Applicant A27 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 259 (19 March 2004)

Last Updated: 23 March 2004

FEDERAL COURT OF AUSTRALIA

Applicant A27 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 259

MIGRATION – procedural fairness – whether procedural fairness requires administrative decision-maker/tribunal to warn that it intends to make a particular finding.

MIGRATION – jurisdiction of Refugee Review Tribunal (‘RRT’) – no jurisdiction to consider matters relevant to Art 1F of Refugees Convention – whether RRT considered Art 1F of Refugees Convention on application for review.


Convention relating to the Status of Refugees done at Geneva on 28 July 1951, Art 1F


Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107 applied
Re Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 cited
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 cited
Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 cited
Kioa and Others v West and Another [1985] HCA 81; (1985) 159 CLR 550 considered
Meadows and Antoher v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370 discussed











APPLICANT A27 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS; MARGARET HOLMES, MEMBER REFUGEE REVIEW TRIBUNAL; PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

S 184 of 2003




LANDER J
ADELAIDE
19 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 184 OF 2003

BETWEEN:	APPLICANT A27 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT MARGARET HOLMES, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGE:	LANDER J
DATE OF ORDER:	19 MARCH 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the first respondent’s costs.
3. There be no order as to the costs of the second and third respondents.










Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 184 OF 2003

BETWEEN:	APPLICANT A27 OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT MARGARET HOLMES, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT

JUDGE:	LANDER J
DATE:	19 MARCH 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 On 4 March 2002 the applicant filed an application in the High Court seeking the issue of constitutional writs claiming that a decision of the Refugee Review Tribunal (‘RRT’) ought to be set aside.

2 On 7 February 2003 Hayne J remitted the matter to this Court for hearing.

3 On 18 July 2003 the applicant filed an amended application in this Court. I gave leave at the hearing of the application to further amend the application.

4 I shall return to the application and identify the grounds upon which the orders for the constitutional writs are sought.

5 The matter has come on for hearing on four occasions. On the first three occasions it was adjourned for different reasons. First, because the applicant sought to rely upon an affidavit of which notice had not been given. Secondly, because the first respondent applied to cross-examine the applicant on his affidavit but the applicant was not present. Thirdly, because the first respondent’s attempt to cross-examine the applicant by video-link proved unsuccessful for a number of reasons. The matter was adjourned until the fourth hearing so that the applicant could attend for cross-examination.

6 The applicant, an Indian citizen, arrived in Australia on 7 May 1998. On 5 June 1998 he lodged an application for a protection (Class AZ) visa with the Department of Immigration and Multicultural Affairs (now the Department of Immigration and Multicultural and Indigenous Affairs) (‘the Department’) under the Migration Act 1958 (‘the Act’). On 18 June 1998 a delegate of the then Minister for Immigration and Multicultural Affairs (‘the Minister’) refused to grant a protection visa.

7 The Act provides for a class of visas known as protection visas: s 36(1). The criterion for the grant of a protection visa is that the applicant is a non-citizen to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the ‘Refugees Protocol’: s 36(2). The Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

8 Article 1A of the Refugees Convention provides that, for the purposes of that convention, the term ‘refugee’ applies to 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’

9 The Refugees Convention shall either cease to apply or not apply to the classes of persons in Articles 1C, 1D, 1E and 1F. Only Article 1F is important in this case. It provides:

‘ F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.’

10 The delegate found that the applicant was not excluded from coverage by the Refugees Convention under Articles 1D, 1E or 1F, but found that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention because the applicant did not have a well-founded fear of persecution and there was no ‘real chance’ of persecution for a Convention reason. In those circumstances, the delegate found that the applicant could not bring himself within Article 1A of the Refugees Convention.

11 The applicant sought a review of that decision and the matter came before the RRT which gave its decision on 10 July 2000 (‘the first RRT’).

12 The first RRT decided that ‘[t]he preliminary issue for the Tribunal is whether there is evidence that the Applicant committed acts falling within 1F(b) and/or (c)’. It found that there were serious reasons to consider that the applicant may come within Article 1F of the Refugees Convention and that, in those circumstances, it did not have jurisdiction to consider the applicant’s claim for a protection visa.

