Kumar v Minister for Immigration & Citizenship [2009] FCAFC 55 (21 May 2009)

Last Updated: 22 May 2009

FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration & Citizenship [2009] FCAFC 55

MIGRATION – Bridging (Removal Pending) Visa – appellant holder of visa – appellant claimed to be Indian national then later claimed to be Bangladeshi national then again claimed to be Indian national – signed application for Indian travel document – Indian travel document issued – respondent sought to bring visa to end by giving notice in writing to appellant stating respondent satisfied appellant’s removal from Australia reasonably practicable – whether respondent’s decision involved breach of rules of procedural fairness – whether respondent should have given appellant notice of proposed decision and opportunity to comment on circumstances in which Indian travel document issued and effectiveness thereof – whether respondent’s decision involved failure to take into account relevant considerations – whether relevant considerations included outstanding application for Bangladeshi travel document, ongoing concerns or doubts as to appellant’s identity and fact Indian birth certificate found by then Department of Immigration and Multicultural Affairs not to be genuine – whether respondent’s decision so unreasonable that no reasonable person could have made it

Held: appeal dismissed – no breach of rules of procedural fairness, no failure to take into account relevant considerations and decision not so unreasonable that no reasonable person could have made it.

MIGRATION – review of decisions – jurisdictional error – whether unreasonableness results in jurisdictional error – scope of privative clause in Migration Act 1958 (Cth) – relevance of Administrative Decisions (Judicial Review) Act 1977 (Cth)

Held: unnecessary to decide in light of approach taken by parties and conclusions on merits of appellant’s grounds of review.


Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5, 6, 8
Administrative Appeals Tribunal Act 1975 (Cth) s 44AA
Constitution s 75
Migration Act 1958 (Cth) ss 14, 48B, 189, 195A, 198, 417, 474, 476, 494B
Migration Regulations 1994 (Cth) reg 2.20A, Schs 1, 2, 8

Abebe v The Commonwealth of Australia (1999) 197 CLR 510 cited
Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 referred to
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 cited
Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368; (2006) 155 FCR 465 referred to
Chung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 442 cited
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 cited
John v Rees [1970] Ch 345 referred to
Kioa v West [1985] HCA 81; (1985) 159 CLR 550 discussed
M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131; (2003) 131 FCR 146 discussed
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 discussed
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 cited
MZXMI v Minister for Immigration and Citizenship [2007] FCA 1162 cited
NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506 discussed
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 cited
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 cited
WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 84 ALD 655 discussed



























BINOD KUMAR v MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD 1329 of 2008

STONE, GREENWOOD AND BESANKO JJ
21 MAY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1329 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

BINOD KUMAR Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGES:	STONE, GREENWOOD AND BESANKO JJ
DATE OF ORDER:	21 MAY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1329 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

BINOD KUMAR Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGES:	STONE, GREENWOOD AND BESANKO JJ
DATE:	21 MAY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

STONE J

1 I agree with the orders proposed by Besanko J and with his Honour’s reasons for those orders.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 21 May 2009

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1329 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

BINOD KUMAR Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGES:	STONE, GREENWOOD AND BESANKO JJ
DATE:	21 MAY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

GREENWOOD J

2 I have had the benefit of considering the reasons for judgment of Justice Besanko and the orders he proposes. I agree with those orders and the reasons upon which they rest.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated: 21 May 2009

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1329 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

BINOD KUMAR Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGES:	STONE, GREENWOOD AND BESANKO JJ
DATE:	21 MAY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BESANKO J

3 This is an appeal from orders made by the Federal Magistrates Court on 31 July 2008. On that day, a federal magistrate made orders that the appellant’s application be dismissed and that he pay the respondent’s costs as agreed or taxed. The federal magistrate also made an order that the respondent’s decision take effect on 28 August 2008.

4 On 3 November 2005, the appellant was granted a Bridging (Removal Pending) Visa Subclass 070 ("RPBV") by the respondent, then known as the Minister for Immigration and Multicultural and Indigenous Affairs. On 26 July 2006, the respondent made a decision under cl 070.511(c)(i) of Schedule 2 of the Migration Regulations 1994 (Cth) ("the Regulations") that the bridging visa cease because she was satisfied that the appellant’s removal from Australia was reasonably practicable. The written record of the respondent’s decision records the fact that she is satisfied that the appellant’s removal from Australia is reasonably practicable, as travel documents have been issued by the Republic of India, valid until September 2006, and that those travel documents enable the appellant to be removed from Australia. It records the respondent’s decision "to act in accordance with paragraph 070.511(c)(i) of the Regulations and give the holder a notice in writing that I am satisfied that the holder’s removal from Australia is reasonably practicable". By letter dated 15 August 2006, the respondent gave the appellant notice of her decision and advised him that the effect of her decision was that the appellant’s visa "would cease at the end of the day on which he is taken to have received the notice".

5 Clause 070.511 of the Regulations provides that an RPBV ceases at the time when the Minister gives a notice in writing to the holder, by one of the methods specified in s 494B of the Act, stating that the Minister is satisfied that the holder’s removal from Australia is reasonably practicable.

6 On 29 August 2006, the appellant brought an application in the Federal Magistrates Court, seeking a declaration that the respondent’s decision was made in excess of jurisdiction and was null and void, the issuing of a writ of certiorari to quash the respondent’s decision and the issuing of a writ of prohibition directed to the respondent and prohibiting her from acting upon or giving effect to, or proceeding further upon, the decision. The application sought to invoke the jurisdiction of the Federal Magistrates Court under s 476 of the Migration Act 1958 (Cth) ("the Act") or s 8(1) [sic] of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). On 29 August 2006, the Federal Magistrates Court made orders preventing the respondent from acting upon the decision until the disposal of the proceedings or until further order.

7 Section 476(1) of the Act confers on the Federal Magistrates Court the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. None of the exceptions in subs (2) of s 476 are relevant. Subsection (3) provides that nothing in s 476 affects any jurisdiction the Federal Magistrates Court may have in relation to non-privative clause decisions under s 8 of the ADJR Act or s 44AA of the Administrative Appeals Tribunal Act 1975 (Cth). Section 8(2) of the ADJR Act provides that the Federal Magistrates Court has jurisdiction to hear and determine applications made to the Court under the Act. The reference in the appellant’s application to s 8(1) of the ADJR Act must be taken to be an error, and the appellant must have intended to refer to s 8(2).

8 There were four grounds in the appellant’s application to the Federal Magistrates Court. First, it was alleged that the respondent erred in law in arriving at the decision by an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made, in that the respondent failed to take relevant matters into account in the exercise of the power. The particulars of this ground related to whether the appellant was an Indian national and the accuracy, effectiveness or validity of a travel document issued by the Republic of India. Secondly, it was alleged that the respondent exceeded her jurisdiction in arriving at the decision, in that a breach of the rules of natural justice occurred in connection with the making of the decision. The particulars of this ground alleged a failure by the respondent to advise the appellant that she was proposing to make a decision under cl 070.511(c)(i) and invite his comments thereon, and that she was proposing to rely on a travel document issued by the Republic of India. Thirdly, it was alleged that the respondent’s exercise of power in arriving at the decision was so unreasonable that no reasonable person could have exercised the power in that manner. The particulars of this ground were that the respondent knew that the appellant was not an Indian national and was not entitled to citizenship of that country. Fourthly, it was alleged that the respondent engaged in conduct for the purposes of s 6(1) of the ADJR Act involving a breach of the rules of natural justice and a failure to observe the procedures required by law in respect of foreign travel documents.

