all that was shown, the Tribunal had dealt with them uninfluenced by any misinterpretations.

Foreshadowed letter inviting further submissions 24 Counsel for the Minister submits that the second statement by the Member must be construed in the light of the first (both appear at [22] above). Accordingly, so the submission goes, the statement that the Member would write to the appellant within a couple of days giving him 21 days in which to respond to the Member's questions "and to put any more information that [he wished] to the Tribunal", must be read as relating to the subject matter indicated in the first statement, namely, "inconsistencies with regard to the dates of the detentions and the number of detentions". 25 Counsel took us to the treatment of the matter of the dates and number of detentions in the Tribunal's Reasons for Decision, which can be summarised as follows. 26 The appellant departed India on 31 August 1999 and arrived in Australia on 1 September 1999. He travelled on a genuine Indian passport and on a "Business Visa 456" issued in New Delhi on 14 August 1999 valid until 30 September 1999. In his application for a protection visa dated 30 September 1999 he said that he was arrested on 4 December 1998 and detained until 10 December 1998 during which time he was severely beaten. In the same statement, he alleged that he was arrested a second time on 15 April 1999. In a typewritten statement, he said that this second detention lasted for two weeks, during which he was tortured at the police station and severely beaten so as to cause bleeding from his mouth. 27 Before the Tribunal the appellant stated that his second detention was in March 1999. He then stated that his second detention was in January 1999, in fact on the fourth Friday of January 1999. He then stated that it was on the fourth Friday in December. He then stated that the second detention was from 12 January 1999 for four or five days and that he was released on or around 14 or 15 January 1999, and then attended hospital for two or three days. 28 Later the appellant told the Tribunal that he was on bail when he left India on 31 August 1999, saying that he was "released on 12 January 1999". Asked by the Member whether January was the last time he was arrested by the Indian authorities, the appellant said he was not arrested subsequently but was in hiding. Of course, this statement was inconsistent with the appellant's statements that he was arrested in March and in April 1999. Asked why he had said in his statement provided to the Department that he was arrested on 14 April 1999, the appellant, according to the Tribunal's Reasons for Decision, "just stated that the last time he was arrested was January and that he was in hiding after January". The appellant said he was arrested on two occasions and the Member pointed out that he had mentioned three occasions - December 1998, January 1999 and April 1999 (we note that this statement omitted to mention March 1999). The appellant responded that "it is confusing". 29 It is clear that the second of the two statements by the Member set out at [22] above was prompted by the matter of the obvious inconsistencies and confusion in the appellant's testimony as to the number and dates of the alleged detentions. The Member said in the first paragraph "I will have to write you about those" (our emphasis). The word "those" referred to the dates and number of detentions. The first word "So" in the second paragraph confirms that it is the same inconsistencies that will constitute the Member's reason for writing to the appellant. We think that the foreshadowed questions to be asked by the Member in the letter were questions about that specific subject matter. There is no reason to think that the expression "any more information that you wish" was intended to foreshadow an unexplained and unexpected invitation to the appellant to put to the Tribunal information ranging over the entire scope of his claims to be a refugee. On the other hand, to confine him to responding to the Member's questions might prove to be an inadequate way of giving him an opportunity of dealing with the "inconsistencies with regard to the dates of the detentions and the number of detentions". Accordingly, and it is only for this reason in our view, the Member added, "and to put any more information that you wish to the Tribunal". Any such "more information" was still, we think, to be limited to the same general subject matter of inconsistencies relating to the dates and number of detentions. Why, it may be asked rhetorically, having regard to the fact that the entire discussion down to that point had been limited to that specific problem, would the Member be minded to foreshadow an invitation to the appellant to canvass any aspect of his claims? (In his written submissions, the appellant himself asserts several times that he was to be given an opportunity to deal with "inconsistencies", although in some cases he adds a reference to the alleged interpretation problem (the agreed record set out at [22] above does not refer to the latter). Nowhere does the appellant assert that he was to be invited to put to the Tribunal further information generally about his claims.) 