FEDERAL COURT OF AUSTRALIA SBAD v Minister For Immigration & Multicultural & Indigenous Affairs [2003] FCA 531 Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) Border Protection Legislation Amendment Act 1999 (Cth) Migration Legislation Amendment Act (No.6) 2001 Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Migration Legislation Amendment (Procedural Fairness) Act 2002 Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543 referred to Daher v Minister for Immigration & Ethnic Affairs (1997) 77 FCR 107 cited Re JRL; Ex parte CJL (1986) 161 CLR 342 cited R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 cited Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 cited Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 cited Muin v Refugee Review Tribunal (2002) 190 ALR 601 distinguished NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 cited SBAD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 222 OF 2001 MANSFIELD J 30 MAY 2003 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 222 OF 2001 BETWEEN: SBAD APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 30 MAY 2003 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 222 OF 2001 BETWEEN: SBAD APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE: 30 MAY 2003 PLACE: ADELAIDE REASONS FOR JUDGMENT INTRODUCTION 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) to set aside a decision of the Refugee Review Tribunal (the Tribunal) given on 28 November 2001. The Tribunal affirmed a decision of a delegate of the respondent made on 29 August 2001 refusing to grant to the applicant a protection visa under the Migration Act 1958 (Cth) (the Act). 2 The applicant, his wife and son, arrived in Australia on 19 April 2001. On 31 May 2001 they applied for a protection visa under the Act. In substance, the Tribunal treated the application for review of the delegate's decision as relating principally to the male applicant, even though his wife had also claimed a protection visa in her own name. The detailed submission of the applicant's migration agent to the Tribunal dated 20 September 2001 relates only to his circumstances. By that time, it appears to have been accepted that the claims on behalf of his wife and child were derivative, that is were maintained by them as members of his family rather than claims made under s 36 of the Act in their own right. After receiving legal representation the applicant amended the application to the Court to be in his name only. 3 To be eligible to be granted the visa, it was necessary for the delegate of the respondent, and on review the Tribunal, to be satisfied that Australia has protection obligations to the applicant under the Refugees Convention, as amended by the Refugees Protocol, using those terms as defined in s 5(1) of the Act (the Convention): see s 36(2)(a). In practical terms, that required the Tribunal to be satisfied that the applicant is a refugee as defined in Art 1A(2) of the Convention, namely a person who: 'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.' the claims 4 The Tribunal recited the claims of the applicant at some length. Senior counsel for the applicant acknowledged its recital of those claims was accurate and sufficiently comprehensive. I have also considered the claims made by the applicant from time to time in his several interviews with officers of the respondent and with the Tribunal. I agree that the Tribunal's description of his claims was reliable. The following represents a description of those claims taken from the Tribunal's reasons. 5 The applicant is still a young man of about 30 years of age. 6 The applicant claimed to be (and was accepted by the Tribunal to be) an Iraqi citizen born in Iraq. His father was a captain in the Iraqi Army. On 1 July 1994, his mother and father were killed in a vehicle accident. The applicant, who was also a passenger in the car, was quite severely injured, and remained in hospital until December 1994. He claimed that the death of his parents was the result of the assassination of his father. He said he lodged a complaint about that in December 1994 to Watban Ibrahim Al Hasan in the Ministry of Interior, that person being Saddam Hussein's half brother. As a result of his complaint, he was arrested and tortured, and was ultimately only released when he signed loyalty to, and agreed to join, the Fedayeen Saddam, also known as Saddam's Commandos. 7 He described his joining the Fedayeen Saddam as a means of demonstrating his loyalty to the regime, and that effectively he had little option but to do so if he wished to avoid ongoing custody and torture. He told the Tribunal that he has scarring on his body from torture, as well as scarring from the car accident. 8 He joined the Fedayeen Saddam on 15 May 1995. After completing his training in the Fedayeen Saddam, in 1996 he became a fully fledged member of that organisation. His role was to search for weapons, deserters and/or religious contraventions. He received significant bonuses for undertaking that work. However, he was reluctant to continue to do so and, despite his membership of that organisation, remained anti-regime. He decided to flee Iraq. Because he was a member of that organisation, he said he was unable to procure a passport to leave Iraq because that would have been perceived as being anti-regime. Consequently, through arrangements made by his uncle, he was smuggled out of Iraq and arrived in Jordan. 9 The applicant intended to settle in Jordan. He married and had a child. His wife and child are Jordanian citizens. He was not legally in Jordan, but was able to marry by obtaining a false Iraqi passport and undergoing a religious ceremony. He carried with him a valid Iraqi identity card, which he still has. Following the death of King Hussein in 1999, he said that the relationship between Iraq and Jordan became closer, and the activities of Iraqi intelligence officers in Jordan became more active. He is aware that he is on a black list for Iraq, and if he returns there he may be executed because of being perceived to be anti-regime. 10 He claims he is unable to return to Jordan because he was illegally in Jordan and does not have a valid Iraqi passport to enable him to re-enter Jordan. That is despite the fact that his wife has a valid Jordanian passport. He also fears that, by reason of the relationship between Iraq and Jordan, Iraqi agents would identify that he was in Jordan and he would be at risk of being refouled from Jordan to Iraq where he would be executed. He has learnt that there is an order for execution against him in Iraq because of his departure from Iraq illegally and his desertion from the Fedayeen Saddam. His uncle, who had arranged for him to leave Jordan, was subsequently arrested and tortured by the Iraqi authorities and under torture had informed the Iraqi authorities of his whereabouts. the tribunal's reasons 11 The Tribunal accepted that the applicant's wife is a Palestinian with a valid Jordanian passport. It found that she is and remains a national of Jordan and can return there. It further found that she has no well-founded fear of being persecuted for any Convention reason if she were to return to Jordan, so that her claim to a protection visa depended on the outcome of the applicant's claim in relation both to Iraq and to his situation in Jordan. 