X v Minister for Immigration & Multicultural Affairs

Federal Court of Australia (Full Court)|2002-01-01|Before: Moore JJ, Gray J

THE COURT ORDERS THAT:

The appeal be allowed.
The orders made on 15 March 2001 be set aside.
In lieu of those orders, it be ordered that: (a) The decision of the Refugee Review Tribunal made on 26 April 2000 be set aside. (b) The matter be referred back to the Refugee Review Tribunal, differently constituted, for further consideration. (c) The respondent pay the appellant's costs of the proceeding.
The respondent pay the appellant's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

The nature of the case 1 This appeal from a judgment of a single judge of this Court raises an important issue as to the functioning of the Refugee Review Tribunal ("the Tribunal"). That issue is concerned with the refusal of the Tribunal to take into account material supplied to it after the completion of an oral hearing. That issue arises in the context of s 476 of the Migration Act 1958 (Cth) ("the Migration Act"), as that section stood before amendments that came into operation on 2 October 2001. 2 The appellant is a citizen of Burma. He arrived in Australia on 4 July 1998, travelling with a Burmese passport and a valid visa entitling him to enter Australia. Twelve days later, on 16 July 1998, he applied for a protection visa, pursuant to s 36 of the Migration Act. For present purposes, it is sufficient to note that the appellant would be entitled to a protection visa if he satisfied the relevant decision-maker that he is a person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. 3 On 24 September 1998, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister") refused to grant the appellant a protection visa. The appellant then applied to the Tribunal for a review of the delegate's decision. By standard form letter dated 9 December 1999, a deputy registrar of the Tribunal invited the appellant to an oral hearing. The letter contained the following passage: "If you have any new documents or written arguments that you would like the Tribunal to consider, you should send them to the Tribunal with the completed form. Any documents you send are to be in English, or translated into English by an accredited translator." On 22 February 2000, the Tribunal conducted an oral hearing at which the appellant gave evidence and made submissions. 4 Both in his original application and his oral evidence before the Tribunal, the appellant claimed to have been a member of the National League for Democracy ("the NLD") in Burma. He claimed to have been involved in organising demonstrations in Burma in 1988. As a result, he claimed that he was required to report to a police station every day for a few months. He claimed to have campaigned at national elections in 1990 on behalf of the NLD. The NLD, led by Aung San Suu Kyi, was successful at those elections, but the Burmese military refused to allow it to take power and itself instituted a military dictatorship. The appellant claimed that he was often checked by police when there was trouble. He claimed that in 1996 he was involved in further student demonstrations and distributed anti-government pamphlets, as a result of which he was arrested, detained and beaten. After his release, he discovered that he had lost his job because of his arrest. He claimed that he then performed voluntary work for Aung San Suu Kyi until he left Burma on 3 July 1998. 5 In the course of the oral hearing, the appellant told the Tribunal that he had tried to leave Burma in August 1997, but his application to the Australian Embassy in Rangoon had been unsuccessful. After the completion of the oral hearing, the Tribunal wrote to the appellant, saying that it had information from the Australian Embassy in Rangoon to the effect that it had no record of a visa application from the appellant in 1997. The Tribunal invited the appellant to comment on this information. It instructed him that his comments must be in writing and in English and must be received by the Tribunal by 12 April 2000. 6 By letter dated 23 March 2000, the appellant replied to the Tribunal's letter. He told the Tribunal that his mother had applied for a visa on behalf of the family at some time between 1994 and 1996. In his letter, the appellant informed the Tribunal that he had managed to obtain his old diary from Burma. He enclosed the original diary, which was written in a language other than English. His letter told the Tribunal that the diary recorded his involvement with the NLD in 1988. The appellant did not provide a translation of the diary into English. 7 On 26 April 2000, the Tribunal published its decision, affirming the decision of the delegate of the Minister to refuse to grant the appellant a protection visa. In its reasons for decision, the Tribunal did not accept a number of the appellant's claims. It did not accept that he was a student during the 1988 uprising and found that he was not "a leader" during the 1988 demonstrations. It accepted that he participated at a low level but found that he was not an organiser. The Tribunal said: "The Tribunal finds that the applicant had no difficulties with the authorities in Burma prior to 1996. Based on the country information cited above the Tribunal finds that there is no real chance that the applicant will be persecuted if he returns to Burma for his involvement in the 1988 protests." The Tribunal also did not accept that the appellant was a member of the NLD. 8 In the course of its reasons for decision, the Tribunal made reference to the appellant's diary. It said: "The Tribunal refers to the diary that the applicant recently forwarded to the Tribunal. As it is not translated the Tribunal cannot take its contents into account however, even if it was translated, it appears to only cover a period of some months in 1988 and the Tribunal has already found that the applicant would not be at risk for his involvement in political activities in 1988. It does not support a claim of continued involvement in the NLD after 1988." 9 The appellant commenced a proceeding in this Court, seeking judicial review of the Tribunal's decision, pursuant to s 476 of the Migration Act. He argued that, by refusing to take into account the contents of the diary, the Tribunal failed to observe a procedure required by the Migration Act to be observed in connection with the making of the decision, and that the ground specified in s 476(1)(a) of the Migration Act was therefore made out. 10 The learned primary judge held that the Tribunal was obliged to take into account the evidence that the appellant had submitted to it in the form of his diary. His Honour held that the Tribunal should have taken steps to have the appellant identify the entries in the diary on which the appellant relied and to have had those parts of the document translated. However, his Honour dismissed the application for judicial review. His Honour had the benefit of translations into English of four passages from the appellant's diary. It was argued that these passages contained evidence that might have persuaded the Tribunal to take a different view of the extent of the appellant's involvement in the events of 1988 and in the organisation of the NLD in 1988. If it were to take a more favourable view, the appellant argued, the Tribunal would have been more likely to view the appellant's claims with respect to his later involvement in the NLD more favourably. The learned primary judge held that the passages from the diary did not point to the existence of a fact inconsistent with the findings of fact made by the Tribunal. They therefore did not establish the possibility that the Tribunal might have made a more favourable finding of fact if it had considered the diary. 11 The appellant filed a notice of appeal from this judgment on 4 April 2001. On 7 August 2001, the appellant filed an amended notice of appeal in which all of the original grounds of appeal were deleted and new grounds were substituted for them. In substance, the appellant adopted the conclusion of the learned primary judge that the Tribunal should have had regard to the appellant's diary. He challenged the conclusion of the learned primary judge that there was no useful purpose to be served by returning the matter to the Tribunal. The Minister filed a notice of contention and, on 20 August 2001, an amended notice of contention, in which he challenged the conclusion of the learned primary judge that the Tribunal was obliged to take into account the appellant's diary.