13 Clearly, that decision was wrong. The RRT has no jurisdiction to enter into an inquiry as to whether an applicant is excluded from protection by Article 1F of the Refugees Convention: s 500(1)(c). Under the scheme of the Act, that is the function of the Administrative Appeals Tribunal. In Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107 the Full Court of this Court said at 110:

‘ In the present case, it is an object of the Act that reviews of decisions taken under Art 1F of the Convention shall be conducted by the Administrative Appeals Tribunal. That object is not merely to be inferred from the Act. The Act makes it explicit by conferring jurisdiction upon the Administrative Appeals Tribunal and by excluding review under Pt 7 of the Act. The rationale is not stated but it can be understood. The Administrative Appeals Tribunal is a high ranking review tribunal, the President of which is a judge of this Court. It is a body which is well suited to dealing with the issues which arise under Art 1F. The Act has specified that, for the purposes of reviewing such a decision, the Administrative Appeals Tribunal shall be constituted by a presidential member. High quality decision making is sought.

The Act has, therefore, notionally divided decisions refusing to grant a protection visa into two distinct parts, namely, those parts constituting a refusal in reliance on Arts 1F, 32 or 33(2) of the Convention and those relying on other aspects of the Convention, particularly Art 1A(2). Accordingly, in s 411(1)(c), the term "a decision to refuse to grant a protection visa" must be read as excluding such a decision insofar as it relies upon Arts 1F, 32 or 33(2) of the Convention. The Act makes this explicit by providing in s 500(4) that the excluded decisions are not reviewable under Pt 7 of the Act, in which s 411 appears.

It follows that the only decision which the Refugee Review Tribunal had jurisdiction to review was a decision which did not rely upon Arts 1F, 32 or 33(2). It was only for the purpose of reviewing that limited decision, the elements of which were within its jurisdiction, that the Refugee Review Tribunal was authorised to exercise all the powers and discretions that were conferred by the Act on the person who made the decision.’

14 The applicant applied for a judicial review of that decision and, on 5 October 2000, von Doussa J, with the consent of both parties, ordered that that decision of the first RRT be set aside and the matter remitted to the RRT for reconsideration according to law.

15 The matter was relisted for hearing before the RRT and on 16 January 2002 the RRT affirmed the decision of the delegate not to grant a protection visa (‘the second RRT’).

16 The applicant has sought judicial review and the issue of the constitutional writs in relation to the decision of the second RRT.

17 Two grounds are advanced in the amended application. First, it is submitted that the second RRT exceeded its jurisdiction in considering whether the applicant came within the provisions of Article 1F of the Convention, thereby disqualifying the applicant from the benefit of Australia’s obligations to give protection to people who otherwise qualify under Article 1A of the Refugees Convention. Secondly, it is submitted that the second RRT failed to accord the applicant procedural fairness in that it failed to warn him that it was of the opinion that documents tendered by the applicant at the second RRT hearing were concocted.

18 There can be no doubt, for the reasons already given, that the first RRT exceeded its jurisdiction in considering whether or not the applicant came within the terms of Article 1F of the Refugees Convention and was therefore not entitled to the benefit of Australia’s obligations to accord protection to persons who otherwise qualify under Article 1A of the Refugees Convention.

19 When the matter came on before the second RRT, the applicant’s solicitor provided the second RRT with written submissions as to how the second RRT should proceed. The applicant’s submissions were that ‘the correct course of action "according to law" is for the [second] RRT to remit the matter for reconsideration [to the Minister’s delegate] with the direction that a Delegate of the Minister gives proper consideration as to whether, in the circumstances of this case, the Applicant is excluded or not excluded under Article 1F of the Refugees Convention from coverage by the Refugees Convention’.

