FEDERAL COURT OF AUSTRALIA IMMIGRATION – refugees –applicant granted refugee status in South Africa - decision that applicant is not a person to whom Australia has protection obligations by reason of his right to reside in, enter and re-enter South Africa – application of decision in Thiyagarajah v Minister for Immigration and Multicultural Affairs (1997) 151 ALR 685 – whether Refugee Review Tribunal ("RRT") failed to direct applicant's attention to critical issue by failing to draw Thiyagarajah decision to attention of applicant or applicant's legal representative – whether applicant should have been given access to documents on which RRT's decision based. Migration Act 1951 (CTH), ss 420, 425, 476 (1) (a) Thiyagarajah v Minister for Immigration and Multicultural Affairs (1997) 151 ALR 685, referred to Kioa v West (1985) 159 CLR 550, considered Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876, referred to Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103, applied MOHAMED LAYAN DULAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 547 of 1998 LINDGREN J SYDNEY 27 NOVEMBER 1998 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 547 of 1998 BETWEEN: Mohamed Layan Dulan Applicant AND: Minister for Immigration and Multicultural Affairs Respondent JUDGE: LINDGREN J DATE OF ORDER: 27 november 1998 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The decision of the Refugee Review Tribunal given on 25 May 1998 be affirmed. 3. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 547 of 1998 BETWEEN: Mohamed Layan Dulan Applicant AND: Minister for Immigration and Multicultural Affairs Respondent JUDGE: LINDGREN J DATE: 27 November 1998 PLACE: SYDNEY REASONS FOR JUDGMENT INTRODUCTION The applicant ("Mr Dulan") applies under s 476 (1) of the Migration Act 1958 ("the Act") for review by the Court of a decision of the Refugee Review Tribunal ("RRT") dated 25 May 1998 affirming a decision of a delegate of the respondent ("the Minister") not to grant him a protection visa. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it be a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, "the Convention"). Article 1A (2) of the Convention provides that a refugee is any person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." Mr Dulan's case has been that he is outside the country of his nationality, Somalia, and is unwilling to return to that country because of a well-founded fear of being persecuted for reasons of race or membership of a particular social group, namely, the Midgan clan. PROCEDURAL BACKGROUND Mr Dulan arrived at Darwin Airport on 13 February 1998 without a passport and was taken into immigration detention. On 16 February he applied to the Department of Immigration and Multicultural Affairs ("the Department") for a protection visa. A delegate of the Minister refused the application on 3 April. On 6 April, Mr Dulan applied to the RRT for review of that decision. The RRT conducted a hearing on 8 May, when an interpreter assisted, but Mr Dulan was not accompanied by a legal practitioner. As noted above, on 25 May, the RRT affirmed the delegate's decision. Mr Dulan filed his application to this Court for review of the RRT's decision on 9 June. MR DULAN'S CLAIMS Mr Dulan's written submissions to the Department, the record of his Departmental interview and his written submissions and oral evidence to the RRT exposed his claims to be as follows. Mr Dulan has claimed that his name is Mohamed Layan Dulan. He was born in Somalia on 1 February 1973. (Upon arrival in Australia, he told the Immigration inspector that he was born on 9 February 1971, and he has not been able to explain why he gave the inspector this wrong date.) He is a member of the Midgan clan. He received no education and worked as a herder of sheep and cows on his father's land. He was married on 18 January 1993 and has two sons. Mr Dulan lived in a village called Kula-Arley near Kismayo. The Midgan tribe in this area was "ruled" by the Ogaden and Mr Dulan "never lived a good life". During the war in Somalia, his wife was raped and a brother killed. Mr Dulan says he believes the attacks were carried out by the Ogaden because his family was Midgan. In 1995 his father and mother died. At the end of that year, Mr Dulan decided to leave Somalia and go to South Africa. He sold some sheep and went to Kismayo where he met three men who also wanted to travel to South Africa. Together with seventeen others, they travelled to Nairobi via Mombasa. Mr Dulan ran out of money and the others helped him by paying for his accommodation and fares. They went on to Mozambique where they stayed for sixteen months, living in a mosque and receiving assistance from local Muslims. In April 1997 they travelled to Swaziland, then on to South Africa. They were detained by the South African army. Having no papers, they were taken to a camp. They were given three month temporary papers. They went to Johannesburg and then on to Capetown, where, Mr Dulan had heard, there were better job prospects. Mr Dulan went to the immigration department and was granted a six-month temporary visa. He obtained work in a wholesale shop with the help of another Somali (from the Ogaden clan). His visa was then extended to two years. Most Somalis in Capetown were Ogaden. Mr Dulan did not feel safe there. He feared that if other Somalis there were to discover that he was Midgan, not Ogaden, they would isolate him and treat him like an animal. If he were to be sick or hungry, they would not help or feed him. Mr Dulan told people that he was Ogaden and used a false name, "Abdi Ahmed Hussein". He had no social life and did not go out except to go to the mosque sometimes. After saving money and borrowing around US$600 or US$700 from friends, he obtained a South African travel document under that false name and bought a plane ticket to Australia. He left South Africa using a travel document issued in the name "Abdi Ahmed Hussein" which he threw away in transit. FINDINGS AND REASONS OF THE RRT The RRT found that Mr Dulan was called "Abdi Ahmed Hussein" and that he was a member of the Ogaden clan. This was the name and clan indicated on certain communications to him in July 1997 from the Director General of the South African Department of Home Affairs, referred to below. The RRT also considered that it was improbable that he would have been able to pass himself