The obligation to take into account material tendered after the oral hearing 12 In the course of his reasons for judgment, the learned primary judge said: "Where material submitted by an applicant is said to be relevant to a question of fact material to the decision to be made by the Tribunal in carrying out a review, the Tribunal must have regard to that material at least to determine its relevance and the weight, if any, to be given to it. (See: Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at [52]) In the present case, consonant with the duties imposed on the Tribunal by the Act, the Tribunal should have taken steps to have the applicant identify the entries in the diary on which the applicant relied in respect of the question of his membership of the NLD, and have had those parts of the document translated. Just as the Tribunal cannot be said to have heard an applicant who is unable to speak English unless the Tribunal provides an interpreter (see: s 427(7)), similarly the Tribunal would be expected to have documents claimed to be relevant tendered to it by such an applicant translated, or read to the Tribunal by an interpreter. At the time the diary was received by the Tribunal, the Tribunal had not completed its function of review. On its face, the diary was capable of supporting the applicant's case and the Tribunal was obliged to have regard to it. (See: Inderjit Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 73 per Merkel J at [49] - [51]) The failure of the Tribunal to duly conduct the review proceeding resulted in a decision not authorised by the Act." 13 Section 414 of the Migration Act obliges the Tribunal to review a decision if a valid application for review is made to it. There is ample authority that this gives rise to an obligation on the Tribunal, as is the case with any administrative decision-maker, to have regard to the whole of the material submitted to it. In Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940 at [19], the Full Court said: "The Tribunal is under a duty to review the decision of the delegate on the merits and in doing so must have regard to all of the material and evidence before it and make findings on all of the material questions of fact raised by that material and evidence - Thevendram v The Minister for Immigration & Multicultural Affairs [1999] FCA 182 at paragraph 37." 14 See also Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28 at 63 and Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247 (1999) 90 FCR 287 at [23]. These cases were decided on the assumption that a failure by the Tribunal to express in writing the findings on all issues raised by the material before it was a breach of its obligation pursuant to s 430(1) of the Migration Act to prepare a written statement setting out its decision, its reasons for the decision and its findings on any material questions of fact, and therefore was sufficient to make out the ground specified in s 476(1)(a). That assumption was invalidated by the judgment of the High Court of Australia in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 75 ALJR 1105. Nonetheless, it is possible that a failure by the Tribunal to have regard to material placed before it might well be reviewable within the confines of s 476 of the Migration Act. Refusal to have regard to material the Tribunal is obliged to look at may amount to jurisdictional error, so that the Tribunal has made an error of law, by misunderstanding its function. In such a case, the ground specified in s 476(1)(e) would be established. Alternatively, it could be said that the person who purported to make the decision did not have jurisdiction to make it (s 476(1)(b)) or that the decision was not authorised by the Migration Act or the regulations (s 476(1)(c)). 15 It is normally the case that an administrative decision-maker is obliged to make the decision on the basis of material current at the date when the decision is made. That is to say, material received right up to the time when the decision has been made must be taken into account. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30, Gibbs CJ said: "The duty of the Minister is to consider the matters mentioned in s. 50(3) in the light of the actual facts as disclosed by the material in his possession at the time when he considers whether or not he is satisfied for the purposes of s. 11(1)(b), and not on a false assumption (whether the falsity is due to a change of circumstances or to an error on the part of the Commissioner) concerning the matters mentioned in s. 50(3)." 16 At 44, Mason J (with whose reasons Gibbs CJ and Dawson J expressed agreement) said: "The second question, which lies at the heart of this appeal, is whether the Minister is also bound to take into account submissions made to him which correct, update or elucidate the Commissioner's comments on detriment. Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand. Considerable time may elapse between completion of the Commissioner's report and the date at which the Minister makes his decision; in the present case it was well over one and a half years. In that time there may be such a change of circumstances that the Commissioner's comments may no longer prove to be an accurate guide, there may be uncertainties or ambiguities in his comments that deserve clarification, or, as in the present case, even though there may have been no change of circumstances, interested parties may have become aware that the Commissioner's report omitted material matters on the subject of detriment. It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker." 17 There is no reason apparent from the provisions of the Migration Act why the Tribunal should be regarded as an exception to the principle that an administrative decision-maker must take account of material received right up to the time the decision is made. Indeed, there is every reason to suppose that the scheme for review of decisions arising under the Migration Act requires consideration by the Tribunal of up-to-date material. A change in the regime in the country of origin of an applicant for a protection visa might lead to the conclusion that the applicant no longer has a well-founded fear of persecution. It can hardly be supposed that the legislature intended that the Tribunal should not take into account such a change merely because it occurred after the Tribunal had completed its oral hearing. The same might be said with respect to the occurrence of events in an applicant's country of origin that make it more likely that the applicant's fear of persecution is well-founded. 