VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 (20 June 2005)

Last Updated: 22 June 2005

FEDERAL COURT OF AUSTRALIA

VAAD v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCAFC 117

MIGRATION – appeal from judgment of a Federal Magistrate – dismissal of application seeking judicial review of a decision of the Refugee Review Tribunal refusing applications for protection visas – failure by Refugee Review Tribunal to consider a document before it – whether Refugee Review Tribunal failed to afford the appellants procedural fairness – onus of proof in respect of a claim of breach of procedural fairness – whether Refugee Review Tribunal failed to have regard to relevant material – not possible to say that error could not have affected the outcome.


Federal Court of Australia Act 1976 (Cth), s 25
Judiciary Act 1903 (Cth), s 39B
Migration Act 1958 (Cth), ss 418, 424A, 474


Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 cited
Applicant M87 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 23 cited
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 referred to
Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] UKPC 2; [1983] 2 AC 629 referred to
Bromby v Offenders’ Review Board (1990) 22 ALD 249 cited
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 referred to
Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298; (2003) 133 FCR 541 referred to
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 referred to
Kioa v West [1985] HCA 81; (1985) 159 CLR 550 applied
Lisafa Holdings Pty Ltd v Gaming Tribunal (No 3) (1992) 26 NSWLR 391 cited
Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340 applied
Minister for Aboriginal Affairs v Peko- Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 referred to
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 applied
Minister for Immigration and Multicultural and Indigenous Affairs v WACO [2004] HCA Trans 430 referred to
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; [2002] 190 ALR 601 discussed
NASF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1237 cited
NASF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 39 cited
NACM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 405 cited
Oldfield v Secretary, Department of Primary Industry (1988) 78 ALR 718 cited
R v MacKellar; ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461 cited
Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; [2003] 198 ALR 59 referred to
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 applied
Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 referred to
Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 applied
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 referred to
SDAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 351 cited
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 referred to
"VAS" v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 cited
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 discussed
X v Minister for Immigration and Multicultural Affairs [2002] FCAFC 3 cited























VAAD AND ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
WAD202 OF 2003


HILL, SUNDBERG AND STONE JJ
20 JUNE 2005
SYDNEY (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD202 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	VAAD FIRST APPELLANT
	VAAE SECOND APPELLANT
	VAAF THIRD APPELLANT
	VAAG FOURTH APPELLANT
AND	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
	REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
COURT:	HILL, SUNDBERG AND STONE JJ
DATE OF ORDER:	20 JUNE 2005
WHERE MADE:	SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT:

1.	The appeal be allowed with costs.
2.	The orders of Driver FM made 5 September 2003 be set aside and, in lieu thereof, it be ordered that:

a. there be an order in the nature of certiorari to quash the decision of the Refugee Review Tribunal made on 28 November 2001;
b. there be an order in the nature of mandamus requiring the Refugee Review Tribunal to review according to law the decision made by a delegate of the first respondent on 28 August 1997 to refuse the appellants’ applications for protection visas; and
c. the first respondent pay the appellants’ costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD202 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	VAAD FIRST APPELLANT
	VAAE SECOND APPELLANT
	VAAF THIRD APPELLANT
	VAAG FOURTH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
	REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

COURT:	HILL, SUNDBERG AND STONE JJ
DATE:	20 JUNE 2005
PLACE:	SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a judgment of a Federal Magistrate delivered on 5 September 2003. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (‘Tribunal’) made on 28 November 2001 with reasons handed down on 21 December 2001. The Tribunal affirmed the decision of a delegate of the first respondent (‘Delegate’) not to grant protection visas to the appellants.

BACKGROUND

2 The first and second appellants are respectively a wife and husband; the third and fourth appellants are their son and daughter. All four appellants are citizens of Sri Lanka. The appellants arrived in Australia on 1 March 1996 on a subclass 435 Temporary Resident Visa and lodged their applications for protection visas on 30 June 1997. The children’s applications make no claims independent of those of their parents and it is not necessary to consider their claims separately from those of their parents.

3 The first appellant, the wife, is a niece of a former President of Sri Lanka, Mr DB Wijetunga. She claimed to fear being persecuted by supporters of the People’s Alliance (‘PA’) and the People’s Liberation Front (‘JVP’) because of her political support for the United National Party (‘UNP’) and her membership of a particular social group, namely being a member of former President Wijetunga’s family. She claimed she was a well-known member of the UNP and that she was selected as a candidate for that party in the 1994 election. The UNP lost that election and afterwards, she claimed, she was victimised by her political opponents. She claimed that in 1995 she was unfairly dismissed from her employment as an assistant manager with Ceylon Chocolates in Kandy. She claimed to have received threats by anonymous telephone calls and by letters, some of which had been forwarded to her in Australia by her mother in Sri Lanka.

4 The second appellant, the husband, claimed to fear being persecuted by the JVP and other political opponents because of his support for the UNP and because of his membership of his wife’s family. He claimed that he is an active and well-known supporter of the UNP and was active in his wife’s political campaign. He claimed to have received death threats by telephone and that a friend of his had been kidnapped by the JVP who mistook the friend for the appellant husband.

5 As will become clear, it is necessary to outline in some detail the lead up to the Tribunal’s decision. On 25 August 1997, prior to the Delegate making his decision on the appellants’ applications for protection visas, a letter and various documents were faxed from the office of Mr Stephen Smith, the Federal Member for Perth, to the Delegate. Among the documents sent by Mr Smith was a letter from the UNP, in the Sinhalese language, dated 13 September 1995 and addressed to the first appellant (‘UNP Letter’); see below at [14].

6 On 28 August 1997, the Delegate refused the appellant’s applications for protection (Class AZ) visas. On 24 September 1997 the appellants applied for review of the Delegate’s decision in the Tribunal. Under s 418(3) of the Migration Act 1958 (Cth) (‘the Act’) the Secretary of the Department of Immigration and Multicultural and Ethnic Affairs (‘Department’), on being notified of an application for review, is obliged to give to the Registrar of the Tribunal any document or part of a document, ‘that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision’. The UNP Letter was included among the documents subsequently forwarded to the Tribunal pursuant to s 418(3). The UNP Letter is central to this appeal; see [23]-[25] below.

7 In its letter to the second appellant dated 25 September 1997 the Tribunal referred to the documents to be provided by the Secretary:

‘...The Refugee Review Tribunal reviews decision made by the Department of Immigration and Multicultural Affairs about refugee status and is independent of the Department. The Tribunal has asked the Department to send a copy of its documents about your case to the Tribunal.

When we receive the Department’s documents, the Tribunal will look at them along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour immediately. This is known as "review on the papers".

...

Please note that you may send any documents or written evidence at any stage of the case.

...Any documents you wish to send in support of your application that are not in English must be translated into English by an accredited translator or recognised translation authority.

You should not send any documents or written arguments which you have already given to the Tribunal or the Department about your refugee status application.’
[emphasis added]

8 By letter dated 4 November 1999, the Tribunal wrote to the second appellant and advised, inter alia, that:

‘The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons.’
[emphasis added]

9 The first and second appellants gave oral evidence to the Tribunal by video-link on 10 January and 21 February 2000. The appellant son also gave evidence on the later date. On 13 March 2000, written submissions by the first and second appellants were provided to the Tribunal.

10 By letter dated 5 September 2001, the Tribunal wrote to the second appellant in relation to the applications of all the appellants. The letter, as required by s 424A of the Act stated that:

‘The Tribunal has information that would, subject to any comments made by the applicants, be the reason, or part of the reason, for deciding that the applicants are not entitled to protection visas.

The information set out below indicates that evidence submitted before the Tribunal in this matter may have been fabricated or untruthful.’

