Remaining issues in the application
29 After the ruling on the subpoenas, counsel for the applicant effectively abandoned the case he had proposed to advance though he sought to raise one further point. It concerned the letter of 19 November 2002 from the Department to the Tribunal. The way the argument was ultimately put was that before the Tribunal exercised its discretion under par 438(3)(b) and decided not to disclose any matter contained in the documents from the Chinese authorities, it should have given the applicant the opportunity of answering the case advanced by the Department (for nondisclosure) in the letter of 19 November 2002. Its failure to do so constituted a denial of procedural fairness. In the result, the applicant was denied the opportunity to advance a case for the release of the documents, which may have aided her application for a protection visa.
30 In correspondence after the hearing, the applicant described the ground in the following way:
The applicant was denied natural justice.
Particulars
(a) Neither the Department's letter to the Refugee Review tribunal dated 19 November 2002 (RD 288-290), nor the information in that letter was disclosed to the applicant or her lawyers prior to the making of the Tribunal decision on the application for review, and,
(b) That non-disclosure caused prejudice to the applicant.
31 An affidavit of Ms Ho, who is an employed solicitor of the firm representing the applicant, was read by counsel for the applicant. She said that had she been provided with the letter of 19 November 2002, counsel would have been able to make submissions on the letter to the Tribunal. In cross-examination, she agreed that there had been no request for the letter to be provided other than in the letter of 18 November 2002 from the applicant's solicitors to the Tribunal. The hearing took place before the Tribunal on 20 November 2002. The applicant was then accompanied by both a barrister and Ms Ho, the principal of the firm Ms Ho worked for as well as her migration agents. The question of whether the applicant should have access to the Chinese documents was not raised at the hearing or subsequently.
32 The point concerning the letter of 19 November 2002 was only raised, in this proceeding, by counsel for the applicant during the hearing. Ultimately, I invited the parties to make further written submissions on the issue. In those submissions, counsel for the applicant repeated the submission that the applicant had been denied an opportunity to respond to the Department's letter of 19 November 2002 and this constituted a denial of procedural fairness. He submitted that an applicant is entitled to relief if the denial of procedural fairness could have affected the outcome, referring to Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 88 per Gleeson CJ, 116-7 per Gaudron & Gummow JJ, 122 per McHugh J (who dissented, but not on this point), Kirby J at 130-1. He also referred to the judgment of Gaudron J in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 86:
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.
And later, McHugh J at 96:
A basic principle of the common law rules of natural justice is that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise: Kioa v West(1985) 159 CLR 550 at 628, citing Kanda v Government of Malaya[1962] AC 322 at 337; Ridge v Baldwin[1964] AC 40 at 113-114; De Verteuil v Knaggs[1918] AC 557 at 560, 561. 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":Kioa v West(1985) 159 CLR 550 at 629.
33 Counsel for the Minister, in his submissions in reply, referred to the circumstances described earlier and submitted that the Tribunal was under no obligation to disclose the advice received from the Department. In addition, it was submitted that the applicant had ample opportunity to request the letter from the Department or make submissions on access to the documents, and did not do so. There has been no substantial unfairness or practical injustice to the applicant resulting from the Tribunal's actions. Reference was made to Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 195 ALR 502. No submission was made by the Minister that s 422B of the Act had any bearing on the issue raised by the applicant. That section relevantly provides that s 438 is to be taken to be an exhaustive statement of the requirements of natural justice hearing rule in relation to the matters the section deals with in so far as they relate to Division 4 (which concerns the conduct of a review by the Tribunal). It emerged from later written submissions that it was common ground that s 422B was not relevant because of the time at which the decision in the present case was given.
34 Section 438 has to be read in conjunction with s 418. Subsection (3) of that latter section requires, in the event that an application for review is made to the Tribunal, the Secretary of the Department to forward to the Registrar of the Tribunal documents relevant to the review. This general obligation is qualified by the prohibition in s 437 which prevents the Secretary giving the Tribunal a document or information which is the subject of a Ministerial certificate of the type referred to in that section. However s 438 would appear to serve the purpose of enabling other sensitive documents or information (the subject of a certificate by the Minister under par 438(1)(a) or information which was confidential in the way contemplated in par 438(1)(b)) to be given to the Tribunal on the basis that it would not be disclosed unless the Tribunal thought it should be. Subsection 438(3) confers on the Tribunal a discretionary power to disclose to an applicant "any matter contained in [a] document" or information to which the section applies. It is of importance, for present purposes, that in exercising this discretionary power, the Tribunal should have regard to any advice given by the Secretary under subs 438(2). That advice concerns "the significance of the document or information".