18 It cannot be supposed that the Tribunal is only obliged to receive material after completion of its oral hearing when that material concerns events that have happened after that time. There may well be material that an applicant has not thought it worthwhile offering to the Tribunal before the hearing, but which becomes crucial when it is apparent during the hearing that the Tribunal is sceptical about some aspect of the applicant's case. For an applicant to be deprived of an opportunity to establish his or her case, or his or her credibility, in such circumstances would require the expression of a clear legislative intention. In the absence of such an intention, the Tribunal has no power to refuse to consider material submitted after the oral hearing. 19 By the letter of 9 December 1999, the Tribunal did not require the appellant to put forward all documents on which he may seek to rely. It only requested him to send to it new documents, in the sense of documents that had not been made available to the delegate of the Minister. Had it attempted to constrain the appellant as to the documents on which he could rely, there would have been a question whether the Tribunal could validly restrict the right of an applicant to submit material after the completion of an oral hearing by making demands for the presentation of all material by a particular date. In the absence of a clear statutory power, there must at least be doubt as to whether the Tribunal can limit the material placed before it in that way. 20 Nothing in Div 4 of Pt VII of the Migration Act, which relates to the conduct of a review by the Tribunal, suggests any restriction on the right of an applicant for such review to make available to the Tribunal material at any time. Section 423(1) provides that an applicant may provide a statutory declaration in relation to any matter of fact and written arguments relating to the issues arising. It does not suggest that these are the only ways in which the applicant can provide material to the Tribunal. If it were so construed, it would exclude any right of an applicant to provide documentary evidence other than by persuading the Tribunal to exercise its power under s 424(1) to "get any information that it considers relevant." Section 424A deals with the situation in which the Tribunal, in the exercise of the power given by s 424(1), has received information specific to and adverse to an applicant. The Tribunal must give the applicant an opportunity to make submissions in relation to it. 21 Section 424(2) empowers the Tribunal to invite a person to give additional information. Section 424B permits the imposition of constraints as to time and manner on the provision of additional information under s 424(2) or the exercise of the right to comment under s 424A. If the requirement as to time is not observed, s 424C provides specifically that the Tribunal may make a decision without taking further action to obtain information or the views of an applicant. It would therefore be open to the Tribunal to request further information from an applicant within a specified time, and thereby to confine the evidence from the applicant that the Tribunal is obliged to consider to that received within the specified time. That step was not taken in the present case. The only step taken was to provide an opportunity for comment on specific information obtained by the Tribunal. Apart from the provisions of s 424C, which are applicable only in the circumstances to which they relate, nothing in ss 424, 424A, 424B and 424C precludes the provision of further documentary evidence after the completion of an oral hearing. There is no provision precluding the provision of such further information at the same time as an applicant comments on material made available by the Tribunal. This is what occurred in the present case. 22 The other provisions of Div 4 of Pt VII relate to the requirement that the Tribunal invite an applicant to appear to give evidence and present arguments (s 425), the giving of notice of the day, time and place of the hearing (s 425A), the calling of witnesses (s 426), the failure of an applicant who has been invited to a hearing to appear (s 426A) and the powers of the Tribunal to receive oral evidence (s 427), to authorise another person to take evidence (s 428) and to take oral evidence by telephone, closed-circuit television or any other means of communication (s 429A). By s 429, the hearing must be in private. 23 There is a body of authority to the effect that the Tribunal does not become functus officio until it has either given its decision orally, or published it in written form. If it receives any material up to that time, it is obliged to consider it. See Inderjit Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 73 at [49] - [51], Applicant in V346 of 2000 v Minister for Immigration & Multicultural Affairs [2001] FCA 1179 at [70] - [77] and Abedi v Minister for Immigration & Multicultural Affairs [2001] FCA 1430 at [23] - [30]. In Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240 (2000) 96 FCR 533, the Full Court held that the Tribunal was functus officio before it received further material from the applicant in that case. At [20], Spender J expressed the view that: "The rules of natural justice do not require that the Tribunal receive as many submissions as an applicant chooses to submit at any time prior to the making of a decision in the applicant's case. An applicant is entitled to a reasonable opportunity to present his case and to be given a reasonable opportunity of answering matters adverse to a favourable disposition of his case." 24 This statement appears to be accurate so far as it describes the content of the principles of natural justice. It does not deal with the principle that an administrative decision-maker is obliged to make a decision on the evidence available up to the time when the decision is made. To the extent to which it might be taken to suggest that the Tribunal has a discretion whether or not to have regard to material provided to it, it does not represent the law, in the absence of any statutory power of the Tribunal to ignore evidence provided to it. Where there is no statutory power to impose a cut-off date, the Tribunal has an obligation to look at material provided to it up until the time when it makes its decision, to determine the relevance and weight of that material. 25 For these reasons, the learned primary judge in the present case was correct to hold that the Tribunal was obliged to take into account relevant passages in the appellant's diary. The question remains whether the Tribunal was entitled to refuse to take into account that material because it was not expressed in the English language and there was no translation of it.