20 I have been provided with a copy of the transcript of the hearing before the second RRT. The applicant’s solicitor appeared for the applicant and made submissions consistent with the written submission provided to the second RRT. In answer to those submissions, the second RRT said:

‘Okay, well our practice is that we consider whether people are entitled to protection visas under 1A and really we don’t have as you know the jurisdiction to look at 1F issues so I propose today to proceed with this application in exactly the same way as I proceed with all the others and that is to determine whether or not they have a well founded fear of persecution for one of the reasons in the refugee convention because I think that’s all that I have the power to do.’

The solicitor persisted with his submission.

21 The RRT said:

‘Mr Clisby I have to tell you I read your submissions and I spoke with our legal people about it. I really am going to proceed on this in the normal way. I am going to make a decision on 1A on whether or not your client is entitled to a refugee visa under 1A and then I will send it back to the department and they can do whatever they like with whatever it is so I am going to proceed today.’

She later said:

‘I think it’s very clear what I have to do, I mean you might see this more broadly than I and you know that’s fair enough but for me I think my task is very clear I have to decide whether [Applicant A27 of 2002] has a well founded fear of persecution in India for you know the convention reasons that’s all I do.’

22 I cannot understand why that submission was made. It is, in my opinion, plainly wrong.

23 The Minister’s delegate had previously found that the applicant was not a person to whom Australia owed protection obligations under Article 1A of the Refugees Convention. The Minister’s delegate also found that the applicant was not a person to whom Article 1F of the Refugees Convention applied. In those circumstances, the applicant has as good a finding as the applicant could have obtained in relation to Article 1F. There was no point in the applicant asking the second RRT to remit the matter to the Minister’s delegate to reconsider that matter. Moreover, the Minister had made no complaint about that finding.

24 There was no need, in those circumstances, to have the matter remitted to the Minister’s delegate. Indeed, that would have been contrary to the order of the Federal Court.

25 The applicant’s solicitor continued to contend on the application before me that the course which had been suggested before the second RRT was correct. Whilst he was unable to explain why the applicant would want the matter remitted to the Minister’s delegate to further consider any question in relation to Article 1F, he submitted that was the correct course because the question of Article 1F, and whether the applicant was within its terms, had been raised before the first RRT and had been decided adversely to the applicant. Of course, the decision of the first RRT had been set aside. It was, for all intents, null and void. Whatever had been considered and decided by that first RRT was, by the time the matter came before the second RRT, quite irrelevant.

26 In my opinion, the RRT was correct to advise the applicant’s solicitor that the matter with which the RRT was concerned, and the only matter, was whether or not the applicant could bring himself within Article 1A of the Convention. If he could, then it seems to me that the applicant would have been entitled to an order setting aside the delegate’s decision refusing the applicant’s application for a protection visa. There would be no further inquiry as to whether the applicant was not entitled to the benefit of the Refugees Convention because the applicant came within Article 1F.

27 If, on the other hand, the applicant could not bring himself within the terms of Article 1A, then the Minister’s delegate’s decision had to stand.

28 Notwithstanding it was the applicant’s solicitor who urged upon the second RRT the course to which I have referred, and notwithstanding that the second RRT made it clear during the applicant’s solicitor’s submissions that the RRT rejected those submissions, it is the applicant’s solicitor’s submission, on this application, that the second RRT erred because it did consider whether the applicant was a party to whom Article 1F applied.

29 In the second RRT’s reasons it said:

‘The first Tribunal reached the view that it did not have jurisdiction to review the decision because it considered that the applicant’s evidence provided serious reasons to consider that the applicant may come within Article 1F of the Refugees Convention, which excludes from protection persons who have committed certain types of crimes namely War crimes, crimes against humanity, serious non-political crimes or acts contrary to the purposes and principles of the United Nations. The Tribunal has no jurisdiction to consider matters which might engage Article 1F.’

30 That unambiguous statement of principle is, in my respectful opinion, correct.

31 However, the applicant’s solicitor argued that although the second RRT apparently rejected his submission when it was made and made the statement of principle in its reasons, to which I have referred, the RRT did in fact consider whether or not the applicant was precluded by virtue of Article 1F from obtaining the benefits under Article 1A.

