VAAC v Minister for Immigration & Multicultural & Indigenous Affairs

the decision of the tribunal 2 The appellant claimed to be a national of Afghanistan, and to fear persecution at the hands of the Taliban regime because he is a Sikh. He claimed to have fled with his wife from Afghanistan through Pakistan, and to have taken initial refuge in India from early 1997. He stayed in India until his arrival in Australia on 30 May 1998. 3 The Tribunal had doubts about the appellant's claim to be a national of Afghanistan. However, after a comprehensive evaluation of the evidence, the Tribunal concluded that the appellant was an Afghan national. 4 The Tribunal then surveyed the country information concerning the treatment of Sikhs in Afghanistan and concluded that the appellant had a well founded fear of persecution as a result of his Sikh religion. 5 The Tribunal next addressed the question of whether the appellant would have effective protection in Pakistan or India. The Tribunal found that Pakistan would refuse entry to the appellant. As to whether the appellant could re-enter and reside in India, the Tribunal said: "My consideration of the evidence has led me to the view that it is likely, as a matter of practical reality and fact, that the applicants [and his wife] could obtain a visa to return to India and to live there. The applicants' adviser's submission was that the applicants do not have effective protection in India and they would have to approach the Afghan authorities to obtain a passport and cannot do so because they fear persecution from these authorities. It may be that the applicants' adviser was not aware that there is an Afghan Consulate in Canberra which represents the non-Taliban government still in control of a portion of the country in the north and which is able to issue passports. I do not accept that an approach to the Consulate in Canberra to obtain passports would lead the applicants to face any trouble at all. Independent information indicates that India has allowed people of Indian descent who left Afghanistan to live there and that many of these people have done and do so. I consider it highly unlikely that the Indian authorities would refuse admission to a Sikh couple (and their child) who have lived there for some considerable time (of a least more than a year but possibly longer) previously. I understand that the Indian government refuses to admit Afghans who have come from or through Pakistan, something which indicates some caution on the admission of Afghans, but there is no firm evidence that the applicants have come through Pakistan or when they did so. It is, however, apparent that the applicants have not been near Pakistan for well over four years at least and it therefore seems most improbable that the applicants would be refused a visa to return to India because of this provision." [emphasis added] 6 The Tribunal then found that the appellant would not be at risk of refoulement from India to Afghanistan, nor would he be at risk of persecution in India. Consequently, the Tribunal affirmed the decision of the delegate of the respondent to refuse the appellant a protection visa. 7 The Tribunal's knowledge of the existence of the Afghan Consulate and its ability to issue passports to Afghan nationals was critical to the Tribunal's decision that the appellant could return to India. The treatment of this information by the Tribunal is now central to this appeal. The information was set out on page 25 of the decision under the heading "Relevant Independent Information": "There is a Consulate of the Islamic State of Afghanistan in Canberra (GPO Box 88, Canberra, ACT 2601, telephone (02) 6286 8445, fax (02) 6286 8446). It represents the Afghan government led by President Rabbani, largely composed today by the United Front. 'Its consular services are available to all Afghan nationals' and it 'can issue new passports to Afghan nationals' (Letter to RRT 6 April 2000)." 8 Relevant to the consideration of the issue is correspondence which occurred after the hearing, which took place on 3 July 2000, and before the handing down of the decision of the Tribunal. 