9 It is clear that these grounds were framed having regard to the grounds in s 5 of the ADJR Act, and, in particular, subs (1)(a), (b) and (e).

The federal magistrate’s reasons

10 The federal magistrate heard evidence from the appellant and two Departmental officers, Ms Michelle Leedham and Mr Gurmit Singh. Each of those persons swore an affidavit or affidavits and was cross-examined at the hearing. The federal magistrate said that he did not find the appellant a credible witness. He said that he considered that the appellant was reluctant to reveal too much and keen to portray himself as no more than a hapless victim of the Department. He said that the appellant’s evidence and his case contained examples of him disclosing information about himself only when he was confronted with evidence suggesting that his account was not truthful.

11 The federal magistrate accepted the evidence of Ms Leedham and Mr Singh. Each was a removals officer who was responsible for the appellant’s file at different times. The federal magistrate said that, where there was conflict, he preferred the evidence of Ms Leedham and Mr Singh to that of the appellant.

12 The Department’s file in relation to the appellant was before the federal magistrate and is part of the appeal book before this Court. The federal magistrate made findings which largely reflected the information in the Department’s file. The evidence of Ms Leedham and Mr Singh was consistent with the information in the Department’s file.

13 In order to understand the issues raised on the appeal, it is necessary to set out the events from the time the appellant arrived in Australia in June 1998. This is done by reference to the federal magistrate’s findings. On occasions, I have supplemented a finding with some elaboration from information which appears in the Department’s file.

14 The appellant arrived in Australia in June 1998 as a visitor on an Indian passport in the name of Biplab Saha. On 21 July 1998, he made an application to the Minister for Immigration and Multicultural Affairs for a Protection (Class AZ) visa ("protection visa"). He claimed a well-founded fear of persecution by reason of his political opinion if he was returned to India. He claimed that he was Biplab Saha and that he was a citizen of India who lived in that country before coming to Australia.

15 On 14 August 1998, a delegate of the respondent refused the appellant’s application for a protection visa and the appellant was advised of this decision by letter dated 17 August 1998. The appellant then applied to the Refugee Review Tribunal ("the Tribunal") for a review of the decision. On 18 October 2000, the appellant gave evidence to the Tribunal with the assistance of a Bengali interpreter. In addition, he prepared and provided to the Tribunal a statutory declaration dated 17 October 2000. In that document, he claimed that he arrived in Australia from India and that he was a "prominent political activist" in the Trinumul Congress Party in India. He claimed that he was involved in that Party’s activities and that he was forced into hiding because of his activities. He claimed that members of his family were threatened and property was damaged.

16 After considering the appellant’s claim, the Tribunal, on 5 April 2001, made a decision affirming the delegate’s decision not to grant the appellant a protection visa.

17 On 22 June 2001, the appellant brought an application in this Court seeking judicial review of the Tribunal’s decision. He subsequently sought to discontinue the proceeding and, on 2 August 2001, a judge of this Court dismissed the application with costs.

18 In June 2003, the appellant was taken into detention as an unlawful non-citizen. On 16 June 2003, the appellant was interviewed by an officer of the Department of Immigration and Multicultural and Indigenous Affairs, who noted that "A/N refuses to go back to India due to the political situation he is in". On 25 June 2003, the appellant brought a proceeding in the High Court of Australia against the respondent and the Tribunal, seeking the issue of constitutional writs directed to them.

19 On 11 September 2003, the appellant met with the Indian Consul in Sydney. A Departmental note records the fact that the Indian Consul advised the Department that he believed that the appellant was of Bangladeshi origin and not Indian. This prompted further action by the Department. An officer of the Department sent a copy of the appellant’s passport to the Indian Consulate and asked whether enquiries could be made of the overseas Home Ministry, "as to whether this passport was fraudulently issued/obtained".

20 An officer of the Department interviewed the appellant on 15 September 2003. The appellant told the officer that the Indian passport had been obtained fraudulently. He was asked to complete an application for a Bangladeshi travel document but he declined to sign the final document until he had discussed the matter with his lawyer. He gave the officer some information about the original passport and said that he did not know his real name. He said that he had been raised under the name of Binod (no surname known) and that he had worked in a tea shop. The appellant refused to have his thumb print taken.

21 The Department applied to the High Commission for the People’s Republic of Bangladesh for a travel document, but, by letter dated 22 October 2003, the High Commission advised the Department that it could not process the application because it was incomplete. A file note of the Department dated 19 December 2003 records the following:

Interviewed by BDES HC Advd that client may be a "displaced person" as no information provided except first name. Does not remember surname or where he went to school or village/town he lived in. BDES HC believes that he does know but without this information there is little that can be done to arrange TDOC."

22 On 18 February 2004, the Department wrote to the High Commission, seeking information about the appellant. On 19 February 2004, an officer of the Department interviewed the appellant and the appellant told the officer that he came from the island Bhola in the Bay of Bengal and that his real name was Binod Kumar.

23 On 29 July 2004, the appellant completed a document entitled "Declaration". In the document, he claimed that his real name was Binod Kumar and that he and his parents were born in Bangladesh. His parents were killed in a war in Bangladesh when he was a baby. He was raised in Bangladesh by a family who were Muslims. At about the age of 14 years, he left this family and went to live and work in a tea shop owned by a person who had befriended him. The appellant decided to leave Bangladesh and, on the advice of a friend who was providing him with assistance, he did so by first crossing the border into India. The appellant alleged that his earlier claim that he was an Indian citizen and for a protection visa was fabricated by his migration agent, who had since died.

24 The appellant was interviewed by officers of the Department in August and early September 2004. On 6 September 2004, the appellant wrote to the respondent, reiterating his claim that he was born in Bangladesh and seeking a more favourable decision than that made by the Tribunal. Section 417 of the Act gives the Minister the power to do that. On 9 November 2004, the respondent, acting on the recommendation of the Ministerial Intervention Unit, declined to exercise her power under s 417 of the Act. The appellant was advised of her decision on 12 November 2004.

25 On 20 November 2004, the Department took possession of an Indian passport in the name of Biplab Saha. At about this time, Ms Leedham became the case officer in charge of the appellant’s file. On 15 December 2004, the appellant completed an application for an Indian passport in the name of Biplab Saha. He claimed that he was born in Calcutta, India, on 8 June 1971.

26 Records of the Department set out details of events which occurred in late 2004:

Has lodged TDOC application with Consulates - Indian and BDES (uncertain of true nationality) Now claims to be Indian- has presented ppt, tdoc application to be sent to Indian Consulate. DEU examined ppt- genuine. ... 24/11/04 – follow up visit – informed Mr Saha that while his case officer was away I would be handling his case- gave contact details. Mr Saha stated that he did not want to be transferred to Baxter and would be cooperative with departing Australia. Stated that he would complete TDOC application form. Preferred destination Calcutta. M.LEEDHAM 16/12/04 – follow up visit – Mr Saha completed tdoc application. Stated that he was an Indian national and not a Bangladeshi as he claimed to have been before. He stated that he wanted to depart A/a and go back home to India.