11 The letter went on to give particulars of the information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision of the Delegate. The letter referred to the first appellant’s claim that she was preselected to contest the local government seat of Yatinuwara and the subsequent anonymous threatening phone calls. It referred to the second appellant’s alleged support of his wife’s campaign and the claims that both the first and second appellants were ‘leading’ political campaigners for former President Wijetunga. The Tribunal’s scepticism about those claims was expressed in the letter as follows:

‘However, the applicant husband did not refer to threats having been made against him and the applicant wife in relation to the applicant wife’s political campaign until the Tribunal hearing on 10 January 2000. Further, former President Wijetunga’s letters dated 27 September 1995 and 31 March 1997 failed to refer to the applicant wife’s preselection as a political candidate in local government elections in September 1995. Further, former President Wijetunga’s letter dated 31 March 1997 referred to the applicant wife as having suffered increased political harassment as a result of being a public service employee after the UNP lost government in 1994 (the applicant wife was employed in Ceylon Chocolates, a private company at the time). Further, former President Wijetunga’s letters dated 27 September 1995 and 31 March 1997 failed to refer to the applicant wife and the applicant husband being "chief" or "leading" political campaigners for him. Further, the letter from UNP Organisation of Yatinuwara dated 1 May 1996 was sent to the applicant wife approximately two months after she had departed Sri Lanka. Further, an anonymous and threatening letter dated 11 June 1996 was sent to the applicant wife and the applicant husband approximately three months after they had departed Sri Lanka. Further, the letter to the applicant wife and the applicant husband from the applicant wife’s sister and brother-in-law dated 17 January 1997 asserted that anonymous threats were continuing to be made against the applicants as at that time. However, the applicants had been residing in Australia for approximately 10 months as at that time. Further, in a letter dated 18 June 1997, the applicant wife’s solicitor, B.S.U. Fernando, asserted that the applicant wife and the applicant husband had actively supported the UNP and that they had been threatened for that reason. Nevertheless, he did not provide details to support his assertion, nor did he explain why the applicants did not have recourse to the Sri Lankan legal system. Further, in a letter dated 19 June 1997, a former colleague of the applicant wife, Deepti Naranpanawe, asserted that the applicant wife had been victimised at Ceylon Chocolates for political reasons. He did not provide details to support that assertion. Further, in a letter dated 24 June 1997, Lucky Jayawardana MP, asserted that the applicant wife was an active UNP member. He did not provide details to support that assertion. Further, in her witness statement received by the Tribunal on 16 February 2000, the applicant wife claimed for the first time that she was on a hit list of the LTTE because of her high profile as a UNP supporter.

The significance of this information is that it raises doubts about the credibility of the claims that the applicant wife and the applicant husband have been harassed or persecuted by political opponents because of their political activities in support of the UNP.’

12 In addition to the issues noted above in the Tribunal’s letter, the letter also set out information that the Tribunal said raised doubts about the following aspects of the first appellant’s claim:

(a)	that she was dismissed from Ceylon Chocolates because of her political opinions or her membership of former President Wijetunga’s family;
(b)	that effective and adequate state protection was not available to her; and
(c)	that a record of a complaint made to the Kandy police by the first appellant omitted some aspects of her complaint.

13 The letter of 5 September 2001 also expressed doubts about the second appellant’s claim to have been threatened by the JVP after about June 1988 and the authenticity of a number of documents submitted by the appellants including threatening letters allegedly sent by the JVP and a number of witness statements, including a statement allegedly made by former President Wijetunga.

14 In response to the Tribunal’s letter of 5 September 2001, on 1 November 2001 the appellants sent a copy of the original UNP Letter to the Tribunal together with a certified translation (‘UNP Translation’). It appears from the UNP Translation that the UNP Letter was from the General Secretary of the UNP to the first appellant and referred to her application for nomination as a candidate in local government elections. It stated that an interview would be held at a specified time and place and asked the recipient to be present at the interview. It continued:

‘Please note that your are required to bring this letter, your National Identity Card and the Membership Card along with the other relevant documents.’

15 On 28 November 2001, the Tribunal affirmed the Delegate’s decision and handed down its decision on 21 December 2001.

THE TRIBUNAL’S REASONS

16 The Tribunal set out the claims made by the first appellant that she feared persecution by supporters of the PA or the JVP because of her support for the UNP and her membership of former President Wijetunga’s family. In setting out its findings the Tribunal said:

‘I accept that the applicant wife is former President Wijetunga’s niece and that she and the applicant husband supported the UNP.

I accept that Kundasale was a JVP stronghold when the applicants lived there during the late 1980’s; that in about June 1988 the JVP made serious threats of harm against them after the applicant husband had sought police assistance to evict people associated with the JVP from his employer’s land; that the applicant wife moved to Colombo in October 1988 because of such threats; and that, upon the applicant husband’s return to Sri Lanka in March 1989, the applicants resided at Katunayake Airport to be safe from the JVP. I also accept that the JVP discovered that the applicants were living at Katunayake Airport and made death threats against the applicant husband by telephone from about March 1989. The applicant wife and the applicant husband gave generally consistent evidence in their protection visa application and at the hearings in these respects...’

17 The Tribunal added that these claims were also supported by independent country information on Sri Lanka concerning the JVP’s intimidatory actions and violence against UNP supporters at that time. The Tribunal also accepted that the first appellant was unfairly dismissed from her job at Ceylon Chocolates on 10 April 1995.

18 Despite this, the Tribunal found that the first and second appellants were not truthful in their claims about fearing persecution by the JVP or the PA if they were to return to Sri Lanka. The Tribunal gave detailed reasons for this assessment, which included reference to the appellants’ evidence and to independent country information about the JVP and the PA. The Tribunal found that the appellants’ evidence was ‘fundamentally exaggerated and fabricated to support their claims’, as well as ‘essentially inconsistent, implausible, vague and unconvincing’. In rejecting the appellants’ claims the Tribunal made numerous findings that were inconsistent with the appellants’ claims including the following:

‘...I do not accept the applicant wife’s assertion in her protection visa application that JVP extremists have infiltrated the PA government; that JVP supporters have sought revenge against UNP supporters since January 1990; nor that the JVP has threatened the applicant wife or applicant husband since that time...[page 32]

...

I do not accept that the applicant wife was preselected in September 1995 as a UNP candidate in relation to the Yatinuwara provincial council elections scheduled for 1997. ... As I do not accept that the applicant wife was preselected in September 1995 as a UNP local government candidate, I do not accept the evidence in her protection visa application that she began to receive threatening telephone calls from her political opponents every day upon her preselection.

I do not accept that either the applicant wife or the applicant husband were leading or chief political campaigners for former President Wijetunga; I do not accept that either the applicant wife or applicant husband have been engaged in public activities in support of the UNP; nor that either of them have been perceived in Kandy, or elsewhere in Sri Lanka, as active or high-profile UNP supporters such as to attract the adverse interest of the UNP’s political opponents. [page 34]

...

I do not accept that the applicant wife was mistreated at Ceylon Chocolates for reasons of her political allegiance to the UNP of her relationship to former President Wijetunga. Her evidence in this regard was inconsistent and inherently unconvincing...[page 35]

...

I find that the applicants’ evidence that they could not avail themselves of effective or adequate protection from the Sri Lankan government to be inconsistent and inherently unconvincing. ... I consider that she fabricated evidence of [the Plant Manager’s] connection or allegiance to the PA to establish a nexus between her unfair dismissal from Ceylon Chocolates and her claim to have been mistreated there on grounds relevant to the Refugees Convention.

Furthermore, the applicant’s wife’s complaint to the police dated 19 April 1995 ... does not evidence that she was dismissed from Ceylon Chocolates for reasons of her political opinion or family relationship to former President Wijetunga. It merely evidences that she was forced to leave Ceylon Chocolates because [the Plant Manager] displayed significant animosity towards her and mistreated her.

...