9 By letter dated 4 October 2000, the Tribunal wrote to the appellant as follows: "The Member considering your application has asked me to write to you now that she has before her additional information relevant to your circumstances. On 11 July 2000, after the hearing about your application, the Member wrote to advise that she was satisfied that you and your wife are originally from Afghanistan but was not yet satisfied about the circumstances and timing of your departure from Afghanistan. She considers that you may have been in India for longer than you have claimed but even on your own evidence you were there for more than a year. The letter also advised that she must consider the question of whether you and your wife could access effective protection in India where many Sikh and Hindu people have fled from Afghanistan. A person is considered to have effective protection if they are able to enter and live in another country where they will not face as [sic] real chance of persecution or of being returned to their original country. The key considerations in relation to the circumstances presented in your application are: · whether you would be able to re-enter or reside in India; · whether there is a real chance that you would face persecution in India because of your race, religion, nationality, membership of a particular social group or political opinion; and · whether there is a real chance that you would be returned to Afghanistan if you were to return to India. The question of effective protection in India is a very important consideration in relation to your application because Australia does not have protection obligations to people who would be afforded protection in another country. The Member has now read a number of documents about the situation of Afghan refugees in India although has found nothing about the particular circumstances of Afghan Sikhs. The purpose of this letter is to provide you with that material and to invite your comment on it. Attached is a document titled 'Relevant independent information about Afghanistan and India'. It is a summary of all the material the Member will consider in deciding on your application. Your comment is particularly invited on the information summarised on pages 5 and 6 of the summary, which is in bold type and which addresses the circumstances of Afghan refugees in India. Copies of the documents referred to are attached. The Member has noted that people without an Afghan passport were during 1999 refused renewal of their residency permit, something which had previously happened automatically. It is said that many such people fear that they may face deportation but the Member has noted that the United States Department of State has indicated that there are no reports of people being returned to a country where they fear persecution. She notes that the South Asia Human Rights Documentation Centre believes that some Afghan refugees have been deported but provides no evidence of this. It is clear that many Afghan refugees in India face difficulties in going about their lives because of poverty and limitations on their rights to pursue employment. Education, training and health services are provided, but it would appear, not to the level which might be desirable. These factors, however, may not be of a kind which mean that you would face persecution in India. Persecution, as the Member is required to interpret it, means serious detriment or disadvantage for the reason of your race, religion, nationality, membership of a particular social group or political opinion. The Member has noted the view that the involvement of Afghan mercenaries in Pakistan's war with India over Kashmir may have turned Indian public opinion against Afghan refugees. She does not at this stage consider that it would be probable that a Sikh person who is a refugee from Afghanistan would be imputes (sic) with a pro-Pakistan stance in relation to that war. The Member will take any comment you make in to account before she finalises her decision on your application. In considering the question of effective protection in India, she will also have regard to the evidence about the Indian passports you used to enter Australia. She has asked me to let you know that while she has provided full copies of the material relevant to effective protection in India, as the central issue for consideration in relation to your application, she is happy to provide upon request full copies of any other documents cited in the enclosed summary of independent information which she will take in to account in deciding your application." 10 The appellant's adviser replied by a letter dated 12 October 2000 as follows: "Thank you for your letter and research information about Afghans in India and an expression of the three key considerations of the member. I would however like to point out the following: 1. This applicant and his wife have no valid Afghan passport; they travelled to Australia using assumed identities and with documents of other parties; in order to obtain valid documents as Afghan born persons, they would have to approach and apply to Afghan government authorities; as they submit that they have a well founded fear of persecution at the hands of the Afghan authorities (i.e. the Taliban), they cannot be expected to approach those authorities.