35 Ordinarily an inquisitorial decision maker such as the Tribunal should give a person directly affected by the decision an opportunity to comment on adverse material (sourced from a third party) concerning the person and on which the decision maker might base its decision: see Kioa v West (1985) 159 CLR 550 at 587 and also Caulton v Minister for Immigration and Ethnic Affairs (unreported, Lockhart J, 12 August 1987), Pattanasri v Minister for Immigration, Local Government & Ethnic Affairs (1993) 34 ALD 169 cf: Chu v Minister for Immigration, Local Government & Ethnic Affairs (1993) 45 FCR 540, for a recent discussion of the question of non-disclosure of material by the Tribunal leading to a denial of procedural fairness, see Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 437. Thus the exercise of the statutory power conferred on the Tribunal by subs 438(3) to have regard to "matter contained in [a] document" without disclosing the matter to an applicant has the effect of depriving the applicant of an opportunity that might otherwise be expected to exist (at least if it is adverse material or information personal to the applicant). Because the provision operates this way, the discretionary power to disclose the information is of potentially considerable significance. Given the consequences of a decision not to disclose based on advice of the Secretary, it might be expected that an applicant would be able to comment on the advice of the Secretary in order to persuade the Tribunal to disclose the matter in the document or information on which the Tribunal might ultimately base its decision. It is true that the section does not expressly provide that an applicant should be given an opportunity to comment on the advice of the Secretary. However the section does not expressly exclude the possibility that an applicant might comment and, in my opinion, to deny an applicant the opportunity involves a denial of procedural fairness: see Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483 at 504.
36 Percerep v Minister for Immigration & Multicultural Affairs was an appeal from the Administrative Appeals Tribunal affirming a criminal deportation order under s 201 of the Act. Prison files concerning the applicant were produced to the Tribunal on a summons issued at the request of the Minister. Twenty-one pages were not produced on the return date for the summons. The documents which were produced were inspected by the applicant's legal adviser. The twenty-one pages were apparently provided to the Tribunal later the same day. A confidentiality order concerning the twenty-one pages was made a little over a week later by the Presidential member who ultimately determined the appeal (adverse to the applicant). The applicant and his legal advisers were, in fact, not aware that the twenty-one pages had been provided to the Tribunal nor were they aware, in fact, that the confidentiality order had been made (a copy of the order was sent to the legal representatives of the applicant by the Tribunal but the solicitor acting for the applicant did not see the letter). The Court was satisfied that the Presidential member read or perused the twenty-one pages. Their existence or content were not referred to at the hearing or in the Tribunal's reasons.
37 On the question of whether the applicant should have been heard before the confidentiality order was made in the circumstances set out above, Weinberg J said (at 504):
Where a decision-maker has received material which is, or may be, adverse in a material respect to a party, it is not unreasonable to expect that the fact that this material had been received will be emphasised during the course of the hearing, and the party adversely affected invited to be heard in relation to it. If the material has been previously read, and sealed, because of its sensitive or confidential nature, the party who may be adversely affected by it should, in my view, be given an opportunity to be heard in relation to any such confidentiality orders. The opportunity should be given clearly, and unequivocally, or to put the matter another way, there must be "meaningful disclosure" - Moore v Guardianship and Administration Board [1990] VR 902 at 912 per Gobbo J.
[Emphasis added]
38 In the present case, the Tribunal had a clear statutory mandate (under par 438(3)(b)) to have regard to the documents from the Chinese authorities without their contents being disclosed to the applicant. However the existence of that power renders more significant the exercise of the discretionary power which might result in disclosure of the contents and points, in my opinion, to the need in this case for the Tribunal to have given the applicant an opportunity to be heard before the discretionary power was exercised. Because the Tribunal might ultimately decide the matter having regard to undisclosed material (and material which the applicant has not scrutinised or commented on) it reinforces, in my opinion, the need for that opportunity to be clear and unequivocal, to use the language adopted by Weinberg J.
