REASONS FOR JUDGMENT
MOORE J:
Introduction
1 This is an appeal from a judgment of a judge of this Court of 26 August 2002. The learned primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs ("the Minister") to refuse to grant the appellants Subclass 866 Protection (Class XA) visas.
Background
2 The following emerges from the reasons for decision of the Tribunal. The appellants are husband, wife and two children. I will refer to the husband as the appellant, as his position is central to the appeal. The appellant and his wife are citizens of Sri Lanka who arrived in Australia on 12 March 2000 on visitors' visas. On 11 April 2000 they lodged an application for protection (class XA) visas with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ("the Act"). On 30 May 2000, a delegate of the Minister refused to grant the visas and on 19 June 2000 the applicants applied for review of that decision.
3 The appellant claimed he lived and worked in Qatar from 1981 to 1986. On 25 July 1986 he entered Italy on an employment permit where he remained until March 2000 by periodically renewing his working permits. He returned to Sri Lanka three times and in 1992, during one of those visits, he married. One of his brothers lived in Jaffna and was involved with Tamil militants who were not sympathetic to the Liberation Tigers of Tamil Elam ("LTTE"). The brother was kidnapped by the LTTE around the time of the appellant's marriage. His other siblings lived in either Switzerland or the United Kingdom where they had sought asylum.
4 The appellant claimed that he belonged to a Tamil drama group between 1988 and 1993 when living in Italy, which used to put on plays once or twice a year. In February 1992, he was invited by a Tamil social club to take part in a variety program which included music recitals and drama highlighting the plight of the Tamils. This program was not supportive of the cause and methods of the LTTE. He claimed that the fact that he participated in this program angered the LTTE who since then have confronted and harassed him. The next evening after his performance, four or five people came to his house and warned him to stop criticising the LTTE. A member of the group asked him by telephone to act in another play which was supportive of the LTTE. He refused, but they kept pressuring him to do so. They began ringing and harassing the appellant's employer with the result that the employer decided to terminate the appellant's employment.
5 The appellant's wife claimed she lived in Jaffna all her life until her marriage and subsequent departure to Italy. She had been involved with the LTTE, by providing assistance to the movement. Her brother Elaruban was also a militant member of the LTTE. She claimed that in her town there was another girl with the same name who was a fully fledged member of the LTTE. The appellant's wife claimed that the Indian Peace Keeping forces ("IPKF") had information about the other girl who shared her name and targeted the area, mistakenly harassing her (the appellant's wife) and her mother.
6 It should be noted, though it was not adverted to by the Tribunal in its reasons, that in his application for a protection visa, the appellant indicated that he was seeking protection in Australia so that he did not have to go back to Sri Lanka. Particulars were then provided in the application of what he believed what happened to him if he returned to Sri Lanka (and also Italy). He indicated he would be harmed in Sri Lanka because of his wife's direct activities with the LTTE. The appellant's wife similarly indicated in her application that she was seeking protection in Australia so she did not have to go back to Sri Lanka. She also identified the possibility of harm arising from her association with the LTTE if the family returned to Sri Lanka.
The Tribunal's Decision
7 The Tribunal noted the appellants' claims related essentially to a fear of persecution in a third country, Italy. They were governed by subs (3), (4) and (5) of s 36 of the Act. Those subsections provide:
(3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.
(5) Also, if the non-citizen has a well-founded fear that:
(a) a country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;
subsection (3) does not apply in relation to the first-mentioned country.
8 The Tribunal found that the appellants had a current Italian working permit, and had applied for a permanent residence permit in May 1998. On the question of the appellants' right to re-enter Italy it said:
The applicants have a right to return to Italy. Their temporary residence permit (Permesso di Soggiorno) expires on 11 November 2000. They have also applied for a permanent residence permit (Carta di Soggiorno) in May 1998 and although they have not received a decision on their application the Tribunal notes that Italian Law No. 40 of 6 March 1998 made provisions for such an application and that no adverse inference can be drawn from the non-receipt of the decision up to this point since this law was an attempt to regularise the status of hundreds of thousands of foreigners in Italy, as was reported in the Italian press at the time.