27 It appears that the possibility of the appellant being transferred to the Baxter Detention Centre had been raised with him on 11 August 2004.

28 On 10 January 2005, the Department’s Documentation Examination Unit was asked to consider the validity of the passport in the name of Biplab Saha. On 31 January 2005, the unit reported to Ms Leedham that the passport was "a genuine Republic of India passport of this series".

29 On 4 February 2005, Ms Leedham sent the application for a travel document and passport to the Indian Consulate and asked for the processing of the appellant’s travel document.

30 On 7 March 2005, Ms Leedham spoke to the Indian Vice Consul, Mr Sunil Baweja. Mr Baweja stated that he was of the opinion that the appellant was not Indian, but of Bangladeshi origin, even after being told the Document Examination Unit had found the passport was genuine. Mr Baweja told Ms Leedham that he had sent a referral to India some time ago but had not heard back. Mr Baweja said he did not need copies of supporting documents, including the birth certificate that Ms Leedham had in her possession.

31 On 8 March 2005, Ms Leedham spoke to the appellant, and the record of the Department shows the following was discussed:

08/03/05 – follow up visit – I told Mr Saha that I had sent a letter to the Indian Consulate along with his ppt, completed tdoc application and photos. I told him that the Consulate had received the letter but were waiting on info from India. Mr Saha got very frustrated stating that he just wanted to go home.

32 On 16 March 2005, Ms Leedham wrote to the Indian Consul, enclosing copies of documents in her possession, including a birth certificate in the name of Biplab Saha, and various school and university certificates. The originals of the documents were said to be "in Mr Saha’s personal property at Villawood IDC".

33 In April 2005, the appellant continued to press officers of the Department to expedite the processing of his travel document. He said that he was Biplab Saha, an Indian national, and that his previous claim to be Binod Kumar, a Bangladeshi national, came about because he had been "misled by his friends". It was at about this time that Mr Singh assumed the management of the appellant’s file.

34 On 26 April 2005, the appellant wrote to the Department. He had applied for a Bridging Visa E and he asked for a speedy resolution of his application. He said:

I am trying to leave the country ... Therefore I request a speedy response to my request for a Bridging visa E, until my new travel documents may be ready, at which point I will leave the country.

35 The appellant’s application for a Bridging Visa E was refused on 27 April 2005.

36 On 27 July 2005, the respondent wrote to the appellant, advising him of the fact that she was considering using her power under s 195A of the Act to grant him an RPBV. The appellant signed the appropriate documents for the issue of such a visa.

37 In the second half of 2005, the Department continued to correspond with the Indian Consulate about the issue of a travel document. On 3 November 2005, the respondent granted the appellant an RPBV. The minute to the Minister referred to the appellant as Biplab Saha, an Indian national, and contained the following:

Identity/Nationality Issues: Mr Saha has no known identity or nationality issues.

38 The appellant was advised of the Minister’s decision by letter dated 3 November 2005.

39 On 27 October 2005, Mr Singh, who was at this time the case officer in charge of the appellant’s file (see [33]), wrote to the Department’s Document Examination Unit, asking it to examine the authenticity of various identification documents relating to the appellant.

40 Another matter being considered by the Department at about this time was whether the prohibition on the appellant making a further application for a protection visa should be lifted. Section 48B of the Act gives the Minister the power to make such a determination.

41 A minute of Ms Kath Dunham, Acting Assistant Secretary, Onshore Protection Branch, dated 15 November 2005 contains the following:

Biplab Saha aka Binod Kumar has had his visa refusal upheld by the Refugee Review Tribunal (RRT) and the courts.

Mr Saha’s initial PV application was based on claims that he is an Indian national who fears persecution for reason of his political opinion. However, subsequent to the review decision, Mr Saha has claimed to be a Bangladeshi national who fears persecution because of his Hindu belief ...

Mr Saha’s identity is being investigated by the National Identity Verification and Advice (NIVA) Section.

If you decide that it is in the public interest to lift the 48B bar, this would provide an opportunity to have his claims against Bangladesh tested through a full PV assessment. It may also allow issues surrounding his identity to be resolved.

42 On 22 December 2005, Mr Colin Chong, an officer of the Department, prepared a minute dealing with the possible exercise by the Minister of her power under s 48B of the Act, and in that minute he set out the history of the appellant’s claims and he noted the appellant’s previous claim to be of Bangladeshi origin. He noted that, on 16 December 2004, the appellant stated that he was an Indian national and not a Bangladeshi as he had previously claimed, and stated that he wanted to depart Australia and go back home. He noted that the Indian Consulate had advised that it was willing to issue the appellant with a travel document. He referred to the fact that the appellant had provided a number of documents in support of his claim to be an Indian national. The appellant’s identity had been investigated by the National Identity Verification and Advice (NIVA) section and the NIVA section was satisfied that the appellant was an Indian national by the name of Biplab Saha. Mr Chong expressed the opinion that the application did not fall within the guidelines applicable to such applications. The Acting Director of the International Obligations and Intervention Section (Mr Phoenix Mundy) agreed with Mr Chong’s assessment, and, on 22 December 2005, the appellant was advised that his request did not meet s 48B guidelines.

43 Shortly before Mr Chong’s minute, a series of electronic messages passed between various officers of the respondent’s Department. The Court was taken to those messages in the course of submissions on the appeal and it is necessary to make reference to them.

44 Ms Eva El-Zahoul, an officer of the Department in the Removals Section, spoke to the Indian Consul on 29 November 2005 and was advised by him that he would be issuing travel documents to the appellant.

45 Mr Matthew Scott, who was a member of the NIVA section, asked Ms El-Zahoul whether the Indian Consul had advised on what basis he had determined that the appellant was an Indian national. On 7 December 2005, Ms El-Zahoul advised Mr Scott that the Indian Consul had not advised of the basis upon which he had determined that the appellant was an Indian national.

46 Mr Scott asked Ms El-Zahoul to seek further clarification from the Indian Consul "regarding the steps taken to establish the client’s identity".

47 Ms El-Zahoul responded on 16 December 2005 and advised that, because of the sensitivity of the case and the relationship with the Indian Consulate, it had been decided not to approach the Consulate with "this delicate question".

48 Mr Scott wrote to Mr Chong and Ms El-Zahoul on 19 December 2005, and one question he asked Ms El-Zahoul was whether the Documents Examination Unit had ever confirmed the validity of the documents the appellant provided, or, at least, indicated that the Unit had no reason to suspect that the documents were not genuine.

49 On 19 December 2005, Mr Chong wrote to various persons, including Mr Scott and Ms El-Zahoul, advising that he would reassess the request under s 48B of the Act "and process accordingly".

50 Mr Scott wrote to Mr Chong, advising him that he considered that the appellant’s identity had been confirmed on the basis of the following:

• Statements made by Mr Saha, at interview, claiming to be an Indian national who is willing to return to India;

• Indian Consulate’s willingness to approve an Indian travel document; and

• Comments provided by NIVA to suggest the likelihood of Mr Saha’s identity/nationality."