Furthermore, I refer to the DFAT report dated 11 March 1999 which states that the police force was "widely perceived to be pro-UNP shortly after the 1994 parliamentary election and that there were no known "PA police stations". I also refer to the DFAT report dated 15 December 1995 which states that "all parties have equal access to the law and to police protection." I accept those reports as accurate, and therefore reject the applicant wife’s evidence to the effect that the Officer-in-Charge of Kandy District would not assist her in April 1995 because of her political opinion or family relationship to former President Wijetunga. I also reject her assertion that she could not obtain adequate or effective protection from the Sri Lankan government because the police supported the PA government. [page 36]

...

I do not accept that the applicants have been threatened by PA supporters. The evidence they submitted to support this claim was inconsistent, implausible and patently concocted to enhance their prospects of obtaining a favourable decision from the Tribunal...[page 39]

...

Furthermore, the applicant wife provided inconsistent evidence in relation to threats being made against her...[page 40]’

19 Among the documents submitted to the Tribunal by the appellants’ lawyer for the Tribunal’s consideration were four handwritten witness statements purporting to be from the first appellant, the second appellant, Mrs Rupa Seneviratne Banda, the second appellant’s aunt, and former President Wijetunga. The statements were accompanied by a covering letter and all were sent by facsimile by the appellants’ lawyer. The Tribunal commented, at page 16 of its reasons, that the handwriting in the covering letter and all of the witness statements was ‘strikingly similar’.

20 Further witness statements purporting to be from the first appellant, second appellant, former President Wijetunga, Mrs Banda, Ms Kemanthis Nandasena, a close friend of the appellants, and Mr Jagath Gunerante, the first appellant’s former colleague, were provided to the Tribunal. The appellants’ lawyer also provided a witness statement. None of these later statements were signed or dated. In relation to these later witness statements the Tribunal stated at page 38 of its reasons that:

I refer to the "witness statements" of the former President Wijetunga, Ms Nandasena and Mr Guneratne and find that those statements have been fabricated...

...[T]he similarity in language and sentence structure of the "witness statements" of former President Wijetunga, Ms Nandasena and Mr Guneratne strongly suggests that they have been written by the same person. For example, they each consisted of about one page of information; they each contained a significant number of short sentences; they each made the point that Ceylon Chocolates is also known as Kandos; they each stated that the management of Ceylon Chocolates had "used" the applicant wife "to get various favours" from the former government; they each made the point that she led the UNP faction in Ceylon Chocolates; they each referred to her as being the person who would "succeed" former President Wijetunga "in politics"; they each contained the word "very" as though it is common in the vocabulary of the author of the statement; the statements of Ms Nandasena and Mr Guneratne both referred to Ceylon Chocolates as a "highly politicised" workplace used the expression "I remember" and stated that [the Plant manager] or other persons "tried to lace her tea"; and the statements of former President Wijetunga and Mr Guneratne both specifically referred to her car tyres being deflated at the behest of Ceylon Chocolates management. I also note that none of these statements were signed or dated.’

21 The Tribunal also described attempts made by an officer of the Tribunal to invite the former President Wijetunga to give oral evidence to the Tribunal in relation to the application for review. The former President, the first appellant’s uncle, provided a number of letters to the Tribunal in support of the appellants’ claims for protection visas. In addition to these letters, two witness statements, purportedly of the former President, were provided to the Tribunal; see [19]-[20] above. The Tribunal had a number of concerns about the information provided by former President Wijetunga, summarised in the Tribunal’s letter to the appellants dated 5 September 2001; see [22] below. The Tribunal stated that:

‘An officer of the Tribunal contacted the former President Wijetunga by telephone on 13 October 2000, 16 October 2000 and 17 October 2000 to invite him to give oral evidence to the Tribunal in relation to the application for review. On 17 October former President Wijetunga advised the officer that he did not wish to give oral evidence to the Tribunal, but that he would be prepared to answer questions from the Tribunal on notice and in writing. By facsimile dated 17 October 2000, he was advised that the presiding Member did not wish to obtain further evidence from him in these circumstances’

22 The Tribunal referred to the letters sent to the Tribunal by the former President. The Tribunal stated:

‘...I find it incongruous that former President Wijetunga failed to refer to the applicant wife’s (bid for) preselection as a political candidate in September 1995 in his letters...given the contents of those letters...I consider that former President Wijetunga would have referred to the applicant wife’s preselection for the UNP in those documents if she had been preselected as she claimed. [page 33]

...

Furthermore, given the contents of the letters of former President Wijetunga..., I find it incongruous that he failed to refer to the applicant wife and the applicant husband as leading or chief political campaigners for him. I consider that he would have made such a reference has this been the case. [page 34]’

23 Of particular relevance to this appeal is the first appellant’s claim that she was selected to contest the local government seat of Yatinuwara. The first appellant claimed that she ‘had a very sure chance of winning’ the seat because of Mr Wijetunga’s support for her and his popularity in the area. She also claimed that she was a member of the UNP Organizing Committee in her province; that she was a ‘well-known’ member of the UNP; that she had been badly victimised by her political opponents after the UNP lost the 1994 election; and that JVP extremists had infiltrated the PA government and were seeking revenge against UNP supporters.

24 At the heart of the appellants’ challenge to the Tribunal’s decision is the following passage from the Tribunal’s reasons:

‘I refer to the letter from the UNP to the applicant wife dated 13 September 1995...As the applicant wife’s political profile has clearly been in issue from the date of her protection visa application, I consider it incongruous that this letter...was provided to the Tribunal on 21 October 2001, and note that it was submitted after the applicants received the section 424A notice. When this consideration is added to former President Wijetunga’s failure to refer to the applicant wife’s preselection...and to the applicant wife’s unimpressive evidence at the hearing on 10 January 2000 concerning her UNP activities and UNP policies, I cannot be satisfied that the letter from the UNP dated 13 September 1995 is a genuine document. As I do not accept that the applicant wife was preselected in September 1995 as a UNP local government candidate, I do not accept the evidence in her protection visa application that she began to receive telephone calls from her political opponents every day upon her preselection.’
[emphasis added]

25 It is clear from the Tribunal’s statements in the passage quoted immediately above that the Tribunal failed to recognise that the UNP Letter had been provided to the Department by Mr Smith on 25 August 1997. The Tribunal was therefore in error in stating that the UNP Letter was only provided after the s 424A letter from the Tribunal to the appellants dated 5 September 2001. The consequences and nature of this error are the focus of this appeal.

26 The Tribunal also made a number of findings based on independent country information. It accepted as accurate that the JVP was ‘effectively destroyed as a political force ‘by the end of January 1990 and that from this time it remained ‘a spent and divided force’ until at least August 1995. In addition, the Tribunal noted that there had been no authoritative evidence of the JVP re-emerging as a militant force. To the contrary, the Tribunal referred to independent country information that the JVP had recently entered mainstream politics in Sri Lanka, that it now represented ‘a third force in Southern [Sri Lankan] politics’ and had ‘learnt the lessons of history and will remain engaged in the democratic mainstream’.

27 The Tribunal also accepted independent country information that the JVP had attacked the PA government over broken campaign promises; that the JVP had opposed the PA government’s proposals for solving the conflict with the LTTE; that the JVP’s fundamental ideology was opposed to the PA; that the PA government had closely monitored JVP political activities; and that the PA government had sought to publicise past JVP atrocities in order to reduce their popularity.

28 Based on this independent country information, the Tribunal rejected the first appellant’s claims that JVP supporters had sought revenge against UNP supporters since January 1990 and that the JVP had threatened her or the second appellant since that time. The Tribunal also rejected claims made by the first appellant that JVP extremists had infiltrated the PA government.