2. In information provided by the Honorary Consul for India is (sic) Melbourne includes Requirements for the granting of visas to enter India; the relevant requirement here is that the applicant have "A valid passport, with a remaining validity of one year" (see Visa Application Form); as the couple fear approaching Afghan government authorities, they cannot meet this requirement, so cannot even apply for a visa to enter India.

3. India is not a party to the 1951 Refugee Convention or the 1967 Protocol and so is not bound by Article 33 of the Convention; hence even if the couple were able to re-enter India, they would not have protection from refoulement in relation to Afghanistan. The applicant and his wife have no guarantee of effective protection without refoulement were they able to re-enter and reside in India.

4. In addition, reference is made on page 6 to human rights groups which "believe that there have been some cases of refoulement and forcible, or at least involuntary, repatriation involving Sri Lankan Tamils and Jumma refuges from Bangladesh. …A later SAHRDC report dealing specifically with Afghans states that it is believed that India has deported Afghans but provided no examples or evidence for this claim." Even anecdotal evidence of forced returns would make it unacceptable for this couple to return to India.

In summary, according to information provided by the Indian Honorary Consul's office in Melbourne, this couple could not acquire a visa to enter and reside in India. It is not clear whether the couple could be assured of not being returned to Afghanistan.

We ask that these responses be taken into consideration by the Member as she decides whether this couple is one to whom Australia should afford protection." [emphasis added] 11 There was no further exchange between the Tribunal and the appellant prior to the handing down of the decision on 23 November 2001.

the decision of the primary judge 12 Before the primary judge, the appellant contended that the Tribunal acted in breach of its obligations under s 424A of the Migration Act 1958 (Cth) (the Act). That section relevantly provides: "(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. … (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." [emphasis added] 13 The appellant contended that the information that there was such a consulate able to issue passports was information within the meaning of s 424A(1)(a), and that in breach of the section, the Tribunal had failed to give particulars of that information to the appellant. 14 The primary judge rejected this argument. He held that the Tribunal was not obliged to give particulars of this information to the appellant because the information was not specifically about the appellant but was just about a class of persons of which the appellant was a member. Thus, the information fell within the exception in s 424A(3)(a) of the Act. 15 Having so held, his Honour said that he did not need to consider whether a decision which was made in breach of the requirements of s 424A(1)(a) would be protected by the privative clause which is found in s 474 of the Act.

The original grounds of appeal 16 The notice of appeal, the written submissions of the appellant, and the major part of the appellant's oral arguments rely upon the contention that the primary judge erred in holding that the information concerning the ability of the Afghan Consulate to issue passports fell within s 424A(3)(a). 17 By agreement of the parties, the Full Court was provided with correspondence between the Afghan Consulate and the Tribunal, which was the stated basis for the Tribunal's finding that the Afghan Consulate in Canberra was able to issue passports to Afghan nationals. The Tribunal's letter, dated 4 April 2000, was a request for information as follows: "Country Information Request - AFG22243 Renewal of Passports The Refugee Review Tribunal is an independent Tribunal set up by legislation to undertake merit review of applications for refugee status of persons in Australia. One of the functions of the Country Research Section is to obtain information to support the review function of the Tribunal. Please be aware that any information you provide may form part of the information used by the Tribunal to review applications for refugee status. Through use of the information, your identity and that of your organisation may be disclosed to applicants, their advisers, the Department of Immigration and Multicultural Affairs, or otherwise become publicly available. If this is not acceptable to you please advise us prior to sending any information. Please do not send us any information which cannot be cited. An applicant before the Tribunal has a Republic of Afghanistan passport apparently issued in 1994. It has been renewed twice, once in Islamabad and another time in Canberra - both by the Afghan Consulate. The Canberra renewal was for a year from 1996. A Member of the Tribunal is urgently seeking a response to the following question/s:

1. Can the Afghan Consul in Canberra renew a passport if the last renewal has already expired (more than two years ago)?
2. How many renewals can there be? And for how many years at most?
3. Can the Consul issue new passports to Afghan nationals?
4. Which government does the Consul represent, ie: Taliban, or the Northern Alliance led by former President Rabbani and Defence Minister Masoud?
5. Is your office recognised by the other side? As a matter of policy the Tribunal does not usually pay for reports or opinions obtained from experts. If it is your practice to charge for these services and you intend to do so in response to this request, please contact me as the Tribunal will not meet the cost without prior agreement on the fee and the nature of the work involved." 18 The Afghan Consulate's reply, dated 6 April 2000, read relevantly as follows: "In reference to the questions of your fax dated 4 April 2000, 1- Yes, the Afghan Consul in Canberra can renew such a passport. 2- On the passport, there is room for four renewals, each for one year. However, given the circumstances, more renewals could be added on the Observations page. 3- Yes, the Consul can issue new passports to Afghan nationals. 4- This Consulate represents the Islamic State of Afghanistan, headed by President Burhanuddin Rabbani, and officially recognised by the international community, including the United Nations. Its consular services are available to all Afghan nationals, regardless of their political, ethnic and linguistic affiliations. 5- Officially, no. However, consular documents issued by this consulate are still valid within certain parts of their administration. I hope the above information is of assistance to you." 19 Mr Gibson, who appeared as counsel for the appellant, contended that the information contained in the letter from the Afghan Consulate did not fall within s 424A(3)(a) because it was not information solely about a class of persons of which the appellant was a member. He argued that the information provided by the consulate amounted to a statement that the appellant would be granted a passport. Mr Gibson accepted that the letter, if taken at face value, was not a statement about the particular circumstances of the particular person who is the appellant. But, he submitted, the exception in s 424A(3)(a) should be given a narrow operation: Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27; [2001] FCA 919. Taking that approach, and when the letter is seen in its context as part of a communication between the Tribunal and the Consulate in relation to a particular applicant, it cannot be said that the information is just about a class of persons. The information is different from the usual country information relied upon by the Tribunal. Such information refers to conditions in the country generally, and only by general reference does it apply to a particular applicant. Importantly, Mr Gibson submitted, "ordinary" country information does not arise from the type of enquiry that the Tribunal made in this case. 20 In our view, the primary judge was correct in holding that the information fell within the exception contained in s 424A(3)(a). The information was just about a class of persons, namely, Afghan nationals who seek the issue of a passport. In relation to that class, the information was that there was a consulate in existence in Canberra which could issue such passports. There is nothing in the exchange of letters that provides a linkage to the individual case that would remove the information from the category of information about a class of persons. The reference to the individual circumstances of a particular applicant in the Tribunal's letter is merely background to the making of an enquiry in general terms. Further, the Consulate's response is couched in similarly general terms. The authorities which bear upon the construction of s 424A(3)(a) are set out in his Honour's reasons for judgment at pars 15 -23. We can discern no error in his discussion of those authorities, or in his analysis of the relevant principles. We would dismiss this challenge to his Honour's decision.