off as an Ogaden to other Somalis in South Africa, in circumstances in which they were helping him find employment and lending him money. The RRT referred to independent evidence (Dr D Dorwood, The Complexities of Somali Culture and Society: Problems of Identification of Somali Refugees, La Trobe University) indicating that within Somali culture, "associations and connections with people are known and are soon established". The RRT considered, following the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685 ("Thiyagarajah"), that an issue arose as to whether Australia owed protection obligations to Mr Dulan by reason of any right he might have to reside in, enter and re-enter South Africa. The RRT considered the following to be the considerations relevant to this issue: "(i) Does the applicant have the right to reside [in], enter and re-enter the third country; (ii) Is there a risk that the third country will return the applicant to a territory where he or she may have a well-founded fear of persecution; (iii) Does the applicant have a well-founded fear of persecution in the third country itself." In relation to (i) (right to reside in, enter and re-enter South Africa), the RRT noted that Mr Dulan admitted that he was the holder of a "certificate of exemption" in South Africa. According to three Department of Foreign Affairs ("DFAT") cables referred to by the RRT (identified as documents CX15737, CX28077 and CX22703), the holding of such a certificate gives rise to the following results. The holder is entitled to remain in South Africa for two years, at the expiration of which there is a review process. If the situation in the holder's country of origin has "normalised", the holder is required to return. Otherwise, he or she is entitled to remain in South Africa for a further two years, at the expiration of which the review process is repeated. Apart from the possibility of return if the situation in the holder's country of origin "normalises", holders of exemption certificates have the same rights and obligations as South African citizens, with the exception that they are not issued with an ID number, an exception which has "little impact on day to day living". The RRT also referred to advice obtained by the Department from the Director General of the Department of Home Affairs in South Africa in March 1998 which stated: "Travel Document 600035132 has been issued to a Somali refugee, Abdi Ahmed Hussein, born 1973-02-01. As a recognised refugee Mr Hussein has the right of residency in South Africa until 1 July, 1999. There is no record of Mohamed Loyan [sic] Dulan." (emphasis supplied) The RRT recorded that it had obtained advice from the South African Consulate in Canberra that so long as Mr Dulan's "bona fides" were established, a replacement travel document would be issued after processing which would take a few days (it will be recalled that Mr Dulan claimed to have destroyed his travel document en route to Australia). The RRT concluded that Mr Dulan had a right to reside in, enter and re-enter South Africa. In relation to (ii) above (risk of repatriation from South Africa to, in effect, Somalia), the RRT referred to an article in a periodical called The Forced Migration Monitor (identified as document CX22699) as well as the three DFAT cables mentioned earlier. It concluded that although there was not at the date of the decision legislation in place in South Africa dealing specifically with refugees, the South African Department of Home Affairs "operates under the 1993 UNHCR agreement (which incorporates the 1951 Convention definition …) [and] once a refugee is recognised they 'cannot then be returned'." The RRT therefore concluded that there was no risk that if Mr Dulan were returned to South Africa, he would be sent on to another territory in which he would have a well-founded fear of being persecuted. Finally, in relation to (iii) above (well founded fear of persecution in South Africa itself), the RRT noted claims by Mr Dulan that the fact that he is Midgan is known to other Somalis in South Africa, specifically in Capetown; that he cannot go elsewhere in South Africa because he does not speak English; and that in Capetown he has no one to help him and had been "treated like an animal" (by other Somalis). However, it did not accept, even if he had in fact suffered the treatment described by him, that that treatment amounted to persecution. In particular, the RRT noted that Mr Dulan claimed to have lived and worked with, and even been lent large sums of money by, other Somalis in South Africa. The RRT also referred to the fact that the South African Government and provincial welfare departments, non-government organisations and religious bodies in South Africa have a variety of services available for refugees and that there was no evidence that Mr Dulan would be denied protection by the State if he were to return. The RRT concluded that he did not have a well-founded fear of being persecuted for a Convention reason in South Africa. Having concluded that Mr Dulan would be afforded effective protection in South Africa, the RRT did not go on to consider his claims in relation to Somalia. GROUNDS OF REVIEW The grounds of review as set out in Mr Dulan's amended application for an order of review are as follows: "Procedures that were required by the Act to be observed in connection with the making of the Tribunal decision were not observed [s 476 (1) (a)]. (1) It is implicit from ss 424 and 425, that before an applicant is required to decide how he or she will exercise the rights conferred by those sections (to appear before the Tribunal and give evidence, address the Tribunal on the issues or nominate witness [sic]) an applicant has the right to know the case he or she has to meet. Thus, there is a procedural requirement on the Tribunal to ensure that before the applicant is required to elect how to exercise the rights conferred by ss 425 and 426 – (a) the applicant's attention has been brought to the crucial issues on which its decision is likely to turn; and (b) the applicant has had access to the information on which the Tribunal proposes to rely. The Tribunal applied the criteria for assessing effective protection in a third country, set out in Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 151 ALR 687. The Tribunal erred by not bringing the Applicant's attention to the