51 Mr Scott said that he was unable to comment on the genuineness of the passport in the name of Biplab Saha because he had been unable to find any confirmation from the Documents Examination Unit, but Mr Chong knew that that Unit had determined that the passport was a genuine document.

52 As previously mentioned, at some point in late 2004 or early 2005, the Department obtained from the appellant various documents said to support his claim to be Biplab Saha, an Indian national. These documents were a birth certificate in the name of Biplab Saha, school and university certificates and (possibly obtained a little later) some employment references. The birth certificate was said to record information in the Register for Eden Hospital under the Calcutta Municipal Corporation. The Department made enquiries about the authenticity of these documents.

53 In late December 2005, or in the first half of January 2006, the Department received a letter from the Kolkata Municipal Corporation advising it that the birth certificate in the name of Biplab Saha had "not been issued from our end".

54 In an electronic message dated 1 February 2006, an officer of the Department, Ms Karen Dix, wrote to other departmental officers, setting out the options in relation to the appellant:

1. Cancel Mr Saha’s removal pending visa, call him in for an interview, detain him at interview and remove 2. Cancel Mr Saha’s visa, call Mr Saha in for an interview and inform him that we have a travel document for him and an itinerary for departure. Grant him a BVE which expires the day before his departure, so that he can be removed on 29 March 06. On the day of his removal he would either be picked up by GSL from his residence after detention by a DIMIA officer or present at Lee St with his belongings and be detained and taken to the airport for removal. 3. Called [sic] Mr Saha in for an interview and inform him that we have a travel document for him and an itinerary for departure. Notify him that his visa will be cancelled and a short term BVE will be granted for departure. Give him the option of buying a ticket to depart himself or being removed on the flight which has been organised.

55 On 3 February 2006, the Indian Vice Consul issued a travel document for the appellant in the name of Biplab Saha. The travel document was due to expire on 2 September 2006.

56 Records of the Department show that an officer spoke to the appellant on 7 February 2006 and that the appellant was aware that the Department was in contact with the Indian Consulate and that the Consulate was going to issue a travel document for the appellant.

57 On 10 March 2006, the Document Examination Section advised Mr Singh that, of the eleven documents which had been provided to them, eight were assessed as genuine and three as non-genuine. The Section expressed the opinion that the birth certificate in the name of Biplab Saha was not genuine.

58 On 31 May 2006, Mr Gary Fleming, who is described as the Assistant Secretary, Case Management Support Branch, Detention Alternatives Section, forwarded a minute to the respondent, dealing with the possible cessation of the appellant’s visa on the basis that his removal was now reasonably practicable. The minute states, among other things:

• Mr Biplab Saha, an Indian national, is currently residing in Sydney on an RPBV which you granted on 3 November 2005 after he satisfied appropriate security and character checks. The Department continued to pursue removal action in his case and [sic] as Mr Saha has no ongoing litigation or visa applications and the Department holds a valid travel document. Mr Saha is now ready for removal and he has been compliant with the visa condition to report to DIMA.

• The Indian Consulate has issued a travel document for Mr Saha, valid until September 2006. It would be preferable to facilitate removal arrangements as soon as possible to maintain a good relationship with the Indian Consulate in Sydney. Travel arrangements will be made on your preferred course of action.

• Although Mr Saha was cooperative in completing applications for travel documents while in detention, there is some suggestion that residing in the community and receiving Centrelink and Medicare benefits may impact on his willingness to voluntarily depart Australia.

• You have the option to cease Mr Saha’s visa as his removal is now reasonably practicable.

59 On 26 July 2006, the respondent spoke by telephone with officers of her Department to clarify the submission and what was proposed. There is no evidence of the details of the conversation.

60 The respondent’s written decision record dated 26 July 2006 contains the following statements:

1. On 3 November 2005 the holder was granted a Bridging (Removal Pending) Visa Subclass 070 with conditions.

2. I am now satisfied that the holder’s removal from Australia is reasonably practicable as:

a. travel documents have been issued by the Republic of India valid until September 2006;

b. these travel documents enable the holder to be removed from Australia; and

3. I have therefore decided to act in accordance with paragraph 070.511(c)(i) of the Regulations and give the holder a notice in writing that I am satisfied that the holder’s removal from Australia is reasonably practicable.

61 The appellant was given notice of the respondent’s decision. He was given a Bridging Visa E, which was to expire on 23 August 2006. The Department arranged for him to depart from Sydney on 30 August 2006 and he was granted a further Bridging Visa E until 29 August 2006.

62 On 29 August 2006, the appellant instituted this proceeding in the Federal Magistrates Court, seeking orders preventing his removal from Australia. As I have said, orders to that effect were made by the Court on 29 August 2006. The appellant swore an affidavit on 29 August 2006 in support of his application and, in that affidavit, he stated that he was never informed prior to 15 August 2006 that travel documents would be obtained on his behalf from the Republic of India. He stated that he did not apply for Indian travel documents and had not asked for anyone to do so on his behalf. He stated that, since he revealed to the Department in 2003 that he was Bangladeshi, he had not told any person at the Department that he was an Indian citizen or entitled to Indian citizenship. In a second affidavit sworn on 4 October 2006, the appellant corrected a number of the statements in his earlier affidavit. He said that he "omitted" to say that he had signed an application for an Indian travel document. He also said that the passport in the name of Biplab Saha had his photograph in it. He denied being an Indian citizen. Although it is not entirely clear, he seems to say that, although he signed the application for an Indian travel document, he only did so because he was told he needed to before he could apply for a visa. He wanted to obtain a visa so that he could leave the Villawood Detention Centre. Ms Leedham gave evidence that she never said anything to the appellant indicating that the application for a travel document was an application for a visa and that, on a number of occasions, the appellant had told her he was Biplab Saha, an Indian, and that he wanted to return to India as soon as possible. As I have said, the federal magistrate accepted Ms Leedham’s version of events.

63 The federal magistrate held that the respondent’s decision did not fall within the terms of the ADJR Act. He accepted the respondent’s submission that the examples of the making of a decision in s 3(2) of the ADJR Act were narrower than the matters identified in s 474(3) of the Act and that s 6 of the ADJR Act did not assist the appellant because it only applied to conduct engaged in "for the purpose of making a decision to which this Act applies". The federal magistrate held that the giving of the notice was a privative clause decision because it fell within the terms of s 474(3)(b) and (g). In those circumstances, the appellant could only succeed if he established jurisdictional error (see Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476).

64 The federal magistrate held that there had been no procedural unfairness. He referred to Kioa v West [1985] HCA 81; (1985) 159 CLR 550 ("Kioa"). In reaching his conclusion, the federal magistrate relied on the following matters:

1. The decision did not relate to any factors personal to the appellant, such as his health.

2. The respondent did not rely on any material adverse to the appellant which might have led to a requirement that the appellant have a right to be heard.

3. There was a clear justification in the legislative scheme for not informing a visa holder prior to the cessation of the visa.

4. The appellant had no right to remain in Australia and no legitimate expectation of being able to do so. The appellant had already been informed that the Department was intending to remove him to India.

5. The only question for the respondent was whether or not removal was reasonably practicable. The respondent was satisfied that there was an Indian travel document available for the appellant upon which he could leave Australia and travel to India. The federal magistrate said, "[t]hat was the end of the inquiry."