12 The Tribunal first addressed the applicant's claims about his experiences in Iraq. It did not accept them. The essence of its reasons are expressed in the following passage: 'The Tribunal considers the applicant husband's account of his parents' death in a car accident which was really an assassination attempt and his being detained but released when he agreed to join Feyadeen [sic] Saddam lacking in credibility. Whilst the Tribunal does accept that far fetched accounts can sometimes be true, the Tribunal considers it most improbable, indeed far fetched, that someone detained for being a trouble maker would be press ganged into the Feyadeen [sic] Saddam, particularly when it is considered that the above country information indicates that its members were recruited from areas known for their loyalty to Saddam. The applicant's account of his being paid handsomely just for being a member also does not make much sense to the Tribunal, when his claim of being forced to join is considered. As a result of finding the applicant's claims far fetched the Tribunal does not accept that the applicant was detained as a trouble maker for complaining about his parents car accident. It follows from this and the above findings that the Tribunal does not accept that the applicant was forced to join the Fedayeen Saddam. Given that the applicant has presented his case on the basis that he was forced to join this group and the Tribunal has not accepted this the Tribunal finds that the applicant was never a member of this group. So whilst the Tribunal accepts that the applicant is probably an Iraqi, the Tribunal does not accept that the applicant has the history he has claimed to have in Iraq. In this regard the Tribunal also notes that the applicant lived in Jordan for four years without any difficulties. The country information above indicates that Iraqi intelligence operates in Jordan and if the applicant had the history of being a member of Fedayeen Saddam and of deserting this group the Iraqi intelligence had plenty of time during this period to locate him and to harm him. That nothing happened to the applicant during his four years in Jordan is a further matter that satisfies the Tribunal that he did not have the profile he has claimed to have in Iraq. As a result of this finding the Tribunal does not accept that he had any profile in Iraq or that he had a well-founded fear of persecution for a Convention reason when he departed Iraq. The applicant has an Iraqi identity card. His evidence is that he produced a passport for his wedding but this was false. He has claimed that because he was working for the government he was not able to obtain a passport. However as stated above the Tribunal does not accept that the applicant was a member of the Fedayeen Saddam and so does not accept there is any reason why he would not have been able to obtain an Iraqi passport. In the Tribunal's view the most likely situation is that he had a genuine Iraqi passport which he produced for his wedding and which he used to enter the country.' 13 Despite those findings adverse to the applicant's claims, the Tribunal does not appear to have addressed whether in fact, at the time of its decision, the applicant has a well-founded fear of being persecuted if he were to return to Iraq. 14 The Tribunal then addressed whether the applicant could return to Jordan. Because he had lived in Jordan for four years, and is married to a Jordanian citizen, it concluded on the basis of country information that he could obtain residency in Jordan and could have continued to live in Jordan at the time of his departure. It also found that if he now returned to Jordan he would be able to remain there indefinitely. It found in the following passage that there would be no real chance that he would be sent back to Iraq: 'If he returns now the Tribunal considers that the same situation prevails. The applicant as someone married to a Jordanian would be able to remain there indefinitely. The country information also indicates that Jordanians are sensitive to refouling refugees to Iraq. As the applicant is married to a Jordanian and given the country information above about Iraqis remaining in Jordan and about those married to Jordanians being able to obtain residency the Tribunal finds that there is no real chance that he would be sent back to Iraq.' 15 The Tribunal acknowledged that the applicant would need new travel documents to be able to return to Jordan, but saw no reason why he could not obtain a temporary travel document from the Iraqi authorities in Australia, and that he could procure such a document because his Iraqi identity card would demonstrate his Iraqi nationality. It added: 'Since he would not be returning to Iraq this would not be placing the Iraqi authorities in a situation where they can harm him.' It saw no reason why the Iraqi authorities would not issue him with a passport 'since he is already out of the country', based upon the country information to which it had referred. It added: 'The Tribunal notes that it has found above that the Iraqi authorities were not interested in the applicant at the time of his departure from Iraq or from Jordan. As a result the Tribunal finds that there would be no reason for any one to harm him in Jordan. The Tribunal does not accept that any Iraqi spies would be after him. So even if he approaches the Iraqi authorities to obtain a passport the Tribunal considers the possibility that the Iraqi authorities will seek to harm him in Jordan to be entirely remote. The Tribunal does not consider there is any evidence whatsoever that would indicate the Iraqi authorities would send spies or agents after the applicant in Jordan simply because they know he applied for asylum in Australia. Further as stated above the Tribunal does not accept that the Iraqi authorities have any interest in him for anything he did prior to his departure from Iraq.' 16 Finally, the Tribunal concluded that the applicant, as a matter of practical reality and fact, has the capacity to enter Jordan, and that, as he has a Jordanian wife, there is no real chance that he will be refouled to Iraq. It found that he did not have a well-founded fear of persecution for a Convention reason if he were to return to Jordan. It followed the decision in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543 in concluding the applicant is not a person to whom Australia has protection obligations because he has been accorded effective protection in a third country. That is, there is no breach of Art 33 of the Convention because he can be returned to the frontiers of territories of another country where his life or freedom would not be threatened for a Convention reason, and he would be permitted to enter and live in that country without the risk of being returned to his original country. 