the appeal to this court
25 The appeal was fixed for hearing on 25 May 2004. However, one week prior to that date, the appellant's solicitors wrote to the Court attaching a proposed amended notice of appeal. That notice of appeal contained two grounds, each of which raised essentially the same point. In substance, the appellant now seeks to contend that the Tribunal failed to comply with the requirements of s 424A of the Act, as that section stood prior to 2 October 2001, by not providing particulars of information that the Tribunal considered to be the reason, or part of the reason, for affirming the decision under review.
26 The appellant seeks to argue that the Tribunal thereby failed to observe the procedures required to be observed in connection with the making of the decision within the meaning of s 476(1)(a) of the Act. The appellant also seeks to argue that the Tribunal thereby committed reviewable errors under ss 476(1)(b), (c), (d) and (e).
27 Section 424A, as it formerly stood, provided:
"(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 invitation must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention.
(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."
28 Section 441A, as it then stood, provided:
"(1) A document specified in subsection (3) is taken to be duly given to an applicant for review if:
(a) the document is sent (physically, electronically or otherwise) to:
(i) the last address for service provided by the applicant in connection with his or her application for review; or
(ii) the last residential address provided by the applicant in connection with his or her application for review; and
(b) the Tribunal has a receipt or other evidence indicating the date of dispatch.
(2) A document specified in subsection (3) is taken to be duly given to an applicant for review if the document is given:
(a) by giving it to the applicant or to a person authorised by the applicant to receive documents of that kind on behalf of the applicant; or
(b) by leaving it at the applicant's place of residence with a person who appears to live there and appears to have turned 16.
(3) The documents specified for the purposes of subsections (1) and (2) are:
(a) an invitation to an applicant under section 424 (other than an invitation to an applicant who is in immigration detention); and
(b) an invitation under section 424A (other than an invitation to an applicant who is in immigration detention); and
(c) a notice under section 425A (other than a notice to an applicant who is in immigration detention); and
(d) a notice under section 430A; and
(e) a statement given under subsection 430B(6).
(4) It is sufficient compliance with the requirement to give a document referred to in subsection (3) if a facsimile, or a certified copy, of the document is so given.
(5) A document posted in accordance with paragraph (1)(a) must bear correct pre-paid postage and, if the document is posted to an overseas address, the postage must be at the full airmail rate."
29 In substance, what counsel for the appellant now seeks to do on the appeal to this Court is to revive essentially the same point that was raised, and expressly abandoned, before the primary judge. There is one minor modification. Previously, the point was raised under the ambit of failure to have regard to relevant considerations, or a decision taken without any evidence to support it. Now, the same point is raised under the ambit of a denial of procedural fairness, seeking to invoke s 424A.
30 Counsel for the appellant who appeared on the appeal in this Court also appeared before the primary judge. He recognised that having expressly abandoned the point below, there would be difficulty in seeking now to rely upon it. He submitted, however, that if he had erred in abandoning the point below, the consequences of that error should not be visited upon the appellant.
31 Counsel for the appellant then turned to the merits of the proposed ground. He submitted that s 424A required the Tribunal to provide the appellant with particulars of any information that it considered was a part of the reason it affirmed the delegate's decision. This was to ensure that the appellant could understand why that information was relevant to the review, and to invite the appellant's further comments. Counsel noted that the information had to be provided in writing and reduced to particulars: VEAJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 678 at [33]-[34].
32 Counsel for the appellant referred to the Minister's Second Reading Speech on the introduction of s 424A in support of the proposition that the purpose of that section was to "safeguard an applicant". He also relied upon a decision of a Full Court of this Court in Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 in which it was noted at 40-41 that this purpose would be met by affording an applicant:
"…the opportunity to respond to the gravamen or substance of any adverse information upon which the [Tribunal] proposes to act, the significance of which the applicant may be unaware."