65 The federal magistrate rejected the appellant’s claim that the respondent had failed to take into account relevant considerations and had made a decision that no reasonable person could make. He also rejected an allegation of what he called "fraud on the Indian Government". He reached those conclusions having regard to the following matters:

1. There was no suggestion that the Indian travel document was not a valid document. In any event, the validity of the travel document was not a matter for the Federal Magistrates Court, but was a matter to be decided under the law of India.

2. The Department had not deceived the Indian Government in connection with the issuing of the travel document. It was in fact the Indian Consul who had first raised doubts about the appellant’s identity and suggested that he may be a citizen of Bangladesh. It was the Indian Consul who advised the Department on 29 November 2005 that he would be issuing a travel document to the appellant, and that led to the decision to remove the appellant. Ultimately, the Department was satisfied that the appellant was an Indian citizen. That was what he claimed to be and that was supported by the conclusion of the Indian authorities.

3. The Indian authorities were not misled by the Department. It is true that the Document Examination Section found that three of the eleven documents provided by the appellant (in addition to the passport) were not genuine, including the birth certificate. However, at an early stage, the passport was found to be genuine and the Department had forwarded the eleven documents, including the purported birth certificate, to the Indian Consul on 16 March 2005.

Issues on the appeal

66 The visa granted to the appellant by the respondent on 3 November 2005 was an RPBV. In granting the visa, the respondent exercised the power in s 195A of the Act to determine that, in the case of the appellant (a person in detention under s 189 of the Act), it was in the public interest to grant the visa.

67 Regulation 2.20A deals with a Bridging R (Class WR) visa and provides:

2.20A Applications for Bridging R (Class WR) visas

(1) For subsection 46 (2) of the Act, a Bridging R (Class WR) visa is a prescribed class of visa.

(2) An application for a Bridging R (Class WR) visa is taken to have been validly made by a person if:

(a) the person has been given an invitation in writing by the Minister, by one of the methods specified in section 494B of the Act, to apply for the visa; and

(b) the person indicates in writing to Immigration, not later than 7 days after the person is taken to have received that invitation, that he or she accepts the invitation.

Note   See section 494C of the Act for when a person is taken to have received a document given by one of the methods specified in section 494B of the Act.

68 Clause 1307 in Schedule 1 of the Regulations provides that the RPBV is a subclass of the Bridging R (Class WR) visa.

69 Schedule 2 of the Regulations sets out the details of an RPBV as follows:

Subclass 070 Bridging (Removal Pending) 070.1 Interpretation 070.111 In this Part:

eligible non-citizen has the meaning given in regulation 2.20.

Note   See regulation 2.20A for how an application for a Bridging R (Class WR) visa is taken to have been validly made.

070.2 Primary criteria

Note   All applicants must satisfy the primary criteria.

070.21 Criteria to be satisfied at time of application

070.211 The applicant is an eligible non-citizen referred to in subregulation 2.20 (12) who is taken to have made an application in accordance with subregulation 2.20A (2).

070.22 Criteria to be satisfied at time of decision

070.221 The applicant continues to satisfy the criterion set out in clause 070.211.

070.222 The Minister is satisfied that, if the bridging visa is granted, the applicant will abide by the conditions to which the visa is subject.

070.223 The applicant satisfies public interest criteria 4001 and 4002. 070.3 Secondary criteria: Nil.

Note All applicants must satisfy the primary criteria.

070.4 Circumstances applicable to grant

070.411 The applicant must be in immigration detention when the visa is granted.

070.5 When visa is in effect

070.511 Bridging visa:

(a) coming into effect on grant; and (b) permitting the holder to remain in Australia; and (c) ceasing at the time when the Minister gives a notice in writing to the holder, by one of the methods specified in section 494B of the Act, stating that: (i) the Minister is satisfied that the holder's removal from Australia is reasonably practicable; or (ii) the holder has breached a condition to which the visa is subject.

070.6 Conditions

070.611 Conditions 8303, 8401, 8506, 8513, 8514, 8541, 8542 and 8543 must be imposed.

070.7 Way of giving evidence

070.711 No evidence need be given.

070.712 If evidence is given, to be given by a label affixed to a valid passport or an approved form.

70 Conditions 8514 and 8541, in Schedule 8 of the Act, were referred to in the course of submissions and they are in the following terms:

8514 During the visa period of the visa, there must be no material change in the circumstances on the basis of which it was granted.

8541 The holder:

(a) must do everything possible to facilitate his or her removal from Australia; and

(b) must not attempt to obstruct efforts to arrange and effect his or her removal from Australia.

71 In this case, the respondent’s decision under cl 070.511(c)(i) meant that the appellant ceased to hold an RPBV and he became an unlawful non-citizen (see s 14).

72 On appeal, the appellant submitted that the federal magistrate erred in concluding that the respondent’s decision did not involve a breach of the rules of procedural fairness, a failure to take into account relevant considerations and that the decision was not so unreasonable that no reasonable person could have made it. The appellant submitted that each of those errors was a jurisdictional error. It is well established that s 474(1) of the Act does not protect decisions involving jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.

73 The submissions on the appeal proceeded on the basis that a breach of the rules of procedural fairness in connection with the making of a decision was a jurisdictional error and that a failure to take into account relevant considerations in the course of making a decision was a jurisdictional error, and that neither type of error was protected by the privative clause provision in s 474(1) of the Act. That approach appears to be in accordance with the authorities: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 ("Aala"); Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1; Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163.

74 The appellant submitted that unreasonableness in the Wednesbury sense also resulted in jurisdictional error and was not protected by the privative clause provision in s 474(1) of the Act. The respondent submitted that that proposition was not clearly established by the authorities. However, other than a reference to a passage in the reasons for judgment of Gaudron and Gummow JJ in Aala (at 100-101 [40]), neither party took the Court to the relevant authorities, and the respondent said that he was content to argue the appeal on the basis that the legal proposition advanced by the appellant was correct, but that unreasonableness was not made out on the facts. For reasons I will give, I have concluded that unreasonableness in the Wednesbury sense is not made out on the facts and it is unnecessary to examine whether the appellant’s legal proposition is correct.

75 There was debate before the federal magistrate about whether the respondent’s decision fell within the terms of s 474(3) of the Act, or was the making of a decision within s 3(2) of the ADJR Act. Brief submissions only were made to this Court, and it seemed that both parties accepted that, in the circumstances, the question was theoretical. As I have said, the respondent, while denying error, was prepared to argue the appeal on the basis that the three grounds of judicial review relied on by the appellant gave rise to jurisdictional error and that s 474(1) did not protect a decision affected by jurisdictional error. For his part, the appellant submitted that if he could not show jurisdictional error then there would be no relief under the ADJR Act in any event.

76 I think it is appropriate to make the point that the question of whether an exercise of power under cl 070.511(c)(i) is a decision within s 474(3) of the Act or s 3(2) of the ADJR Act is by no means a straightforward one. This is so at least partly because of the wording of cl 070.511(c)(i). Paragraph (i) refers to a notice in writing stating a certain matter. The giving of the notice has the effect of bringing the visa to an end. There are difficulties in the way of characterising the notice as a certificate within s 474(3)(b), particularly as privative clauses are to be construed strictly: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 505 [72] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Furthermore, there are difficulties in treating a notice as a decision: Chung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 442 at [18]- [19] per Conti J; MZXMI v Minister for Immigration and Citizenship [2007] FCA 1162 at [12] per Gordon J. In addition to these matters, it seems to me to be somewhat artificial to say that the Minister’s act of being satisfied that the holder’s removal from Australia is reasonably practicable is conduct preparatory to a decision within s 474(3)(h).