29 In addition to rejecting the first appellant’s claim that the JVP had sought revenge against UNP supporters since January 1990, the Tribunal did not accept the appellants’ evidence that they could not avail themselves of effective or adequate protection from the Sri Lankan government. The Tribunal found the appellants’ evidence in this respect to be inconsistent and inherently unconvincing. Again based on accepted independent country information, the Tribunal rejected the appellant wife’s claims that police would not assist her in April 1995 because of her political opinion or family relationship with the former President. The independent country information relied on by the Tribunal stated that shortly after the 1994 election the police force was ‘widely perceived to be pro-UNP’ and that there were no known ‘PA police stations’. Further, as at 15 December 1995 the independent country information stated that ‘all parties have equal access to the law and to police protections’. Based on this information, the Tribunal rejected the appellant wife’s assertion that she could not obtain adequate or effective protections from the Sri Lankan government because police supported the PA government.

30 The Tribunal concluded by stating:

‘I find that the applicant wife and the applicant husband have embarked on an elaborate process of fabricating evidence to support their claims for asylum in Australia. I do not accept that they genuinely fear being persecuted by supporters of the JVP or the PA for reasons of political opinion or particular social group upon returning to Sri Lanka. Accordingly, I find that they do not have a well-founded fear of being persecuted for a Contention reason.’

THE JUDGMENT OF THE FEDERAL MAGISTRATE

31 In their amended application to the Federal Magistrates Court the appellants pressed claims of jurisdictional error on the part of the Tribunal. Driver FM described their claims as follows:

‘First, the applicants assert that the RRT proceeding was procedurally unfair in that they were misled into thinking that all of the material before the delegate was considered by the RRT and they were deprived of the opportunity to give evidence and make submissions to the RRT in the knowledge that not all material had been put before the RRT. Secondly, the applicants assert that the RRT failed to take into account relevant material, namely the letter from the UNP dated 13 September 1995. Thirdly, the applicants assert that the RRT decision was based on a fact that did not exist, namely that the applicant wife had fabricated an English language translation of the letter dated 13 September 1995.’

32 The appellants’ claim of procedural unfairness before the Federal Magistrate, based on the decision in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; [2002] 190 ALR 601 (‘Muin’), was that the Tribunal did not receive and therefore did not consider the documents referred to in Part B of the Delegate’s decision despite having represented to the appellants that these documents would be considered. The appellants claimed that had they known this, they would themselves have obtained the documents and drawn them to the Tribunal’s attention. In the absence of a statement of agreed facts, the Federal Magistrate held that the appellants bore the onus of establishing that the Part B documents were not received or considered by the Tribunal and that they had failed to do so. His Honour held that, on the evidence before him, it was clear that at least some of the Part B documents were before the Tribunal and were taken into account. His Honour was unwilling to draw an inference that the other Part B documents were not received and considered by the Tribunal simply because they were not specifically referred to by the presiding member.

33 In addition, the Federal Magistrate held that the first appellant failed to establish that the Tribunal had misled her or that she would have acted any differently had she been made aware that any of the Part B documents were not before the Tribunal. His Honour commented at [20] of his reasons:

‘...the applicant wife has failed to establish that she was misled by the RRT’s letters dated 25 September 1997 and 4 November 1999 or that she would have acted any differently if she had been made aware that any of the part B documents were not before the RRT. Under cross-examination the applicant wife admitted that she first saw the part B documents after the RRT had made its decision...She also admitted that she would not have sought to put any of the documents before the RRT. Subsequently, when the significance of her evidence became apparent to her, the applicant wife sought to change her evidence. Her attempts to change her evidence under cross-examination and re-examination lacked credibility.’

His Honour noted that the first appellant sought to change her evidence when she realised the significance of her admissions but that her attempts lacked credibility.

34 The appellants’ also based their allegation of procedural unfairness on the claim that the first appellant was not given the opportunity to comment upon adverse credibility findings made by the Tribunal. This issue related to the Tribunal’s finding that it could not be satisfied that the UNP Letter was genuine. It was not disputed before the Federal Magistrate that the Tribunal was mistaken in believing that the UNP Letter (with the UNP Translation) had only been provided on 21 October 2001, in response to a s 424A notice from the Tribunal; in fact it had been provided, untranslated, to the Tribunal as part of the Department’s file. As such, the Tribunal’s finding that it could not be satisfied as to the authenticity of the UNP Letter because it had been provided at such a late stage, was based on error. Whilst this error was conceded by the first respondent before the Federal Magistrate, his Honour stated at [23] that:

‘The applicant wife was not given the opportunity to comment upon this credibility concern [in respect of the alleged fabrication of the letter] held by the presiding member. If she had been given the opportunity, presumably the error made by the presiding member would have been avoided. Whether this would have made any practical difference to the ultimate conclusion reached by the presiding member, namely that the applicant wife did not have a genuine fear of persecution, is extremely doubtful. The presiding member had numerous serious credibility concerns about the applicant wife’s claims. ...

Like the presiding member, I had the opportunity to assess the applicant wife’s credibility as a witness. I found her to be a most unimpressive witness; at turns vague, evasive, hesitant and uncertain. She approached the task of giving evidence like a chess player, attempting to see several moves ahead. In that she was unsuccessful, and was rapidly check mated.

Even if the applicant wife (or for that matter, the applicant husband) could have influenced the credibility concerns held by the presiding member if they had been given the opportunity to comment upon them, I do not accept that procedural unfairness flows from the failure to give them that opportunity.’

35 The Federal Magistrate based this conclusion on the fact that the appellants knew that the Tribunal had doubts about their credibility as a result of the letter from the Tribunal dated 5 September 2001. In addition, his Honour held that the fair hearing doctrine does not require that the appellants be given the opportunity to comment on each and every adverse conclusion, especially where the evidence is given in response to a credibility warning. Accordingly, the Tribunal was not obliged to give the appellants notice that it did not consider the letter to be genuine.

36 The appellants claimed that the Tribunal had made a jurisdictional error by failing to have regard to the UNP Letter. The Federal Magistrate accepted that the Tribunal had failed to consider the UNP Letter but rejected the claim of jurisdictional error. His Honour accepted that failure to take into account a relevant consideration or ‘relevant material’ is a jurisdictional error, but held that so long as the Tribunal considers all ‘elements or integers’ of the appellants’ claims, no jurisdictional error will have been committed. In his Honour’s view the first appellant’s claim that she was a UNP candidate in 1995 was an ‘element or integer’ of her overall claim; the Tribunal considered and rejected this element. For this reason his Honour held that the failure to take into account the original letter in Sinhalese was not a jurisdictional error.

37 The appellants’ final ground of review before the Federal Magistrate was that the Tribunal based its decision on a fact that did not exist, namely that the first appellant had not provided the UNP Letter prior to the Tribunal’s letter of 5 September 2001. Whilst conceding that part of the Tribunal’s basis for not being satisfied of the authenticity of the letter was erroneous, as set out at [34] above, his Honour held that the decision of the Tribunal was not unreasonable in its determination of a jurisdictional fact, referring to Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; [2003] 198 ALR 59 per McHugh and Gummow JJ at [36]-[37]. As such, Driver FM held that the conclusion of the Tribunal as to whether the first appellant had a genuine fear of persecution was not irrational, illogical, absurd or perverse.

THIS APPEAL

FIRST GROUND OF APPEAL – procedural unfairness

38 The appellants’ first ground of appeal is that the Federal Magistrate erred in rejecting their claim that the Tribunal had afforded them procedural fairness. The Tribunal is bound by the rules of natural justice and must act in a manner that is procedurally fair: see Muin per Gaudron J at [61], per McHugh J at [122] and per Kirby J at [226]. See also Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 (‘Miah’) per Gaudron at [96], per McHugh J at [129] and per Kirby J at [188]; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 (‘Aala’); Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596; and Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (‘Kioa v West ’).

39 However, the requirements of procedural fairness are to be judged in relation to the statute under which the decision is made and upon the particular circumstances of the case: see Muin per McHugh J at [123] and per Kirby J at [236]; Miah per McHugh J at [129] and [143]; R v MacKellar; ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461 per Barwick CJ at 465-466; and Applicant M87 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 23 per Kenny J at [28]. In Kioa v West, Brennan J at 611-612 stated observed:

‘It is not possible precisely and exhaustively to state what the repository of a statutory power must always do to satisfy a condition that the principles of natural justice be observed.

