Our reasons on the procedural fairness question
25 The submission that there was a contravention of s 418(3) was pursued only in a formal way. This was because the items of country information which were published in December were not in existence at the time referred to in s 418(3), that is, as soon as practicable after the Secretary of the Department was notified of the application. Here, the application for review by the RRT was lodged on 6 September 2001 and, by the time when the December country information documents came into existence, there had already been an oral hearing before the RRT.
26 The position in Muin was quite different because the materials in question were relied upon by the delegate and were in the Secretary's possession at the time when the Department was notified of the application for review by the RRT. Gaudron, Gummow, Hayne and Callinan JJ held that a breach of s 418(3) did not of itself result in a denial of procedural fairness. However, their Honours were of the view that a reasonable applicant in the position of Mr Muin would have been misled into thinking that it was unnecessary to draw to the RRT's attention the material in the omitted documents which favoured the application. The misleading impression which resulted from the breach of s 418(3) gave rise to a denial of procedural fairness; at [63], [171], [255] to [257] and [309]. Kirby J was of the view that the failure to comply with s 418(3), of itself, amounted to jurisdictional error although he agreed that Mr Muin had been misled into refraining from putting before the Tribunal favourable portions of the omitted documents; at [194], [201] and [225].
27 We do not consider that in the present case it is necessary to ask whether there was a breach of s 418(3). Rather, in our opinion, the question which arises is whether the RRT was required to give notice to the appellant of the details of the four items of information referred to at [24] and [25] of its decision under s 424A of the Act, or alternatively, under the rules of procedural fairness.
28 We have not been provided in the appeal books with the four items of information to which the RRT referred but it is clear enough that they contained country information about the then current political situation in Afghanistan. These items must have been considered by the RRT to be a part of the reason for affirming the decision of the delegate. There can be no other explanation for the reference to them at [24] and [25] of the RRT's decision. Also, as we have said at [17] above, the RRT appears to have referred to the documents as a reason for rejecting the appellant's claim. Thus, unless the documents fell within the exception contained in s 424A(3)(a), the RRT was required to give notice to the appellant under s 424A(1) of the Act.
29 It seems clear enough from the description of the documents at [24] and [25] of the RRT's decision that the documents include statements about the treatment of Pashtuns. Thus, the documents appear to be about a class of persons of which the appellant is a member. It would therefore follow that the documents fell within the exception contained in s 424A(3)(a).
30 However, in Re Minister for Immigration and Multicultural Affairs; Ex parte "A" (2002) 185 ALR 489 ("Ex parte "A""), Kirby J considered that it was at least arguable that s 424A(3)(a) is not a code of the procedures for affording relevant information to a person affected by it and that, accordingly, the common law rules of procedural fairness are not excluded; at [48].
31 It is well established that the RRT is bound by the common law rules of procedural fairness unless they are excluded by plain words; see Muin and Re Minister for Immigration and Multicultural Affairs and Anor; Ex parte Miah (2001) 206 CLR 57. In Ex parte "A", Kirby J suggested that s 424A(3)(a) may be strictly construed and, on that approach, s 424A(3)(a) would be confined to information about "a class of persons" and would not extend to information about social and political conditions including any change in those conditions which may be said to disentitle an applicant to refugee status; at [48].
32 Kirby J did not decide the question of construction of s 424A(3)(a). He merely put forward the suggestion referred to at [48] of the judgment as a possible construction of the section. This was noted by von Doussa J in SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 962 ("SCAT") at [26] to [27].
33 It is unnecessary for us to decide the issue of construction because, as in Ex parte "A" and SCAT, there are, in our view, a number of reasons why there was no breach of any common law obligation to provide procedural fairness.
34 Kirby J at [51] - [54] gave three reasons why, on the facts in Ex parte "A", there was no breach. The first was that the country information was not of recent origin and did not suggest a change in the political environment. By contrast, here, the four items referred to by the RRT were very recent and did suggest the likelihood of a substantial change in the political situation in Afghanistan. Thus, if this were the sole test for breach, we would find that the failure to notify the appellant of the documents constituted a breach of the requirements of procedural fairness.