The proposed new ground of appeal 21 In the course of the hearing of the appeal, the appellant sought to add a further ground of appeal as follows: "5. The decision of the Tribunal was made in breach of the rules of natural justice and/or the duty of procedural fairness in that the Tribunal failed to give to the Appellant notice of material or information adverse to his interests which it was proposing to take into account, and did rely upon, in the exercise of its power. Particulars The Tribunal failed to supply the letter to the RRT of 6 April 2002 or details of the contents thereof to the Appellant." 22 Following the hearing, the appellant filed written supplementary submissions that set out the argument sought to be raised under the new ground, as follows: "the Tribunal breached the rules of natural justice and/or the duty of procedural fairness by failing to offer him [the appellant] an opportunity to respond to material critical to its ultimate adverse decision. The letter to the RRT of 6th April 2000 contained information which went directly to the Appellant's assertion that he was unable to approach the Afghan, i.e Taliban, authorities. The first reference to that letter appears at AB 187 [set out in par 7 of these reasons] and in the reasons for decision at AB 195 [set out in par 5 of these reasons]. There was no information made available prior to this disclosure which expressly or impliedly stated that there was an Afghan consulate in Canberra (representing the non-Taliban government which controlled the north of the country) which was able to issue passports to Afghan nationals. The contents of the letter are clearly credible, relevant and significant to the decision to be made. In the Tribunal's reasons the information was made directly referable to the personal situation of the Appellant yet it was information of which he was previously unaware. It was information that was decisive of his claims and critical to the Tribunal's decision that the Appellant had effective protection in India. By failing to disclose this material the Appellant was denied an opportunity to put forward answering material. The issues which the Appellant would have sought to raise include: his concerns about approaching the non-Taliban authorities; the practical matter of establishing the fact of his Afghan nationality as a Sikh to the satisfaction of the non-Taliban authorities; and, perhaps more importantly, whether any passport that might be issued is one recognised by the Indian government as a valid passport which would permit entry to India …" 23 An appeal court has power to allow grounds to be argued on appeal that were not argued before the primary judge. The proper approach to the exercise of this power was explained in H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348 (H v Minister) per Branson, Marshall and Katz JJ at par 6 as follows: "An appeal to this Court from a decision of a judge of the Court is an appeal in the strict sense and not an appeal by way of rehearing (Dynasty Pty Ltd v Coombs (FC) (1995) 59 FCR 122 at 129; White v Minister for Immigration & Multicultural Affairs [2000] FCA 232). The appeal power is thus to be exercised for the correction of errors (Coal and Allied Operations Pty Ltd v The Full Bench of the Australian Industrial Relations Commission [2000] HCA 47 per Gleeson CJ, Gaudron and Hayne JJ at para 21). This does not mean that an issue can never be argued on appeal that was not argued at the hearing at first instance. In a case where, had the issue been raised before the primary judge evidence could have been given which might have prevented the point from succeeding, the issue will not be allowed to be raised on appeal (Coulton v Holcombe (1986) 162 CLR 1 per Gibbs CJ, Wilson, Brennan and Dawson JJ at 7-8). In other cases, it will be for the Full Court to determine whether it is expedient in the interests of justice that the issue should be argued and decided (O'Brien v Komesaroff (1982) 150 CLR 310 per Mason J, with whose judgment the other members of the court concurred, at 319; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 per Mason P, with whom Gleeson CJ and Priestley JA agreed, at 645-646; Jones v Minister for Immigration & Ethnic Affairs (1995) 63 FCR 32 (FC) particularly per RD Nicholson J at 47)." [emphasis added] 24 Their Honours, at pars 7-8, went on to make some comments regarding the policy considerations relevant where applications such as the present have become too frequent: "As Gibbs CJ, Wilson, Brennan and Dawson JJ observed in Coulton v Holcombe at 7: 'It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.' In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration." 25 The way in which the appellant seeks to argue the new ground of appeal would not have involved the calling of additional evidence before the primary judge. The alleged denial of procedural fairness depended on the decision record that was before the primary judge, as enlarged with the agreement of both parties to the appeal, to include the Tribunal's letter of 4 April 2000, and the Afghan Consulate's reply of 6 April 2000. The argument would have been either good or bad by reference to that material alone. We interpolate to briefly refer to Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 (Lam), which was a case involving a "legitimate expectation" which arose out of a statement by a tribunal that it would seek information from a third party which it did not then do. The issue was whether the applicant for relief needed to demonstrate that, by reason of the tribunal's actions, he was deprived of an opportunity to present a case that might have resulted in a more favourable outcome: see Lam at 511, 516, 527 and 529. We do not regard that case as pertinent to the appeal, which is not a case of "legitimate expectation", but rather a case of denial of procedural fairness in the orthodox and traditional sense. See also NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 52. 26 It is therefore necessary to consider whether it is expedient in the interests of justice to allow the new ground to be argued and determined. In the present case, the interests of justice require reference to a number of considerations, namely, the appellant's prospects of success on the appeal on the new argument, the explanation given by the appellant for failing to raise the argument before the primary judge, the prejudice to the respondent in allowing the appellant to raise the new argument, the potentially serious consequences to the appellant if leave to amend is refused, and the integrity of the appellate process. 