...

The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.’

See also Miah per McHugh J at [129].

40 There are two aspects to the appellants’ claim that the Tribunal failed to accord them procedural fairness. First, the appellants contend that by the Tribunal’s letters of 25 September 1997 (in which the Tribunal undertook to consider all relevant documents held by the Department) and 4 November 1999 (in which the Tribunal represented that it had looked at all the material relating to the appellants’ applications) the appellants understood that the Tribunal had reviewed all of the relevant documents. This correspondence created an expectation that the Tribunal, as a matter of natural justice, was required to meet and it failed to do so.

41 Secondly, the appellants submit that the Tribunal denied them the opportunity to challenge the finding that the UNP Letter was not provided prior to the notice under s 424A and was not a genuine document. In this regard, the appellants point to the fact that the letter from the Tribunal dated 5 September 2001, required under s 424A of the Act, failed to refer to the UNP Letter contained in the file. They contend that the Tribunal’s failure to do so was a major contributing factor to the adverse conclusion that the Tribunal reached about the first appellant’s credibility. In relation to this aspect of the procedural fairness claim the appellants raise an ancillary issue, namely whether the Federal Magistrate erred in holding that the appellants had the onus of establishing the facts necessary to prove they had been denied procedural fairness. This is a discrete issue that may be dealt with before the other aspects of the first ground of appeal.

Onus of proof

42 The appellants submit that as the Tribunal had undertaken to consider the UNP Letter in their correspondence with the appellants, the onus in this regard lay on the Tribunal not the appellants. The appellants referred the Court to Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] UKPC 2; [1983] 2 AC 629 and Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 (‘Lam’) per Gleeson CJ at [33]. In the alternative they also contend that the onus was satisfied by the first respondent’s concession that the UNP Letter, in its untranslated form, had been included among the documents forwarded to the Tribunal after the Delegate’s decision.

43 The Federal Magistrate’s comments about onus of proof must be considered in the context of his Honour’s judgment. At [19] of his judgment, his Honour stated:

‘There are a number of obstacles in the way of this part of the applicants’ claim. Unlike the situation in Muin and Lie there is in this case no statement of agreed facts. Therefore, the applicants bear the onus of establishing the facts necessary to prove procedural unfairness. I would need evidence that the RRT did not receive (or consider) the part B documents: NACM of 2002 v Minister for Immigration [2002] FCAFC 405...[T]here is evidence that at least some of the part B documents were before the RRT and were taken into account. I am unwilling to draw an inference in this case that the other part B documents were not before the RRT and were not taken into account simply because they were not referred to specifically by the presiding member.’

44 The Federal Magistrate was dealing with the appellants’ claim based on Muin. As such, his Honour was simply stating the proposition that the appellant bears the onus of establishing before the Court that the Tribunal did not in fact receive or consider Part B documents: see Muin per McHugh J at [114]. This position is consistent with the authority of this Court: NASF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1237 per Sackville J at [29], affirmed in NASF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 39 per Moore, Tamberlin and Hely JJ; "VAS" v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 per Gray, Moore and Weinberg JJ at [23]-[25]; SDAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 351 per Tamberlin, Mansfield and Jacobson JJ at [8]-[9]; and NACM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 405 per Whitlam, Sackville and Conti JJ at [18]-[19].

45 In addition, it is trite law that the onus of establishing the factual foundation for a claim of a breach of natural justice or a failure to afford procedural fairness lies on the party alleging the breach: see Oldfield v Secretary, Department of Primary Industry (1988) 78 ALR 718 per Bowen CJ, Forster and Lee JJ at 721; Bromby v Offenders’ Review Board (1990) 22 ALD 249 per Clarke and Handley JJA at 266-267; and Lisafa Holdings Pty Ltd v Gaming Tribunal (No 3) (1992) 26 NSWLR 391 per Mahoney JA at 408-410. The appellants’ submission in respect of onus of proof must be rejected.

Obligation to consider all the relevant material

46 The appellants contend that they understood from the Tribunal’s letters of 25 September 1997 and 4 November 1999 that the Tribunal had reviewed all of the relevant documents. It was said by the appellants that the Tribunal had a self-imposed obligation to consider all the Department’s documents, including the UNP Letter, and that a failure to do so was a failure to provide procedural fairness.

47 In Lam, Gleeson CJ stated at [34]:

‘...[I]t is clear that the content of the requirements of procedural fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed...But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.’
[emphasis added]

48 In Lam, the applicant was notified that the Department was considering cancelling his visa because of his substantial criminal record. The applicant made detailed submissions to the Department that cancellation of his visa would not be in the best interests of his two children, who were Australian citizens. A letter from his children’s carer was attached to these submissions. The Department informed him that it wished to contact the children’s carer and sought contact details from the applicant. While the details were provided to the Department, no departmental officer contacted the children. The applicant argued that he was reasonably entitled to expect that departmental officers would not change their plans about contacting the children’s carer without first informing the applicant. Gleeson CJ stated at [36]-[37] that:

‘...[N]o attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment.

...A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker...Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.’
[emphasis added]

49 In Lam, the High Court held that the applicant had not, in reliance on the alleged representation by the Department, failed to put any material before the Department and that no procedural unfairness had been demonstrated: per Gleeson CJ at [38], per McHugh and Gummow JJ at [106] and per Callinan J at [149]-[152]. In Lam at [151], Callinan J distinguished the circumstances before the High Court from those in Muin:

‘The case is also distinguishable from [Muin] in which applicants were able to demonstrate, and indeed the respondent accepted, that they were misled and that their conduct was affected in much the same way as had occurred in Aala.’
[footnote omitted]

50 In the present case the Tribunal said:

(a)	that it would look at the Department’s documents about the appellants’ claim (letter of 25 September 1997); and
(b)	then said in its letter of 4 November 1999 that it had ‘looked at all the material’ relating to their case.

This latter statement is plainly incorrect because, as the comments of the Tribunal itself make clear, at that point it had not looked at the UNP Letter. In the light of this circumstance the Federal Magistrate’s finding that the appellants ‘failed to establish that any part of the Part B documents’ was not considered by the Tribunal is puzzling since his Honour was clearly aware that, at the time the letter of 4 November 1999 was written, the Tribunal had not considered the UNP Letter.

51 Ultimately, however, this is of little consequence for the claim that the appellants were misled since, as his Honour observed, the first appellant did not establish that the Tribunal’s letters in fact misled her; see [33] above.

52 As the Federal Magistrate correctly noted, the agreed statement of facts in Muin included that the representative applicants, Mr Muin and Mr Lie, believed the Tribunal had received the Part B documents and had they known otherwise, they would have taken steps to correct that situation. However, in Lam the applicant’s failure to demonstrate that he was misled and his conduct affected by reliance of the alleged representations was fatal to his claim of procedural unfairness.

53 The same consequences flow from the appellants’ failure to demonstrate in the present case that they were misled and that their conduct was affected. The Federal Magistrate held, based on the first appellant’s own statements and with the benefit of hearing her evidence in person, that the first appellant was not misled. The appellants submitted that the detriment suffered by the appellants is obvious as the Tribunal decided their case on a flawed factual basis. This may be so but it does not necessarily follow from this that the appellants were in fact misled and therefore the appellants have been unable to show, on this basis, that the Federal Magistrate erred in rejecting the appellants’ claim of procedural unfairness.

The opportunity to comment on the erroneous findings of the Tribunal

54 The appellants’ second basis for claiming procedural unfairness is that the Tribunal denied the appellants the opportunity to challenge the finding that the UNP Letter was not provided prior to the notice issued under s 424A and was not a genuine document. While the appellants were given warnings about potential adverse findings in the Tribunal’s letter dated 5 September 2001, the appellants submitted that this was insufficient to satisfy the requirements of procedural fairness in the present case.

