Muin v Refugee Review Tribunal & Ors S36/1999 [2001] HCATrans 492 (9 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S36 of 1999

B e t w e e n -

MUIN (As the Representative of the Plaintiffs listed in the Schedule)

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Third Defendant

Office of the Registry

Sydney No S89 of 1999

B e t w e e n -

NANCY LIE (As the Representative of the Plaintiffs listed in the Schedule)

Plaintiff

and

REFUGEE REVIEW TRIBUNAL

First Defendant

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Defendant

COMMONWEALTH OF AUSTRALIA

Third Defendant

GLEESON CJ

GAUDRON J

McHUGH J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 OCTOBER 2001, AT 10.17 AM

Copyright in the High Court of Australia

___________________

MR M.A. ROBINSON: If the Court pleases, I appear for the plaintiffs in both matters with my learned friend, MR R. NAIR. (instructed by Adrian Joel & Co)

MR J. BASTEN, QC: If the Court pleases, I appear with MR R.T. BEECH-JONES for the second and third defendants in each matter. (instructed by Australian Government Solicitor)

GLEESON CJ: In both of these matters there is a certificate from the Deputy Registrar that she has been informed by the solicitor for the first defendant, the Refugee Review Tribunal, that the first defendant does not wish to be represented at the hearing and will submit to any order of the Court, save as to costs. Yes, Mr Robinson.

MR ROBINSON: Your Honours, I rely on the plaintiffs' written submissions in the matter of Muin and Lie. In addition to those written submissions, we also rely on the attachments to the plaintiffs' submissions in reply. There are two attachments in the Muin matter and there is one attachment in the Lie matter and I would take your Honours to those documents in addition to the bundle of submissions.

In addition to the submissions and the attachments, I will be taking your Honours to a visual aid which I have prepared, which would alleviate some confusion that might arise - hopefully not, but might arise as a result of the strategy that my learned friend is taking in the case on the other side. I have also filed a bundle of additional material which should be with your Honours, which comprises five or six Refugee Review Tribunal decisions. That, in addition to the questions referred books, which unfortunately are quite voluminous, would comprise the material that the plaintiffs rely on in both cases. If it is convenient to the Court, I propose - - -

KIRBY J: First of all, your learned friend may have a strategy, but I am not entirely clear, though I have ploughed conscientiously through the submissions, much of it which seemed repetitive, of what your strategy is. I mean, both sides are entitled to have a strategy but could you just tell us, in a few words, what it is that you say that the Tribunal took into account that was not disclosed to your client. It was very clear in the case of the man from Bangladesh, it was very, very clear, but I am still not clear what it was in your case.

MR ROBINSON: In the Muin case, your Honour, we say, firstly, a considerable amount of material was taken into account by the Tribunal.

KIRBY J: Was that electronic material in a library available or actually documentary material on the bench with the Tribunal when they decided the case?

MR ROBINSON: No, your Honour. We say that Muin, in the adverse materials aspect of his case, is relevantly indistinguishable from Miah in that a significant swathe of material was taken into account by the Tribunal and the applicant was never aware of it.

KIRBY J: And you require an inference?

MR ROBINSON: Not in the adverse materials aspect of the Muin case, your Honour, no. In the Muin case alone there are two main topics, as it were. One is that the Tribunal took into account adverse materials which have been identified in the papers which is identified in the Tribunal's decision without - - -

KIRBY J: Can you win on that alone?

MR ROBINSON: Yes indeed, your Honour. In the Muin matter alone, yes. The second point in the Muin matter involves what is known as the Part B documents. I will take your Honours to that shortly. The Part B documents were documents that were considered by the Delegate to be relevant to the case and were documents that were supposed to be sent to the Tribunal to found the papers that should have been, we say, but were not before the Tribunal. So we say that the Tribunal failed to take into account another category of documents and those documents, as it happens, contain favourable material to the plaintiff's case.