30 The Member did not write to the appellant at all. We do not know what questions she would have asked about the inconsistencies of the kind mentioned, or what responses the appellant would have made. The appellant did not adduce evidence as to any further information he would have wished to put to the Tribunal. Nor did he attempt to identify any such further information in his submissions. In this evidentiary vacuum we are called upon to address the appellant's claim that he was not accorded natural justice by the Tribunal by reason of its failure to write to him as foreshadowed. 31 It is not in dispute that natural justice requirements applied to the Tribunal's review of the Delegate's decision or that a denial of natural justice by the Tribunal may result in a decision being made in excess of jurisdiction, in respect of which, notwithstanding s 474 of the Act, prohibition will issue; cf Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 ("Aala"); S157. The questions which arise in the present case concern the content of the requirements of natural justice in the particular factual circumstances of the case, and the question whether those requirements were met. Obviously these two issues are interrelated: definition of the requirements will serve to determine whether or not there has been a non-observance of the requirements of natural justice. Once a non-observance of those requirements is established, it is only if it is positively concluded that observance of the requirements "could not possibly have produced a different result" that the decision impugned will be allowed to stand: cf Stead v State Government Insurance Commission (1986) 161 CLR 141 ("Stead") at 145 per Mason, Wilson, Brennan, Deane and Dawson JJ; Aala at 88 per Gleeson CJ, 116-117 per Gaudron and Gummow JJ, 122 per McHugh J, 130-131 per Kirby J, 154 per Callinan J. 32 A statement by a decision-maker that a certain procedure will be followed or that certain step will be taken before a decision is made can itself be a circumstance relevant to the question of the scope and content of the requirements of natural justice in the particular case, but it will not necessarily and without more define that scope and content: Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 195 ALR 502 ("Lam"). Lam emphasises that the making of such a statement is not the end of the inquiry, but is only an aspect of it. 33 In Lam the High Court discussed the demands of natural justice in a situation in which a visa was cancelled, and so the former visa holder became liable to deportation. A Departmental officer had previously written to the visa holder asking for details of his children's carers, stating that the Department wished to contact the carers in order to assess the visa holder's relationship with his children, and the possible effects on them of a decision to cancel his visa. The visa holder supplied the details but the Department did not contact the carers before the Minister decided to cancel his visa. 34 In fact, at the time when the letter was written to the visa holder requesting details of the carers, the Department was already in possession of a "[l]etter from the carers of the children" which was attached to a lengthy submission from the visa holder himself. 35 The requirements of natural justice applied to the taking of the decision to cancel the visa. Nonetheless, their Honours unanimously dismissed an application for orders of certiorari and prohibition to quash the decision and to prevent the respondent Minister from taking steps to deport the visa holder. They did so on the ground that a breach of natural justice was not established. 36 Gleeson CJ stated (at [34]) that "what must be demonstrated is unfairness, not merely departure from a representation" and that the ultimate question is whether there has been unfairness. His Honour continued (at [37]): "In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." 37 McHugh and Gummow JJ, in a joint judgment, said that there had been no denial of an opportunity to make representations or further representations which had "deprived the applicant of the possibility of a successful outcome" (at [59]). Their Honours referred to Stead and to Aala, both of which dealt with statements by decision-makers which dissuaded a party from exercising an existing procedural right possessed by that party. Their Honours thought that certain observations made by McHugh J in Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 ("Teoh") at 311-312 and by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 39 should be accepted as representing the law in Australia. Both passages were concerned to eliminate or confine the role of any "doctrine of legitimate expectations". Consistently with those passages, in the present case it does not, without more, entitle the appellant to relief that he reasonably believed, as no doubt he did, that the Member would follow the course she foreshadowed at the end of the hearing, and that she failed to do so. It is necessary in addition that that failure "gave rise to a decision flawed for denial of natural justice" (per McHugh and Gummow JJ at [103]). 38 Similarly, Hayne J said (at [111]): "It was said that he had been denied a 'legitimate expectation' of a fair procedure: the expectation being that the Department would do what it said it would do. But the focus of inquiry must remain on the fairness of the procedures adopted by the Department. That is the ground which the applicant advanced as the basis for the relief sought. If the procedure was fair, reference to expectations, legitimate or not, is unhelpful, even distracting. 