55 In Aala, McHugh J stated at [101] that:

‘One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding (Mahon v Air New Zealand Ltd [1984] AC 808 at 820-821).’

In Kioa v West, Brennan J stated at 629 that:

‘...in the ordinary case...an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.’

56 The basic principle is that a person whose interests are likely to be affected by an exercise of power must be given the opportunity to deal with any matters relevantly adverse to their interests, which the decision-maker proposes to take into account: see Miah per Gaudron J at [99]; Kioa v West per Gibbs CJ at 569, per Mason J at 582, per Wilson J at 602, per Brennan J at 628 and per Deane J at 633. However, a claim that this principle has not been followed must be determined consistently with general considerations applicable to any claim of a failure to afford natural justice: see [47]-[49] above. As McHugh J stated in Miah at [140]:

‘...This does not mean that all material which comes before the decision-maker must be disclosed but, "in the ordinary case...an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision made" (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629.).’

In Aala, Gaudron and Gummow JJ, with whom Gleeson CJ agreed, stated at [76]:

‘...There is no universal proposition that before the Tribunal ever makes a finding adverse to an applicant, it is necessary for the Tribunal to put to the applicant the concerns which are inclining the Tribunal towards such an adverse finding. The procedure is inquisitorial and not adversarial...’

57 It is clear that the Tribunal’s letter of 5 September 2001, (see [10]-[13] above) put the appellants on notice that the Tribunal had concerns about a number of aspects of the appellants’ claims. The letter expressly referred to the first appellant’s claim that she was preselected to contest the local government seat of Yatinuwara in the 1994 election and the Tribunal’s doubts about this claim. The letter also referred to information the Tribunal had that raised doubts about the first and second appellants’ credibility as well as concerns the Tribunal had about the authenticity of documents provided to the Tribunal. As such, the appellants were on notice that the Tribunal had information that was potentially adverse to the claims of the appellants and in particular the claims of the first appellant to have been threatened following her preselection for the local government seat of Yatinuwara.

58 The appellants submitted that the Tribunal was required to inform them that it was sceptical about the authenticity of the UNP Letter because, as the Tribunal believed, it was provided only after the Tribunal’s letter of 5 September 2001. The appellants contend that the Tribunal was obliged to give them an opportunity to comment on the potentially adverse finding it was considering making. In support of this claim the appellants relied on WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 (‘WACO’). Although the judgment of the Full Court in WACO was handed down after the hearing before the Federal Magistrate in the present case, his Honour was aware of the decision but held that on the facts it should be distinguished from the present case.

59 The appellant visa applicant in WACO claimed to fear persecution on return to Iran for reasons of religion and political opposition to the Iranian Government and the country’s Islamic leadership. The fear was said to arise, inter alia, as a result of his association with a particular reformist cleric and because he had printed and distributed anti-regime leaflets. At a hearing before the Tribunal at which the appellant gave evidence but called no witnesses, the Tribunal was sceptical as to the nature and extent of the appellant’s relationship with the reformist cleric, a matter that went to the heart of the appellant’s claim for refugee status. The appellant, through his advisor, sought and obtained permission from the Tribunal to provide further information to support the appellant’s claims. The appellant subsequently provided further information, including two letters translated from Arabic to English. The two letters, if accepted as genuine, corroborated the appellant’s account of his alleged relationship with the reformist cleric.

60 Despite this further information the Tribunal did not accept the appellant’s account of the nature and extent of his relationship with the reformist cleric. The Tribunal based its conclusion on its assessment that the appellant was not a credible witness and, in view of its strong findings against the appellant, was not prepared to accept either of the two letters as genuine.

61 It was common ground before the Court in WACO that the Tribunal did not give the appellant any indication that it doubted the authenticity of the two letters or any opportunity to comment on this issue. The Full Court held that the Tribunal’s failure to give the appellant an opportunity to address its doubts as to the authenticity of the two letters was a breach of procedural fairness. At [42] of their joint judgment, their Honours observed:

‘The question raised here is whether the Tribunal was entitled to reject a document which on its face was genuine without giving the party which tendered it an opportunity to comment upon the genuineness of the document or to call evidence supporting its genuineness. An administrative tribunal undertaking an inquisitorial function is not obliged to put to an appellant an assertion of apparent falsity or unreliability in respect of each and every matter raised by the appellant for the appellant’s comment (Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 per Callinan J at 76). However, the tribunal will have a duty to raise clearly with the appellant the critical issues on which his or her application might depend. It is clear that the question whether the letters were genuine was a matter which went directly to the most critical issue in the case, namely the appellant’s relationship with Ayatollah Shirazi [the reformist cleric]. It was upon this relationship that the claim that the appellant had a well-founded fear of persecution for a convention reason rested.’

62 Their Honours continued at [46] stating:

‘Generally where it is clear that factual matters are in dispute it will not be necessary for the decision maker to indicate to the person affected that the decision maker is likely to reach an adverse conclusion. Where the decision maker intends to reject an application for some reason which is personal to the appellant, for example, the appellant's age, it may be necessary to give notice to the appellant that the decision maker has formed a view adverse to the appellant so as to afford the appellant the opportunity to put to the decision maker arguments or evidence to the contrary, cf In re HK (An Infant) [1967] 2 QB 617 referred to by Mason J in Kioa v West at 587. Whether it is so will depend upon fairness. There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward.’
[emphasis added]

63 The Federal Magistrate in the present case distinguished the facts of WACO from those presently before the Court and held that the principle in the emphasised portion of the passage quoted at [62] immediately above was applicable. His Honour stated that the appellants were on notice of the concerns they had to address in order to satisfy the Tribunal about their claims. Based on this notice, the appellants put forward additional evidence. For his Honour, this meant that the appellants cannot now complain that one particular item of evidence put forward was erroneously rejected.

64 The above statements of the Full Court in WACO indicate that the Tribunal had a duty to raise clearly with the appellants the critical issues on which their application might depend. It does not establish a general rule that the Tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the document. The circumstances may be such, as were the case here, that the Tribunal had sufficiently alerted the applicant to the doubts it had about the genuineness of all documents which the applicant had submitted or a class of those documents. In WACO, the Full Court pointed out at [53] that a finding that a document is not genuine may amount to a finding that the person submitting it has forged the document or participated in a forgery. That is a finding that should not lightly be made just as a finding of fraud should not lightly be made. As the Full Court said: ‘Both involve serious accusations. Forgery indeed, is a criminal offence’. However, the circumstances of the particular case may be such that it would be unnecessary to afford the person affected by the conclusion drawn the opportunity of dealing with it. Whether that is the case will depend on the particular facts. As Hayne J commented in refusing, with Callinan J, the Minister’s application for special leave to appeal to the High Court from the judgment of the Full Court in WACO, the case ‘turned upon the application of well-known and established principles to the particular and peculiar circumstances of the case’: Minister for Immigration and Multicultural and Indigenous Affairs v WACO [2004] HCA Trans 430 at lines 168-169.

65 It is those ‘well-known and established principles’ that must be applied to the case at hand. Pursuant to those principles the Tribunal was obliged to give the appellants the opportunity to deal with any matters relevantly adverse to their interests, which it proposed to take into account. Relevantly, the ‘matters’ adverse to the appellants’ interests were the Tribunal’s doubts about the first appellant’s claims that she was preselected to contest the local government seat of Yatinuwara; that she and her family had received threats as a result of the alleged preselection; that the authenticity of documents submitted by the appellants was in doubt; and that the appellants’ credibility was doubted by the Tribunal. The Tribunal’s letter of 5 September 2001 put the appellants clearly on notice that it had concerns that evidence about the first appellant’s preselection may have been fabricated or untruthful. It set out the information that gave rise to those concerns and invited the appellants to comment on the information.