So there are two errors, if you will, in Muin. One is the Tribunal took into account adverse material without notice to the plaintiff. We say that is a straightforward denial of natural justice. Secondly, we say that the Tribunal failed to take into account favourable material, the Part B documents, and they were the documents that partly resided on the in-house internal database known as CISNET that was shared between the Department of Immigration and Multicultural Affairs and the Refugee Review Tribunal's registry computer server. So it is that second category of documents that your Honour has referred to.

In the Lie case only the second category of error is complained of. In other words, there is no straightforward Miah type of denial of natural justice in the Lie case. We say the error is simply that the documents that would have comprised the record before the Tribunal, that is, the documents used by the Delegate below, were not transferred from the Delegate to the Tribunal upon the plaintiff's commencing an appeal or a request for a review before the Refugee Review Tribunal, and those documents happened to be favourable. So that the Tribunal in Lie failed to take into account relevant and favourable material to the plaintiff's case and we say that is a denial of natural justice, firstly, and, secondly, that it is a procedural ultra vires case whereby section 418(3) and section 424(1) of the Migration Act 1922 , as it stood then, was plainly not complied with.

It is at that point that the inference that we ask the Court to make, if it is required - and it might not be required in Muin, for a reason which I will take your Honours to - but it certainly is required in the Lie case - the inference being that the Tribunal simply did not receive this material and therefore did not consider it in the making of its decision. Now, in terms of the strategy of the defendants in this case, it is this, as I perceive it: where we say in the adverse materials case, as it were, of Muin alone, there is adverse material, the defendants have said in their reply, "Look, there is some favourable material and there is some neutral material, and have a look at this", and they take your Honours to that.

In that part of Muin and the Lie case, where the plaintiffs rely on favourable material not having been read by the Tribunal, that is, the Part B documents, the strategy of the defendants appears to be, "Look, there is some adverse material in there and there is some neutral material in there, and your Honours should not be troubled by the presence of some favourable material". We have an answer to that in that we say it does not matter that some material is neutral, and that, indeed, some material is favourable or adverse. But we say the significant material was not taken into account by the Tribunal in the Part B documents case, and, quite plainly, adverse material that was persuasive and significant was taken into account in the Muin case. So in order to make sense of that, I have prepared a visual aid which I will hand up to your Honours and take your Honours through. I have eight copies, if I may hand that up.

KIRBY J: Is it your understanding that there is any significant difference between you and the defendant, the contesting defendant on the legal principles to be applied in this case? Both of you agree that you have to show jurisdictional error. Both of you seem to have much the same approach to the way the Delegate and the Tribunal are successively to act. Is it your understanding, and if so, can you define where the difference of legal principle, or are we, as the High Court of Australia just sitting here in our immigration jurisdiction dealing with the application of settled principles to copious facts of this particular case? If that is what we have to do, well, that is what we have to do.

MR ROBINSON: To a large extent, that is what your Honour has to do. In connection with the question your Honour has raised about the differences between the two parties, they fall out of the written submissions of both parties. Our submission in reply highlights the differences. They are, we say, primarily - to get what the plaintiffs want in both cases we concede we need to establish jurisdictional error. Ideally, the plaintiffs would like orders nisi made absolute to quash the Tribunal's decisions and to send the matters back to the Refugee Review Tribunal, in both cases of Muin and Lie.

In the alternative, we ask for declarations and for injunctions and then, as a second alternative, your Honour, we ask for a declaration that the making of the decisions of the Tribunal was unlawful. Now, it is in that last category of relief that the plaintiffs seek, in the second alternative category of relief that the plaintiff seeks, that there may be some contest between the parties on the legal issues.

KIRBY J: But the defendant agrees that if you can establish a breach of the rules of natural justice that is jurisdictional error, that is clearly established by the Court and that is an end of the matter.

MR ROBINSON: That is agreed, your Honour. In the natural justice territory, in the constitutional writ territory and, indeed, I would think, in the - presumably, the declarations bare that declare the decisions to be void of ultra vires.

HAYNE J: Well that bare statement of supposed agreement may mask very much more than it reveals. You have to begin with the Act; you have to see what the Act requires and proceed from there. At least, for my own part, it is not particularly illuminating to leave it at a level of abstraction of the level at which necessarily at this early stage of your submissions you are describing it. At some point you have to begin with the Act and move forward.