issues on which its decision was likely to turn, at a time and in a manner that gave him a reasonable opportunity to deal with them. In deciding that the Applicant had effective protection in South Africa, the Tribunal relied on the documents cited at pages 9 and 10 of its reasons. These documents had never been provided to the Applicant. The Tribunal erred by failing to make them available to the Applicant. (2) The Tribunal failed to act fairly and according to substantial justice and the merits of the case, as required by s 420, by – (a) not bringing the Applicant's attention to the issues on which its decision turned, at a time and in a manner that gave him a reasonable opportunity to deal with them; and (b) basing its finding, that the Applicant had effective protection in South Africa, on the documents cited at pages 9 and 10 of its reasons, without first giving the Applicant a reasonable opportunity to respond to those documents." These grounds of review relate solely to the procedures followed by the RRT. Mr Dulan does not submit that the RRT applied incorrect principles or incorrectly applied correct principles to the facts as found by it. His claim is, in substance, that if he had been made aware that the RRT was going to apply the decision in Thiyagarajah and to rely on the material on which it did in fact rely, he would have had an opportunity to adduce further evidence and make submissions in relation to those matters. It is therefore necessary to consider in some detail the events leading up to and including the hearing before the RRT. PROCEDURAL BACKGROUND IN MORE DETAIL As noted earlier, Mr Dulan applied for a protection visa on 16 February 1998. At the same time, he applied for assistance in the preparation and lodgment of his application for the visa. On 19 February, the Department wrote to him at the Immigration Detention Centre, Villawood, advising him that Ms Geraldine Read of the Legal Aid Commission had been allocated to his case, that he had three days in which to provide to the Department details of his claim for refugee status and that he would be notified whether or not the case officer who would decide upon his application wished to interview him. On 25 February, Mr Dulan signed a more detailed application for a protection visa and a seven page statutory declaration in support, in which he set out his claims. The statutory declaration was made before Ms Read who sent it with the application to the Department under a cover of a letter of the same date, in which she confirmed that she acted for Mr Dulan. By a letter dated 26 February, the Department advised Mr Dulan that an interview with the case officer was to be held on 3 March. Apparently a copy of this letter was sent to Ms Read. The interview was held, although it is not clear whether Ms Read attended. On the day of the interview, Mr Dulan signed an authority for the Department to seek information from the Governments of South Africa and Kenya regarding the granting of immigration status to him by those countries. It was in response to such an inquiry by the Department that it received one of the documents on which the RRT was later to base its decision. That advice, given to the Department in March 1998 by the Director General of the Department of Home Affairs in South Africa, was set out earlier. Further, on 17 March Ms Read wrote to the Department enclosing a copy of a letter from the South African Department of Home Affairs addressed to "Mr A A Hussein" at 9 Sonn Street, Kenwyn, Lansdowne, enclosing a "Certificate of Exemption" dated 2 July 1997. Omitting formal parts, the letter was as follows: "Dear Mr Hussein APPLICATION FOR ASYLUM: YOURSELF The application for asylum in respect of yourself has been approved by the Sub-Committee of the Standing Committee for Refugee Affairs and your Certificate of Exemption is hereby attached. Please note, however, that if at the end of the period of exemption, you do not wish to leave the RSA, the onus rests on you to contact the Department for the reviewal of your refugee status or to otherwise legalise your continued stay in the RSA before the expiry date of your Certificate. Failure to do so may render you liable to prosecution in terms of the provisions of the Aliens Control Act, 1991 (Act 96 of 1991). This office must be notified of any change in your residential address or place of employment. Yours faithfully E VAN LOGGERENBERG p.p. REGIONAL REPRESENTATIVE" The enclosed Certificate of Exemption was, omitting formal parts, as follows: "REPUBLIC OF SOUTH AFRICA ALIENS CONTROL ACT, 1991 (ACT 96 OF 1991) CERTIFICATE OF EXEMPTION It is hereby certified that the person whose particulars appear below has, in terms of section 28(2) of the Aliens Control Act, 1991 (Act 96 of 1991), been exempt for a specified period from the provisions of section 23(b) of the said Act with effect from 02 July 1997 to 01 July 1999 This document does not entitle the holder hereof to a South African Identity Document. p.p. DIRECTOR GENERAL DEPARTMENT OF HOME AFFAIRS PARTICULARS OF EXEMPT PERSON NAME AND SURNAME : Abdi Ahmed Hussein SEX : Male DATE OF BIRTH : 01 February 1973 COUNTRY OF BIRTH : Somalia NATIONALITY : Somalian MARITAL STATUS : Married PASSPORT NUMBER : None" Also on 17 March, Mr Dulan's case officer in the Department sent an internal memo to an officer in the Department's Refugee Law section requesting advice about the law relating to effective protection in a third country. On 20 March she received a reply advising that the Thiyagarajah decision, which had been delivered some three months earlier on 19 December 1997, was relevant to Mr Dulan's case. The reply went on to refer to the Country Information Service ("CIS") document number CX22699, which is one of the documents which was referred to in the RRT's Reasons for Decision, as well as to three DFAT cables, which, although not identified, may have been the three cables CX15737, CX28077 and CX22703 mentioned earlier to which the RRT referred in its Reasons for Decision. After discussing the contents of these documents, the letter advised, in effect, that Mr Dulan had been offered effective protection in South Africa and that, in conformity with Thiyagarajah, he was not entitled to a protection visa. As noted earlier, on 3 April, the case officer, who was the Minister's delegate for the purposes of s 65 of the Act, decided