66 In response to the Tribunal’s letter the appellants provided additional evidence including a further copy of the UNP Letter as well as the UNP Translation. The Tribunal did not regard the letter as being of assistance, stating that it was ‘not satisfied that the UNP Letter was a genuine document’. In part, the Tribunal based this conclusion on a mistake of fact, namely its belief that the UNP Letter had not been provided until after the s 424A notice was issued; see the Tribunal’s comments quoted at [24] above. In turn, the Tribunal’s rejection of the UNP Letter as a genuine document was one factor that led the Tribunal to conclude that the first appellant was not preselected as a UNP candidate. It is this conclusion that is adverse to the first appellant’s interests.

67 Where additional evidence provided pursuant to its request does not assist the Tribunal, procedural fairness does not oblige it to continue to request further evidence or comment. Having put the issue to the appellants the Tribunal was entitled to assume that, in response to its letter, the appellants had provided all relevant evidence and had made all their comments. The fact that the Tribunal based its assessment of that evidence on a mistake of fact may have implications for this appeal (see [68]-[83] below) but it does not give rise to a further obligation on the Tribunal to contact the appellants. Indeed, since the Tribunal would not know it had made a mistake, such an obligation would require that the Tribunal keep making further requests of a visa applicant for as long as it was not satisfied as to the applicant’s claims.

SECOND GROUND OF APPEAL – failure to have regard to relevant material

68 In the alternative, the appellants claim that the Federal Magistrate erred in law and in fact in determining that it was not a jurisdictional error on the part of the Tribunal to fail to have regard to the UNP Letter and the fact that it was provided prior to the s 424A letter of 5 September 2001.

69 Relying on Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (‘Craig’), as cited in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (‘Yusuf’) per McHugh, Gummow and Hayne JJ at [82], the appellants submitted that denial of natural justice or jurisdictional error will include where the Tribunal, in a way that affects the exercise of its power in making its decision:

(a) identified a wrong issue;
(b) asked a wrong question;
(c) ignored relevant material; or
(d) relied on irrelevant material, or at least some irrelevant material, to make an erroneous finding or to make a mistaken decision.

70 Considering the nature of jurisdictional error in Yusuf, McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed, stated at [82]:

‘It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179, if an administrative tribunal (like the Tribunal)

‘falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it’.

‘Jurisdictional error’ can thus been seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive (cf Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82). Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have the authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law (Craig [1995] HCA 58; (1995) 184 CLR 163 at 179).’

71 In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389, Kirby J stated at [87]-[88]:

‘This court has repeatedly held that, for the issue of prohibition or mandamus under s 75(v) of the Constitution, it is necessary to demonstrate jurisdictional error on the part of the proposed subject of such relief. Thus, it is essential to establish something more than an error of law within jurisdiction. Difficult as it may sometimes be to differentiate jurisdictional and non-jurisdictional error with exactitude, in a case where there has been a fundamental mistake at the threshold in expressing, and therefore considering, the legal claim propounded by an applicant, the error will be classified as an error of jurisdiction. It will be treated as a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it.

Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction...’
[footnotes omitted]

72 As described in [66] above, the Tribunal’s error in not realising that the UNP Letter had been provided before the request made under s 424A of the Act, was one of a number of factors that led the Tribunal to reject the first appellant’s claim to have been preselected as a UNP candidate. This claim was an important element of her claim, to have a political profile such that she was singled out for persecution in Sri Lanka. That claim was also important in relation to the second appellant’s claim to have suffered persecution in Sri Lanka. The error was a direct result of the Tribunal’s failure to take into account the UNP Letter that was provided to the Tribunal with the documents sent by the Secretary of the Department pursuant to s 418(3) of the Act.

73 In Muin, the High Court held that compliance with s 418(3) is not a precondition to the Tribunal’s review of a delegate’s decision and the Secretary’s failure to comply does not render the Tribunal’s decision void. Moreover, the Tribunal is not obliged to consider the documents provided pursuant to s 418(3) as part of the review; see Muin per Gleeson CJ at [21], per Gaudron J at [49]-[56], per Gummow J at [175]-[181] and per Hayne J at [251]. However, nothing in their Honour’s remarks leads to the conclusion that the Tribunal does not have to consider any document included among those supplied pursuant to s 418(3). The absurdity of the proposition is self-evident and it is clear from the discussion in Muin that the High Court was not suggesting any such proposition.

74 In Muin, a file of papers specifically relating to Mr Muin had been physically transferred to the Tribunal. Other relevant documents, described by Gleeson CJ as a ‘reference library’ included various sources of independent country information that were electronically available to the delegate who made the initial decision on the application. In relation to that material Gleeson CJ commented at [19]:

‘Having regard to the nature of that material and the form in which it was available to the delegate when she made her decision, I would regard it as sufficient compliance with a requirement to give the material to the tribunal for the purpose of reviewing the delegate’s decision if the material was identified, and made available to the tribunal in the same manner and form as it was available to the delegate.’

75 The Chief Justice said that there was no disadvantage to the visa applicant in the Tribunal Member having electronic, as opposed to physical access, to the material and declined to draw the inference that the Tribunal was not telling the truth when it said that the Member ‘had looked at all the material’ relating to the application. His Honour continued at [24]:

‘Once again, it is important to bear in mind the nature of the material in question. It is not particular to the plaintiff. It is a reference library of background country information. ...To say that the tribunal member had ‘looked at’, or had regard to, or taken notice of that material does not mean that, every time she dealt with a case about Indonesia, she read the entire library from beginning to end...’

76 In considering the same issue, that is whether the Tribunal was obliged to consider all the documents provided under s 418(3), Gaudron J said at [55]:

‘If the plaintiff’s construction were correct, the tribunal would have been required to consider all the material provided to it by the secretary, even if it had no bearing on an issue which might result in a decision in favour of an applicant for review. Such an construction cannot be accepted ... Once that is accepted, it follows that s 424(1) imposed no obligation on the tribunal to consider whether it was prepared to make a favourable decision without taking oral evidence and, thus, imposed no obligation on the tribunal to consider the Part B documents as part of the review process.’

77 These comments make clear that whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In this case the Tribunal failed to consider a document, the UNP Letter, which was not only particular to the first appellant but arguably of critical importance to the claims of all the appellants. This is not a situation of the kind to which Mason J referred in Minister for Aboriginal Affairs v Peko- Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40, where the factor was so ‘insignificant that failure to take it into account could not have materially affected the decision’. The failure to do so led the Tribunal into error and that error had an adverse effect on the Tribunal’s assessment of the first appellant’s credibility. The Tribunal failed to have regard to material evidence and, as the Tribunal’s own comments show, that initial error was not corrected by the Tribunal’s subsequent consideration of the UNP Letter and the UNP Translation. On the contrary, the initial error tainted the later consideration of this evidence and compounded the Tribunal’s error. The Tribunal’s conclusion that the UNP Letter was fabricated was greatly influenced by the Tribunal’s mistake in thinking that the UNP Letter had not been provided to the Delegate or been sent to the Tribunal only after the Tribunal’s letter of 5 September 2001, the s 424A letter. The fact that, as originally provided, the UNP Letter was in Singhalese language and no translation was provided does not alter the fact that the Tribunal erred. Nor does it detract from the significance of the Tribunal’s error; see X v Minister for Immigration and Multicultural Affairs [2002] FCAFC 3 at [52]- [53].

78 It may well be that, had the error not occurred, the Tribunal would still have rejected the first appellant’s claim to have been preselected as a candidate for the UNP. It is clear that the Tribunal’s assessment of the first and second appellants’ credibility was also based on other factors. The Tribunal found that the first and second appellants had ‘embarked upon an elaborate process of fabricating evidence’ to support their claims. The Federal Magistrate referred to the Tribunal’s assessment of the first appellant at [23] of his reasons:

‘The presiding member had numerous serious credibility concerns about the applicant’s wife’s claims. In particular, the presiding member formed the view that the applicant wife had fabricated claims of threats from the [JVP] ...that it would harm the applicant. In addition the presiding member found the applicant wife to be an unimpressive witness who did not display the knowledge of the UNP that she would expect from a UNP member with a high political profile.’