27 Determining the appellant's prospects of success on the appeal requires consideration of the merits of the new ground. It is well established that the rules of natural justice require that a decision-maker bring to an applicant's attention the critical factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it: see Kioa v West (1985) 159 CLR 550 at 587; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481; and Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 and the cases there cited. 28 The Tribunal used the ability of the appellant to return to India as the reason to affirm the decision to refuse the appellant a protection visa. The evidence relied upon by the Tribunal in concluding that the appellant could return to India was that the appellant could obtain an Afghan passport from the Consulate for Afghanistan in Canberra. That critical evidence was not disclosed to the appellant. It was revealed to him for the first time in the Tribunal's reasons for its decision. Thus, the critical factor on which the decision was likely to turn, namely the ability of the appellant to obtain an Afghan passport which would enable him to return to India, was not drawn to his attention. 29 The respondent contended that the Tribunal gave the appellant fair notice that it would consider whether the appellant could obtain a passport. The respondent relied upon the letter from the Tribunal to the appellant dated 4 October 2000 (set out in par 9 of these reasons), which raised the question whether the appellant could re-enter or reside in India, and indicated that persons without an Afghan passport had in 1999 been refused renewal of residency permits in India. The respondent also relied upon the 1999 US Department of State Report on Human Rights Practices in Afghanistan, which the appellant had supplied to the Tribunal. The appellant had provided the report to demonstrate that there was discrimination against Sikhs in Afghanistan by the Taliban. The respondent argued on the appeal that the report also indicated that the former President of Afghanistan, President Rabbani, controlled "most of the countries' embassies abroad". The reply of the appellant's adviser, dated 12 October 2000, (set out at par 10 of these reasons) stated that the appellant could not obtain a passport because he could not be expected to approach Afghan authorities associated with the government. We conclude that the Tribunal understood from that statement that the appellant was contending that there was no non-Taliban source for him to obtain a passport. Therefore, when the Tribunal obtained specific information that the Consulate in Canberra represented the Afghan government in exile, and that it was able to issue passports to Afghan nationals, the Tribunal was bound as a matter of procedural fairness to disclose that information to the appellant. By failing to do so it denied him procedural fairness. 30 It is established that the presence of a provision such as s 424A does not, of itself, preclude the continued existence of the common law requirements of natural justice: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 (Miah). It may be that this position no longer prevails. The Act was amended on 3 July 2002 by the introduction of s 422B which seeks to exclude the common law requirements of natural justice. However, the amendment does not apply retrospectively, and has no bearing upon the present appeal. 31 It is also now established by Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 (S157) that s 474 does not protect a purported decision made as a result of jurisdictional error. A failure to accord procedural fairness constitutes jurisdictional error: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at 89, per Gaudron and Gummow JJ at 101, per Kirby J at 135, and per Hayne J at 143. 32 It follows that, on the present state of the law, if the appellant were permitted to raise the new argument, he would succeed on the appeal. 33 It is next necessary to consider the explanation given by the appellant for failing to raise the new argument before the primary judge. Counsel for the appellant accepted that the argument could have been raised, but pointed out the confusing and fluid state of the law at the time the application for review was drafted in about December 2001 and when the application was heard by Marshall J on 23 April 2002. In Walton v Ruddock (2001) 115 FCR 342; [2001] FCA 1839, decided on 20 December 2001, there was a suggestion that s 474 would not protect a decision made where there had been a failure to accord procedural fairness. On the other hand, in NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263, decided on 15 March 2002,Gyles J held that at the highest, s 474 protected decisions made in breach of the requirements of natural justice where the breach was constituted by a failure to comply with an express statutory provision that embodied a requirement of natural justice. 34 Thus, whilst the point now sought to be raised could have been taken before the primary judge, there was no element of deliberately standing by or of the appellant making a tactical decision not to pursue the argument. Where those circumstances exist the Court is unlikely to be sympathetic to an application for leave to amend a notice of appeal to include a new argument. As McInerney J said in R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 135, an applicant should not be able to "eat their cake and have it". The oversight in the present case must be seen against the background of the changing and uncertain state of the law at the time the review proceeding was commenced and heard. 35 The prejudice to the respondent arising from granting the appellant leave to amend may be addressed by an order for costs. It is not suggested that any other prejudice would be visited upon the respondent by the grant of leave. 36 Finally, just as it is relevant in considering whether the statute preserves elements of natural justice beyond the statutory provisions embodying some of those elements, so it is relevant for the determination of the present question to consider "the nature of and consequences for the individual". McHugh J said in Miah at par 146: "the nature of the interest is the prosecutor's personal security. The consequences for him include returning to face serious threats to his personal security, if not to his life." 37 Evidence, which the Tribunal accepted, showed that the appellant was at risk of persecution in Afghanistan if he were returned there. Thus, the nature of the consequences to the appellant flowing from the decision in this case favour the grant of leave to amend. 38 Whilst we accept the force of the comments made in H v Minister and the need to recognise that the hearing before the primary judge in these cases is not merely a "preliminary skirmish", on balance, the circumstances of this appeal justify the grant of leave to amend the notice of appeal in the terms sought by the appellant. Leave is therefore granted.