33 Counsel for the appellant then drew attention to Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 where Gray J held that the Tribunal had failed to comply with s 424A in relation to information which was not "specifically about" the applicant, but which was relevant to a central issue upon which the applicant's case rested. An important aspect of the applicant's claims turned upon whether a by-election had been held at a particular place on a specific date, and whether the applicant had campaigned in that by-election. On that basis, his Honour held that such information was not "just about a class of persons".
34 Counsel for the appellant submitted that Baig had been cited with approval in subsequent Full Court decisions, and that the approach taken in that case should be followed. Counsel referred in particular to VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 609 at [51]-[52] and [72]; NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494 at [24]; and also the judgment of Conti J at first instance in SZADS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1251 at [47].
35 Counsel submitted that the net effect of VHAJ and NARV was that information would only fall within the exception in s 424A(3)(a) if, when viewed within the scope of relevant issues before the Tribunal, the information was solely about a class of persons, and did not go to any other issue before the Tribunal. He submitted that the Tribunal had clearly taken a very broad view of s 424A(3)(a) as it had relied upon a wide range of country information in its decision without providing any particulars of that information to the appellant, or even raising it at the hearing.
36 Counsel submitted that the Tribunal's rejection of the appellant's account of the events of the day he fled from Jordan might have played a significant role in its ultimate decision to affirm the delegate's decision refusing a protection visa. The appellant's credibility was critical to his prospects of persuading the Tribunal that he had a genuine fear of persecution based on Convention grounds. Any finding that was adverse to his credibility might have impacted upon the Tribunal's overall rejection of his claims. A key step in the Tribunal's rejection of his account of the events of 3 August 2000, when the appellant fled Jordan, was its conclusion that he simply could not have reached the airport from his home within twenty minutes. That conclusion rested solely upon the statement in the Lonely Planet Guide that the airport was 35 kilometres from the city. The relevant passage from the Lonely Planet Guide was never drawn to the appellant's attention, and he was never given the opportunity to comment upon, or explain, the apparent difficulty with his account. The passage could not be regarded as being information about any "class of persons" in the sense described in s 424A(3)(a). Accordingly, the Tribunal contravened the requirements of s 424A(1).
37 Counsel next submitted that the appellant, having established a failure to comply with s 424A, did not have to lead evidence to explain precisely how he had been adversely affected by that contravention. If the appellant was not informed of the case that he had to meet, that was sufficient to establish "practical injustice" without his having to prove what he would have done had he been provided with that information. Counsel referred to Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 122 per McHugh J, citing Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; NARV v Minister for Immigration & Multicultural & Indigenous Affairs at [17]; Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298 at [91]; and Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069.
38 Notwithstanding that the appellant was not required to prove that he had an answer to the Tribunal's reliance upon the Lonely Planet Guide, counsel proffered an affidavit sworn by the appellant setting out what he might have said to the Tribunal had he been told that it would act upon the information in that Guide. The affidavit was tendered on the same basis as a similar affidavit that was received by the Full Court in NARV. See generally [19] and [40] of that judgment. The affidavit was said to indicate that, contrary to the Tribunal's assumption, the appellant did not live in the centre of Amman, but in the northwestern part of the city. Driving from his home to the airport involved travelling directly south along major roads and freeways, with only a few traffic lights. It was unnecessary, and in fact would take longer, to drive through the centre of Amman. Moreover, the afternoon rush hour was between 2.00 pm and 3.00 pm. The journey outside of peak hours would usually take about twenty minutes, as it had on 3 August 2000.