32 He relied upon one further reference to Article 1F in the second RRT’s reasons for decision. In the penultimate paragraph of the second RRT’s reasons, it said:

‘It follows from the foregoing that I have been unable to reach the conclusion reached by the first Tribunal: that there was serious reason to consider that the applicant may have been involved in committing certain types of crimes and so be excluded from protection under Article 1F of the Refugees Convention. I consider that he is excluded from protection because there is not a real chance that he would face persecution for one or more of the reasons specified in the Refugees Convention if he were to return to India and that his fear of what might happened (sic) to him upon return is not well founded.’

33 That paragraph of the second RRT’s reasons has to be understood by reference to the second RRT’s reasons and the first RRT’s decision.

34 As I have said, the second RRT unambiguously and correctly stated that it did not have jurisdiction to consider matters which might engage Article 1F. On the other hand, the first RRT had erred in considering matters which might engage Article 1F.

35 The second RRT decided the question which the Act poses for it, and that is whether the applicant satisfies the criteria in Article 1A so as to be entitled to a protection visa under s 36(2) of the Act.

36 There is nothing in the second RRT’s reasons which would suggest that it had considered matters relevant to Article 1F after correctly stating that it did not have jurisdiction to consider those matters. The first sentence of the penultimate paragraph referred to above is an explanation for why the second RRT proceeded in the way that it did, which was inconsistent with the procedure adopted by the first RRT. The second sentence shows that the second RRT understood the matter over which it had jurisdiction and the question to be answered.

37 It is curious that this ground of appeal depends upon the applicant’s own conduct before the second RRT. It was the applicant’s solicitor who contended that the matter had to be referred back to the delegate for further consideration of the facts and circumstances which the first RRT suggested might mean that the applicant was not entitled to a protection visa because the applicant came within Article 1F. The second RRT correctly refused to accede to that submission and persisted with the hearing of the matter in circumstances where it understood its responsibility, even if the applicant did not.

38 The applicant was asking the second RRT to remit the matter to the delegate in its entirety, such that the delegate would consider afresh matters relevant to both Article 1A and Article 1F. The applicant was trying to impugn a favourable decision in relation to Article 1F, presumably to obtain a reconsideration by the delegate as to whether the applicant satisfied Article 1A of the Refugees Convention. The applicant was seeking to obtain a forensic advantage to which he was not entitled.

39 In my opinion, the first ground for review has not been made out.

40 The second ground complains that the second RRT failed to accord the applicant procedural fairness.

41 In support of his application before the second RRT, the applicant provided the RRT with a number of documents including a number of letters from his family and other people. Those letters were provided to prove a continuing police interest in members of the applicant’s family.

42 The second RRT said of those letters in its reasons: ‘I consider that the documents attesting to this continuing police interest in members of the applicant’s family have been concocted in an attempt to advance his claims’.

43 It was the applicant’s submission on this application that that finding amounted to a denial of procedural fairness because the applicant had not been advised of the possibility that such a finding might be made.

44 On this application the applicant’s solicitor read an affidavit of the applicant in which he said:

‘2. I attended before the Refugee Review Tribunal (RRT) to give oral evidence in Adelaide on 8^th February 2001. At no time was I told by the Tribunal Member who heard my case that the documents that I had submitted to the RRT were concocted.

3. I did not discuss the chance that these documents had been concocted with my solicitor and registered migration agent Mark Clisby.

4. If it had been put to me by the Tribunal Member that some of the documents had been concocted, I would have indicated to the Tribunal that I wished to call witnesses and produce other evidence to establish that what was said in these documents was true. In particular, I would have organised statutory declarations from the members of my family who had written to me in relation to the continuing police interest in them stating that what they had stated in their letters was true.’

45 Mr Clisby also read an affidavit of his own which exhibited the transcript of the second RRT hearing. Mr Clisby also represented the applicant in the hearing before the RRT.

46 On the fourth hearing the applicant was cross-examined by the respondent’s counsel, Mr Roder, about the contents of his affidavit and the contents of the transcript of that hearing.