The applicant produced, at the hearing, an unsigned letter dated 18 July 2000 purporting to be from Rosaria LaPietra, his employer since February 1992. On 2 August the Tribunal received a copy of the same letter, this time signed by the person making the statement and dated 29 July 2000. The Tribunal has a number of concerns regarding the probative value of this letter. First of all, on the applicant's own account, he himself asked for it; the letter in both its versions is dated well after the Tribunal's letter inviting him to hearing had been sent. Secondly, it mimics the applicant's claims in relation to his situation in Italy and adds that his pursuers wanted money from him, which has not been claimed by the applicant at any stage of the process. The above taken together, including the fact that the letter was unsigned initially and there was no explanation as to the reason for this, leads the Tribunal to conclude that it has been contrived for the express purpose of advancing the applicant's claims. Therefore the Tribunal gives no weight to it.
Even if the applicant had been sacked from his work or was no longer wanted by that employer, this does not vitiate the right to enter and reside in Italy. Art 4 of law No. 40 of 6 March 1998 states inter alia that holders of a current permit need only notify the border control of their intention to re-enter.
The Tribunal finds that the above establishes that the applicant has a right to re-enter and reside in Italy."
[Emphasis added]
9 The Tribunal then considered whether the appellants have a well founded fear of persecution (for a Convention reason) in Italy. While it made some statements consistent with having reservations about the appellant's credibility, it did not say it rejected the appellant's account because it did not believe any of it. Indeed it accepted at least some of what the appellant had said about his experiences in Italy. Ultimately, however, the Tribunal rejected the appellant's claim that either he or his wife would be subjected to harm of the type and severity which might constitute persecution should they return to Italy. The Tribunal concluded that given the fact that the appellants had a right to reside in Italy and that their fear of persecution in Italy was not well-founded, Australia did not have protection obligations in relation to the appellants. It concluded the appellants did not satisfy the criterion set out in subs 36(2) of the Act for a protection visa. It noted that as no specific claims were made by or on behalf of the appellant's children there was no basis on which the Tribunal could be satisfied that they were refugees. The Tribunal affirmed the decision not to grant protection visas. The Tribunal did not discuss the consequences for the appellants were they to return to Sri Lanka.
Primary Judge's Reasons
10 The primary judge identified and dealt with five issues raised by the application for judicial review. It is convenient to summarise the primary judge's reasons by using the same format as his Honour, namely identifying the issue and setting out the reasoning.
(a) The finding that the applicant had a right to return to Italy
11 The appellants contended that the finding that they had a right to return to Italy was made without reference to any evidence capable of supporting it. The Tribunal had to determine whether the appellants could obtain effective protection in Italy. In the result, the Tribunal had made an error of law: par 476(1)(e), and not observed a procedure: par 476(1)(a). His Honour observed that the finding that Article 4 of Italian Law No 40 permitted the holder of a current permit (which his Honour said presumably included a permesso di soggiorno) to enter and reside in Italy upon notifying border control of his or her intention to re-enter that country was a finding of fact. His Honour noted that the state and effect of the law of a foreign country are questions of fact. As such, they are susceptible of proof by expert evidence capable of expressing an opinion about the laws of the relevant foreign State: Re Duke of Wellington [1947] Ch 506 at 514. However, if for example, the text of a statute of that country or an authoritative statement in a legal text book appears to suggest with sufficient precision the effect of the law in question, then it is not necessary for a court or tribunal to resort to expert evidence. The court or tribunal is entitled, in the absence of contradictory expert evidence, to make a finding accordingly (Evidence Act 1995 (Cth),subs 174(1)).
12 His Honour referred to the Tribunal's identification of Article 4 of Italian Law No 40 of 6 March 1998 as the source of the appellants' entitlement to re-enter Italy and to remain there. However his Honour indicated that the Tribunal had not been required to go that far. That was because the fact that the appellant had resided and worked in Italy since 1986 and had been joined by the second appellant in 1993 raised the presumption that the Italian authorities would not preclude them from returning to Italy since they held valid Italian passports endorsed with Australian visitors' visas. I should note that the Tribunal did not make a finding that the appellants had valid Italian passports, and that in their applications for protection visas, the appellants said their passports were Sri Lankan. His Honour indicated this presumption was strengthened by the fact that the appellants had unexpired Italian temporary residence permits and, furthermore, had pending applications in Italy for permanent residence. His Honour concluded there was no failure on the Tribunal to "consider" (in the sense discussed by the Full Court in Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426) the "core" claims of the appellants that they had no right to re-enter Italy or that it was not practicable for them to exercise such a right.
(b) Should the Tribunal have arranged for further investigation of the applicants' right to return to Italy?