that Australia did not owe protection obligations to Mr Dulan who therefore did not meet a prescribed criterion for the grant of a protection visa. The decision was based on the case officer's findings that (1) Mr Dulan did not have a well-founded fear of persecution for a Convention reason if he returned to Somalia, and (2) in any event Mr Dulan had been accorded effective protection as a refugee in South Africa. The delegate's "Protection Visa Decision Record" assumes some importance for present purposes because the delegate sent a copy of it to each of Mr Dulan and his solicitor, Ms Read, the same day, and it conveyed to them the delegate's reasoning in relation to Mr Dulan's "Refugee Status in the RSA". In relation to (1) above, I need note only that the delegate concluded that Mr Dulan did not fear "Convention-based adverse treatment" in Somalia. The delegate dealt with issue (2), whether Mr Dulan had been accorded effective protection in South Africa, at various places in the Protection Visa Decision Record. These included the following: "2.1.86 The issue of prior protection and its impact on his application were explained and discussed with the applicant who gave his permission for checks to be undertaken 'all over the place'. The applicant was asked to sign a document permitting the Department to undertake checks with the Kenyan and South African authorities as well as the UNHCR. The applicant did so." "4.3.16 …. despite gaining seemingly effective protection in the RSA (see below), Mr Hussein left that country without real cause, to come to Australia, …" Paragraphs 4.3.20 to 4.3.22 were in the following terms: "Refugee Status in the RSA 4.3.20 Lastly, the applicant has been recognised as a refugee in the RSA [Republic of South Africa]. Available information from various sources suggests that as such he has, at the least, similar rights and obligations as those of a citizen of the RSA. Such rights include all economic rights, such as the right to work and receive welfare benefits. The applicant is also eligible for and has been granted an RSA travel document which entitles him to re-enter the country. 4.3.21 The RSA's asylum process now operates under the auspices of the UN Convention and refugees are not subject to refoulement. The independent evidence also suggests that Somali refugees in the RSA, though only granted two-year temporary stay upon recognition, are generally granted an extension of consecutive two-year periods without difficulty. Moreover, permanent residence may be granted where there is seen to be no other durable solution to a claimant's individual situation. Thus, in the remote chance that the peace accord is broken in Somalia, I am satisfied that there is no real risk that the applicant will be returned to Somalia. 4.3.22 The applicant has alleged that he provided a false identity to the RSA immigration authorities in order to disguise his membership of the Midgan clan. I have already given reasons above as to why I am not satisfied that this is the case. Anyway, the fact stands that the applicant has refugee status in the RSAand has not suffered any past incidents of harm or mistreatment for a Convention reason or any other reason. Moreover, there is no objective information before me to suggest that a person such as the applicant has a real chance of being subject to a failure of State protection should he return to the RSA. Nor do I accept the applicant to have made claims indicative of such." (emphasis supplied) The delegate did not identify the sources referred to in the expression "[a]vailable information from various sources". However, at the beginning of her reasons for decision, she listed 29 documents as being included in the "evidence" before her. Those documents included two of the three DFAT cables (documents CX15737 and CX22703), the article from The Forced Migration Monitor (document CX22699), and "Departmental file N98/000737 relating to Mr Dulan" which included the advice from the Director General of the Department of Home Affairs in South Africa referred to earlier. Those were four of the six documents that were later to be taken into account by the RRT. The delegate concluded: "The applicant has refugee status under the UN Convention in the RSA and may return to this country should he not wish to return to Somalia. There is no information before me to suggest the applicant's protection in the RSA to be other than effective." (emphasis supplied) As noted earlier, Mr Dulan applied to the RRT for review of the delegate's decision on 6 April. The application was lodged under cover of a letter from Ms Read of the Legal Aid Commission and advised that she was authorised by Mr Dulan to act for him in relation to the application. On 22 April, Ms Read wrote to the RRT outlining Mr Dulan's "instructions in response to the primary decision" and providing "submissions and evidence in support of the application" for review. The instructions and submissions addressed principally the situation in Somalia (finding (1) of the delegate). However, Ms Read's letter also referred to South Africa. It stated: "hecould not live in South Africa if he told the truth about his clan. Other people would cause trouble for him if they knew. Somalis like to investigate everything about other Somalis and were trying to find out more about him. If he went back there they would see him and cause him a lot of problems. . . . . He can be killed or forced to work without payment if forced to return to South Africa. . . . . The applicant does not have 'the rights and obligations which are attached to the possession of the nationality' of South Africa. He has temporary residence only without the rights of a national." (emphasis supplied) The letter also indicated that Mr Dulan wished to have a hearing, but did not wish to call witnesses. Ms Read enclosed a number of documents with her submissions, all of which went to the situation in Somalia only. On 24 April, the RRT notified Mr Dulan that it was not prepared to make a decision favourable to him on the papers. It informed him that he had fourteen days in which to decide whether to give oral evidence in support of his application. On 28 April, Ms Read completed and returned a form to the RRT indicating that Mr Dulan did wish to give oral evidence. Ms Read was noted on the form his "adviser". However, in the covering letter, she