39 Finally, counsel for the appellant submitted that even though the Tribunal had rejected the appellant as a credible witness for a number of reasons, it was possible that the finding regarding the time taken to drive to the airport had been "the straw that broke the camel's back". In that regard, he referred to the following observation by Gray J in Baig at [35]:
"…The Tribunal might then have taken a more benevolent view of the applicant's credibility if it had found in his favour on this issue. In turn, that view might have affected the view that the Tribunal took on the applicant's credibility in other respects. Whether it would have been sufficient to turn around the Tribunal's adverse opinion of the applicant and his story is another question. …The ultimate result is not, however, one for this Court to determine. This Court is not a trier of fact when exercising its jurisdiction to hear applications for judicial review of decisions of the Tribunal. I am left with the real possibility that the failure of the Tribunal to observe a procedure it was required to observe denied the applicant a successful outcome of his application. The proper course is to set aside the decision of the Tribunal and return the matter to the Tribunal, differently constituted, for reconsideration."
40 Counsel for the respondent submitted that, in dealing with the ground of appeal upon which the appellant now seeks leave to rely, it would be necessary to consider the context in which the Tribunal had referred to the Lonely Planet Guide. Under the heading, "Departure from Jordan", the Tribunal considered the appellant's claims relating to events surrounding his departure from Jordan on 3 August 2000. The Tribunal concluded that his account of the events of that day was implausible. More specifically, it did not accept that he could have accomplished all that he claimed to have achieved within the time parameters given without arousing the attention of the authorities. Moreover, it was improbable that the security officers, who were ostensibly concerned about his whereabouts, would not have gone to his home which he did not leave until about 6.30 pm. It was also implausible that he could have travelled to the airport in his own car without alerting those officers to his proposed departure, or that he could have passed through all the necessary checks before boarding an international flight merely through some last minute bribery arranged by his lawyer, with the aid of his sister-in-law. Finally, it rejected his claim that he could have reached the airport in about twenty minutes, and relied upon the location set out in the Guide as the basis for that conclusion.
41 Counsel for the respondent submitted that s 424A(1) only requires the Tribunal to "give… 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". The section does not require the Tribunal to provide an applicant with every item of evidence that it might take into account in arriving at its decision.
42 Importantly, counsel for the respondent submitted that it was clear from the Tribunal's reasons, when read as a whole, that the information regarding the location of the airport was not central to its reasoning. Nor was that information "sufficiently operative in the mind of the Tribunal to give rise to any obligation to give particulars under s 424A": see NATL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 112 at [17]. Counsel also referred to Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 where Allsop J, with whom Heerey J agreed, said at [94]:
"It is necessary to say something about s 424A. First, the word "would" is used, not "could". I see no warrant to view the section as "crystallising" or "enlivening" any obligation merely because the Tribunal member in considering the matter forms the view that information could, or could possibly, be relevant to the determination of the claims. The Tribunal must give the particulars which have a certain character: particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision. It is not just a question of general adverse relevance…"
43 In substance, counsel's submission was that the information regarding the location of the airport was not "the reason, or a part of the reason" why the Tribunal rejected the appellant's claim.
44 Counsel next submitted that even if there had been a failure to comply with s 424A, it was a "technical" breach that in no way bore upon the outcome of the application. By the time the Tribunal came to deal with the appellant's account of the events of 3 August 2000, it had already rejected his core claims. The reasoning surrounding the Tribunal's rejection of those claims could not be impugned. Accordingly, any denial of procedural fairness regarding the peripheral issue of whether the appellant's account of his last day in Jordan should be accepted made no difference to its critical finding that there was no basis for his belief that he would be persecuted. Counsel referred in that regard to the observations of the Full Court in VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 at [27], and particularly to the use by that Court of the expression "the critical factor" on which the decision is likely to turn. As any denial of the opportunity to the appellant to deal with the particular information relied upon made no practical difference to the outcome, the decision should not be vitiated. Counsel also referred to the fact that relief under s 481(1) was discretionary, and relied upon the comments of Merkel J, as a member of the Full Court in Minister for Immigration & Multicultural Affairs v Al Shamry at 41 in that regard.
45 Finally, counsel for the respondent submitted that the Court should refuse leave to argue this ground given that it had not been agitated before the primary judge, and indeed, had been expressly abandoned. He referred to the observations of the Full Court in H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43, which were in turn endorsed in the Full Court in VAAC.