39 Finally, Callinan J said (at [145]) that if a doctrine of "legitimate expectation" was to remain part of Australian law: "it would be better if it were applied only in cases in which there is an actual expectation, or that at the very least a reasonable inference is available that had a party turned his or her mind consciously to the matter in circumstances only in which that person was likely to have done so, he or she would reasonably have believed and expected that certain procedures would be followed." His Honour thought it fatal to Mr Lam's claim that Mr Lam could not demonstrate that there was any material he could have put before the Minister which was not already held by him and might have influenced him to decide differently. 40 In Lam there was no evidence that the visa holder had acted or refrained from acting in any way in reliance on the letter he received from the Department, such as, by refraining from procuring further evidence from the children's carer. It was common ground that, apart from the letter, the Department was not obliged to make inquiries of the children's carer. The Department's failure to contact the carer might have been explained by a late appreciation that the Department already held the letter from her. 41 We accept that the Tribunal in the present case was not obliged, independently of the Member's statement made at the end of the hearing, to give the appellant a post-hearing opportunity to clear up the inconsistencies relating to the dates and number of his alleged detentions. Conversely, the appellant did not have an existing right to attempt to clear them up following the hearing (cf the positions of the litigant in Stead and the applicant before the Tribunal in Aala). There was, moreover, no evidence that, in reliance on the Member's statement, the appellant was prompted to take, or to refrain from taking, any course of action which otherwise he would not, or would, have taken. So far as the evidence reveals, if the Member had not made the statement at the end of the hearing, the appellant would have had no further communication with the Tribunal pending the handing down of its decision. 42 Most importantly, the inconsistencies played no part in the Tribunal's reasoning. In the "Findings and Reasons" section of its reasons for decision, the Tribunal recorded that it did not accept the appellant's claims: · that he was a member of the Dawood Ibrahim Movement; · that he was involved with the Jihad Committee; · that he was ever arrested or detained or physically mistreated by the Indian authorities as a result of his involvement in the IUML.

The Tribunal described the appellant's claims to have been involved with the first two organisations as "so far fetched as to be fanciful" and as being "inconsistent with independent evidence". In regard to the third organisation, the Tribunal noted that the appellant's claims and evidence were that his involvement was "very local - at village level". The Tribunal accepted that the appellant was "a regular member of the Moslem League in his village in Tamil Nadu" but because the independent evidence suggested that that organisation was "a moderate party which is legal and has contested both state and general elections in the past", the Tribunal was not satisfied that the appellant had ever been "arrested or detained or physically mistreated by the authorities in India as a result of his involvement in the Moslem League". The Tribunal's conclusions adverse to the appellant in relation to all three organisations had nothing whatever to do with the "inconsistencies with regard to the dates of the detentions and the number of the detentions". 43 Moreover, the Tribunal said that even if it had been satisfied that the appellant faced difficulty in Tamil Nadu, relocation to another part of India was reasonably available. 44 It is true that the Tribunal relied on one fact in relation to the alleged detentions, namely, that the first detention, marking the appellant's first alleged conflict with the Indian authorities, occurred in December 1998. The Tribunal found it to be inconsistent with the appellant's claim to have been involved at a high level in the Dawood Ibrahim Movement since 1993, that he had not attracted any adverse attention from the Indian authorities prior to "1998". But the inconsistencies regarding detentions referred to at [27]-[29] above cast no doubt on the appellant's claim that he was not arrested before December 1998. There is no reason to think the appellant might have made an entirely new claim, never suggested by him previously or since, that he was detained prior to "1998". 45 In our opinion, the Member's apparent change of mind or forgetfulness about writing to the appellant is not shown to have involved any procedural unfairness to him. 46 Because: · the Member was not otherwise obliged by the demands of natural justice to give the appellant the further opportunity which was foreshadowed at the hearing; · the Member did not propose to rely, and did not in fact rely, on the inconsistencies referred to; and · there is no evidence that the Member's statement induced the appellant to depart from a course of action he would otherwise have followed;

the requirements of natural justice did not require the Member to adhere to the course of action she foreshadowed at the end of the hearing.