39 Counsel for the Minister submitted the applicant was not denied the opportunity to make submissions on whether the discretionary power conferred on the Tribunal by par 438(3)(b) should be exercised in her favour. In Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298, Gaudron J said at 305:
As was pointed out by Deane J. in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given 'a reasonable opportunity to present his case' and not that the Tribunal ensure 'that a party takes the best advantage of the opportunity to which he is entitled'.
See also McCarthy v Law Society of NSW (1997) 43 NSWLR 42 at 62.
40 It is to be recalled that in their letter of 18 November 2002, the applicant's solicitors noted that any statement by the Secretary under par 438(2)(b) (advice concerning the significance of the documents) was disclosable to the applicant. While there was no express and unambiguous request that the applicant be provided with the statement, this observation should probably be treated as such a request and viewed as such by the Tribunal. At the very least, it put the Tribunal on notice that the applicant had an interest in any advice it might receive from the Secretary which might bear upon the exercise of the discretionary power (to disclose "matter" contained in the documents) conferred by par 438(3)(b). The applicant only knew of how the discretionary power might be exercised when her solicitors were informed the following day that the Tribunal had decided against disclosure.
41 In my opinion, it is no answer to say that the applicant had the opportunity to make submissions before the discretionary power was exercised and, in a sense, did so in the letter of 18 November 2002. Central to any decision to exercise the discretionary power is the advice given by the Secretary. The Tribunal is obliged to have regard to that advice. In my opinion, the opportunity to put the case in support of the exercise of the discretionary power in an applicant's favour would ordinarily involve an applicant being given a copy of the advice and afforded an opportunity to comment on it. In the present case, nothing was said by or on behalf of the applicant which suggested she did not wish to see the advice and comment on it (indeed, as earlier noted, the letter from her solicitors probably should be understood to be a request to see it). The applicant was not given this opportunity.
42 It is true, as counsel for the Minister pointed out, that at no stage thereafter did the applicant or her legal advisers ask the Tribunal to provide the Secretary's advice or reconsider its decision concerning disclosure. But by that time, the decision not to disclose had been made. The applicant was confronted with a Tribunal which had made its decision (to exercise the discretionary power to keep confidential the documents) and it would be unrealistic to think that the applicant might thereafter (assuming, as is probably the case, that the Tribunal could exercise again the discretionary power) persuade the Tribunal to change its mind: see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [150].
43 Counsel for the Minister also submitted that even if there had been jurisdictional error, it must be one which affects the Tribunal's exercise of its power and, in this case, the Tribunal's decision under par 438(3)(b) was preliminary to its exercise of power to review the delegate's decision. Reference was made to Linett v McIntyre (2002) 117 FCR 189 at [34] and [87]. However, as I have endeavoured to show, the course adopted by the Tribunal had a direct bearing on the opportunity the applicant had to answer material which was central to the Tribunal's ultimate decision to affirm the delegate's decision, which was adverse to the applicant.
44 A final issue remains to be determined. Section 474 must be considered. Counsel for the Minister submitted that even if there had been a denial of procedural fairness, any such denial could not be said to constitute a failure to exercise jurisdiction nor involve an excessive jurisdiction. It is only in those last mentioned circumstances that s 474 would be effective. Particular reliance was placed on the recent judgment of Ryan J in VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205.