17 Section 36 was amended by the Border Protection Legislation Amendment Act 1999 (Cth) effective from 16 December 1999, which added subss 36(3)-(7). The Tribunal referred to those provisions in its recital of the relevant legal and statutory principles, but did not otherwise refer to them in its reasons for decision and did not base its decision upon any of those provisions. It relied only on s 36(2). I note s 36 was further amended by the Migration Legislation Amendment Act (No.6) 2001 (Cth) which, as the Tribunal noted, was proclaimed to come into force on 1 October 2001, and further amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) which, of course, additionally introduced a substituted Part 8 concerning judicial review of decisions of the Tribunal. It too came into force on 1 October 2001. It is not necessary to refer further to those amendments to determine this application. The grounds of review 18 The grounds of review as identified in the amended grounds of application filed on 28 August 2002, and as then refined by submissions made at the hearing by senior counsel on behalf of the applicant, were that: (1) the Tribunal exceeded its jurisdiction by failing to accord procedural fairness to the applicant because it – (i) failed to disclose to him, and to give to him the opportunity to address and make use of, material available to the Tribunal, in particular a file note of 26 August 2001 (the file note) and an exchange of facsimiles between officers of the respondent which raised for consideration the possibility that the applicant, as a member of Fedayeen Saddam, had engaged in conduct which by reason of Art 1F of the Convention would disqualify him from eligibility for a protection visa; (ii) failed to disclose to him, and to give him an opportunity to address, certain independent country information to which the Tribunal had regard in reaching its decision, and by reason of what was said during the hearing; (2) the Tribunal was biased as demonstrated by its failure to disclose, and its reliance upon, the file note concerning the applicant's possible contravention of Art 1F of the Convention, and by taking into account certain selected country information which the applicant was not informed about and in respect of which he did not have an opportunity to comment (the allegation is one of apprehended bias rather than of actual bias on the part of the Tribunal); (3) the Tribunal exceeded its jurisdiction by not having regard to certain independent country information to which the delegate of the respondent had regard, a circumstance caused by the failure of the Secretary to comply adequately with s 418(3) of the Act; and (4) the Tribunal failed to comply with s 424A of the Act because it did not notify the applicant of the information held on the file of the Secretary including the file note which conveyed to the Tribunal that if he were a member of the Fedayeen Saddam he may have engaged in reprehensible activities in that capacity. 19 The grounds of review which I have numbered (1)(i), and (4) and partly that numbered (2) refer to material which is said to have raised for consideration whether the applicant was disqualified from being a refugee by reason of his activities as a member of the Fedayeen Saddam. Article 1F of the Convention provides: 'The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.' However, the delegate of the respondent did not base the initial refusal of the visa on that ground. Furthermore, the Tribunal does not have power to review a decision of the delegate of the respondent on such a matter: see Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107. The available review of such a decision is through the Administrative Appeals Tribunal. 20 In fact, as the reference to the Tribunal's reasons above at [12] to [16] illustrates, it made no finding that the applicant's visa application failed by reason of Art 1F of the Convention. disclosure of documents by respondent 21 In the course of submissions, senior counsel for the applicant asserted that the respondent had 'refused to produce' two categories of documents. The first related to the 'security issues' concerning the applicant, that is the material concerning his possible commission of crimes or conduct falling within Art 1F. He further contended that the security material was 'secret' and was somehow concealed by the respondent from production. The second category of documents referred to were those which the applicant had provided to officers of the respondent at an early stage following his arrival in Australia and upon him being placed in an immigration reception and processing centre. (The applicant did not retain copies of those documents.) Understandably, the respondent was concerned that such allegations should be made, and should stand unanswered. 22 On the material before me, I am satisfied that the respondent did not fail to give proper discovery in this matter, and did not conceal or refuse to produce any documents either relating to the 'security issues' or to produce any documents provided by the applicant which it ought to have produced. 23 At some point, the applicant through his advisors came to learn of the existence of material concerning the 'security issues'. Discovery was sought of that material, and of communications with INTELL and reports and memoranda created by INTELL. The hearing was vacated when the issue arose as to the giving of discovery by the respondent beyond the material conventionally provided in what is called the 'green book' (in accordance with the notice issued by the Registrar on 7 March 2001). 24 On 21 August 2002, the applicant was given leave to file and serve any notice of discovery and amended grounds of review by 28 August 2002, and the respondent was directed to provide discovery by 11 September 2002. The notice of discovery was duly given. The respondent gave discovery by verified list of documents on 18 September 2002 (the first list of documents). The respondent applied at the same time for orders that he not be required to give discovery in respect of some designated documents or categories of documents in the notice of discovery. The applicant persisted in his claim for those documents to be discovered. The respondent's motion for such discovery was listed for hearing on 5 December 2002. The parties agreed to the terms on which further discovery should be given shortly prior to that date. An order was made by consent on 5 December 2002 for the giving of further discovery by the respondent of a very limited nature, so that in a number of respects the respondent was not required to give discovery of certain documents or the classes of documents requested in the notice of discovery. 25 The further verified list of documents was filed on 24 January 2003 (the second list of documents). It included further independent country information contained in identified text books. In the first list of documents, the discovery included certain pages from the file of the respondent including those pages which related to the 'security issues'. Principally, that material comprised the file note, and its exchange by email between certain officers of the respondent. That discovery was given in response to the request made for 'any pages' of the respondent's file which had not been included in the green book. 26 I do not see any reason to conclude that the respondent refused to produce material relating to the 'security issues' in those circumstances. To the extent to which there is any further material relating to the 'security issues', it is within the documents excluded by the terms of the consent order made on 5 December 2002. 27 The other category of documents said to be withheld are those which the applicant (in an affidavit sworn on 9 March 2003) identifies as material which he provided to the respondent when he surrendered his material to the respondent upon his admission to the Woomera Immigration Reception and Processing Centre (the Centre), and which are not now in the material discovered and made available by the respondent. They are described in an exhibit to his affidavit as follows: '4.1 Disembarkation card in my name from Malaysia; 4.2 Disembarkation card in Layth's name from Malaysia; 4.3 Departure card from Malaysia; 4.4 My telephone book; 4.5 My personal photographs that have not been returned to me; 4.6 Notification from police in Baghdad detailing date and circumstances of my father's death; 4.7 The residency certificate card in my father's name; 4.8 Certificate from hospital in Jordan Bashir which evidenced that I had plastic surgery 3 times. 