47 The applicant was an unsatisfactory witness. He was evasive and tended to prevaricate. The transcript of his cross-examination shows a reluctance to accept facts which were indisputable. I would not accept any of the applicant’s evidence where it is in conflict with the transcript which, as I say, the applicant himself tendered.

48 In any event, in the end, the applicant did concede that the transcript accurately reflected what was said in the second RRT hearing.

49 The transcript shows that the Tribunal communicated to the applicant its concerns about the applicant’s evidence before it. The Tribunal Member said: ‘[Application A27 of 2002], I’m going to have to think very carefully about whether you have in fact given me truthful evidence today’. She then identified the particular evidence with which she was concerned.

50 After referring to his account of an occurrence in a police station she said to him: ‘I find that difficult to accept and I want to think about it carefully, but it would not be fair of me to finish today without giving you an indication that I had concerns about the credibility of your evidence’.

51 After receiving that warning, Mr Clisby asked to be entitled to ask the applicant further questions in relation to the matter which was of concern to the second RRT and he was permitted to adopt that procedure. Mr Clisby then addressed the RRT and, during that address, the second RRT said:

‘So you will be able to see exactly what we’ve got. Now I have a lot of trouble with a number of these documents. I think that there is a chance that a number of these documents have just been concocted, I think, particularly the letters, I mean they’re just, they’re all the same, for instance, they all say practically exactly the same thing. I have difficulty with them, but I’ll send them to you.’

52 Clearly enough, Mr Clisby heard the second RRT’s statement because the transcript records that immediately after those words were spoken he asked the applicant whether the applicant wanted to send any more documents to the Tribunal. The applicant said that he wanted to send a disk document which would be translated in two to three weeks. He identified the document. Some further enquiry was made as to where precisely the document might be found and he identified it as being a newspaper article. The applicant’s solicitor asked for 10 days within which to provide the newspaper article and the translation of it.

53 In due course, the newspaper article and the translation were provided within the time prescribed.

54 The applicant also heard the second RRT’s statement. The applicant has asserted in his affidavit that the second RRT did not tell him ‘that the documents that I had submitted to the RRT were concocted’. It is true that the second RRT did not use those words. However, she said ‘there is a chance that a number of these documents have just been concocted’.

55 The RRT’s functions are inquisitorial: Re Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [76]; Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 at [18]. It had the obligation of inviting the applicant to appear before it ‘to give evidence and present arguments relating to the issues arising in relation to the decision under review’: s 425(1). But that obligation does not require the Tribunal ‘to treat what transpired "as though it were a trial in a court of law"’: Re Refugee Review Tribunal and Another; Ex parte Aala (supra) per Gaudron and Gummow JJ at [76].

56 The Tribunal is not a party or a contradictor to the applicant’s claims: Muin v Refugee Review Tribunal (supra) at [98].

57 It must, of course, accord the applicant procedural fairness.

58 Because of the nature of the proceeding, it must put the applicant on notice of the critical issues which are raised on the application. That is necessary because there is no contradictor and no contradictory oral evidence. That does not mean that the Tribunal is bound to put everything to an applicant in the same manner as a party might in an adversarial proceeding: Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 per Callinan J at [295]. Where it is clear that facts are in dispute and the applicant has addressed those facts, the RRT does not need to warn or advise the applicant that the RRT may make an adverse finding on those facts. However, where the applicant may not be aware that the RRT might make an adverse finding critical to the applicant’s case and therefore might not address the finding by way of evidence or submissions, it usually would be appropriate for the RRT to advise the applicant of the possibility of such a finding.

59 In Kioa and Others v West and Another [1985] HCA 81; (1985) 159 CLR 550 at 587, Mason J (as he then was) said:

‘But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter: In re H.K. (An Infant).