indicated that she would not be attending the hearing. On 5 May, Ms Read sent further material to the RRT in support of Mr Dulan's application "in the form of news articles on the current situation in Somali [sic] indicating that it is not peaceful and settled and that interclan fighting and violence continue which means that it is not safe for [her] client to return to Somalia". No material was submitted, nor were any further submissions made, relating to the issue of effective protection in South Africa. The RRT hearing was held on 8 May. Mr Dulan was present and an interpreter assisted. Ms Read did not attend. The presiding Member began by explaining to Mr Dulan the Convention definition of a "refugee". In particular, the Member explained to Mr Dulan that: "[t]he courts have said … recently in a case called Thiyagarajah that if a person has a right of entry, residence and re-entry into another country then the issue of whether or not they fall within the Convention definition does not arise. So before we even look at the Convention definition which I went through with you, what we have to look at is whether or not you have a right of entry, re-entry and residence in another country. Now my understanding is that you have a protection visa issued by the Republic of South Africa, is that correct?" Mr Dulan replied that he did have such a visa but that he could not return to South Africa because the South African Government had refused to renew the papers of other people in the same situation. When it was pointed out that his own papers were current and did not require renewal, Mr Dulan said that he could not return because he came from a low caste in Somalia, had a "well founded fear from the other Somali ethnic people living" in South Africa and was looking for a new life in Australia. The Member then asked Mr Dulan questions about the Midgan clan of which he claimed to be a member and the treatment received by members of that clan in Somalia and in South Africa. At one point the Member said: "I've already read your statement about what occurred in Somalia. As I have explained to you, what I'm really interested in today as a starting point is South Africa." At the end of the hearing the Member said: "That is the end of the hearing. What will happen now is that I will take away what you have said today and think about it. If, after having looked at that, I consider that you can return to South Africa and there is no Convention-related persecution in South Africa, or if you do not fall within the Convention definition in South – well, what I will be looking at is, whether you fall within the convention definition relating to South Africa and whether or not you can return there. If I decide that you cannot, then I will have another hearing relating to Somalia. You will probably get a decision in about two weeks. Thank you." On Friday 22 May (apparently at 6.05 pm), Ms Read sent by facsimile to the "Presiding Member" of the RRT a letter which was, relevantly, as follows: "RE: MOHAMED LAYAN DULAN I confirm that I act for Mr Dulan. He has advised me that the Tribunal is making inquiries about him before arranging another hearing date. I request that you provide me with copies of information or documents received concerning my client prior to the resumed hearing so that I may discuss them with my client. I look forward to your response. Yours sincerely, GERALDINE READ SOLICITOR" There was no response to this letter. Rather, the next working day, Monday 25 May, the RRT gave its decision affirming the delegate's decision. It is possible that, given the intervening weekend, Ms Read's letter did not come to the Member's attention before he gave his decision on the Monday. (For what, if anything, it may signify, Ms Read's letter appears on the RRT file after both RRT's Reasons for Decision and copies of covering letters to Mr Dulan and Ms Read which were faxed to them between 3 pm and 3.30 pm on the Monday afternoon.) The only inquiry that the RRT had in fact made between the hearing on 8 May and the giving of its decision on 25 May was a telephone inquiry of the passport section of the South African Consulate in Canberra. According to a note on the RRT file in evidence, the RRT officer inquired as to the position of a hypothetical person who had a "protection visa" in South Africa but who had destroyed his or her South African travel document. The response was, according to the file note, as follows: "…so long as bona fides are established person would be allowed re-entry. A process of sending out forms and having them completed. This would take a few days." It will be recalled that information to this effect was recorded in the RRT's Reasons for Decision. REASONING Mr Dulan relies on the ground of review in s 476 (1) (a) of the Act that the RRT failed to comply with procedures that were required by the Act to be observed in connection with the making of the decision. The procedures which it is said were not observed are those set out in ss 420, 425 and 426 which provide, relevantly, as follows: "420 (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case. . . . . 425 (1) ..., the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; and (b) may obtain such other evidence as it considers necessary. (2) Subject to paragraph (1) (a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review. 426 (1) ..., the Tribunal must notify the applicant: (a) that he or she is entitled to appear before the Tribunal to give evidence; and (b) of the effect of subsection (2) of this section. (2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice. (3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice." Mr Dulan submits that the RRT failed to comply with these requirements in two respects: first, by failing to draw his and Ms Read's attention to what the RRT perceived to be the critical issue in his case, that of effective protection in South Africa; and second, by not giving Mr Dulan access to six documents on which the RRT based its decision. I will deal with these submissions in turn. Failure to direct attention to the critical issue Mr Dulan submits (a) that it is implicit in the statutory requirements that the RRT act fairly and according to substantial justice and the merits of the case and that an applicant be given an opportunity to give evidence and nominate other persons from whom the RRT may obtain