79 However, an assessment of credibility is not necessarily linear. It is possible that had the Tribunal considered the UNP Letter as part of the file received from the Secretary, it may have accepted it as genuine. If so, it is possible that the Tribunal would have been more likely to accept other aspects of the appellants’ account of their experiences in Sri Lanka. As Gleeson CJ commented in Aala at [4]:

‘...Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive...’

Kirby J expressed a similar view in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 (‘NAFF v MIMIA’) at [81]:

‘...[D]ecision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.’

While it is impossible to know whether the Tribunal’s assessment of the appellants’ credibility would have been different if the error about the UNP Letter had not been made, or had been corrected, it is not possible to say that the error could not have affected the outcome.

80 In Aala, McHugh J considered the circumstances in which a breach of natural justice will amount to jurisdictional error. His Honour stated at [104] that:

‘Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145 when it said that "not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial". Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because "[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome" (Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145). In this case, however, the denial of natural justice did not affect the outcome. After analysing the reasons of the second Tribunal and the history of the proceedings, the best conclusion is that the Tribunal would have found that the prosecutor did not have a well-founded fear of persecution even if it had had the four statements before it.’

81 His Honour’s statement that in Aala the denial of natural justice did not affect the outcome is in no way inconsistent with the principle propounded, namely that a court should refuse relief for a breach of natural justice only if the breach could not have affected the outcome. In the same case, this was also accepted, at [51]-[52], as the correct test by Gaudron and Gummow JJ (with whom Gleeson CJ and Hayne J agreed). In Aala, the High Court accepted the principle that had earlier been stated in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 (‘Stead’) at 147, namely that relief for procedural unfairness should only be refused if the Court could say that a properly conducted hearing could not have yielded a different result. In NAFF v MIMIA, Kirby J also considered the consequences of procedural error in the context of judicial review. His Honour commented at [84]-[85]:

‘...If the departure from procedural fairness might have affected the outcome, the function of judicial review is to say so. Subject to the consideration of any residual discretion to deny relief, the courts will set aside the flawed decision. This is because, in the eye of the law, it is not a ‘decision’ as contemplated by law.

Every person, in respect of whom material decisions are made by a repository of public power conferred by the Parliament, is ordinarily entitled to have such power exercised in accordance with law. That includes ... in accordance with the requirements of procedural fairness. The ultimate outcome of such insistence on fair procedures might eventually be the same. But where the issue is whether additional evidence and submissions might have affected the outcome of the decision-maker’s consideration of the matter, it cannot normally be said with certainty that affording such an opportunity was futile.’
[footnotes omitted]

82 In Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298; (2003) 133 FCR 541 the Full Court at [96], accepted both Aala and Stead as authority for the proposition that ‘once a breach of the rules of natural justice is established, an applicant is ordinarily entitled to relief unless the Court is persuaded that the breach could not have had any bearing on the outcome’. The issue was discussed in detail and the same approach adopted in Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340 by Sackville J at [41]-[45]; see also Black CJ at [5]. Sackville J added at [46]-[48]:

‘The approach in Ex parte Aala suggests that there are at least two questions to be addressed in a case where an applicant challenges a decision on the ground of jurisdictional error by reason of a failure to observe the requirements of procedural fairness. The first requires consideration of the precise content of the requirements of procedural fairness in the particular circumstances of the case. A relatively ‘trivial’ procedural unfairness may not contravene those requirements. This is not, however, because the contravention is ‘trivial’. It is because the acts or omissions of the decision-maker are regarded as consistent with the ‘practical content’ of the rules of procedural fairness.

The second question arises only if a contravention of the rules of procedural fairness is established. In such circumstances, Ex parte Aala holds that the applicant is entitled to succeed if the denial of procedural fairness has deprived him or her of the possibility of a successful outcome. To put the matter another way, the applicant will succeed unless the denial of procedural fairness could have had no bearing on the decision. Thus it is necessary to consider whether the denial of procedural fairness could have had a bearing on the decision. If it could not, the applicant will be refused relief.

As I have noted, in Ex parte Aala Gaudron and Gummow JJ distinguished the rationale underlying the requirement of procedural fairness from that underpinning the doctrine of excess of jurisdiction. However, I do not think that anything said by their Honours is inconsistent with adapting the approach taken in cases of alleged procedural unfairness to other alleged jurisdictional errors. In particular, I see no reason why that approach cannot be adapted to a case where an applicant says that the decision-maker committed a jurisdictional error by failing to take into account relevant considerations (in the Peko-Wallsend sense).’

83 Sackville J’s comments are applicable to this case. Consistently with the comments from Yusuf quoted at [69]-[70] above, the Tribunal’s error is properly characterised as a jurisdictional error which could possibly have deprived the appellants of a successful outcome to their application for review. This being so s 474 of the Act does not preclude relief by the Courts.

84 Since the hearing of this matter, the High Court has held that where, pursuant to s 39B of the Judiciary Act 1903 (Cth), an applicant seeks the issue of a constitutional writ against the Tribunal, the Tribunal itself must be joined as a party: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (‘SAAP’) per McHugh J at [43], Gummow J at [90]-[91], Kirby J at [153] and Hayne J at [180]. In SAAP, Gummow J stated at [91] that:

‘It was suggested in argument that the joinder of the RRT would be unnecessary and, indeed, that the RRT was neither a necessary nor a proper party in a s 39B application. The reason given was that a combination of s 477 and s 479 of the Act relieved the RRT from the tedium of entering submitting appearances, not only to judicial review applications under the Act (grounded in s 76(ii) and s 77(i) of the Constitution as matters arising under the Act), but also to applications under s 39B of the Judiciary Act for constitutional writs. Subject to the qualifications expressed therein, s 39B "vests in the Federal Court the entirety of the jurisdiction which s 75(v) confers on the High Court". That particular head of federal jurisdiction is attracted by the seeking of a particular remedy against a federal officeholder. Remedy and identity of party are thus critical. Sections 477 and 479 of the Act, read together, accept that s 39B still operates with respect to constitutional writ applications; to deny the necessity for the presence of the RRT on the record would be to withdraw that element which gives the proceeding for constitutional writs the character of a Ch III "matter".’
[footnotes omitted]

85 Similarly, McHugh J stated at [43]:

‘Where a person claims that he or she is affected by a decision of an officer of the Commonwealth that was made without jurisdiction, the Constitution empowers this Court to issue a constitutional writ under s 75(v) of the Constitution. That writ must be directed to the officer of the Commonwealth who made the decision. Section 39B of the Judiciary Act also vests in the Federal Court the jurisdiction of this Court with respect to any matter in which a constitutional writ is sought against an officer of the Commonwealth. The appellants seek the quashing of the decision of the Tribunal (certiorari) and an order compelling the Tribunal to conduct, according to law, a review of the decision of the Minister's delegate. The Tribunal is the relevant "officer of the Commonwealth" for the purposes of this appeal. Accordingly, it is necessary that the Tribunal be joined as a party to this appeal.’

86 Following the High Court’s decision in SAAP, on 8 June 2005 the Court ordered that the Tribunal be joined as a party to this appeal pursuant to s 25(2B)(a) of the Federal Court of Australia Act 1976 (Cth).

87 For these reasons the appeal must be allowed and the orders of the Federal Magistrate made on 5 September 2003 be set aside. In lieu of his Honour’s orders the decision of the Tribunal of 28 November 2001 must be quashed and the matter remitted to the Tribunal for hearing according to law.

I certify that the preceding eighty seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, Sundberg and Stone.

Associate:

Dated: 20 June 2005

Counsel for the Appellants:	Mr CP Shanahan SC
Counsel for the Respondents:	Mr PR MacLiver
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	21 February 2005
Date of Judgment:	20  June 2005