MR ROBINSON: Indeed, your Honour, and I propose to do that. I trust that answers your Honour Justice Kirby's question.

GLEESON CJ: Could I just ask a question of fact. In relation to the issue that is common to the two cases, that is, Muin and Lie, it is an issue about the Part B documents, is that right?

MR ROBINSON: Yes, your Honour.

GLEESON CJ: I would not want to be accused of oversimplifying anything, but what is the problem?

MR ROBINSON: With the Part B documents, your Honour?

GLEESON CJ: About the Part B documents.

MR ROBINSON: The provisions of the Act require that when the Minister, through his Delegate, makes a decision on a refugee claim that has been made, nothing happens until the applicant then makes an application for a review before the Tribunal. Upon that happening, section 418 of the Act specifies that a number of things are to happen and, indeed, I can show that to your Honour at - - -

GLEESON CJ: Before justifying it, just state the problem.

MR ROBINSON: Indeed. That sections says that the documents that are to form part of the record before the Tribunal, that is, the relevant documents, relevant to the decision of the Minister's Delegate, are to go up to the Tribunal, are to be identified by the Delegate, and are to be quickly delivered to the Tribunal within a certain amount of time, as soon as practicable - - -

GLEESON CJ: What, in paper form?

MR ROBINSON: In paper form, your Honour, and, indeed, the section says the documents, or part of the documents, are to be given to the registrar of the Tribunal.

GLEESON CJ: You cannot do that in electronic form?

MR ROBINSON: Well, your Honour, strictly, no, and, indeed, a provision - - -

GLEESON CJ: Why? There are courts in Australia and in other parts of the world that conduct the whole of their proceedings electronically. There are not any pieces of paper brought into existence at all.

MR ROBINSON: Your Honour, to the extent that they occur, they have legislative foundation. Your Honour is aware that the Refugee Review Tribunal is completely and wholly a creature of statute. It does not have any inherent power or ability to control its own procedures and it certainly did not at the time. It is a creature of statute and your Honour is aware of the principles from the Law Society cases, for example, Knaggs v Solicitors' Statutory Committee (1992) 27 NSWLR 603 at 610, at about C on the page, where - - -

GLEESON CJ: Is a question whether or not you can comply with the mandate in section 418(3) electronically?

MR ROBINSON: Well, your Honour, it may be, but, in my submission, the legislature does not permit it. The legislature says, quite plainly, that the documents that are relevant to the Tribunal's review are to be assembled by the Secretary of the Department and, in this case, it is agreed by the parties that was delegated to the actual delegate who made the decision in this case. So when he or she made the decision, when a review was commenced, he or she looked at and identified relevant documents that would be - - -

GLEESON CJ: I am only trying to understand the problem and is part of the problem the question whether you can comply with section 418(3) electronically?

MR ROBINSON: We say no, your Honour.

GLEESON CJ: It is not part of the problem? Can you just attend to my question. My question is, is it part of the problem whether or not section 418(3) can be complied with electronically?

MR ROBINSON: It is part of the problem.

GLEESON CJ: Thank you. Is another part of the problem that raised by paragraph 38 on page A64 of the questions referred book in the matter of Lie; that is to say, is part of the problem a question of fact whether the Tribunal made reference to these Part B documents?

MR ROBINSON: Yes, your Honour.

GLEESON CJ: Now, what else is there in the problem? We have just identified two parts of it. Is there another part of the problem?

MR ROBINSON: Your Honour, the Part B documents were not physically transmitted to the Tribunal. That much is agreed. The Tribunal in Muin, for example, referred to no Part B documents whatsoever. The Tribunal in Lie referred to a couple of them which we say is coincidence. We ask your Honours - - -

GLEESON CJ: But what is the problem about that?

MR ROBINSON: Your Honour, 418 and 424 have not been complied with, that is the problem.

GLEESON CJ: Section 418 is not complied with because of the attempt to do this electronically, is that right?

MR ROBINSON: Partly, your Honour. Section 418 was not complied with at all, your Honour. It is as simple as that.