evidence that the applicant know the essential nature of the case he or she is to meet on the hearing; and (b) that as a result of the RRT's failure to advise Mr Dulan or Ms Read that the critical issues were those arising from Thiyagarajah, these requirements were not met. The Minister submits that there is no authority for the proposition that the RRT is required to explain the law to an applicant, let alone to his or her legal adviser, either before or at the hearing, although the Minister appears to accept that the RRT was required to bring to Mr Dulan's attention "the critical issue or factor on which the administrative decision [was] likely to turn so that he [might have had] an opportunity of dealing with it": Kioa v West (1985) 159 CLR 550 at 587 (Mason J). In the circumstances of this case, however, the Minister submits that Mr Dulan and his legal adviser were on notice of the critical issue prior to the RRT hearing and that Mr Dulan was also clearly notified of the issue at the hearing itself. In particular, the Minister points to the Protection Visa Decision Record of his delegate, copies of which were forwarded to Mr Dulan and Ms Read. I think that the RRT was entitled to assume that Mr Dulan and his legal adviser had read that document. It is clear from the passages from it set out above that, whatever the situation in Somalia, the fact that Mr Dulan had been afforded effective protection in South Africa was an independent ground upon which he might fail before the RRT. The delegate dealt with the questions whether, having been recognised as a refugee in South Africa, Mr Dulan had rights equivalent to those of a South African citizen; whether he had a right to enter and re-enter South Africa; whether, if returned to South Africa, he was liable to refoulement; and whether he had a well-founded fear of persecution for a Convention reason in South Africa itself. These were matters that were later to be central to the decision of the RRT. In response, Mr Dulan notes that the delegate, while apparently adopting the test laid down in Thiyagarajah, had not actually referred to that decision. He also points to the fact that the written submissions made by Ms Read on 22 April went to the issue of whether he had the rights of "nationality" in South Africa. That issue was, according to the submission, relevant to the question whether Article 1E of the Convention applied to him. Article 1E provides: "This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country." However, the Full Court in Thiyagarajah held that "international law does not preclude a Contracting State from [returning an asylum seeker to a third country without undertaking an assessment of the substantive merits of the claim for refugee status] where it is proposed to return the asylum seeker to a third country which has already recognised that person's status as a refugee, and has accorded that person effective protection, including a right to reside [in], enter and re-enter that country. The expression 'effective protection' is used in the submissions of the minister in the present appeal. In the context of the obligations arising under the Refugees Convention, the expression means protection which will effectively ensure that there is not a breach of Article 33 if the person happens to be a refugee." (at 702) In other words, it suffices that a third country has recognised a person as a refugee, and has accorded him or her "effective protection, including a right to reside [in], enter and re-enter that country"; it is not necessary for that country to have granted the person the status of a "national". Mr Dulan submits that it was clear from Ms Read's written submissions that she was "barking up the wrong tree" in that she was addressing the issue whether Article 1E applied when the issue on which the decision against him was to turn was whether he had been accorded "effective protection" as a refugee in South Africa. He submits that it would have been sufficient to satisfy the law's requirement, and a simple matter, for the RRT to have included in its letter offering him a hearing, a statement such as the following: "This hearing will deal with whether the Applicant is ineligible for a protection visa because he had effective protection in South Africa (see Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685). If the Tribunal finds he does not have effective protection in South Africa a further hearing will be held to consider the position in Somalia." As noted earlier, the RRT did refer to Thiyagarajah at the beginning of the hearing but Ms Read had previously decided not to attend the hearing and was not present. The reference by Mason J in Kioa v West to an obligation to "bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it" was made in the context of review of an administrative decision that was made "by reference to some consideration personal to the applicant on the basis of information obtained from another source which [had] not been dealt with by the applicant in his application". That was not the case here. The matter that Mr Dulan submits should have been brought to his and Ms Read's attention was one of public law, policy and practice. Counsel for Mr Dulan and the Minister referred to many authorities touching upon the question whether the requirement that a decision-maker inform the affected person of what is to be the decisive issue is limited by reference to "personal" considerations. They referred to Li Sinnathamby v Minister for Immigration & Ethnic Affairs (1986) 66 ALR 502 (FCA/FC); Islam v Minister for Immigration, Local Government & Ethnic Affairs (unreported, FCA/Davies J, 10 March 1989); Luu v Renevier (1989) 91 ALR 39 (FCA/FC); Minister for Immigration, Local Government & Ethnic Affairs v Pashmforoosh (1989) 18 ALD 77 (FCA/FC); Wickramasena v Griffin (1990) 95 ALR 187 (FCA/Wilcox J); Perera v Minister for Immigration, Local Government & Ethnic Affairs (unreported, FCA/Keely J, 27 February 1992); Surendra Singh v Minister for Immigration, Local Government & Ethnic Affairs (unreported, FCA/Foster J, 26 February 1993); Che Guang Xiang v Minister for Immigration, Local Government & Ethnic Affairs (unreported, FCA/Carr J, 22 April 1994, reversed on appeal but not on the relevant point, sub nom Minister for Immigration, Local Government & Ethnic Affairs v Che Guang Xiang (unreported, FCA/FC, 