DEtermination of the appeal 39 In pars 26-30, whilst dealing with the question of the grant of leave to amend the notice of appeal, we explained that the appellant would be entitled to succeed on the new ground of appeal, and we expressed our reasons for that conclusion. Having now determined to grant leave to the appellant to amend the notice of appeal, it follows that the appellant is entitled to succeed on that new ground.

costs 40 The appellant has failed on the grounds of appeal included in the original notice of appeal. The proposed new ground of appeal was raised in the course of the hearing of the appeal on 29 November 2002. At the conclusion of the hearing of the appeal the Court gave directions for the filing of written submissions, both in relation to the application for leave to amend the notice of appeal to add the new ground, and on the merits of the new ground. The last of the submissions filed in accordance with those directions was filed on 28 January 2003. At that time, the new ground was bound to fail if the Full Court decision in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449 was applied. The position changed when the High Court handed down judgment in S157 on 4 February 2003. As the decision on this appeal was still reserved at that time, the Court invited further submissions from the parties concerning the effect of the judgment in S157. A brief submission was filed by the appellant on 4 March 2003. The hearing of the appeal and the submissions filed as a result of the directions made at the hearing of the appeal all related to arguments which were, or would have been, unsuccessful. However, there has been a great deal of uncertainty about the availability of the natural justice ground on which the appellant has succeeded. In the circumstances we are of the view that the costs order of the primary judge should remain undisturbed. Our tentative view is that each party should bear his own costs of the appeal but we will reserve liberty to either party to make an application and a written submission in respect of the costs of the appeal within seven days.