45 In a recent judgment of a Full Court in VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 at ([31]) it is simply said (without elaboration or discussion) that a failure to accord procedural fairness constitutes jurisdictional error. In that case the Tribunal had relied on a letter from the Afghan Consulate concerning whether the Consulate could renew an Afghan passport issued in 1994 and renewed in 1996. The consulate indicated it could. The appellant had not been made aware of the letter. It had been part of the appellant's case that he could not have effective protection in India without a valid Afghan passport. He would be at risk, so the appellant had contended, if he had to approach the Afghan authorities to obtain a passport. Thus the letter provided, at least in the view of the Tribunal, an answer to this contention. The Full Court concluded that as the appellant had not been made aware of the letter, nor given an opportunity to comment on it, he had been denied procedural fairness. This arose in a context (as described by the Full Court at [28]) where the Tribunal had used the ability of the appellant to return to India as the reason to affirm the decision to refuse the appellant a protection visa. Accordingly, the Full Court allowed the appeal, ordered that the decision of the Tribunal be set aside and ordered that the application be referred to the Tribunal for further consideration. As it was an application under s 39B of the Judiciary Act 1903 (Cth), it can be assumed that these orders constitute short form prerogative writs. Observations to similar effect (that a decision in which there has been a failure to accord natural justice is not a privative clause decision for the purposes of s 474) were made by a Full Court in Bax v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 55 at [24] (a judgment of 27 March 2003).
46 In VBAC v Minister for Immigration & Multicultural & Indigenous Affairs (supra), Ryan J was not satisfied there had been any denial of procedural fairness. It would appear that his Honour's judgment (given on 17 March 2003) was not drawn to the attention of the Full Court in VAAC v Minister for Immigration & Multicultural & Indigenous Affairs (supra)(which gave judgment on 17 April 2003). Having regard to the facts considered by the Full Court, Ryan J's analysis may not have been of critical importance. I should add that his Honour's discussion of what might constitute jurisdictional error probably does not form part of the ratio and I am not strictly bound to follow it. Nonetheless it is a considered discussion of a relevant issue which should be given due weight. It is convenient to set out his Honour's reasoning in full rather than endeavouring to paraphrase it. Ryan J said (at [24]-[29]):
In S157/2002, in the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ, their Honours at [62] rejected in these terms an argument advanced on behalf of the Commonwealth as to the proper interpretation of s 474;
'On behalf of the Commonwealth, it was contended that s 474 should first be construed as meaning and intended to mean that decisions are protected so long as there has been a bona fide attempt to exercise the power in question, that they relate to the subject-matter of the legislation and are reasonably capable of reference to the power. Then it is said that, being a later provision than those by which particular powers are conferred, s 474 should be construed as impliedly repealing all limitations on those powers leaving only constitutional limitations and those which derive from s 474. In terms, the argument was that s 474 "enlarges the powers of decision-makers so that their decisions are valid so long as they comply with the three Hickman provisos".'
Their Honours went on at [74]-[78] to make these observations:
'…However, s 474(1)(c) cannot be read in isolation from the definition of "privative clause decision" in s 474(2). That definition relevantly confines "privative clause decision[s]" to decisions "made, proposed to be made, or required to be made ... under this Act". …
When regard is had to the phrase "under this Act" in s 474(2) of the Act, the words of that sub-section are not apt to refer either to decisions purportedly made under the Act or, as some of the decisions made on behalf of the Commonwealth might suggest, to decisions of the kind that might be made under the Act. …
Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression "decision[s] ... made under this 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. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all". Thus, if there has been jurisdictional error because, for example, of a failure to discharge "imperative duties" or to observe "inviolable limitations or restraints", the decision in question cannot properly be described in the terms used in s 474(2) as "a decision...made under this Act" and is, thus, not a "privative clause decision" as defined in ss 474(2) and (3) of the Act.
To say that a decision that involves jurisdictional error is not "a decision ... made under [the] Act" is not to deny that it may be necessary to engage in the reconciliation process earlier discussed to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction.
The effect of s 474 is to require an examination of limitations and restraints found in the Act. There will follow the necessity, if s 474 is constitutionally valid and if proceedings are brought by the plaintiff in accordance with the draft Order Nisi, to determine, in those proceedings, whether, as a result of the reconciliation process, the decision of the Tribunal does or does not involve jurisdictional error and, accordingly, whether it is or is not a "privative clause decision" as defined in s 474(2) of the Act.' (Footnotes omitted.)