22 April 1994)); Komathi David v Minister for Immigration & Ethnic Affairs (unreported, FCA/Wilcox J, 12 October 1995); Nguyen Do Vinh v Minister for Immigration, Local Government & Ethnic Affairs (1997) 46 ALD 528 (FCA/Goldberg J); Gurjit Singh v Minister for Immigration & Ethnic Affairs (unreported, FCA/Marshall J, 5 July 1996); Nicula v Minister for Immigration & Multicultural Affairs (unreported, FCA/Beaumont J, 22 October 1997); Ntiamoah v Minister for Immigration & Multicultural Affairs (1997) 49 ALD 524 (FCA/Davies J); A v Refugee Review Trubunal (unreported, FCA/Hill J, 17 April 1998). I do not find it necessary to explore differences of approach on the present issue which may be found in these cases, some of which were decided by reference to a legislative régime different from the present one. Taking the approach more favourable to Mr Dulan that the RRT may be required by ss 420, 425 and 426, in a particular case, to inform a refugee-claimant of what is to be the decisive issue even when it relates to considerations not personal to him or her, I ask myself whether the RRT was required in this case to do more than it did in order to comply with that requirement. In my opinion it was not. I have referred in some detail earlier to the information which was conveyed to Mr Dulan and his legal adviser relevant to the issue of effective protection in South Africa by means of the Protection Visa Decision Record, and to Mr Dulan in person at the hearing before the RRT. In my opinion that information referred adequately to the issue of effective protection of Mr Dulan pursuant to the refugee status which had been accorded to him in South Africa and it was not necessary that reference be made to Thiyagarajah. In my opinion, the RRT did not mislead Mr Dulan or his legal adviser. Nor do I think that the RRT should have appreciated that they, or either of them, was labouring under a misapprehension. Ms Read contented herself with responding to the delegate's fairly extensive discussion of the issue of effective protection of Mr Dulan in South Africa with the statement: "The applicant does not have 'the rights and obligations which are attached to the possession of nationality' of South Africa. He has temporary residence only without the rights of a national." This was clearly a response to the first paragraph under the heading "Refugee Status in the RSA" in the delegate's Protection Visa Decision Record set out earlier. In substance, Ms Read was satisfied to emphasise the "temporary" nature of her client's rights as distinct from the "permanent" rights of a South African national. In my opinion, ss 420, 425 and 426 did not require the RRT to inform her that her assertion might not be accepted as an adequate reply to what the delegate had stated, or to explore with her the possibility that she may have misapprehended the applicable principles; cf Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 (HL) at 900. Failure to provide access to documents on which the RRT based its decision What I have said above goes towards disposing of the present issue. The documents in question are: 1, 2 and 3: three DFAT cables referred to by the RRT in its discussion of whether Mr Dulan would be afforded effective protection in South Africa (Documents CX15737, CX28077 and CX22703); 4. the advice (set out earlier) obtained by the Department in March 1998 from the Director General of the Department of Home Affairs in South Africa to the effect that "Abdi Ahmed Hussein" born on 1 February 1973, as a recognised refugee, had the right to reside in South Africa until 1 July 1999; 5. file note of telephone advice in May 1998 obtained from the passport section of the South African Consulate in Canberra that a person who had been granted refugee status in South Africa but had lost or destroyed his or her travel document would, provided his or her bona fides were established, be allowed to re-enter that country; 6. the article in the The Forced Migration Monitor, volume 12 of November 1996dealing with "Refugee Policy in South Africa" (document CX22699). The way in which the RRT relied on these documents is indicated in the following passage from its Reasons for Decision, in which I have indicated by bold numerals in square brackets the six documents mentioned: "(i) Does the applicant have the right to reside, enter and re-enter South Africa. The applicant admits that he is the holder of a certificate of exemption in SA. The Tribunal understands that what this means is that he has been granted protection in that country on a two year renewable basis. At the end of two years the position is reviewed and if the situation in the home country has not normalised an extension is given normally for two years. The rights and obligations of such are the same as a SA citizen except for the time limit, and the holder cannot be issued an ID number, this has "little impact on day to day living". ([1] DFAT, CIS Information request BD13329 – on SA protection visas – dated 22 March 1996, CX15737). The holder of a certificate can be issued with a travel document, and this entitles the person to return to SA so long as the certificate is still valid. ([2] DFAT, South Africa – Document for Travel Purposes - CIS request ZAF – AA768, dated 1 December 1997, CX28077). Holders have the same rights of re-entry to SA, and in general the same rights and obligations "as those persons holding permanent residence". ([3] DFAT, Prior Protection in South Africa – CIS Information request number ZAF 4095. 