13 The primary Judge dealt with a contention that the Tribunal should have undertaken further investigations about the appellants' right to return to Italy. His Honour said the short answer to the point was that the Tribunal had been able to identify Art 4 of the Italian Law No 40 and reached a conclusion that it would entitle the appellants to obtain effective protection in Italy. No occasion arose for further investigation. His Honour observed there was nothing to indicate that during the course of the hearing, there was any difficulty in identifying and ascertaining the true effect of the Italian law and that the evidence of the applicants and the submission of their solicitor did not suggest that further investigation was required to elucidate that prima facie position. His Honour set out extracts from the transcript in which the Tribunal referred to the importance of the question of whether the appellant could return to Italy. His Honour also referred to submissions made by the appellants' solicitor suggesting it was doubtful the appellants could return to Italy and may have no more than a right to apply for permission to re-enter the country. His Honour noted the solicitor invited the Tribunal to make a finding that the appellants did not have a right to enter Italy to apply for protection. The primary judge then said at [43]:
The Tribunal was entitled to assume that the current "foreigners' permits of stay" meant what they said, that the applicants were allowed to return to Italy and stay there until at least 11 November 2000.
His Honour concluded that the evidence of the appellants and the submission of their solicitor did not suggest that further investigation was required to elucidate that prima facie position. His Honour observed that the Tribunal had rejected as fabricated the appellant's evidence that his last employer did not want him to come back to work with them which founded the contention that it was doubtful the appellants would be allowed to re-enter Italy.
14 The primary Judge concluded the appellants had not made out a ground of review based on the Tribunal's failure to make further enquiries about their entitlement to re-enter Italy (for reasons, his Honour noted, similar to those given by Emmett J in Al-Zafiry v Minister for Immigration & Multicultural Affairs [1999] FCA 443).
(c) Was the Tribunal required by subs 424A(1) to give the applicants particulars of information as to the existence and effect of Italian Law 40?
15 A submission was made that the Tribunal had not asked the appellant or his solicitor any questions about Law No 40. Further, the interpretation of Law No 40 and its applicability to the circumstances of a particular individual was not in the same category as general country information. Accordingly Law No 40 was information that was specifically applicable to the particular circumstances of the appellants and should have been put to the appellant for comment pursuant to subs 424A(1).
16 It is convenient to set out, at this point, s 424A which 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.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
17 It is also a convenient to set out his Honour's reasoning on this question (at [46]) (after he set out the text of pars (a) and (b) subs 424A(3)).
I infer that Art 4 of Italian Law 40 was a law of general application applicable to a class of persons, the holders of permessi di soggiorni of which the applicants were members. There can be no suggestion that Art 4 applied specifically to the applicants themselves. The information that the applicants held current permessi di soggiorni and the history of their arrival and residence in Italy had been given to the Tribunal by the applicants for the purpose of their application within the meaning of s 424A(3)(b). In these circumstances, s 424A(1) did not apply to the information going to the existence and effect of Art 4 of Italian Law 40.
(d) Did the Tribunal ask itself the wrong question or take into account an irrelevant consideration?
18 The appellants made a submission based on the observations of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 345-6 concerning error arising from taking into account an irrelevant consideration. The primary judge noted that, having regard to subs 36(3), (4) and (5), the first question for the Tribunal to determine was whether the applicants had a right to re-enter and reside (at least temporarily) in Italy. His Honour concluded the Tribunal had asked and answered that question based on its understanding of Art 4 of Italian Law No 40 and on the effect of the current working permit (permessi di soggiorni). His Honour noted that the appellants did not seek to invoke the ground of review afforded by par 476(1)(g) of the Act "that there was no evidence or other material to justify the making of the decision". They did not seek to show (on the footing that the state of the law was a particular fact) the effect attributed to the Italian law by the Tribunal was erroneous, or did not exist.
19 The primary Judge referred to the Tribunal's consideration of the other matters raised by subs 36(4) and subs (5) and indicated no error of law was revealed.
(e) Should the Tribunal have asked "What if I am wrong?"
20 The primary judge dealt with a submission that the Tribunal's answers to the first and second questions raised by subs 36(3) and subs (4) had not foreclosed reasonable speculation in the way referred to by Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 293. His Honour concluded that in the Tribunal's discussion of the effect of Italian law, in light of the appellants' current temporary residence and working permits, there was no degree of diffidence to suggest that it entertained a real doubt about its conclusion regarding the appellants' right to re-enter Italy and reside there.