4.9 A small piece of paper with my surgeon's name and appointment dates.' 28 He also asserts that there were other documents he handed over of which he cannot now recall the details, which are not included in the documents held and discovered by the respondent. 29 I am satisfied that upon the applicant's admission to the Centre, he provided documents to be held by the respondent. Item 6 in Pt 1 of Sch 1 of the first list of documents refers to 'Respondent's "Detainee Property Sheet" (3 pages) detailing applicant's property obtained on arrival'. Schedule 2 describes the originals of the documents referred to in item 6 of Pt 1 of Sch 1 as having previously been in the possession, custody or power of the respondent but no longer being in his possession, custody or power. The list of documents as verified indicates that the original documents were returned to the applicant's possession. That is consistent with the assertion put in the course of argument that those documents were provided by the respondent to the applicant's then legal representative upon him first engaging legal representatives to act for him. A copy of the property list obtained on the applicant's arrival to Australia was provided by solicitors for the respondent to the applicant's advisers on 20 June 2002. It has not been suggested the property list or the Detainee Property Sheet are other than what they appear to be. I accordingly find the respondent has discovered the documents provided to him by the applicant. I see no reason to conclude the respondent has not accounted accurately for his holding of those documents. 30 Counsel for the respondent acknowledged that there were two independent country information documents referred to by the Tribunal in its reasons which were produced only belatedly by the respondent, because both the applicant and the respondent by their respective advisers assumed that the material sent by the Secretary of the department to the Tribunal pursuant to s 418(3) of the Act was comprehensive. The Secretary's letter to the Tribunal of 18 December 2001 listed certain independent country information documents. It is apparent from a careful analysis of the delegate's reasons that the list provided by the Secretary is not comprehensive. The shortcomings were identified and addressed, albeit belatedly on both sides. 31 For these reasons, I do not consider that the respondent withheld or attempted to conceal from the applicant any relevant and discoverable documents. consideration of grounds of review 32 The material relating to the applicant possibly falling within Art 1F of the Convention comprised principally the file note dated 26 August 2001. It was prepared by the delegate of the respondent who first decided the application for a protection visa. There is accompanying it some e-mail communications between the delegate and other officers apparently of the respondent suggesting that the activities of the applicant as a member of the Fedayeen Saddam, if he were such a member, be investigated to determine whether his application should have been rejected because of Art 1F of the Convention. As it happened, the delegate decided that Australia does not have protection obligations to the applicant because she did not accept him to be credible, and found that he had left Iraq on a legal passport. She did not accept that he had been a member of the Fedayeen Saddam. The considerations relating to his possible activities as a member of the Fedayeen Saddam were not therefore a reason for her rejecting the claim. As noted above, the Tribunal also did not refer to that possibility in its reasons, because it too did not accept that the applicant had been a member of the Fedayeen Saddam. 33 The file note records the applicant's claims about having been a member of the Fedayeen Saddam, and the delegate's views that it was implausible that the claimed assassination would have happened as the applicant claims when his father could simply have been called in by the authorities, detained and executed. It refers to the applicant's claims of what he had done as a member of the Fedayeen Saddam for a period of six months or so from May 1995. It refers in some detail to information he provided to the delegate of the respondent on those matters, and about his role whilst working for the Fedayeen Saddam. It explains why the delegate found the applicant's claims about having been given a leadership role in that organisation to be implausible. A careful reading of that document does not indicate that the delegate formed the view that the applicant had been a member of the Fedayeen Saddam, or that in that capacity he had engaged in reprehensible behaviour. The tenor of the document is to note his detailed allegations about that, and then generally to explain why the delegate was not satisfied that he had been a member of that organisation at all. It refers to the possibility that, if he were a member of the Fedayeen Saddam, his conduct as claimed might attract the application of Art 1F. 34 The accompanying interdepartmental e-mails refer only to the 'possibility of 1F issues'. 35 The delegate at the end of her reasons expressly noted that: '… there are some elements of the application that may exclude [the applicant] from coverage by the Refugee's [sic] Convention under Article 1F however these have not been considered in this decision.' 36 It is convenient to deal first with the claim that the Tribunal was biased in its consideration of the applicant's claims. The claim is said to be one of apprehended bias, although certain of the submissions appeared to go a little further than that. The bias is said to be demonstrated by the Tribunal having access to the file note and the e-mails, but not referring them to the applicant for comment, together with the inadequacy of the Tribunal's reasons for finding the applicant was not a member of the Fedayeen Saddam, its failure specifically to notify the applicant or his advisers of each report about the state of affairs in Iraq which it considered, and the terms of certain communications with the applicant. 37 I am not persuaded that the Tribunal was biased in its consideration of the applicant's claims. None of those matters, assuming them to be accurate, leads to the conclusion contended for. Of course I do not know why the Tribunal did not refer to the file note or its contents, or the e-mails. One simple explanation may be that the issue those documents raise did not need to be considered because the Tribunal did not take the step of being satisfied of the applicant's claim that he had been a member of the Fedayeen Saddam. In any event, in the light of its finding that the applicant was not a member of the Fedayeen Saddam, the fact that it did not refer to the file note and the e-mails is of no consequence. It was irrelevant and unnecessary to invite comment upon, or to draw attention to, material concerning a factual premise which the Tribunal did not accept. 