GAUDRON J: But assume you lose on that first proposition, because 418 can be complied with electronically, you do have the problem, do you not, that some of the Part B documents were not on the computer base at the relevant time?

MR ROBINSON: Indeed, your Honour, many of them were not and it is - - -

GAUDRON J: So they had been referred to by the Delegate but they were not on the computer base and they were not referred to by the Tribunal?

MR ROBINSON: Indeed, and - - -

GAUDRON J: Some of that material was favourable to the plaintiffs' case?

MR ROBINSON: Yes, your Honour.

GLEESON CJ: So, you invite us to infer that the Tribunal never took them into account?

MR ROBINSON: Yes, your Honour.

GLEESON CJ: Do we base that inference on paragraph 38 of A63 or upon the fact that they were not on the computer data base, or both? In other words, how do we know that the Tribunal did not take them into account?

MR ROBINSON: Your Honour, in my written submissions, which I will take your Honour to, I set out the order of reasons why we ask your Honour to make the inference. Primarily, in Muin it is - and this part is not in the written submissions - it can be identified from the Tribunal decision itself that it only took into account the documents that it has identified. Secondly, the absence of the Part B documents that were favourable, we say, from the Tribunal's decision make it plain, in my submission, that the Court can infer that the Tribunal did not take them into account.

GLEESON CJ: I understand that. Now, could I just - yes?

MR ROBINSON: Thirdly, your Honour, if any more is needed - and, in my submission, no more is needed - but if it is, then I would rely on a matrix of factors which combined lead to the overwhelming inference that the Tribunal did not take into account Part B. Paragraph 38 is in that category.

GLEESON CJ: Thank you. Now, may I ask you this about the facts. Do we know anything - may I go back a step. These Part B documents are in the nature - or at least some of them are in the nature of background information about circumstances in Indonesia, I presume.

MR ROBINSON: Yes, your Honour.

GLEESON CJ: Do we happen to know how many cases about circumstances in Indonesia the particular Tribunal member with whom we are concerned has decided before this decision was made?

MR ROBINSON: On the evidence, no, your Honour.

GLEESON CJ: I mean, could it be hundreds?

MR ROBINSON: It could be.

GLEESON CJ: Could it be thousands?

MR ROBINSON: It is possible, your Honour.

GLEESON CJ: And do we know anything about how many times, or perhaps even how many hundreds of times, the Tribunal member - it is a she, I think, in this case - - -

MR ROBINSON: In both cases it is a she, your Honour.

GLEESON CJ: - - - in carrying out her functions had been referred to or had considered background material of this kind?

MR ROBINSON: No, your Honour. Such a factual excursus could be undertaken, but it has not been undertaken in this case.

GLEESON CJ: So is it the case that, for all we know, the Tribunal member who had dealt with the application in the case of Lie, had dozens, perhaps hundreds of times dealt with refugee claims in relation to which she had had occasion to consider information about background circumstances in Indonesia?

MR ROBINSON: That may be so, your Honour.

GLEESON CJ: Right.

MR ROBINSON: It may also be her first case.

GLEESON CJ: Exactly. So we do not know one way or the other.

MR ROBINSON: We do not know.

HAYNE J: Can I take you back to 418 - - -

MR ROBINSON: Yes, your Honour.

HAYNE J: - - - and 418(3). "Document" is a term the subject of section 25 of the Acts Interpretation Act.

MR ROBINSON: We put that forward as a submission in the written submissions, your Honour.

HAYNE J: "Document", as there defined, is something tangible and to be distinguished from "record", is it not?

MR ROBINSON: Yes, your Honour.

HAYNE J: A question arises whether, under 418(3), the obligation is an obligation relating to tangible items as distinct from electronic records.

MR ROBINSON: Your Honour, we say, firstly, it relates to a tangible item that was used by the Delegate. Secondly, if it was in computer form, the Acts Interpretation Act that is to be married with section 25 and that is - - -

HAYNE J: That is 25A about records of information.