77 An approach which recognises the practical realities is one which characterises action under cl 070.511(c)(i) as one act having the consequence that a visa ceases to have effect and as falling within s 474(3)(g), that is to say, "the doing [of] any other act or thing". At all events, I do not need to pursue these, no doubt, interesting questions any further, in light of the approach taken by the parties and my conclusions on the merits of the grounds of judicial review advanced by the appellant.

78 Before turning to consider each ground of judicial review relied on by the appellant, it is necessary to identify the scope of the power in cl 070.511(c) and the considerations which, depending on the facts of a particular case, are relevant to its exercise. The power of the Minister in cl 070.511(c)(i) is predicated on the Minister reaching a state of satisfaction as to a particular fact, namely, that the visa holder’s removal from Australia is reasonably practicable.

79 There are a number of authorities which deal with the duty of an officer to remove "as soon as reasonably practicable" an unlawful non-citizen where the conditions in s 198(6) of the Act are satisfied. The statutory context is clearly different, but it seems to me that the cases do assist in identifying the considerations which are relevant to the issue of when a person’s removal from Australia is reasonably practicable within cl 070.511(c)(i).

80 In M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131; (2003) 131 FCR 146 ("M38/2002"), the Full Court of this Court considered whether an officer who was performing his or her duty under s 198(6) of the Act was bound to consider whether the removal of an unlawful non-citizen would constitute refoulement, contrary to Australia’s obligations. In other words, should s 198(6) be read as limited by an obligation against non-refoulement? The Full Court decided that question in the negative and said (at 166-167 [70]-[71]):

The appellant’s contentions on this appeal did not rely on any conception of reasonable practicability. Rather, the appellant’s argument was that, in providing for a detainee’s removal from Australia, s 198(6) was ambiguous. This was because s 198(6) required a detainee to be taken out of Australia but said nothing about his or her destination. Because of this ambiguity, s 198(6) was, so the appellant said, susceptible of a construction which was consistent with the obligation against non-refoulement. The appellant submitted that s 198(6) was to be construed as not authorising the removal of a refugee to a place where he faced a real risk of imprisonment or punishment for Convention reasons. For the reasons about to be stated, s 198(6) is not susceptible of this construction. The appellant’s submission is misconceived, for by the time an officer is called upon to discharge the duty imposed by s 198(6) of the Act, any claim by a detainee for refugee status has been refused, or is taken to have been refused, in accordance with the processes established under the Act.

The Full Court discussed the meaning of the words "reasonably practicable" in s 198(6) of the Act and, after referring to the relevance of whether there was a country willing to admit the unlawful non-citizen, said (at 166 [69]):

Doubtless, there will be other factors that, from time to time, will lead an officer to conclude that, at the time removal is contemplated, removal would not be reasonably practicable in the circumstances of the case. If, for example, the only country willing to receive an unlawful non-citizen were suffering from some severe natural disaster or were in a state of utter civil anarchy, the officer may well be entitled to conclude that his or her removal would not be reasonably practicable until the effects of the disaster had dissipated or some degree of order had been restored. (We interpolate here that this was not the situation under consideration in SE: see SE [Re Minister for Immigration & Multicultural Affairs; Ex parte SE [1998] HCA 72; (1998) 73 ALJR 123; 158 ALR 735] at 126-127[; 739-740 [14]-[20]]) The physical condition of a person facing removal may also lead an officer to conclude that his or her removal in that condition would not make the removal reasonably practicable: cf Li [Li v Minister for Immigration & Multicultural Affairs [2002] FCAFC 181] at [7] per Merkel J (with whom Heerey and Conti JJ agreed).

81 The decision in M38/2002 was followed by the Full Court in NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506, in which the Court rejected an argument that an officer, in exercising the duty in s 198(6), was bound to take into account what was likely, or even virtually certain, to befall a person once the person had been admitted by, and into, the receiving country. Such a consideration was not a relevant consideration, even if the likely effect on the person involved death, torture, persecution or other mistreatment. The Full Court made observations on the considerations relevant to the concept of "reasonably practicable" in s 198(6) of the Act (at 516-517 [52]):

...First, it is possible to say that determination about reasonable practicability is not necessarily limited to physical considerations, such as the health of the person to be removed, or the availability of an operating airport in the country of destination. The willingness of another country to allow the person to enter its territorial boundaries is at least one non-physical factor relevant to reasonable practicability. Second, without attempting an exhaustive statement, it is possible to identify some limitations on the matters relevant to determination of reasonable practicability. They arise out of the words themselves. The relevant considerations are practical considerations, as is indicated by the dictionary definitions of "practicable"... Moreover, the context for determining reasonable practicability is the proposed physical removal of the person from Australia.

82 In WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 84 ALD 655, French J (as his Honour then was) was called upon to consider whether the fact that an unlawful non-citizen’s mental condition would deteriorate if returned to his country of nationality was a consideration relevant to the exercise by an officer of the duty in s 198(6) of the Act. His Honour said that it was not. In the course of his reasons, his Honour formulated six propositions (at 674 [75]) which he said emerged from the Full Court’s decision in M38/2002, two of which are presently relevant:

5. The term "as soon as reasonably practicable" is an evaluative term to be assessed by reference to all the circumstances of the case. What is reasonable is to be determined, inter alia, by reference to the practical difficulties that may lie in the way of making arrangements for removal which involve the cooperation of other countries whether in respect of the particular applicant or generally in relation to the class of applicants of which he is a part...

6. Other factors that may lead an officer to conclude that removal would not be reasonably practicable in the circumstances of the case may include severe natural disaster or a state of utter civil anarchy in the country of destination or the physical condition of a person facing removal...

His Honour went on to elaborate (at 674-675 [77]) on the considerations relevant to the concept of "reasonably practicable" in s 198(6) as follows:

The decision in M38 left open the possibility that an officer, considering the removal of an unlawful non-citizen detainee from Australia, could have regard to the physical condition of the detainee in determining whether removal was reasonably practicable. The observation of the court in that respect was not exhaustive of factors to which an officer could have regard. There is no reason in principle why the mental condition of a person might not lead to a similar conclusion. It could be the case that a person’s psychiatric disease or disorder might preclude travel for practical reasons. In the case of a person undergoing a temporary but acute phase of a mental disease or disorder it might be assessed that the security risk associated with his travel and the cost of providing a suitable escort at a particular time would render it not "reasonably practicable" to remove him at that time. This would be an essentially evaluative decision on which different minds might come to different conclusions consistently with the requirements of the legislation.

French J said (at 676-677 [84]-[85]) there is nothing in any of the propositions which he set out which was inconsistent with the High Court’s decision in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 (see also the discussion in Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368; (2006) 155 FCR 465 at 475-477 [40]- [44]).