38 As is apparent from the Tribunal's reasons, it did not accept that the applicant had at any time been a member of the Fedayeen Saddam. It regarded it as far fetched that someone detained for being a troublemaker would effectively be press ganged into the Fedayeen Saddam, particularly in light of independent country information that its members were recruited from areas known for their loyalty to Saddam. In conjunction with that factor, the Tribunal had regard to the applicant's claim of having been paid large amounts for being a member of that organisation, although he said he was forced to join it. It also had regard to the fact that he had lived in Jordan for some four years without difficulties. That suggested to the Tribunal that the Iraqi authorities were not then pursuing him as a deserting member of Fedayeen Saddam. 39 Assuming for the purpose of considering this contention the Tribunal did not identify to the applicant or his advisers each of the documents containing information about Iraq which it ultimately considered in its reasons for decision, it is a long step to infer from such a failure any bias on the part of the Tribunal. Oversight may be an explanation. So too may be the explanation that the issue or issues were identified and addressed, and some country information expressly referred to, so it was considered unnecessary to provide for comment the full list of materials to be considered. So too may be the explanation that s 424A did not require the enumeration of such material. So too may be the explanation that the Tribunal, being aware that the applicant had the delegate's reasons including extensive reference to country material, and in the light of the detailed submissions of the applicant's migration agent of 20 September 2001 and (after the hearing) 23 November 2001, considered it unnecessary. I do not infer in the circumstances that any failure on the part of the Tribunal of this nature indicates, or supports with the other points made by senior counsel for the applicant, that the Tribunal approached the applicant's claim with a closed mind. 40 The communications from the Tribunal which were said to contribute to the picture of bias on its part were two letters of 2 and 19 October 2001. 41 The letter of 2 October 2001 is in the standard form of letter sent by the Tribunal upon receipt of an application for review. It indicates the Tribunal is to receive a copy of the department's papers, and will then consider whether to decide the matter 'on the papers' in favour of the applicant: s 425(2)(a). If it does not do so, it indicates it will invite the applicant to a hearing as required by s 425(1). It asks the applicant to submit any new documents or written evidence: s 423. The letter of 19 October 2001 notifies the applicant, again in a standard form used by the Tribunal, that it: '… has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone.' It invites the applicant to a hearing, as required by ss 425(1) and 425A. 42 I do not see how that material adds to the picture counsel sought to paint of apprehended bias on the part of the Tribunal. There is nothing to indicate the letters were intended to mislead the applicant, or that the Tribunal had not looked at all the material then available to it. There is nothing to indicate the Tribunal was aware of any deficiencies in the Secretary's compliance with s 418(3) so as to support any suggestion that it had not considered material which it knew it ought to have considered. 43 In my judgment, the matters identified by senior counsel, whether looked at individually or collectively, do not demonstrate the Tribunal approached the issues otherwise than with an impartial and unprejudiced mind: see Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352. Nor, in my view, is it established that a reasonable observer might believe that the Tribunal did not approach the task of review fairly and with an unprejudiced mind: see R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553-554. The necessary element of apparent or actual predetermination or prejudgment is not evident to me. Consequently, the ground of review based upon apprehended bias must fail. 44 The complaint of a failure by the Tribunal to accord procedural fairness to the applicant has two aspects: that relating to the file note and associated documents, and that relating to independent country information about Iraq. 45 Notwithstanding s 424A of the Act, it should be accepted that the Tribunal had a general obligation to accord procedural fairness to the applicant: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 101 [41]; Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, [2003] HCA 2; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502,[2003] HCA 6 (Lam). Whether the Migration Legislation Amendment (Procedural Fairness) Act 2002, which came into force on 4 July 2002, alters the position is an issue which does not arise on this application. 46 In my judgment, the fact that the respondent did not produce to the applicant at or prior to the time of the Tribunal hearing the file note and the e-mails concerning it does not indicate that it did not accord procedural fairness to the applicant. It is the function of the Tribunal to review the decision of the delegate of the respondent anew. Its review is not by way of appeal but by way of a fresh consideration upon all available material. The delegate's opinion as to why the applicant might or might not be entitled to a protection visa is not of direct relevance to the Tribunal's consideration. That is the very opinion which is under review. What is necessary is that the Tribunal consider the primary evidentiary material upon which the delegate made the initial decision (which s 418(3) requires to be provided to the Tribunal), together with such other relevant material as the applicant provides to the Tribunal in accordance with the procedures prescribed in Pt 7 Div 4 of the Act, and such other material as the Tribunal assembles. 47 I do not consider the Tribunal was obliged to give the applicant the opportunity to comment upon the views of the delegate (of which the applicant was aware by having been served with the delegate's decision and reasons for decision), far less views which the delegate did not hold but which were considered during the course of the delegate's decision-making process. Contrary to the applicant's submissions, I do not see in either the delegate's reasons or the Tribunal's reasons, or in the file note, any affirmative finding that the applicant was a member of the Fedayeen Saddam. 48 The obligation of the Tribunal was to ensure a fair procedure for the applicant in its decision making process, that is relevantly a right to a hearing: Lam at [105] per McHugh and Gummow JJ. It was not empowered to reject the applicant's claim on the ground that the applicant was not a refugee by reason of Art 1F of the Convention: see [19] above. More importantly, it did not do so. In its findings, it rejected that possibility because it rejected the applicant's claims to have been a member of the Fedayeen Saddam. Consequently, the issue as to whether the applicant, as a member of the Fedayeen Saddam, engaged in activities inimical to favourable consideration of his visa application by reason of Art 1F was not one the Tribunal needed in fairness to give him the opportunity to address. In terms of s 424A of the Act, the information that the applicant may have engaged in activities which attracted Art 1F of the Convention was not information which the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. 