Documents not in the English language 26 The Tribunal deals routinely with people who do not speak English at all, or whose command of the English language is insufficient for them to be able to express themselves adequately when giving evidence or making submissions. It exercises routinely its power (and, on one view, its obligation) pursuant to s 427(7) of the Migration Act to direct that communication with a person who is not proficient in English proceed through an interpreter. For it not to do so would very likely involve Australia in a contravention of its international obligations pursuant to Articles 2 and 14 of the International Covenant on Civil and Political Rights, which provide relevantly as follows: "Article 2

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. … Article 14
All persons shall be equal before the courts and tribunals." Legislation should not be construed so as to permit such a contravention if such a consequence can be avoided without doing violence to the terms of the legislation. 27 A similar situation arises in relation to documents that are not in the English language. Refusal to have regard to such documents, on that ground alone, would involve distinguishing against the person providing the document on the ground of race, language, or national or social origin. The Migration Act should not be construed as permitting such distinction unless its terms require that construction. 28 In Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546 at [25], the Full Court said: "There may be occasions in [sic] which the [Tribunal] is under an obligation to obtain a translation of a particular document which is in a foreign language and whose relevance has been explained to the [Tribunal]. However, the primary judge was correct when he said, as a general proposition, at [46] that the [Tribunal] 'is not required to translate material in a foreign language' or 'consider large volumes of material whose relevance is not explained'. Its failure to do so will not mean that it failed to consider or review an application in accordance with s 414(1) of the Act or s 54 of the Act, if applicable, when it has otherwise dealt with all material considered by it to be germane to its task of reviewing the decision of the delegate. In the present case, the additional material was voluminous (including 19 textbooks in Spanish) and its relevance unexplained." 29 Neither the Full Court nor the primary judge in that case considered the impact of the International Covenant on Civil and Political Rights on the construction of the relevant provisions of the Migration Act. It may be that the extreme volume of the material in that case, coupled with the fact that the applicants were represented throughout by lawyers who had failed to explain the relevance of the material, led the primary judge and the Full Court to state the proposition in strong terms. 30 Even if a more moderate statement of the Tribunal's power to disregard material is not warranted, the present case clearly differs from Cabal. The appellant's diary was the only document tendered. It related only to 1988. Its relevance to the issue of the appellant's involvement in political activities in 1988 was explained (in the sense that the appellant had submitted, and the Tribunal understood, that this was what the diary was relevant to). This was an occasion on which the Tribunal was "under an obligation to obtain a translation of a particular document which is in a foreign language and whose relevance has been explained" to it. To fail to do so was to act without power, because the Migration Act should be construed as not permitting the Tribunal to distinguish against the appellant on the ground of his race, language, or national or social origin, by refusing to take into account a document of his making because it is not in the English language. It is one thing for the Tribunal to request that documents be translated into English. It is quite another to refuse to take into account a document that is asserted to be relevant to a specific issue on the ground that it has not been so translated. 31 As the learned primary judge in the present case pointed out, the Tribunal could have asked the appellant to nominate the particular passages in the diary that he regarded as relevant, and to have provided a translation of them into English. The Tribunal has ready access to interpreters who, without great difficulty, could also function as translators of documents. It could have opted to obtain its own translation. What course the Tribunal might take in a particular case will depend on the circumstances of the case. In the present case, it did not have the option of refusing to take into account the diary because it was not in English.

The relevance of the diary entries 32 The Tribunal in the present case went further than to reject the diary on the ground that it was not in English. It also said in its reasons for decision that it could not take into account the diary because it appeared to cover only a period of some months in 1988, the Tribunal had already found that the appellant would not be at risk for his involvement in political activities in 1988, and it did not support a claim of continued involvement in the NLD after 1988. Leaving aside the difficulty that the Tribunal must have had in determining that a document not a word of which it understood was irrelevant, the Tribunal was clearly wrong. The Tribunal took the view that the diary was irrelevant because the Tribunal had already determined the issue whether the appellant had a well-founded fear of persecution as a result of his activities in 1988. The problem was that the Tribunal had determined this issue against the appellant. Its specific finding is set out above. The appellant was putting forward the diary as evidence that would assist him on that very issue. If the Tribunal's rejection of the diary cannot be justified on the ground that the diary was not in English, it certainly cannot be justified on the ground that it went to an issue that the Tribunal had already determined against the appellant. 33 A crucial point is that, at the date when the Tribunal received the diary, it had not determined any issue at all. It was still receiving submissions from the appellant. It was not to the point for the Tribunal to say in its reasons for decision that it would not take into account the diary because, by that time, earlier in its reasons for decision, it had determined the issue. At the date of receipt of the diary, it had an obligation to ensure that it was able to take into account the contents of the diary, to the extent to which they were relevant to the issues before it. 34 As is now apparent from the translated passages of the diary, if the Tribunal had taken them into account, they may well have affected the Tribunal's view of the extent to which the appellant was involved in the events of 1988 in Burma. It is unnecessary for present purposes to set out those passages at length. If accepted as truthful, they disclose: involvement of the appellant in the formation of a group of 25 people who were then fired upon and returned fire by throwing Molotov cocktails; understanding on the part of the appellant that, once orders were given to soldiers, they would not show any mercy to the appellant and others; membership by the appellant of a group of people from whom three were to be chosen to carry out organisational work in the field for a particular group and an account of a significant development in the internal affairs of Aung San Suu Kyi's party. Of course, the weight to be given to these diary entries, or any of them, was a matter for the Tribunal. If it accepted the entries as genuine, however, the Tribunal was able to give them weight. They might have affected the Tribunal's conclusion that the appellant had no difficulties with the authorities in Burma prior to 1996. 35 In turn, if the Tribunal had taken a view more favourable to the appellant on that issue, this might have affected its view as to the appellant's later involvement in the activities of the NLD. The Tribunal might have reached the conclusion that the appellant did have a well-founded fear of persecution, if he should return to Burma, on the basis of his political views and activities. On this aspect of the case, the learned primary judge came to the wrong conclusion. Having held that the Tribunal should have looked at the diary, his Honour should have taken the view that it was a matter for the Tribunal, on a reconsideration of the appellant's case, to determine what weight to give to the material in the diary. That material was plainly relevant to the issues dealt with by the Tribunal.