In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it. F.A.I. is one illustration. Cole v. Cunningham, is another, as are Reg. v. Gaming Board for Great Britain; Ex parte Benaim and Khaida; and Daganayasi v. Minister of Immigration.’ (footnotes omitted)

60 Whether the RRT is bound to bring to the attention of an applicant the possibility that an adverse finding will be made will depend upon a number of factors, the most important of which will be the manner in which the inquiry has been conducted. If during the applicant’s evidence or submissions the applicant was put on notice that the RRT has a significant doubt about a critical aspect of the applicant’s case, then it may not be necessary to directly warn the applicant of the possibility of an adverse finding. But, in many cases, it will be incumbent upon the RRT to warn the applicant.

61 In Meadows and Anor v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370, the Court was concerned with letters which the RRT had found were fabricated without ever putting that suggestion to the applicant for answer, or warning that such a finding might be made. Von Doussa J said at 383:

‘The letters were tendered by the appellants as a central plank in their case. Insofar as the Tribunal concluded that the letters falsely suggested that the appellants were implicated in LTTE activities, the plain inference from the findings is that the Tribunal considered that the appellants were knowing participants in the fabrication of false evidence.

The Tribunal’s findings regarding the two letters were of critical importance to the outcome of the appellants’ claims as the findings led to the Tribunal rejecting evidence on which the appellants relied to support the case that there was an objective basis for a belief by them that they would suffer persecution on account of being suspected as LTTE supporters or sympathisers if they were to return to Sri Lanka. Such finding also necessarily impacted, in a devastating way, on their credibility.

The Tribunal by s 420(2)(b) of the Migration Act 1958 (Cth) "must act according to substantial justice and the merits of the case". To fulfil that duty, it was, in my opinion, encumbent upon the Tribunal to make it known in plain terms to the appellants that the Tribunal considered that such a serious adverse finding was open. In adversarial proceedings the rule in Browne v Dunn [1983] 6 LR 67 at 70 would require a party who sought such a finding against an opponent to put that possibility to the opponent in cross-examination. Proceedings before the Tribunal are, of course, not adversarial, but the same notion of basic fairness that underlies the rule in Browne v Dunn required that the Tribunal, before making a finding of dishonesty that would be destructive of the appellants’ case, to give the appellants the opportunity to address that issue in their evidence and in their submissions. In the present case this did not occur. The statement of the Tribunal during the hearing when the letters were being discussed that "I am not accusing you of anything" dispelled the possibility that any suspicion attaching to the timing of the letters was a suspicion that the appellants themselves had participated in the fabrication of evidence. This statement was likely to have had the effect of misleading both the appellants and their lawyer into thinking that even if the letters were found to be contrived or fabricated to help the case, the appellants’ credibility and the strength otherwise of their case would not be affected. I consider that the transcript of the hearing before the Tribunal demonstrates that a breach of s 420(2)(b) occurred.’

Merkel J said at 387:

‘ In my view the omission of the RRT resulted in it failing to discharge its functions and duties in accordance with the procedures required by the Migration Act 1958 (Cth) (the Act) to be observed in connection with the making of its decision (s 476(1)(a)). In order to explain the basis for arriving at that conclusion, it is necessary to briefly consider the nature of the inquisitorial functions and duties of the RRT.

The primary function of the RRT was to "review" the decision of the delegate of the Minister refusing the appellant’s application for a protection visa (s 414(1)). In the course of that review, the RRT was obliged to give the appellants an opportunity to appear before it to give evidence (s 425(1)). The Act provides for the RRT to conduct its proceedings in a manner which incorporates elements of an inquisitorial proceeding, principally the ability to obtain "such ... evidence as it considers necessary" (s 425(1)(b)): see also ss 425(2), 426, 427 and 428.