relief 41 The appellant seeks an order that the matter be referred back to the member who originally heard the application. The reason for such an order, it was submitted, was to allow the appellant to retain the benefit of the favourable findings made by the original member. This submission relied upon the Full Court decision in Wang v Minister for Immigration & Multicultural Affairs No. 2 (2001) 108 FCR 167; [2001] FCA 448. 42 While the decision in this appeal was reserved, the High Court delivered judgment in the appeal from the Full Court decision in Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 (Wang). The appeal succeeded by a majority: Gleeson CJ, McHugh, Gummow and Hayne JJ, Kirby J dissenting. Gleeson CJ and McHugh J held that the Court had power to give a direction that the matter be reheard by the original member of the Refugee Review Tribunal. Gummow and Hayne JJ did not find it necessary to decide, but indicated that it was likely that the Court had such a power. The majority, however, held that it was not a proper exercise of the discretion to make such an order for the purpose of allowing the appellant to retain the benefit of favourable findings. In part, this conclusion was based on the view that, on the re-hearing, the Refugee Review Tribunal is not bound to adopt the findings made at the first hearing: Gleeson CJ at 16, McHugh J at 45, and Gummow and Hayne JJ at 68-76. 43 The source of power considered in Wang was s 481 which specified the relief which the Court could give following a review under Part 8 of the Act. Part 8, including s 481, was repealed (s 3, schedule 1, clause 7 Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)) with effect from 2 October 2001. As the application for judicial review was lodged after 2 October 2001, the version of s 481 considered in Wang no longer applies (Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) schedule 1, Part 2, clause 8(2)). There is no equivalent of s 481 in the amended version of Part 8. As a consequence, the present application was brought under s 39B of the Judiciary Act 1903 (Cth). The question therefore arises whether the Court has power in the exercise of this jurisdiction to refer the matter back to the member of the Tribunal who heard the matter originally, and, if so, whether it is appropriate to exercise the power for the reason raised by the appellant, namely, to enable him to retain the benefit of favourable findings. 44 The usual practice is for the Court to direct the issue of a writ of mandamus to the Tribunal concerned rather than to an individual who constituted the Tribunal: Wang per McHugh J at 31. In Kerr v Commissioner of Police and Crown Employees Appeal Board [1977] 2 NSWLR 721 Moffitt P said at 725: "If no reason appears why the supervisory court should require that the jurisdiction declined be exercised by a tribunal constituted by a particular person or by particular persons, it is inappropriate that the order should be framed so as to fetter those administratively responsible for constituting the tribunal from doing so in the manner considered appropriate." 45 The reason relied on by the appellant to justify an order referring the matter back to the original member is the same reason rejected by the High Court in Wang. The rationale for rejecting that basis is equally applicable to relief granted by way of mandamus as it was to relief under s 481 of the Act. Further, since the original hearing the situation in Afghanistan has changed. Thus, in all the circumstances it would be a wrong exercise of discretion to order that the matter be referred back to the original member of the Tribunal, if the reason for the order was to allow the appellant to retain the favourable findings made on the first hearing. 46 The duty to constitute the Tribunal is reposed in the Principal Member (ss 421 and 422). The matter will be referred back to the Tribunal for further consideration. The Principal Member must decide which person is to constitute they Tribunal for the fresh hearing. There is obvious administrative efficiency in the original member conducting the re-hearing. This follows from the familiarity which that member has acquired by her involvement to date. This is one consideration that the Principal Member can take into account when deciding who is to constitute the Tribunal for the re-hearing: s 421(2). I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 17 April 2003 Counsel for the Appellant: Mr J A Gibson