Conclusion 36 The Minister's argument in support of the amended notice of contention therefore fails. The appellant's argument in support of the appeal succeeds. The learned primary judge was correct to conclude that the Tribunal was obliged by law to have regard to the diary, but was incorrect to conclude that the diary entries that were before him could not have affected the Tribunal's decision. 37 By refusing to regard itself as bound to consider the contents of the diary, the Tribunal misunderstood its function under the Migration Act. It thereby made an error of law, involving an incorrect interpretation of the applicable law. The error may have resulted in a decision against the appellant that would not otherwise have been made. The Tribunal ignored relevant material in such a way as affected the exercise of its powers. The ground specified in s 476(1)(e) of the Migration Act is therefore made out. See Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 75 ALJR 1105 at [84]. The Tribunal's error deprived it of jurisdiction to make the decision it made. The ground specified in s 476(1)(b) is also made out. The Migration Act did not authorise the making of the decision without taking into account the contents of the diary. The ground specified in s 476(1)(c) is therefore also made out. 38 This Court should therefore order that the appeal be allowed. The orders made by the learned primary judge should be set aside. In lieu of those orders, this Court should order, pursuant to s 481(1)(a) and (b) of the Migration Act, that the decision of the Tribunal be set aside, the matter be referred back to the Tribunal, differently constituted, for further consideration, and the Minister pay the appellant's costs of the proceeding at first instance. The Minister should also be ordered to pay the appellant's costs of the appeal. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

O'LOUGHLIN J 39 I have had the opportunity to read, in draft, the reasons of Gray J. I respectfully adopt his Honour's summary of the facts and I comment on and add to them only for the purpose of explaining why I find myself unable to agree with his Honour's conclusion that this appeal should be allowed. 40 The issue of importance that was debated in this appeal was whether the Refugee Review Tribunal ("the Tribunal") was entitled to insist on the appellant supplying an authenticated translation of his diary. That question cannot, in my opinion be definitively answered in this or any other like application for a protection visa. Before an answer can be given, it is necessary to look at the appellant, his or her capabilities and the assistance (if any) that is or might be available to the appellant. 41 In the present case, the refusal of the Tribunal to have regard to the contents of the diary (and this, effectively, means the refusal of the Tribunal to arrange for an interpretation of the contents of the diary) is to be considered against the following background:

the appellant's application for a Protection Visa had been completed in the English language with the assistance of a Burmese interpreter;
his invitation from his Australian relative (whose surname appears to be Burmese) to visit Australia for his grandfather's birthday was written to him in the English language;
the appellant wrote a letter in the English language to the Department of Immigration and Multicultural Affairs on 1 September 1998 enclosing photographs in support of his application for a protection visa;
the appellant wrote letters in the English language to the Registry of the Tribunal on 20 May and 8 November 1999 enclosing further photographs which, so it was claimed, assisted his application for a Protection Visa;
on 22 March 2000, the Tribunal wrote the appellant in the English language informing him that it had information in its possession to the effect that there was no record of him having earlier made an application for a visa to enter Australia. It invited him to reply, adding "Your comments are to be in writing and in English". The appellant replied by letter dated 23 March 2000, again in the English language, stating that it was his mother who had made the application on his behalf. He referred to his mother by name and her English name suggests that she may be of Australian origin. He concluded his letter with the statement: "I have managed to obtain my old diary from Burma regarding my involvement with the N.L.D. recently which is written in Burmese. I enclose my diary to support my application for review." 42 This summary is not intended to suggest that the appellant is fluent in English, but it does point to him having had ready access to people who were fluent in English and who were able to assist him. When the appellant wrote his letter of 22 March 2000 enclosing his diary he did not offer an explanation for not submitting an English translation. 43 The Tribunal was therefore faced with an applicant who had, in the past, provided information and answered correspondence in the English language. The Tribunal had concluded its oral hearing and had properly contacted the appellant to give him the opportunity to clear up a question which might otherwise have suggested that he had attempted to mislead the Tribunal. The appellant had then responded to the Tribunal in English and, without offering any explanation or seeking any assistance from the Tribunal, had proffered a diary in the Burmese language. 