That analysis seems to indicate that, on an application for review by this Court of a decision to refuse a protection visa, the correct place to start is with an assessment of whether there is a limitation imposed by the Act that has been transgressed, or a statutory requirement which has not been observed. If there has been such a legal error, and it is one which would have deprived the Tribunal of jurisdiction, then the Tribunal has not, legally, made a decision at all and the purported decision cannot be protected by s 474. However, whether or not an error deprives the Tribunal of jurisdiction will depend on a reading of the relevant provisions of the Act (including s 474), which may have the effect that certain provisions are not to be treated as essential to the exercise of jurisdiction. In each case it will be necessary to consider whether the procedural or other requirement which an applicant alleges has been disregarded is, as a consequence of s 474, to be construed as "not essential to the validity of a decision": S157/2002 at [69] per Gaudron, McHugh, Gummow, Kirby, and Hayne JJ.
Where s 474 is found not to apply to prevent review of a decision, the consequence will be that "jurisdiction otherwise conferred upon federal courts by the laws specified in s 476(1) in respect of such decisions will remain, to be given full effect in accordance with the terms of that conferral" and this Court will be able to review that decision: S157/2002 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [96]. In S134/2002 Kirby and Gaudron JJ undertook (at [72]) this further examination of the availability of judicial review where jurisdictional error can be demonstrated;
'…for the reasons given in Plaintiff S157/2002 v The Commonwealth of Australia, s 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as "a decision ... under [the] Act". However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s 474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s 474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.'
Thus, a decision purportedly made by the Tribunal, where it has not followed all procedural steps which it is obliged to follow (in the sense that there is nothing in the scheme of the Act to suggest that those steps are "not essential to the validity of a decision"), is a decision made without jurisdiction. In this limited sense, a denial of procedural fairness can constitute jurisdictional error, but not every case will disclose such a denial. What is required is more than an infraction of a rule of natural justice; it is a failure to exercise a jurisdiction, which the Tribunal was bound to exercise, in the manner in which it was bound to do so.
A recent illustration of the type of denial of procedural fairness which amounts to jurisdictional error has been furnished by the judgment of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117. In that case, the Tribunal, through a serious administrative oversight, had failed to give the applicant a hearing, as it was obliged to do before coming to a final decision. Nevertheless, it purported to make a final decision. By failing to undertake the necessary step of conducting a hearing, the Tribunal was held to have acted without jurisdiction and its decision was not validly made. In law the duty to make a decision remained unperformed, and the Tribunal, in fact, made no decision at all: Bhardwaj at [53] per Gaudron and Gummow JJ, McHugh J (agreeing), at [153]-[155] per Hayne J and at [165] per Callinan J.
[Emphasis added]
47 I would respectfully view the matter somewhat differently. In Re Refugee Review Tribunal; Ex parte Aala (supra) at [41], Gaudron and Gummow JJ indicated that if an officer of the Commonwealth exercises a power conferred by statute and does not accord procedural fairness then the officer exceeds jurisdiction in a sense necessary to attract prohibition (unless the statute authorises that course). This passage was cited with apparent approval by McHugh and Gummow JJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (supra) at [42]. Accordingly, when Gaudron, McHugh and Gummow JJ joined in the judgment in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24 (at [76] in the third paragraph of the second passage quoted by Ryan J above) in which they indicate there would be no decision on which s 474 would operate if it was a decision made in excess of jurisdiction, I should proceed on the basis that what their Honours had in mind included a decision arrived at in circumstances where there had been a denial of procedural fairness. This conclusion gains support from the approach of Gummow and Callinan JJ (at [32] - [33] (with whom Hayne J agreed) and Kirby J (at [86] to [89])) in Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26. That said, in proceedings for prerogative relief in relation to a decision on which s 474 did not operate (because, for example, it was arrived at after a denial of procedural fairness), whether relief issued would still raise discretionary considerations in an appropriate case: see Re Refugee Review Tribunal; Ex parte Aala (supra). Accordingly, I proceed on the basis that a decision made following denial of procedural fairness, is a decision on which s 474 does not operate.
48 That being so, the applicant is entitled to relief (in circumstances where no submission was made on behalf of the Minister that relief should not issue as a matter of discretion). The Tribunal's decision should be quashed and it should be required to decide the application according to law. The Minister should pay the applicant's costs.
I certify that the preceding forty eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.