21 His Honour indicated he was unable to conclude that having regard to the way in which the claims of the appellants had been pursued before the Tribunal and the way in which it expressed the relevant findings of fact, it should have considered (on the hypothesis that it was wrong about the availability of effective protection in Italy) whether the appellants had a well-founded fear of persecution in Sri Lanka.
Issues in the Appeal
22 The appellants' counsel did not pursue the grounds of appeal in the notice of appeal as initially filed. At the hearing another ground was advanced which the Minister did not oppose being raised. It was in these terms:
The learned judge at first instance erred in not finding that the Refugee Review Tribunal ("the Tribunal") was in breach of a procedure that was required by the Migration Act 1958 to be observed in connection with the making of the decision of the Tribunal relating to the appellants.
PARTICULARS
The Tribunal was in breach of the requirements of s 424A of the Migration Act 1958:
(a) in not giving the appellants particulars of Article 4 of Italian Law 40;
(b) further or in the alternative, in not ensuring that the appellants understood why this information was relevant to the review;
(c) further or in the alternative, in not inviting the appellants to comment on this information.
23 As a result of this amendment, this appeal raises a narrow, though potentially important, point of construction. The appellants contended that by operation of subs 424A(1) of the Act, the Tribunal was obliged to give the appellant particulars of information concerning the Italian law. This raises for consideration the scope and operation of par (a) of subs 424A(3). The paragraph concerns information which may have two characteristics. The first is that it is not specifically about an applicant (or another person). The second is that it is just about a class of persons of which an applicant (or other person) is a member. I will not, from this point on, repeat the reference to another or other person found in the provision. One difference between the parties in the appeal concerning the construction of the paragraph, was whether the two characteristics of the information must exist before the paragraph is enlivened so as to relieve the Tribunal of the obligation otherwise arising under subs (1).
24 Counsel for the Minister's primary submission was that the identification of the second characteristic was to reinforce the type of information which would have the first characteristic. Such an approach involves reading the paragraph as a composite whole. The whole paragraph refers to information that is not specifically about an applicant or another person but rather, by contradistinction, is about a class of persons of which an applicant or other person is a member. The word "and" should be treated as meaning "but rather". Approached this way, it would be sufficient for the exclusion to operate, if the information was not specifically about an applicant (a point said to be conceded by the appellants in relation to the information in issue in these proceedings). Counsel for the Minister submitted that if the information had both characteristics then the words "just about" cannot be given a narrow literal meaning. Counsel for the appellants submitted that the information had to have both characteristics before the Tribunal was relieved of the obligation (if it would otherwise arise) imposed by subs (1).
25 I see a number of difficulties with the construction advanced by the Minister. The first is that it does not accord with the ordinary and natural meaning of the words in the paragraph. The use of the word "and" linking the words identifying the two characteristics indicates that the information to which the paragraph is directed must have both of them. That is, "and" operates conjunctively consistent with its ordinary meaning. Secondly the paragraph relieves the Tribunal of an obligation to provide particulars of information which would, at the least, contribute to a decision adverse to an applicant if not centrally underpin the decision. By imposing that obligation, the legislature is intending to confer on an applicant a benefit of the type analogous to that which arises under the common law rules concerning procedural fairness. A construction of the paragraph should be adopted which preserves, rather than diminishes, that benefit: see Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 per Ryan and Conti JJ at [20] and Merkel J at [36]-[40].
26 It is difficult to say with absolute certainty what is the purpose of the exclusion in par (a). It may be that the exclusion is intended to ensure that while under subs (1) an applicant would, by statutory direction, be provided with material the common law would ordinarily require be provided having regard to the judgment of the High Court in Kioa v West (1985) 159 CLR 550 (particularly the observations of Mason J at 870 concerning information sourced from a third party which was personal to the applicant and on which the decision might be based), and other material need not be provided. However if that was intended, the positive obligation could have been cast in terms which limited it to providing information of the type referred to by the High Court.
27 Perhaps the exclusion is intended to ensure that while an applicant will get particulars of all information on which the decision would be based, particulars of general information concerning the circumstances of a person in the position of the applicant, but not peculiar to the applicant, need not be provided. The legislature may well have had in mind that unless there was such a restriction, the Tribunal would have to provide particulars of significant volumes of information (together with some explanation of its relevance: see par 424A(1)(b)) which generally touched upon the applicant circumstances but on which the applicant might not be able to usefully comment. The legislature may have had in mind general country information (typically from bodies such as the United States State Department or Amnesty International) or communications with Australian Embassies, Consulates or High Commissions.