44 In those circumstances, I find it difficult to criticise the conduct of the Tribunal in refusing to have regard to the contents of the diary. I appreciate that there would be those who might say that the Tribunal should have returned the diary to the appellant inviting him to arrange for an authenticated translation. Others might go a stage further and maintain that the Tribunal should have, at its expense, obtained a translation. There is room for a variety of views - so much so that I do not think it appropriate for this Court to lay down inflexible guidelines. In the particular circumstances of this case, I think that there was ample information before the Tribunal for it to form the opinion that this particular appellant had available to him the assistance that he needed to forward a translated copy of an unsolicited document that he wished to place before the Tribunal. 45 Although these reasons dispose of the appeal, I should like to associate myself with the remarks of the learned trial judge on the issue of inutility. A Court will not order a reconsideration of a decision where reconsideration would be futile: Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 at 136 per Wilcox J. Where a review Court finds that the Tribunal erred in law, but that, if the matter were remitted, on the facts as found, the decision would necessarily be the same, it is appropriate that the decision of the Tribunal be affirmed: Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 at 238 per Sackville J. Thus, even when a ground for review of the Tribunal's decision may be demonstrated, the Court retains a discretion to refuse relief if the appellant is unable to show that there would be any utility in an order directing the Tribunal to carry out the review proceeding again: Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-214. 46 In the Court below, the learned primary judge had before him a translation of the relevant extracts from the appellant's diary. They were as follows: "18-9-88 Today, Saw Maung took over and declared Martial Law. That night, at 8.45 p.m., we formed the 'Black Panther Group'. There was a group of 25 Hard Core personnel. The whole night they were firing from the Aung San Stadium. We also returned fire by throwing Molotov Cocktails. At that moment we did not know whether to be happy or to be sad. They were now using heavier weapons and were firing at us with 79mm guns. There were a lot of noise and shells around us and it looked like a real battlefield. … 21-9-88 Last night the Trade Godown No. 1 was broken into and entered. People from outside were engaged in looting and stealing. On inspection in the afternoon we found a lot of bloodstains and slippers. The slippers were crudely made thongs. It is heard that the soldiers that came to buy Duya cigarettes were holding wads of Ten Kyat Notes in their hands. It is also heard that another group of soldiers were also asking any women that they found to remove their jackets, and the men were asked to take off their longyis (sarongs), before sending them on their way. It was heard that the soldiers had threatened all those in the Pha-Sa-Pa-La, Kandawgalay and BangaliSu Area, that once they get the orders, they were not going to show any mercy on us. … 21-11-88 They called a meeting at about 2.15 p.m. in the afternoon. The main point of the meting [sic] was that they wanted three men to carry out organisational work in the field. They were to be attached to Aung Su Tin's group and were to form a youths [sic] group in the field. We were told that if our names come up tomorrow, we would have to leave for the field. … -11-88 Today is the day when we arrived at Aung San Suu Kyi's house exactly one month ago. It also happened to be the day when Aunty Suu was to give a speech for National Day. She explained about U Aung Gyi leaving the Party President's post. She said that U Aung Gyi had requested that the Communists within the Party should all be removed, and that according to all the members, it was stated that if he had sufficient proof and grounds to make such allegations, then the people concerned would all resign, but if he could not show sufficient proof, then he, himself, should resign. The proposal was put to vote by secret ballot, it was found that the people that he had alleged obtained 28 votes whereas he himself got only 13 votes. Therefore, U Aung Gyi resigned and vacated his seat as the Party President. Daw Aung San Suu Kyi went on further to state that U Aung Gyi had left with great dignity and that this decision should be noted as a victory for democracy. Because the President tells a person to resign, he has not resigned but since it was put to the vote of the majority and that he has had to resign it must be regarded as a First Democratic Victory. Later on, we heard that U Aung Gyi had formed another Party." His Honour's view, with which I respectfully agree, was as follows: "Whilst the diary entries, if accepted, give further credence to the applicant's account of events in Burma in 1988, they do not in themselves point to the existence of a fact inconsistent with the findings of fact made by the Tribunal. The material therein does not establish the possibility that had the Tribunal considered that material it may have made a finding of fact favourable to the applicant on a material issue." 47 In my opinion this appeal should be dismissed with costs.