CONCLUSION 47 For the above reasons, the appeal should be dismissed with costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lindgren and Stone.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

REASONS FOR JUDGMENT DOWNES J: 48 The appellant is an Indian citizen. On 30 September 1999 he lodged, in Australia, an application for a protection visa under the Migration Act 1958 ("the Act"). The appellant claimed to be a refugee. The visa application was refused on 15 March 2000. On 22 February 2002 the Refugee Review Tribunal ("the Tribunal") affirmed the decision although this was not communicated to the appellant until later. On 22 July 2002 Tamberlin J dismissed an application to this Court for prohibition, mandamus and other relief calculated to reverse the decision to refuse the visa. The appellant instituted this appeal. 49 At the conclusion of the hearing in the Tribunal the member constituting the Tribunal said to the appellant: "Given that there are some inconsistencies with regards to the dates of the detentions and the number of detentions, I will have to write to you about those." "So what I will do is to write to you in the next couple of days and you will have 21 days in which to respond to my questions and to put any more information that you wish to the Tribunal." 50 The Tribunal did not write to the appellant as promised prior to giving its decision. This failure was relied upon in the hearing of the application before Tamberlin J. Ground 4 in this appeal again raised the matter and asserted: "If given an opportunity to make submissions the Appellant would have dealt with the: · Inconsistencies regarding the evidence; · Problems with the interpreter; · Ability to leave India; and the · Difficulty to relocate in India." 51 The Tribunal found the appellant not to be a credible witness. It said: "The Tribunal has grave doubts about the applicant's credibility in regard to his claims to have been involved with Dawood Ibrahim and the Jihad Committee. His claims and evidence in regard to these organisations is so far fetched as to be fanciful, and moreover, his claims and evidence are inconsistent with independent evidence." The Tribunal gave no weight to either of the two identified claims. 52 There was no evidence before Tamberlin J, apart from the appellant's assertions, that the Tribunal member determining the application made any promise to communicate with the appellant or receive any further submissions. In those circumstances, the ground based on the alleged promise was bound to fail, as it did. However, before us, after a review by the parties of the tape recording of the hearing before the Tribunal, it was agreed that the member made the statements set out above. 53 Section 474 of the Act has the effect of limiting the availability of review of decisions relating to protection visas. However, s 474 "does not protect decisions involving jurisdictional error" and, accordingly, does not apply to decisions "flawed for reasons of a failure to comply with the principles of natural justice" by reason of "a denial ... of procedural fairness" (Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 at 47, par [83]). 54 The question is whether the failure of the Tribunal to honour its undertaking to communicate further with the appellant and receive further submissions amounted to a failure to comply with the principles of natural justice. 55 In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 ("Lam") Gleeson CJ said: "Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation" (at 510, par [34]). However, this sentence was immediately preceded by the following observation (at 510, par [34]): "So, for example, if a decision-maker informs a person affected he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation." McHugh and Gummow JJ placed emphasis on "the fairness of the procedure adopted rather than the fairness of the outcome" (at 528, par [105]). 56 The Tribunal relied expressly upon inconsistencies between the appellant's evidence and independent evidence in concluding that he was not involved with either the Dawood Ibrahim Movement or the Jihad Movement. The evidence given by the appellant relating to detentions related, in part, to his claimed activities with the Jihad Movement as well as with the Moslem League. The Tribunal accepted that the appellant was a member of the Moslem League. The Tribunal said this: "The Tribunal made findings above that it does not believe the applicant was ever involved with either the Dawood Ibrahim Movement or the Jihad Movement. In light of the applicant's claims and evidence about the level of his involvement with the Moslem League and the independent evidence suggesting that the Moslem League is a moderate party, which is legal and has contested both state and general elections in the past, the Tribunal cannot be satisfied that the applicant was ever arrested or detained or physically mistreated by the authorities in India as a result of his involvement in the Moslem League." 