49 For similar reasons, ground of review (4) set out in [18] above must also fail. Section 424A(1) provides: '(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment it.' This provision reflects the basic principle of the common law rules of procedural fairness that a person whose interests are likely to be affected by the exercise of a power must be given the opportunity to deal with matters which are adverse to that person's interests and which the repository of the power proposes to take into account: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 at 269 [140] per McHugh J. The file note, and the information it contained, was not of the character referred to in s 424A(1)(a). That is, in my judgment, the Tribunal did not consider the information in the file note would be the reason, or part of the reason, for affirming the decision of the delegate. It was not therefore obliged to give to the applicant particulars of the information in the file note. 50 The applicant argued that the Tribunal misled him by indicating in the course of his hearing that it accepted he had been a member of Fedayeen Saddam. The applicant also complained of a lack of procedural fairness by the Tribunal in further respects. 51 The Tribunal received the applicant's arrival interview of 16 May 2001, details of his interview by the delegate (although the interview has not been transcribed) of 7 June 2001, and details of the interview of the applicant by an intelligence officer on 4 July 2001. The Tribunal also received the reasons for decision of the delegate as required by s 418(2). It had the benefit of the detailed submissions presented by the applicant's migration agent of 20 September 2001 together with the hearing which took place before the Tribunal on 8 November 2001. The Tribunal member in the course of the hearing specifically questioned the circumstances in which the applicant said he was compelled to join the Fedayeen Saddam. It was put to him that the Fedayeen Saddam is a group noted for its loyalty to Saddam Hussein, and that it was strange that a person who was perceived as not a loyal citizen (on the applicant's story, he had been arrested and tortured for having complained about the circumstances of the death of his parents) should be forced to join the Fedayeen Saddam. The applicant had an opportunity to respond to those questions. I do not accept the suggestion that, by inference, in the course of his questioning the Tribunal member indicated to the applicant that he accepted the applicant had been a member of Fedayeen Saddam, rather than simply testing his claims by putting to him some apparent improbability about the consequences of his claims. 52 It was also submitted that the Tribunal, in summing up the issues, indicated to the applicant that the only outstanding matter of concern was whether the applicant could survive and live comfortably in Jordan, and not whether he might safely return to Iraq. The point would have merit only if the capacity to return safely to and remain in Iraq was a live one, and the applicant by the Tribunal's words or conduct was induced not to address it. In my view the material provided by the applicant's migration agent indicates that the issue as to whether the applicant might safely return to Iraq was, and was recognised by the applicant to be, a live issue at and following the hearing. In a supplementary submission of 23 November 2001, the applicant's migration agent dealt with the applicant's capacity to return to Jordan in one part of that submission, and his capacity to return to Iraq under a separate and additional part of that submission. The applicant was not deprived of any opportunity to put submissions on those topics. He was not induced by conduct on the part of the Tribunal into believing that he did not need to address the Tribunal about whether he might not be able to return to Iraq. The latter issue was addressed by his agent on his behalf following the Tribunal's hearing. 53 The applicant through senior counsel next contended that the Tribunal has misled the applicant into believing that it had all his documents (including the allegedly misplaced documents) and that he would otherwise have adduced them in evidence to the Tribunal. In reliance upon that submission, counsel referred to the letter from the Tribunal dated 2 October 2001 following receipt of his application for review. It explained the Tribunal might determine his application on the papers. Inter alia, it reads: 'We have asked the Department to send a copy of its documents about your case to the Tribunal. When we received the Department's documents, the Tribunal will look at your papers and decide whether it has jurisdiction to consider your application. If so, it will then look at your papers along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour.' On 19 October 2001, the Tribunal wrote to the applicant telling him that it 'has looked at all the material relating to your application', but it was not prepared to make a favourable decision on the information alone. It invited him to attend a hearing, pursuant to s 425 of the Act. 54 It was contended that the applicant now identifies documents within the description 'all the material relating to your application' which were not in the 'Woomera documents', that is in the documents acknowledged to have been received by the Centre and then sent to the applicant's then solicitors. The documents were said to include notification from the police in Baghdad detailing the date and circumstances of his father's death, and a certificate from a hospital in Jordan evidencing that the applicant had plastic surgery three times. 55 However, the applicant does not claim in his affidavit that he relied upon any particular express or implied statement by the Tribunal that it had either of those documents or that he did not produce evidence of the contents of the claimed missing documents because he thought they were before the Tribunal in any event. The foundation for reliance upon the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 (Muin) is simply not made out. 56 Indeed, the applicant says that, following the Tribunal's decision, he sought additional information from Jordan and procured further documents which, if genuine, would tend to confirm his claims that he had been a member of the Fedayeen Saddam, and that he had been sentenced to be executed because he had left Iraq without notifying the Iraqi authorities. Those documents were not produced to the Tribunal. The applicant does not say that anything put to him by the Tribunal induced him not to procure those documents until after his application to the Tribunal had been unsuccessful. 