I certify that the preceding 9 (nine) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

MOORE J 48 I have had the benefit of reading the reasons of Gray J in a draft form and I agree with the orders his Honour proposes and generally with his reasons though I consider the appeal can be resolved on a slightly narrower footing. My reasons are as follows. 49 In this appeal counsel for the Minister for Immigration and Multicultural Affairs accepted the Refugee Review Tribunal ("the Tribunal") had a discretion to receive and have regard to unsolicited material sent to the Tribunal by an applicant after the applicant had appeared before the Tribunal to give evidence and present argument. In this matter the Tribunal did receive the contentious diary and had regard to it but only in a limited and qualified way. That is because the Tribunal did not seek to ascertain what the diary said. This appeal, in my opinion, turns on how the conceded power to receive and have regard to the diary was exercised in the present case and it is unnecessary to determine whether the Tribunal would have been obliged to receive and have regard to the diary in some other setting. 50 The nature of any obligation on an administrative decision-maker to consider material provided by a person with an interest in the decision, is to be ascertained having regard to the statutory context in which the power to decide is conferred. The subject matter, scope and purpose of a statute may give rise to an implication that the decision be based on the most current material available to the decision maker: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45 per Mason J (Gibbs CJ and the Dawson J agreeing). The subject matter, scope and purpose of a statute may also give rise to an implication that the decision maker approach material (provided by an interested person) with some other characteristic (apart from currency) in a particular way. 51 In the present case, the Tribunal was exercising a power to review a decision concerning an application by an asylum seeker for a protection visa. Plainly the Tribunal, in exercising that power, would have to deal with applicants whose first language was not English and who may not speak English at all. Equally, the Tribunal would have to deal with documents relied on by applicants which were also not in English. The first matter is addressed by s 427(7), which enables the Tribunal to direct that a communication with a person who is not proficient in English be through an interpreter. It is unnecessary to determine whether the Tribunal has a discretion to do so or is obliged to do so: see Long v Minister for Immigration & Multicultural Affairs [2000] FCA 1172 at [29]. Subsection 427(7) demonstrates, for present purposes, that the legislature has established a regime for the review of unsuccessful applications for protection visas which recognises that people involved in the review, including applicants, might not speak English. One of the apparent purposes of s 427(7) is to enable applicants to fairly put their case for asylum, by communicating through an interpreter. In my opinion, this would indicate that the Tribunal, in exercising the conceded power to consider written material provided by an applicant after the oral hearing, could not decline to consider its contents simply because it was not in English and no version translated into English was provided by the applicant when the written material was furnished. In my opinion the Tribunal could not decline to consider the contents without informing the applicant the document would not be considered in the absence of an English translation. 52 In effectively rejecting the diary as material supportive of the appellant's case by declining to consider its contents without taking steps that might give meaning (to the Tribunal) to its contents, the Tribunal erred in the way discussed by Gray J. The consequence of the approach the Tribunal adopted was that it ignored relevant material. Having regard to what is comprehended by the notion of jurisdictional error as discussed by McHugh, Gummow and Hayne JJ in Minister or Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [82]-[85] the Tribunal's error was jurisdictional. 53 The point addressed by the Full Court in Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546 was whether the Tribunal was under a general obligation to obtain for itself a translation of documents furnished by an applicant. The issue in this appeal is slightly different. I do not suggest that the Tribunal was obliged to obtain a translation of the diary itself nor that it was obliged to defer deciding the appellant's application until the appellant had provided a translation. What it did not do was inform the appellant that it would not take into account the contents of the diary because a translation had not been furnished. Generally, an applicant would be likely to know what a document relied on said and its significance. Both matters could be explained by the applicant if comment was invited before the document was effectively rejected. The Tribunal is not bound by any "best evidence" rule and can rely on secondary evidence, as it is described in curial proceedings, of the contents of documents: see s 420(2). Moreover, it is open to the Tribunal to request (as it routinely does) that an applicant provide translations of documents on which he or she relies particularly if the applicant says the document is significant or the Tribunal believes it may be. If a translated document provided by an applicant bears upon the claim of the applicant and the Tribunal is to have regard to it, the Tribunal can either accept the translation or independently seek to verify its accuracy. It is improbable that the statutory scheme would require the Tribunal ordinarily to obtain a translation if none was provided, after invitation, by the applicant: see Cabal v Minister for Immigration & Multicultural Affairs (supra). However, equally, it is unlikely that the statutory scheme authorised the Tribunal to disregard the contents of a document relied on by an applicant simply because it was not in English, when the applicant was not put on notice that the contents would be disregarded without a translation being provided, before the decision was made to reject the application for a protection visa. 54 I agree with Gray J that the contents of the diary, as explained to this Full Court, might lead to a favourable finding by the Tribunal. As Gray J explains in his reasons, the primary judge ultimately dismissed the appellant's application for review because his Honour found that there would not be any utility in an order directing that the Tribunal reconsider the matter. The primary judge set out the following translated diary entries: "18-9-88 Today, Saw Maung took over and declared Martial Law. That night, at 8.45 p.m., we formed the 'Black Panther Group'. There was a group of 25 Hard Core personnel. The whole night they were firing from the Aung San Stadium. We also returned fire by throwing Molotov Cocktails. At that moment we did not know whether to be happy or to be sad. They were now using heavier weapons and were firing at us with 79mm guns. There were a lot of noise and shells around us and it looked like a real battlefield. … 21-9-88 Last night the Trade Godown No. 1 was broken into and entered. People from outside were engaged in looting and stealing. On inspection in the afternoon we found a lot of bloodstains and slippers. The slippers were crudely made thongs. It is heard that the soldiers that came to buy Duya cigarettes were holding wads of Ten Kyat Notes in their hands. It is also heard that another group of