83 I turn now to examine each ground of judicial review relied on by the appellant.

Procedural fairness

84 The appellant contended that the respondent should have given him notice that she proposed to make a decision under cl 070.511(c)(i) and an opportunity to comment on the circumstances in which the Indian Consul had issued the travel document and the effectiveness of that document. The appellant referred to the decision of the High Court in Kioa and submitted that the respondent was, in the circumstances of this case, bound to accord him procedural fairness. As I understood the appellant’s submission, he accepted, in my view correctly, that in certain circumstances the respondent may not be required to give a visa holder notice of a proposed decision under cl 070.511(c), for example, where the only issue for the Minister was a matter not personal to the visa holder, or was a matter about which the visa holder could not be expected to say anything. He submitted that this was not such a case because the very issue was the appellant’s identity and that was crucial to the travel document and the willingness of the Republic of India to receive him into that country.

85 The respondent contended that there had been no breach of the rules of procedural fairness in the circumstances of this case. The respondent did not contend that the rules of procedural fairness could never apply to an exercise of the power in cl 070.511(c). He accepted, in my view correctly, that he could be required to give a visa holder notice of a proposed decision under that subclause where, for example, he proposed to exercise the power on the ground of an apparent breach of a condition (that is, under cl 070.511(c)(ii)) and the evidence of the breach came from a third party. However, he submitted that there was no obligation in the circumstances of this case, having regard to the following factors: the fact that the appellant had applied for the travel document, the nature of the visa held by the appellant, the fact that the Indian Consul had issued a valid travel document and the limited range of matters which are relevant to the exercise of the power in cl 070.511(c)(i). As I understood the submission, the respondent did not seek to distinguish between the proposition that there was no obligation on the respondent to accord procedural fairness in the circumstances of this case and the proposition that there was such an obligation but it had a nil content.

86 In Kioa, the High Court considered whether the rules of procedural fairness applied to decisions by the Minister’s delegate to refuse applications by two Tongan citizens for further temporary entry permits and for permanent entry permits and to make deportation orders under the Act. A majority of the High Court held that they did. Mason J said (at 584) that there was a common law duty to act fairly in relation to administrative decisions which affect rights, interests and legitimate expectations, "subject only to the clear manifestation of a contrary intention". In the case of a decision made under a statute, the content of the doctrine depends largely on the construction of the statute or of the particular statutory framework. Mason J said (at 584-585):

What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 C.L.R. 546, at pp. 552-553; National Companies and Securities Commission v. News Corporation Ltd. [1984] HCA 29; (1984) 156 C.L.R. 296, at pp. 311, 319-321. In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. ... ...The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?

Mason J made the point (at 586-587) that, in relation to deportation orders, it is not in all cases that advance notice of a proposed decision need be given. In a case where the decision-maker is not proposing to rely on any matters personal to the appellant and advance notice may enable the appellant to evade the authorities, advance notice may not need to be given. In a case where a decision-maker proposes to make his or her decision by having regard to matters personal to the appellant then advance notice may need to be given. Wilson J’s reasons were to similar effect (at 600-603).

Brennan J said (at 612):

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.

87 Brennan J also said that, in the particular circumstances of a case, a decision-maker may not be required to give advance notice of a proposed decision. He said that, in such a case, the content of the principles of procedural fairness may be diminished even to "nothingness". His Honour said (at 615):

Where the circumstances are such that the purpose for which the power is conferred would be frustrated if notice were given of an intention to exercise it or of the grounds on which it is intended to exercise it, the power may be exercised peremptorily without giving such notice to a person whose interests are likely to be affected... Rather, the intention to be implied when the statute is silent is that observance of the principles of natural justice conditions the exercise of the power although in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred.

Deane J said (at 633):

The precise content of the requirements of procedural fairness which must be observed by a particular administrative decision-maker is controlled by any relevant statutory provisions and may vary according to the circumstances of the particular case. Circumstances could arise in which it was impracticable to extend to a prohibited immigrant an opportunity of being heard before a deportation order was made in respect of him and in which the overall requirements of procedural fairness may, by reason of overriding necessity, be (at least arguably) satisfied notwithstanding the absence in fact of any prior opportunity of being heard. The case where the prohibited immigrant has gone into hiding and has thereby precluded any possibility of an effective hearing is an arguable example. Putting to one side cases of necessity however and in the absence of any clear legislative intent excluding or modifying the requirement of procedural fairness, it is difficult to envisage a case in which the particular circumstances would either exclude those requirements completely in relation to the making of a deportation order or so modify them that the person affected was not entitled to an adequate opportunity of being heard before he was subjected to the adverse effects of such an order.

88 In his affidavit sworn on 29 August 2006, the appellant claimed that his name was Binod Kumar and not Biplab Saha, and that he was born in Bangladesh and was not an Indian national. These are the matters he submits he would have put to the respondent, had he been given notice of her proposed decision and an opportunity to comment. Presumably, he would also have explained the reasons he signed the application for an Indian travel document (see [62]). As I have said, the federal magistrate accepted Ms Leedham’s version of events.

89 The appellant reminded the Court that it was not for us to determine the matter by assessing the strength of any arguments the appellant may have put, had he been given notice of the proposed decision, and the Court was referred to the well-known words of Megarry J (as his Lordship then was) in John v Rees [1970] Ch 345 at 402 (and quoted by Gaudron and Gummow JJ in Aala at 117 [81]).

90 In my opinion, the respondent was not obliged to give the appellant notice of the proposed decision and an opportunity to comment. The appellant applied for, and was granted, a visa which expired, or came to an end, if and when the respondent was satisfied that the appellant’s removal from Australia was reasonably practicable. The appellant applied for a travel document, to be issued by the Republic of India, which would enable him to travel to that country. The Indian Consul issued such a document. At no stage between the time when the appellant completed the application for the travel document and the respondent’s decision did the appellant resile from his claim to be Biplab Saha, an Indian national. In fact, the appellant continued to press the Department to expedite the issuing of a travel document by the Republic of India and his return to that country. Significantly, in making her decision, the respondent did not propose to take into account any information or evidence adverse to the appellant’s case as it was understood to be at that time. The respondent was advised that the appellant had been cooperative in completing applications for travel documents while in detention, and there was no reason for the respondent, or indeed the Department, to think that the appellant did not wish to return to India or, at least, accepted the fact that he would be required to do so.

91 The appellant placed considerable emphasis on the fact that the Department had been told that the birth certificate in the name of Biplab Saha was not genuine. As I have said, in late December 2005 or in the first half of January 2006, the Kolkata Municipal Corporation advised the Department that it had not issued the birth certificate and, on 10 March 2006, the Department was advised by the Document Examination Section that it considered the birth certificate not to be genuine. The conclusion that the birth certificate was not genuine does not establish that the appellant is not Biplab Saha, an Indian national, or that he is Binod Kumar of Bangladeshi origin. What it does establish is that one of the documents the appellant provided in support of his claim to be Biplab Saha, an Indian national, was not genuine and, in some circumstances, that may have led to further enquiries. However, the conclusion that the birth certificate was not genuine did not give rise to an obligation on the respondent to give the appellant notice of the proposed decision and an opportunity to comment because she was not proposing to take into account any information adverse to the appellant, or any other information personal to the appellant and relevant to the decision under cl 070.511(c)(i). The appellant’s case at that time was that he was Biplab Saha, an Indian national, and the conclusion about the birth certificate was, if anything, adverse to the appellant’s case. However, the respondent was not proposing to, and did not, take it into account. In the circumstances, there was nothing for the appellant to respond to (see Kioa at 588 per Mason J; at 601-602 per Wilson J; at 628 per Brennan J; at 634 per Deane J).