57 The final way in which the applicant complains that he was not accorded procedural fairness is that the Tribunal decided that the applicant could safely return to Jordan, and so as a matter of logical consistency (as accepted by counsel for the respondent, although not explicitly) that he could have returned to Iraq with safety, based upon two independent country reports which were not provided to the applicant for comment. It is contended that those reports, together with a further report to which it referred in its reasons, provided the basis for its rejection of the claims by the applicant that he had been a member of the Fedayeen Saddam, and that he had left Iraq illegally and not with a legal passport. The particular reports are a Department of Foreign Affairs and Trade (DFAT) report dated 9 November 1999 entitled 'Country Information Report' 402/99 (CX38558) and a report entitled 'Inside Iraq's Security Network Part 1' (CX25642). The further document is a publication presented at an 'Iraq Information Seminar' on 6 November 2000 (CX48502). Curiously, the Secretary of the Department, when apparently attempting to comply with s 418(3) of the Act, identified to the Tribunal as documents 'cited' in the delegate's reasons CX38558 and CX25642 and a number of other documents although, so far as I can see, neither CX38558 nor CX25642 were in fact referred to by the delegate in the initial reasons for decision. The documents referred to by the delegate in her reasons do not entirely correspond with the documents enumerated by the Secretary in the notice under s 418(3). 58 The document CX38558, so far as relevant, indicates that those engaged in the Fedayeen Saddam are 'recruited from regions loyal to Saddam'. The other two documents indicate that it is a paramilitary organisation with an internal security role, involved in brutal acts of repression, and called upon in an emergency to help deal with unrest. The document CX48502 indicates that those who have problems with the security forces, or are being suspected of being an activist for an opposition party, or of having criticised the government, are often the target of persecution and that persecution may include members of the family for the crimes of one member. It indicates that the act of applying for asylum might itself be perceived as being motivated by political anti-regime reasons, or that fleeing from Iraq may itself or together with an application for asylum lead to the Iraqi authorities perceiving that the person has committed crimes against, or has expressed opposition to, or has disseminated false information adverse to, the Iraqi regime. Such offences may result in political persecution in Iraq, including arrest, torture and perhaps even the death penalty upon return to Iraq. 59 The documents CX38558 and CX25642 were the main independent country information reports specifically referred to by the Tribunal when assessing the circumstances in Iraq; although when addressing the applicant's position in relation to Jordan, references were made to other documents touching Iraq. The third document CX48502 was referred to at some length, but only in relation to the treatment of Iraqi asylum seekers in Jordan. It was not referred to for the content mentioned in [57] above. 60 The Tribunal member did not specifically refer the applicant or his advisers to those three documents. So far as the applicant or his advisers were aware, it was not material to which the Tribunal might have regard. However, in the course of the hearing, the Tribunal invited the applicant's comments upon a number of matters concerning whether he had in fact been a member of Fedayeen Saddam. They included that it did not make apparent sense that the applicant would be released from imprisonment and torture on condition of joining the Fedayeen Saddam, because it is a group that is noted for its loyalty to Saddam, and that recruits would normally come from persons who were loyal to the government. The applicant said he was recruited because they wanted to convince him that they did not kill his parents, and that they wanted to brainwash him on how to be loyal. 61 In my judgment, the critical issue is whether, for the purposes of the applicant receiving procedural fairness, he was put on notice sufficiently about the issues concerning the Tribunal as to have had proper opportunity to respond to them. In my judgment, he was. 62 In fact, in the supplementary submission from his migration agent of 23 November 2001, following the hearing, there is a section dealing with 'Return to Iraq'. It asserts that the applicant was not clear as to why he was forcibly recruited to the Fedayeen Saddam after being detained and tortured for complaining about the circumstances of his parents' death. It claims that, by reason of his desertion from the organisation, he was vulnerable to arrest, detention and torture and that his uncle had been arrested and tortured because he had fled. It points out that those who belonged to government instrumentalities such as Fedayeen Saddam are prohibited from obtaining passports, so it was necessary for him to leave Iraq illegally. It referred to other independent country information to the following effect: '… it remains difficult to comment on the reaction pattern of the Iraqi authorities generally and each case had to be evaluated separately. It is impossible to give any guarantee regarding the behaviour of the Iraqi authorities, which appeared somewhat arbitrary. The possibility that an ex-asylum seeker could incur the authorities wrath could not be excluded. If the returning Iraqis had left Iraq due to opposition political activities there is no doubt that Iraqi authorities would react with reprisals.' 63 The Tribunal appears to have relied upon independent country information which did not correspond entirely with that relied upon by the delegate. It referred to, and appears to have relied upon certain independent country information which was first referred to in the supplementary submission of the applicant's migration agent of 23 November 2001. It did not refer to all the independent country information referred to in that submission or in the earlier submission of 20 September 2001. It also referred to and appears to have relied upon the three independent country information reports of which the applicant was not specifically notified. Those matters, in my view, simply indicate that it is up to the Tribunal to determine in any particular case (provided it is acting in good faith) what evidentiary material it finds persuasive, and what weight it gives to that material. It does not involve jurisdictional error if it does not refer to, or place weight upon, all the independent country information before it. The important conclusion for the purpose of the present contention is that, by its questioning during the hearing, the Tribunal put the applicant on notice about the issues which it decided adversely to him. The supplementary submission addresses them further. The Tribunal's decision on those issues was then based upon its assessment of the applicant's creditworthiness, in part measured against certain independent country information. 