soldiers were also asking any women that they found to remove their jackets, and the men were asked to take off their longyis (sarongs), before sending them on their way. It was heard that the soldiers had threatened all those in the Pha-Sa-Pa-La, Kandawgalay and BengaliSu Area, that once they get the orders, they were not going to show any mercy on us. … 21-11-88 They called a meeting at about 2.15 p.m. in the afternoon. The main point of the meting [sic] was that they wanted three men to carry out organisational work in the field. They were to be attached to Aung Su Tin's group and were to form a youths [sic] group in the field. We were told that if our names come up tomorrow, we would have to leave for the field. … -11-88 Today is the day when we arrived at Aung San Suu Kyi's house exactly one month ago. It also happened to be the day when Aunty Suu was to give a speech for National Day. She explained about U Aung Gyi leaving the Party President's post. She said that U Aung Gyi had requested that the Communists within the Party should all be removed, and that according to all the members, it was stated that if he had sufficient proof and grounds to make such allegations, then the people concerned would all resign, but if he could not show sufficient proof, then he, himself, should resign. The proposal was put to vote by secret ballot, it was found that the people that he had alleged [sic] obtained 28 votes whereas he himself got only 13 votes. Therefore, U Aung Gyi resigned and vacated his seat as the Party President. Daw Aung San Suu Kyi went on further to state that U Aung Gyi had left with great dignity and that this decision should be noted as a victory for democracy. Because the President tells a person to resign, he has not resigned but since it was put to the vote of the majority and that he has had to resign it must be regarded as a First Democratic Victory. Later on, we heard that U Aung Gyi had formed another Party." 55 His Honour then concluded at [32]: "Counsel submitted that the foregoing contents of the diary bore upon the conclusion formed by the Tribunal that the applicant was involved at a "low level" in the 1988 uprising which coloured its later conclusions that the applicant lacked veracity and that his claim that he participated in the 1996 student demonstrations, and was arrested and beaten, should not be accepted. The Tribunal accepted that the applicant did participate in the "1988 pro-democracy uprising", but was not satisfied that he was an "organiser" of the student demonstrations or a member of the NLD and, therefore, for that reason the Tribunal determined that he faced no real risk of persecution by reason of his participation in that political event. Whilst the diary entries, if accepted, give further credence to the applicant's account of events in Burma in 1988, they do not in themselves point to the existence of a fact inconsistent with the findings of fact made by the Tribunal. The material therein does not establish the possibility that had the Tribunal considered that material it may have made a finding of fact favourable to the applicant on a material issue." However the analysis in this appeal of the diary and its potential relevance was both more detailed and more comprehensive than the analysis provided to the primary judge. Counsel for the appellant submitted that the Court should only exercise its discretion to decline relief if it is impossible to say that the error contributed to the decision, and not if it were possible that the outcome of a further hearing might be different. The appellant submitted that there were many matters in the diary entries that may have impacted on the Tribunal's findings. 56 First, the appellant submitted that if the diary notes were accepted, they would bolster the applicant's credibility, not only in respect of the 1988 period, but generally. In particular, the appellant contended that if the Tribunal accepted that the appellant had played a significant organisational role in the 1988 demonstrations, it would be more likely to accept the appellant's evidence in relation to the events of 1996. Further, the appellant contended that if the Tribunal accepted that the appellant was a member of the NLD in 1988, it would be more likely to accept the appellant's claim that he continued to be a member in subsequent years. Similarly, the appellant submitted that the diary notes, contrary to the Tribunal's findings, demonstrated that the appellant had a good knowledge of the NLD's activities. Given that the Tribunal had regarded the appellant's perceived lack of knowledge about the NLD as critical to his claim to have been involved with the party, the appellant submitted that the diary notes may well have persuaded the Tribunal to reach a different conclusion as to the likelihood that he was involved in the 1990 elections and had undertaken voluntary work for Aung San Suu Kyi. In order to demonstrate further how the diary, if considered by the Tribunal, may have impacted on the Tribunals decision, the appellant also drew attention to several alleged inconsistencies between the Tribunal's findings and the diary entries. Those purported inconsistencies are as follows: (i) The Tribunal did not accept that the appellant was a student in 1988, whereas the diary entries imply that the appellant was a member of the student body as claimed by him. (ii) The Tribunal found that the appellant was only involved in the 1988 demonstrations at a low level and not in an organisational capacity. The dairy notes show the appellant organising the return home of women and children from the school, collecting students and participating in organising crowd control. (iii) The Tribunal found that the appellant had not had difficulties with the Burmese authorities prior to 1996. The diary shows that the appellant and other students were fired upon by soldiers. (iv) The Tribunal did not accept the appellant was a member of the NLD. The diary notes show the appellant engaged in a variety of activities with the NLD including attending meetings and providing voluntary labour. (v) The Tribunal concluded that there was no reason for the appellant to support the students in their push to establish a student union in 1996. The diary shows that the appellant was closely involved with the student movement in 1988 and it was therefore reasonable that he may continue to be involved with that movement. 57 As noted earlier, it is relatively clear that the analysis undertaken by counsel for the appellant of what was in the diary and its potential relevance was both more detailed and more comprehensive than the analysis provided to the primary judge. This may be, as counsel explained, because at the hearing before the primary judge the significant issue was perceived to be whether the Tribunal had erred on a ground identified in s 476. However, for whatever reason, the analysis of the diary in this appeal has been more detailed and more comprehensive. The matters raised in the submissions of the appellant referred to in the preceding paragraph indicate, in my opinion, that the diary (if accepted as an authentic document) provided fairly compelling evidence which bore upon the question of whether the applicant had been a member of the NLD in 1988 and also on the question of whether he had remained politically active until his departure from Burma in 1998. Accordingly there is not a basis made out for not remitting the matter to the Tribunal. I agree with the orders proposed by Gray J. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Solicitor for the Respondent: Australian Government Solicitor

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