30 May 1997, CX22703). On the Department file is a note [4] of an information request from CIS, Canberra to PMO, Pretoria. In that note information is given of the applicant's claims and that he destroyed his travel document. The question is asked as to his status. The response reads "Travel document number 600035132 has been issued to a Somali refugee, Abdi Ahmed Hussein, born 1973-02-01. As a recognised refugee Mr Hussein has the right of residency in South Africa until 1 July 1999["]. The Tribunal obtained advice from the South African Consulate in Canberra on the procedure for obtaining a replacement of a lost or destroyed travel document. The Tribunal was advised [5] that provided the bonafides of the person were established a replacement document would be issued. It would however take a few days for processing. The Tribunal finds that this information indicates that the applicant as the recipient of such an exemption certificate has the right of residence, entry and reentry into the Republic of South Africa, that is more than a merely transient or temporary right and that his destroyed travel document can be replaced. (ii) Is there a risk that South Africa will return the applicant to a territory where he or she may have a well-founded fear of persecution; The Tribunal has considered not only the information obtained in the DFAT documents considered above but has also considered information contained in – [6] Refugee policy in South Africa, 30 May 1997, The Forced Migration Monitor, Vol 12, pp4-5, The Open Society Institute. CX22699. This indicates that in 1993 the South African government signed a memorandum to establish refugee determination procedures, in October 1994 it joined the Organisation of African Unity (OAU), and in 1995 signed the OAU 1969 refugee convention. In January 1997 the South African government signed the United Nations refugee treaties. Asylum seekers in South Africa are dealt with under the Aliens Control Act 1991, legislation dealing specifically with refugees was expected in 1997. In the absence of clear cut guidelines the Department of Home Affairs operates under the 1993 UNHCR agreement (which incorporates the 1951 Convention definition, and the OAU 1969 definition). As such once a refugee is recognised they "cannot then be returned". The Tribunal finds that such information evidences that there is not a risk that the applicant will be returned to another territory where he has a well-founded fear of persecution. The present question is whether Mr Dulan should have been provided with copies of the six documents and given an opportunity to respond to them, prior to the RRT's reaching a decision on the application. Documents (1), (3) and (6) were in fact notified to Mr Dulan through the decision of the Minister's delegate by being listed as three of the twenty nine documents in which the delegate said that the evidence on which his decision was based was to be found. Document (4) was on the Departmental file which was also referred to in that list. More importantly in relation to document (4), as noted earlier Mr Dulan's solicitor, Ms Read, had forwarded to the Department on 17 March 1998 a copy of Mr Dulan's Certificate of Exemption dated 2 July 1997 and covering letter from the South African Department of Home Affairs which stated, in effect, that he had been accepted as a refugee and that, as such, he could continue to reside in South Africa until 1 July 1999. That is, Mr Dulan knew and supplied to the Department in March 1998 the same information that the Department was obtaining virtually simultaneously from the Director General of the Department of Home Affairs in South Africa. Documents (2) and (5) had not been referred to by the Department or the RRT in communications with Mr Dulan prior to the decision of the RRT. Like documents (1), (3) and (6), document (2) had been furnished by the Country Information Service which provides information to the Department and to the RRT. Document (5) had come into being between the RRT's hearing and decision as a result of the RRT's inquiry of the South African Consulate in Canberra. It seems to me that what is important for present purposes is that the substance and effect of the documents were disclosed through the delegate's Protection Visa Decision Record which referred to "available information from various sources" and "independent evidence" as establishing the very matters which were ultimately to be decisive before the RRT. Those matters were, as the Decision Record adequately exposed, that Mr Dulan had similar rights and obligations as those of a citizen of South Africa; that he had been eligible for and granted a South Africantravel document which entitled him to re-enter that country; that refugees were not subject to refoulement by South Africa; that Somali refugees in South Africa, though granted only a two-year temporary stay upon initial recognition, were generally granted an extension of consecutive two-year periods without difficulty; and that permanent residence might be granted where there was seen to be no other durable solution to a particular refugee's situation. It would, of course, have been open to Mr Dulan and his legal adviser to request access to the "available information" and "independent evidence" referred to by the delegate. As Merkel J said in Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 at 123, "procedural fairness does not necessarily require disclosure of all of the details of the case against the applicant; it is sufficient if the substance or gravamen of the information intended to be relied upon is brought to his or her attention: see Telstra Corp Ltd v Kendall (1995) 55 FCR 221 at 230 and McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 at 600-1; 57 ALR 344." Nothing in Kioa v West (1985) 159 CLR 550 suggests that the general law requirements of procedural fairness, where they apply, necessarily include a requirement that the person affected be shown the actual documents that contain potentially adverse material. The point made in that case was that an applicant should know of "the case sought to be made against him" in reliance upon the documents. In my view, ss 420, 425 and 426 of the Act do not introduce more extensive requirements. Accordingly, my conclusion above that the RRT was not required to give more information also disposes of the present issue as to documents. It is noteworthy in passing that Mr Dulan has not pointed to any particular evidence or submission that he would have advanced if the RRT had provided the information or documents which he submits should have been provided. CONCLUSION For the above reasons, the orders of the Court are that: 1. The application be dismissed. 2. The decision of the Refugee Review Tribunal given on 25 May 1998 be affirmed. 3. The applicant pay the respondent's costs. I certify that this and the preceding twenty three (23) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 27 November 1998 Counsel for the applicant: Mr C Colborne Counsel for the respondent: Mr G T Johnson Solicitor for the respondent: Australian Government Solicitor Date of hearing: 7 August, 3 September 1998 Last submission received: 30 September 1998 Date of judgment: 27 November 1998