57 Inconsistencies with independent evidence were an important factor in the Tribunal's reasoning. They were central to the Tribunal's reasoning relating to the Dawood Ibrahim Movement and the Jihad Movement. It referred to them at least four times. When the Tribunal came to deal with the alleged detentions, with respect to which there were internal inconsistencies in the appellant's evidence, the Tribunal placed weight on its findings relating to both movements. In finding that these claims were far fetched and fanciful there is a real possibility that the internal inconsistencies in the appellant's evidence were taken into account by the Tribunal. In the evaluation of the credibility of witnesses generally, inconsistencies in evidence frequently play a significant role. In these circumstances it must be accepted that the inconsistencies in the appellant's evidence relating to the dates and numbers of detentions may well have played a role in the Tribunal member's deliberations when assessing the appellant's credibility. Accordingly, it follows, to my mind, that unfairness was involved in the failure of the Tribunal to send the further communication it had promised. There was a denial of natural justice. Whether or not the outcome was unfair is not a matter for this Court. We cannot know what effect on the Tribunal a further submission by the appellant might have had. We do not know what particular concerns the Tribunal member had. We do know that the appellant says that if given the opportunity he would have made submissions dealing with "[i]nconsistencies regarding the evidence". To know precisely what might have been said it would be necessary to know what the Tribunal proposed to ask. The appellant cannot be criticised for not saying more about what he would have told the Tribunal when he has not been told what were the particular matters causing the Tribunal concern. As Kirby J said in Balmain Association Inc v Planning Administrator for the Leichhardt Council & Ors (1991) 25 NSWLR 615 at 638, when dealing with an argument that it was not known what submissions would have been made: "The provision of an opportunity to be heard will usually result in an exercise of statutory powers which is better informed." Fairness required the appellant to be given the opportunity of seeing what were the Tribunal member's concerns relating to inconsistencies and of having the opportunity of allaying them. 58 In Lam, which was relied upon by the respondent, the High Court was not dealing with a matter going to the credibility of the applicant. Nor was there any promise to give the applicant an opportunity to put further submissions. Rather, the Tribunal had indicated that it would seek information from a third party with which, as it turned out, the Tribunal had already been supplied by the applicant's representatives. Applying the tests laid down in Lam this case seems to me to fall on the other side of the line. 59 One matter which has caused me some concern is that it appears that by letter dated 25 February 2002 the tribunal gave notice to the appellant that a decision would be given on 19 March 2002. It was argued that this gave the appellant time to complain that he had not received the anticipated letter. However, the fault was with the Tribunal and I do not think that giving notice that a decision was about to be given rectified that fault so that it no longer amounted to unfairness. In any event, the decision had been made and signed before the letter was sent. The letter did not offer any opportunity to object to the giving of the decision. Also, the appellant may have concluded that the decision would be favourable or that the inconsistencies did not affect the outcome because the appellant's evidence relating to detentions would be basically accepted. However, I have found that the inconsistencies might well have been taken into account by the Tribunal. Accordingly, I do not think the notice of impending decision affects the legal position. 60 In coming to the conclusions at which I have arrived I have not found it necessary to decide whether the invitation to "put any more information that you wish to the Tribunal" was confined to matters relating to internal inconsistencies relating to dates and numbers of detentions. However, I am not persuaded that the words should be so limited. Undertakings such as those given by the Tribunal in this case should always be strictly observed, should ideally be recorded in a document, and should be couched in careful terms. Procedural fairness requires that they be given an expansive and not a confined construction. 61 In my opinion the appeal should be allowed and the matter remitted to the Tribunal for further consideration. I have come to this conclusion solely on the ground considered above. The appellant must fail on all other grounds for the reasons given in the joint judgment of Lindgren and Stone JJ. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.

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Judgment (19 paragraphs)

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Legislation Cited (1)

Cases Cited (8)