28 It is quite possible that the legislature may have thought that such material could be treated by the Tribunal as authoritative because it came from respected sources and that little would be gained by giving an applicant an opportunity to contradict it or otherwise put it in issue unless such material contained information specifically about the applicant (which might arise, for example, when an applicant had been a political figure of prominence in his or her country of nationality). In that latter situation the applicant might have direct knowledge enabling him or her to usefully comment on the material. There are now a number of cases in which it has been decided that the exclusion in par 424A(3)(a) operates on country information: see Tharairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281 at [16]; Pannasara v Minister for Immigration & Multicultural Affairs [2000] FCA 1331 at [28] upheld on appeal at [2001] FCA 570 at [53]; Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 402 at [14] (this point not challenged on appeal); Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630 at [29] (this point not challenged on appeal); W104/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 771 at [22]-[23]; Islam v Minister for Immigration & Multicultural Affairs [2001] FCA 430 at [48]-[51] (this point not challenged on appeal).
29 However, if this was the purpose of par (a), and in my opinion it probably is, it is consistent with the construction advanced by the appellants. That would be because country information generally concerning a class of which an applicant was a member (concerning, for example, the way members of a particular political party, social group or religion were treated) but not, in any respect, specifically about an applicant would have both of the characteristics relieving the Tribunal of the obligation which might otherwise arise under subs 424A(1). If it was specifically about an applicant in some respect, the Tribunal would not be relieved of its obligation to provide particulars of it. In my view, the construction advanced by the appellants is to be preferred.
30 However that leads to what is probably the more difficult question, namely, was the information concerning the Italian law, information of the type comprehended by par (a)? A first step is to identify what was the "information" in question. This was not, it would seem, an issue the parties apparently focused on in the proceedings before the primary judge. Counsel for the appellants admitted to some difficulty in identifying with precision what the information was for the purposes of considering the operation of s 424A. He submitted that at the very minimum the Tribunal had something about Art 4 of Italian Law No 40. It was not possible to say whether it had the text of the law (whether in English or Italian) or a commentary on the law. He later said the information was "the knowledge the Tribunal had about Art 4 of Italian Law 40 and its effects". He accepted that the information could have been in a country report. Counsel for the Minister submitted that it could be inferred that the Tribunal had information regarding both the existence of Art 4 of Italian Law No 40 and at least that part of the content of Art 4 which stated that the "holders of a current permit need only notify the border control of their intention to re-enter Italy". It could also be inferred that the Tribunal had information from Italian press reports that Italian Law No 40 was "an attempt to regularise the status of hundreds of thousands of foreigners in Italy".
31 A helpful discussion of what might constitute "information" for present purposes is found in the judgment of the Full Court in Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212. That judgment concerned a "dob-in" letter received by the Tribunal. Their Honours said at 217:
…it may not strictly be necessary to consider the meaning of the word "information" as used in s 424(1) of the Migration Act. Nonetheless, we should record our view that the construction advanced by the appellant is too narrow.
The Macquarie Dictionary includes these definitions of the word "information":
"1. Knowledge communicated or received concerning some fact or circumstance; news. 2. Knowledge in various subjects, however acquired".
The Oxford English Dictionary (2nd ed, 1989) includes among its definitions of "information":
"3.a. Knowledge communicated concerning some particular fact, subject or event; that of which one is apprised or told". (Emphasis added).
As these definitions show, "information" is capable of different shades of meaning, depending on the context.
The appellant's contention, as we understand it, is that "information" in s 424(1) is confined to material that is reliable or has a sound factual basis. The only qualification expressed in s 424(1) as to the nature of "any information" that the RRT can get is that the RRT itself considered the information relevant. Moreover, the RRT cannot know whether material it obtains is sound until the material is assessed and findings are made. Some material will prove to be reliable in whole or in part; some will be unreliable or even fabricated.
The point is reinforced by reference to s 424A(1). The obligations imposed by that provision apply when the RRT has "information", regardless of its source, that it considers would be the reason, or a part of the reason, for affirming the decision. Permitting an applicant to comment on such information provides him or her with an opportunity to demonstrate that the information should not be relied on by the RRT: cf Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548, at 562-563, per Hill J. It follows that an applicant may be able to show that particular "information" in the possession of the RRT is completely worthless. It is hardly likely that the word "information" is used in s 424A(1) in a sense different from its meaning in s 424(1). Indeed, Ms Winfield conceded as much.