35 The second reason referred to by Kirby J was that there was no suggestion that the RRT had misled the applicant. The position was therefore distinguishable from the facts of Muin. In our view, there is nothing in the present case to suggest that the appellant was misled. It is true that the letter of 19 November 2001 from the RRT does not specifically request the appellant to address the question of whether the changed political circumstances in Afghanistan would affect his claim to have a well-founded fear of persecution on political grounds. Nevertheless, the appellant and his agents, M & K, must have understood that the letter of 19 November 2001 required them to do so. This is because their letters of 21 November 2001 and 26 November 2001 concentrated almost entirely upon the appellant's fear of persecution from non-Pashtun ethnic groups.
36 The third reason given by Kirby J was that the applicant in Ex parte "A" had not provided any clear indication of the evidence or material it would have placed before the RRT if the country information had been made available. Here, counsel for the appellant was also unable to point to any specific evidence that may have been supplied to the RRT in answer to the four items of information. He submitted that M & K would have been able to use their resources in order to see whether there was any other country information which contradicted the information referred to by the RRT.
37 The effect of the submissions made by counsel for the appellant was, therefore, that the appellant was deprived of the opportunity to try to obtain that information. However, as Kirby J said at [54], what was required was an indication of the nature of the opportunity and the presentation of evidence or material which would disclose an arguable case that the result in the RRT would have been different. No such evidence or material was put before us. Accordingly, the omission to supply the four items of country information to the appellant has not been shown to have had any material effect on the outcome of the application before the RRT.
38 It follows that we are not persuaded that the appellant has established a denial of procedural fairness. It also follows that there was no jurisdictional error within the principles stated in Craig v The State of South Australia (1995) 184 CLR 163 at 179.
39 Even if there was a denial of procedural fairness, this would not amount to jurisdictional error under Part 8 of the Act because the view of the majority in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 (Black CJ, Beaumont J and von Doussa J, Wilcox J and French J dissenting) is that the effect of s 474(1) is to expand the jurisdiction of the RRT so that a decision which is affected by a denial of procedural fairness will be within the power of the RRT so long as the "Hickman" conditions are satisfied; see NABM of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 294 at [24] (per Sackville, Hely and Stone JJ); SBAU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1076 at [25] (per Mansfield J); Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1108 at [73] to [84] (per Sackville J).
40 Counsel for the appellant argued that the decision of the RRT in the present case was not a bona fide attempt to exercise its power of review; see R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616. He did not submit that the other Hickman conditions were not met.
41 In view of the findings we have made about the absence of any denial of procedural fairness, it is unnecessary for us to deal with the submission. However, for completeness, we will do so.
Our reasons on the "bona fides" question
42 There are a number of judgments of single judges of the Court in which the principles applicable to a determination of whether the decision constitutes a bona fide attempt to exercise the power of review have been stated. They are set out fully and analysed by Mansfield J in SBAU. It is unnecessary to repeat in detail his Honour's comprehensive review of the authorities. The propositions which emerge are summarised by us below.
43 First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial; see SBAU at [27] citing SBAP v Refugee Review Tribunal [2002] FCA 590 per Heerey J at [49] and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805 per Hely J at [25].
44 The fifth proposition is that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review; SBAU at [28] citing SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 per Mansfied J at [35] and SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.
45 Sixth, mere error or irrationality does not of itself demonstrate lack of good faith; SBAU at [29]. Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism; see NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] per Allsop J quoted with approval in NAAV at [107] by Black CJ.
46 Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness; SBAU at [31].
47 Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task; SBAU at [32].
48 Ninth, it is not necessary to demonstrate that the decision maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power; SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1377 ("SCAZ").
49 In SBAU, Mansfield J at [60] set out the reasons why, on the fact of that case, a finding of bad faith was made. The passage includes the following at [60]:-
"The combination of factors to which I have referred, includes the understating or ignoring of the claims of harassment and discrimination when the Tribunal must have been aware of them, its attribution of inherent unlikelihood to events which on the contrary in my view are inherently likely,and its assertion that the legal system in Iran could not condone the wrongful conviction of a Sabian Mandean accused of assaulting a Muslim woman (and one who was the wife of a prominent local official) flying in the face of the country information it recorded. I consider, upon careful reflection, that the Tribunal embarked upon its review with a mind fixed upon rejecting the claims. Even if the Tribunal accidentally overlooked the more specific claims of harassment and discrimination made by the applicants both personally and through their migration agent, that indicates to me a degree of capriciousness in addressing the review which, together with the other factors I have mentioned, points firmly towards it failing to endeavour in good faith to review the delegate's decision. Its doubtful fact finding does not simply indicate possible legal or factual error."