92 Although I do not need to decide the point, there is also considerable force in the respondent’s submission that the effectiveness of the travel document was entirely a matter for the Indian authorities. The Indian Consul had referred the question of whether a travel document should issue to the authorities in India, and the Department had sent the birth certificate and other documents to the Indian Consulate. There is no reason to think the Indian authorities did not make such enquiries and checks as they considered appropriate for the purpose of issuing a travel document.

93 Before leaving the question of procedural fairness, it is necessary for me to address two particular submissions made by the appellant. First, he submitted that there was no evidence that he should not be given notice of the proposed decision and an opportunity to comment because he was a serious flight risk. Mr Fleming’s minute to the respondent stated that he had been "compliant with the visa condition to report to DIMA". It is true that, in Kioa, members of the Court said that the decision-maker may not be required to give notice of a proposed decision where the person affected by it was a serious flight risk: at 586 per Mason J; at 615 per Brennan J. However, those are not the only circumstances in which notice of a proposed decision may not be required, and to the extent that the appellant submitted otherwise, I reject the submission.

94 Secondly, the appellant submitted that he only signed the application for a travel document because he did not want to be transferred to the Baxter Detention Centre and because he was depressed while being held in detention. Certainly, it seems that, in November 2004, the appellant said that he did not want to be transferred to the Baxter Detention Centre, and the records of the Department indicate that he was placed under suicide and self-harm watch from 16 February 2005 to 19 February 2005. The appellant did not develop the submissions that followed from these matters in any detail. They do not advance the appellant’s case, in view of the fact that the federal magistrate accepted Ms Leedham and Mr Singh as witnesses of truth and rejected the appellant as a credible witness. Ms Leedham said that, in late 2004 to early 2005, the appellant said that he was Indian, his name was Biplab Saha and that he wanted to return to India. Mr Singh said that, in April 2005, the appellant said he was Biplab Saha, an Indian national, and that he had put forward the story of being of Bangladeshi origin because he had been misled by friends.

Relevant considerations

95 The appellant’s case before the federal magistrate was that the respondent failed to take into account relevant considerations and that those considerations included the fact (alleged by the appellant) that the Indian travel document must have been obtained by deception by persons other than the appellant, and that the travel document was not issued at the request, or with the consent, of the appellant. That case failed before the federal magistrate, largely because he did not accept the appellant as a witness of truth and he did accept Ms Leedham and Mr Singh as witnesses of truth.

96 On appeal, the appellant’s relevant considerations ground was reformulated. The considerations which the appellant submitted the respondent failed to take into account were identified as the following:

1. There was an outstanding application for a Bangladeshi travel document.

2. There were ongoing concerns or doubts as to the appellant’s identity.

3. The birth certificate in the name of Biplab Saha had been found to be not genuine. That information had not been provided to the Indian Consul. It was submitted that there was a "real likelihood that the [Indian travel document] was fraudulent and false".

97 The relevant principles for this ground of review are well established and a brief summary of the principles will suffice.

98 In order to succeed on this ground of review, the appellant must show that the matter he or she identifies is a consideration the respondent was bound to take into account. It is first necessary to determine the relevant considerations under the statutory power in question. They may be expressly stated, or it may be necessary to identify them by reference to the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 ("Peko-Wallsend") at 39-40 per Mason J.

99 It is then necessary to consider whether the matters identified by the appellant fall within the relevant considerations. There is a distinction, no doubt on occasions difficult to draw, between a relevant consideration on the one hand, and a fact, or assertion of fact or evidence (or a body of evidence) put forward in support of an assertion of fact, on the other. The second category of matters are not relevant considerations: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 579-580 [195] per Gummow and Hayne JJ; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 ("Yusuf") at 347-348 [73] per McHugh, Gummow and Hayne JJ. In Yusuf, McHugh, Gummow and Hayne JJ said (at 348 [74]):

This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.

100 A failure by a decision-maker to take into account a consideration he or she is bound to take into account may not result in the decision being held invalid if the consideration was so insignificant that the failure to take it into account could not have materially affected the decision: Peko-Wallsend at 40 per Mason J.

101 Where the appellant identifies as a relevant consideration a matter which is said to be a matter of fact then it seems to me that his or her case must fail at the outset if the fact cannot be established or is disproved. This is the case with the first two matters identified by the appellant; that is to say, they are not factually correct.

102 As to the first matter identified by the appellant, it is not right to say that there was an outstanding application for a Bangladeshi travel document. The correspondence from the High Commission for the People’s Republic of Bangladesh dated 22 October 2003, is to the effect that there was no complete application before it. The matter did not progress further from that point.

103 As to the second matter identified by the appellant, it is not right to say that there were ongoing concerns or doubts as to the appellant’s identity. The appellant referred to the electronic messages summarised at [43]-[51]. However, any concerns or doubts, especially those initially expressed by Mr Matthew Scott of the NIVA Section were resolved.

104 As to the third matter alleged by the appellant, the respondent’s primary concern was whether there was a country willing to receive the appellant. The Indian travel document established that the Republic of India was willing to receive the appellant. It was not for the respondent or the respondent’s Department to examine the soundness of the decision of the Indian authorities or the basis upon which it was made. I do not suggest that there may not be cases where the Minister, acting under cl 070.511(c)(i), may be required to take into account matters suggesting clear error or a likely injustice. However, this case falls a long way short of such a case. The Indian Consul was given the passport, which the Australian authorities found to be genuine, the birth certificate, which the Australian authorities found to be not genuine, and other documents. The Indian Consul made his own enquiries, including a reference to the authorities in India. It is true that the Australian authorities did not advise the Indian authorities of their conclusion about the genuineness of the birth certificate, but that conclusion is far from decisive of the question, and it was plainly for the Indian authorities to make their own enquiries and draw their own conclusion. The conclusion of the Indian authorities (and of the Australian authorities) was in accordance with the claims made by the appellant at the time as to his identity and nationality.

105 It seems to me that the conclusion about the birth certificate was no more than an item of evidence and it was not a consideration which a decision-maker acting under cl 070.511(c)(i) was bound to consider.

106 In my opinion, the respondent did not fail to take into account any relevant considerations in reaching her decision.

Unreasonableness

107 The appellant submitted that the respondent’s decision was so unreasonable that no reasonable person could make it because she only took into account those matters favouring the appellant’s removal. He submitted that the respondent failed to take into account the matters identified in [96] above. This is another way of describing the previous ground of review and it must fail for the reasons I have given.

Conclusion

108 In my opinion, the appeal should be dismissed. The appellant should pay the respondent’s costs of the appeal.

I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated: 21 May 2009

Counsel for the Appellant:	Mr S E J Prince (Pro Bono)
Solicitor for the Appellant:	SBA Lawyers
Counsel for the Respondent:	Dr K Stern
Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	4 November 2008
Date of Judgment:	21 May 2009