MR ROBINSON: - - - 25A, says - - -

HAYNE J: Well, there is a logically prior question whether you get to 25A, it seems to me, logically prior question being whether 418(3) is engaged only in respect of tangible items and is an obligation different from an obligation that would be imposed if the Act read that "The Secretary shall give to the Registrar each document and record of information in the Secretary's possession or control". Now, can I just understand where we are going with this. What is your contention about the construction of 418? One, do we engage the Acts Interpretation Act? Two, as a result of that engagement, is it an obligation confined to the transmission of that which is tangible?

MR ROBINSON: Your Honour, we say that 418, understood alone, involves the transmission of something tangible to the Tribunal, or part of that which is tangible. The definition of "document" that appears in section 25 of the Acts Interpretation Act, in my submission, is applicable on the face of it, but in terms of the combination of section 25 and section 25A which is referred to in my written submissions at paragraph 57, we do not place significant weight on the Acts Interpretation Act in this case. We simply say that the meaning of section 418(3) is plain on its face and that it is not of assistance to go to other Acts and to other aids of interpretation.

HAYNE J: Are what are described as the Part B documents in each case documents or items that were tangible or intangible?

MR ROBINSON: Your Honour, they are tangible enough that the Delegate listed them, referred to them, relied on them, and said so in each case. The Delegate's evidence that is set out in the agreed statement of facts is that he or she - it is one of each in both cases - identified these as relevant documents and did not send them to the Tribunal. So, your Honour - - -

HAYNE J: But is there an agreed fact which would explain or identify whether, at the time at which 418(3) was engaged, the Secretary had in his or her possession a tangible item, being a relevant Part B document?

MR ROBINSON: Your Honour, it is agreed that the documents were on paper and, if they were not on paper, were capable of being printed out.

GLEESON CJ: But were they in the Secretary's possession or control?

MR ROBINSON: And that they were in the Secretary's possession and control and, indeed, that the Secretary, that is, the Delegate through delegated power, believed that they were relevant to the review by the Tribunal of the Delegate's decision.

GLEESON CJ: Now, I presume that there is one word in section 408(3) that might be a little difficult to construe literally, and that is the word "give".

MR ROBINSON: Yes, your Honour.

GLEESON CJ: That does not mean make a gift, does it?

MR ROBINSON: Your Honour, in the scheme of it, we say it is. We say it means to hand over, to give freely. That is the first definition in the Macquarie Dictionary, the third edition.

GLEESON CJ: But this is not talking about a transfer of ownership, is it?

MR ROBINSON: Your Honour, if it is a transfer of ownership - and it appears, in my submission, to be that - if it is a transfer, it is a temporary bailment situation, as it were, because 430 of the Migration Act, a few pages on says what is to happen when the Tribunal is finished with a document and it - - -

KIRBY J: It could not possibly be ownership. It could not possibly be a transfer of ownership. It is just possession at the most, because this is property of the Commonwealth. How can they be giving away property of the Commonwealth, even temporally? It is a ridiculous notion to transfer a possession.

MR ROBINSON: Your Honour, in my submission, it does not matter, because it is to go back by operation of section 430(3). When the Tribunal has made its decision and when it returns the documents, when it publishes its written statement of reasons, section 430(3), as it was then, which is at page 46 of my written submissions, says it is to go back to the Secretary. It says:

the Tribunal must:

(a) return to the Secretary any document that the Secretary has provided -

or given, in that case -

in relation to the review;

So that the process is, something is to be given to the Tribunal and then it is to be used by the Tribunal. That is clear, in my submission, from 424(1). Then, at the end of the process, it is to be given back. Now, all of that, we say, is alternative to - - -

GLEESON CJ: Just before you go any further, does "document" include copy of a document?

MR ROBINSON: No, your Honour. Indeed, a provision has just been passed by Federal Parliament to make that so. I do not know if my learned friend has set that out in his written submissions but it is a provision that came into effect on 10 August this year enabling a copy of a document to be so provided and pursuant to section 418.

GLEESON CJ: Consider a document which is No 12 on that list that I find following the "Legend to Part B - Document Analysis". It is a document entitled "Country Profile - Indonesia" and it is a publication of the Department of Foreign Affairs and Trade. What form does the relevant document take?

MR ROBINSON: No 12 in what list, your Honour?