50 In SCAZ, von Doussa J found that the refusal, on two occasions, to grant an adjournment constituted reckless disregard for the provisions of s 425A of the Act at [37]. Section 425A requires the RRT, if it wishes to invite an applicant to appear at an oral hearing, to give the applicant a prescribed period of notice of the date on which he or she is to appear. The prescribed period was seven days but only five days' notice was given.
51 In SCAZ, the applicant's migration agent wrote to the RRT within the period nominated by the RRT seeking an adjournment on the ground that more time was needed to prepare for the hearing; at [18]. The day before the hearing, the RRT notified the applicant's migration agent that the hearing would go ahead the next day with the applicant to be present by videolink from the Woomera Detention Centre; at [19]. When the hearing commenced, the migration agent was not present and the applicant requested an adjournment to enable him to properly prepare; at [20]. The migration agent arrived shortly afterward but the hearing proceeded without an adjournment.
52 von Doussa J found that the refusal of the RRT to grant an adjournment in the face of the migration agent's complaint that more time was required to prepare submissions was extraordinary; at [35]. His Honour found that this constituted reckless disregard for the provisions of s 425A and that, accordingly, the refusal of an adjournment was arbitrary and capricious; at [35] and [37]. Accordingly, his Honour found that the decision under review could not be characterised as a bona fide attempt to exercise the power of review; at [37].
53 Here, counsel for the appellant relied upon a combination of circumstances which he said gave rise to an inference that the RRT's decision was not a bona fide attempt to exercise its powers.
54 The circumstances were: first, that the RRT knew that the information about the treatment of Pashtuns was critical to the application; second, to the RRT's knowledge the dynamics of the political situation in Afghanistan were also critical; third, the RRT failed to indicate to the appellant that the December documents contained new information about the position of the Pashtuns and that those documents came into existence after the oral hearing; fourth, the appellant was required by the terms of the letter of 19 November 2001 to deal with an entirely new political landscape in a period of no more than seven days.
55 Counsel for the appellant submitted that the combination of these factors showed that the migration agents would have to locate, quite suddenly, and put together a critical submission in a period of less than seven days. Also, he said that the RRT knew that the appellant was represented by M & K at the hearing and that if more time was given, they may have been able to produce country information which negated the effect of the December documents. In short, he submitted that the RRT's letter put the appellant in an impossible position.
56 In our view, these circumstances, even when considered cumulatively, do not amount to bad faith. The circumstances of this case would not permit us to take the large step from a finding of denial of procedural fairness (had we so found) to a personal criticism of the decision maker which would result from a finding of bad faith. Indeed, counsel for the appellant recognised the difficulty of making such a finding because he said that there was an attempt to deal with the matter but it was not a serious attempt.
57 In our opinion, the factors relied upon by the appellant reveal no more than errors of fact and law. The RRT did endeavour in its letter of 19 November 2001 to bring to the attention of the appellant the necessity to address the new situation which would exist in Afghanistan after the fall of the Taliban. Although the December documents were not provided to the appellant, the letter of 19 November 2001 shows that the RRT was endeavouring to put the appellant on notice of the need to address the changed circumstances.
58 The passage in the letter from M & K, which we have set out at [13] above, was, in substance, a request for an adjournment until the situation in Afghanistan had stabilised. However, the letter did not suggest to the RRT that the migration agents needed more time to prepare a response. Indeed, the migration agents referred to the circumstances in which the appellant would still have a fear of persecution on his return to Afghanistan. The situation which confronted M & K, namely the difficulty in responding to the volatile circumstances in Afghanistan, were in no way analogous to the position of the migration agent in SCAZ. There was no complaint that more time was required to respond and there is no basis for a finding that the RRT recklessly disregarded its obligations to provide procedural fairness.
59 Although counsel for the appellant had a proper basis for making the submission, there is no clear evidence which gives rise to an inference that the RRT member acted dishonestly or arbitrarily or capriciously.