Section 420(2)(b) provides for the Tribunal, in reviewing a decision, to act "according to substantial justice and the merits of the case". In discharging its statutory obligation under s 420(2)(b), the RRT may in some instances be obliged to undertake its own enquiries and investigations: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 at 49-50 per Davies, Wilcox and Pincus JJ; Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 547-548 per Wilcox J and 554 per Burchett J; Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409 at 413-414 per Black CJ, von Doussa, Sundberg and Mansfield JJ; Demir v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Ryan J, No VG 2 of 1998, 19 October 1998) at pp 22-24. Although the content of the obligation may be a matter of contention depending on the particular circumstances of the case, in my view an uncontentious duty of the RRT whilst conducting a review is to plainly and unambiguously raise with the applicant the critical issues on which his or her application might depend: see for example Singh v Minister for Immigration and Multicultural Affairs (1997) 49 ALD 640 at 645 per Tamberlin J. A failure to raise the critical issues with the applicant undermines the duty of the RRT to give an applicant an opportunity to appear before it to give evidence (s 425(1)).

The most obvious application of the duty arises where the issues directly concern the applicant and relate to matters upon which the applicant could reasonably be expected to be able to give evidence. In Durairajasingham v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 469 Davies J observed that in questioning an applicant (at 475):

"... the Tribunal conducted the review precisely as s 420 of the Act prescribes. The Tribunal was providing a fair hearing to the applicant by making it clear to the applicant what were factors adverse to the applicant’s case with which the applicant should deal. By seeking evidence on crucial points, the Tribunal was ensuring that the decision would consider the substantial merits of the case."

His Honour added that it followed from the non-adversarial nature of the proceedings established for the Tribunal under the Act that:

"... it is a duty of a Tribunal not only to listen to the evidence which an applicant may wish to give but also to test the applicant’s evidence and to direct the applicant’s attention to points which are adverse to the applicant’s case and on which the applicant might wish to comment."

It is appropriate to observe that these duties arise by reason of the inquisitorial process and the statutory provisions to which I have referred (including s 420(2)(b)) and are not dependent upon whether the applicant is or is not represented: cf Bouianov v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Brnason J, No NG 134 of 1998, 26 October 1998) and Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 at 49-50. Representation can be relevant to the content of a duty to act according to "substantial justice" or fairly in a particular case, but cannot affect the fundamental duty of the RRT, acting inquisitorially, to review the decision before it on the "merits of the case" in accordance with the duties to which I have referred.’

62 In this case, the second RRT proceeded appropriately by warning the applicant in the presence of his solicitor that it might find the letters were concocted. Such a finding was very important in a consideration of the applicant’s application.

63 Mr Clisby argued that the denial of procedural fairness arose because the second RRT should have told the applicant and him that she would find that the documents had been concocted.

64 I disagree with that submission. No fact finder has an obligation of that kind. In many cases, a fact finder may not know what he or she intends to find. It is enough, and perhaps more than enough, that in this case the second RRT advised the applicant that there was a chance that such a finding would be made.

65 If the RRT needed to advise the applicant that the RRT intended to make a particular finding, in many cases that would mean the inquiry would have to be reopened when the RRT decided upon a particular finding. However, in a sense, that would be too late. At that time the applicant would be called upon to persuade the decision-maker not to make a decision that the decision-maker had already made. The requirement that a decision-maker should warn that a particular finding might be made is to give the applicant the chance to adduce whatever evidence or whatever submissions the applicant might make to persuade the decision-maker against making that finding.

66 The duty is to act fairly. Fairness dictates that the applicant have the chance of persuading the decision-maker to a finding before any finding is made.

67 In this case, the matter is of no practical consequence. The transcript demonstrates the extent to which the applicant wished to respond. He wished to respond by providing a newspaper article and that course was permitted by the second RRT. He provided the article. His real complaint in the evidence before me was that the second RRT made him provide that report within 10 days. He wanted 21 days. In the end, it does not matter. He responded within the time allowed by the second RRT.

68 In my opinion, there is nothing in the claim that the second RRT failed to accord to the applicant procedural fairness.

69 Both grounds fail and the application for the issue of the constitutional writs is dismissed.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated: 19 March 2004

Counsel for the Applicant:	Mr Stephen Walsh QC and Mr Mark Clisby
Solicitor for the Applicant:	M W Clisby
Counsel for the Respondent:	Mr M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12 August 2003; 31 October 2003; 11 November 2003; 9 March 2004
Date of Judgment:	19 March 2004