64 Finally on this aspect, I note the observations of Gyles J in NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 at [52] to the following effect: 'This example shows that the applicant would have been able to refer to apparently credible countervailing material which would support his claims in relation to a not unimportant aspect of his account which was rejected. On the other hand, there are difficulties both in principle and in practice in having the duty to afford natural justice descend to such a level of detail in this statutory context. The difficulty in principle is that an applicant for protection does not have any case to meet. The Tribunal is not a contradictor. There is no adversary proceeding. See, generally, Mason J in Kioa v West (1985) 159 CLR 550 at 587 in a passage cited below; Miah per Gleeson CJ and Hayne J at [31] and [32]; Aala per Gaudron and Gummow JJ at [76]; Abebe per Callinan J at [293]-[295]; Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [142]; and Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 282. Each applicant had to satisfy the Tribunal that his or her fear of persecution upon return to Burma is genuine and for a Convention reason. Leaving aside matters personal to the individual, and concentrating upon matters pertaining to the circumstances in Burma, the applicant should have the opportunity of presenting all it wishes, both in writing and orally, to corroborate his or her claims. The hearing provided for by s 425 is not an opportunity for confrontation, it is an opportunity for persuasion. The statutory process in Div 4 of Pt 7 of the Act is designed to afford an opportunity to the applicant to produce his or her case, with supporting material, in writing and in person. The case is then considered behind closed doors by the member of the Tribunal performing the function of an administrator. The member of such a tribunal is, or becomes, by way of being an expert in the circumstances of various countries, and must assess what is claimed by the applicant in the light of that knowledge. As such knowledge cannot all be carried in the head, a library of it must be available. Evaluation of the credibility of an account given by an applicant is subjective and depends upon many factors, including observations of an applicant at the hearing, in circumstances where the Tribunal member will usually have considered other cases with a similar claimed history and patterns will often have emerged. There is obviously always a mass of country information available. Much would be taken for granted. Much would be debatable. A selection of that which is relevant to the particular case depends upon the way in which the member views the case. The judgment as to the issues upon which external country information will be relevant is entirely a matter for the Tribunal member. There is no obligation to consider any or any particular country information. Disclosure of particular country information to an applicant is, in essence, to reveal the process of reasoning of the Tribunal.' 65 There were then two points which the supplementary submission made. One was predicated upon the Tribunal accepting the applicant's claim that he had been a member of the Fedayeen Saddam. That claim was not accepted by the Tribunal. The other was that, in any event, in the circumstances there was a real risk that the applicant may be perceived as being anti-regime, and be vulnerable to persecution if he were to return to Iraq by reason of having applied for asylum in Australia, or simply by reason of having left Iraq. 66 As noted above, counsel for the respondent acknowledged that, underlying the Tribunal's decision that the applicant may safely return to and live in Jordan, is the assumption that he may also safely return to and live in Iraq. It is because he was found by the Tribunal not to have any risk of being perceived as anti-regime in Iraq that the Tribunal was satisfied that he would not be of interest to the Iraqi authorities, and so would not be exposed to the risk of being refouled to Iraq. 67 I think there is, in the respect just mentioned, some shortcoming in the Tribunal's reasons. It found he could secure in Australia a valid Iraqi passport from the Iraqi authorities, so he could return to Jordan. But it did not take the step of finding expressly whether he could safely return then to Iraq. It must be assumed, as counsel for the respondent recognised, that the Tribunal must have considered he could return safely to Iraq. It must therefore be assumed that the Tribunal rejected the claim that, even accepting the applicant was not previously a person of no interest to the Iraqi authorities, he might not be exposed to a real risk of persecution by having applied for asylum in Australia. There was some independent country information that that very fact, given the sensitive and erratic attitude of the authorities in Iraq at the time, might lead to a real chance of persecution if he were to return to Iraq. It is unsatisfactory that this issue must be understood as being dealt with by the Tribunal in that way, by inference from what it found rather than from its express reasons. However, I can see no other process of reasoning consistent with its express findings. Those inferred findings are findings of fact, and do not demonstrate jurisdictional error on its part. In addition, as the Tribunal was satisfied the applicant could secure in Australia from the Iraqi authorities the necessary passport to enable him to return to Jordan and that he could remain in Jordan without risk of refoulement to Iraq, the applicant is not a person to whom Australia has protection obligations under the Convention for the reasons referred to in [16]. 68 The contention numbered (3) is said to be a refinement of propositions put to, and rejected by, the High Court in Muin. Counsel for the applicant accepted that Muin decided that the failure by the Secretary to comply fully with s 418(3) does not in law invalidate the Tribunal's subsequent decision. It also decided that s 418(3) does not require physical delivery of all documents to which the delegate referred in the decision under review in identical format to that in which they were before the delegate. Gleeson CJ said at [19] the purpose of s 418(3) is 'concerned with access to information, not with possession of paper'. 69 In my judgment, the contention fails. Whether or not the Secretary properly complied with s 418(3) as discussed in [57] above, the Tribunal had before it the departmental file. It said that it did when reciting the claims and evidence. The departmental file included the delegate's reasons for decision, which in turn enumerated as the evidence used by the delegate a number of documents including independent country information. It was a matter for the Tribunal whether it accepted and based its decision on that material, or based its decision on other material. That it did not expressly refer to all the independent country material referred to by the delegate does not mean it did not consider it. As the discussion in [63] indicates, the Tribunal seems to have considered a range of independent country information, as that to which it refers can be sourced to several original references, including the delegate's decision. It then accepted and relied upon some only of that material. In addition, it had not been shown to my satisfaction that independent country information referred to or relied upon by the delegate and not expressly referred to in the Tribunal's decision, even if taken alone, might have led the Tribunal to a different conclusion on any material fact. The independent country information referred to or relied upon by the delegate is generally consistent with that upon which the Tribunal based its decision. Finally, even if the Tribunal did not consider certain independent country information to which the delegate had regard (and I do not think that is the case), in my view such a failure on its part would not of itself demonstrate jurisdictional error by the Tribunal exceeding its jurisdiction in the way contended for. conclusion 70 As I am not persuaded that the Tribunal committed jurisdictional error, the application must be dismissed. I so order. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 29 May 2003 Counsel for the Applicant: Mr M L Abbott QC Solicitor for the Applicant: Kelly & Co. Counsel for the Respondent: Dr M A Perry Solicitor for the Respondent: Sparke Helmore Date of Hearing: 10 March 2003 Date of Judgment: 30 May 2003