Similarly, the Migration Act provides that an applicant may be invited to supply "additional information" to the RRT: see ss 424(2); 424B(1), (2); 424C(1). The additional information provided in response to such an invitation may or may not have any factual basis and may or may not rise above the level of assertion. It is an everyday occurrence for the RRT to reject as fabricated "information" provided by applicants.
It is not necessary for the purposes of the present case to explore the outer limits of the word "information" as used in ss 424(1) and 424A(1). In our view, it includes assertions made by a person (whether identified or not) that particular aspects of an applicant's account of events are untrue. It includes the assertions made in this case by the informant, each of which addressed and (as the RRT said) cast doubt on an aspect of the applicant's account of events.
[Emphasis in original]
32 I respectfully agree. For present purposes it is probably sufficient to adopt the Minister's characterisation of what the information was which the Tribunal had in the present matter. On one view, that information concerning the Italian law satisfies both characteristics identified in par (a) referred to earlier. That is, the information was not specifically about the appellant because it was about a law of general application and was just about a class of persons of which the appellant is a member, namely holders of a permit (of the type held by the appellant) on which the law might operate.
33 However this characterisation of the information has, at least potentially, a highly prejudicial effect and brings about a result which, in my opinion, the legislature did not intend. A central feature of the appellant's case concerned his right to re-enter Italy. In rejecting that case the Tribunal has called in aid the terms of a law which were not raised by or with the appellant. That information forms part of the reasons leading to the Tribunal affirming the decision of the delegate. Yet the appellant was not given the opportunity to comment on, or even perhaps additionally, get advice about the way in which the law might operate. While I accept that the information concerning the Italian law was not specifically about the appellant, it was not information just about a class of persons of which the appellant was a member. It was not information about a class of persons at all. It was information about a law. Armed with the information, the Tribunal reached a conclusion about how the law would operate on the appellant (as a permit holder) and, at least by logical extension, on a class of people of which the appellant was a member (people holding the same permit). Even though the information was put to this use, the character of the information should not be coloured, for present purposes, by the use made of it. In my opinion, the learned primary judge erred in reaching the contrary conclusion that the information was not comprehended by par (a) of subs 424A(3).
34 Two alternative submissions were made by the Minister to support the orders of the primary judge. The first was that the primary judge was correct in concluding that, apart from whatever may have been the effect of par (a) of subs 424A(3), the Tribunal was not obliged to provide particulars of the information because it was information of the type referred to in par (b). I do not agree. While is true that part of the appellant's case was that notwithstanding the permit he held, he could not or might not be able to re-enter Italy, it was not based on the information in issue in this appeal. It was not part of his case that Art 4 of Italian Law No 40 was in particular terms that operated in a particular way (whether or not it supported of his claim). The information concerning the article was not given by the appellant for the purposes of his application.
35 The second alternative submission of the Minister was that the information was not information the Tribunal was obliged to give particulars of under subs 424A(1) in any event. That was because it was not information the Tribunal "considered would be the reason, or part of the reason, for affirming the decision" under review and reference was made to the judgment of the Full Court in Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 especially at [94], [96], [99], [104] and [116] per Allsop J (Heerey J agreeing). The Tribunal's conclusion that the appellants could re-enter Italy was central to the way it disposed of the application for review. With respect to the learned primary judge, the Tribunal's decision was not that there was a right to re-enter because it could be assumed that the then current "foreigners' permits of stay" meant what they said, that the appellants were allowed to return to Italy and stay there until at least 11 November 2000.
36 In the passage from its decision set out at [8] above, the Tribunal began the second paragraph with its conclusion. That is, the conclusion that the appellants have a right to return to Italy. It then explained how it reached that conclusion. In the course of that explanation, it referred to Art 4 of Italian Law No 40 and summarised what the law stated at least in part. It concluded by saying that "the above" established that the appellant had a right to re-enter and reside in Italy. That conclusion has fairly plainly been informed by the Tribunal's understanding of the effect of Art 4. The information concerning Article 4 constituted, from the Tribunal's perspective, part of the reason for affirming the decision of the delegate.
37 In my opinion, the Tribunal failed to comply with the obligation imposed by subs 424A(1) and the learned primary judge erred in concluding it had. Accordingly the order dismissing the application for judicial review should be set aside and the matter remitted to the Tribunal for further hearing and determination. The Minister should pay the appellants' costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.