GLEESON CJ: There is a document that was handed up earlier called "Legend to Part B - Document Analysis". Do you see that? I will show you my copy.

MR ROBINSON: Yes, your Honour.

GLEESON CJ: Now, the pages in that document are not numbered - the number starts at page 11 but if you go to a page with No 25 on the bottom - do you see that?

MR ROBINSON: That is the Part B list in Lie, yes, your Honour.

GLEESON CJ: Yes. I drew your attention to item 12, but take item 14, or take item 15, "Indonesia hits a rough spot . . . The International Herald Tribune, 26 April 1994".

MR ROBINSON: Yes, your Honour.

GLEESON CJ: Now, I would infer that that is a newspaper article or a copy of a newspaper article.

MR ROBINSON: It is a newspaper article, yes, your Honour.

GLEESON CJ: Now, you are wanting to be strict about the concept of document and possession of documents and transfer of possessions.

MR ROBINSON: Yes, your Honour.

GLEESON CJ: What form does that document take?

MR ROBINSON: Your Honour, we do not know. We have presented both parties in an agreed bundle of document a form of that document and, indeed, I can say to your Honour that that document is probably in a computer form, in a form that looks like it - - -

GLEESON CJ: I just wondered if it could possibly be a photocopy of a newspaper clipping.

MR ROBINSON: Your Honour, the answer to the question may be it could be a print-out of a computer rendition of that newspaper article and it appears to be that. It appears to be a print-out at page 164 of volume B in the Nancy Lie materials. It appears to be a print out of a document that was at one point in time entered into or keyed into the computer of the Department.

GLEESON CJ: So, where the relevant document is a computer print-out, the Secretary cannot give the document to the registrar electronically.

MR ROBINSON: We say strictly, no, your Honour. But, in any event, if your Honour went to that document and looked at it in these proceedings it is not agreed that that is the document in the form in which the Tribunal had it or had access to it. It is simply, and merely agreed, that that is a manifestation of a printed version of that document. It is not agreed that that document was transferred. Indeed, we say it was not transferred.

GLEESON CJ: Just sticking with that document to understand the other aspects of the case, do we happen to know how many times the member of the Tribunal in question had read that newspaper article or a copy of the newspaper article?

MR ROBINSON: No, your Honour.

GLEESON CJ: We do not know whether she has read it once, or 50 times, or whether she has never read it at all?

MR ROBINSON: Indeed, your Honour. Bear in mind, your Honour, it was, at all times, open, we say, for the Tribunal to give evidence in this case.

KIRBY J: I saw that in your submissions, but I must say, for myself, that I think it highly undesirable that Tribunals should be doing anything than that which they normally do, namely, submitting to the orders of the court. Also there in a quasi-judicial function, or at least they have to perform their activities judicially, and it would be unseemly, it seems to me, that they were coming along to give evidence and say what was happening when they were acting in that fashion. That was behind the Court's decision in Hardiman, I think.

MR ROBINSON: Your Honour, in this case, where the very issue is, what was the material that comprised the record that was before the Tribunal, it is clearly, in my submission, in issue in these proceedings, and a simple affidavit from the Tribunal, in respect of which I doubt whether the plaintiff would have been permitted, in any circumstances, to cross-examine upon, a simple affidavit from the Tribunal - - -

KIRBY J: How could you stop it once it is a factual issue. It may even be constitutionally required that a person who wishes to test a factual matter that could be determinative should have a right to test it.

MR ROBINSON: Well, your Honour, certainly in the Federal Court there is specific provision for the limitation of cross-examination in judicial review matters and, in my respectful submission, there is sufficient authority to say that a decision-maker cannot be cross-examined on matters that went to his or her decision, in these circumstances.

KIRBY J: I do not want to take you off your course, because you deal with it in due course, but I think you cite a decision of the Federal Court relating to the Tribunal giving evidence. Do they do that in the Federal Court on matters like this?

MR ROBINSON: Your Honour, in one case, it is in my list of authorities, that I have not handed up, and I do that now, if I may, is Guo Wei Rong v Minister for Immigration and Ethnic Affairs. It is a decision of his Honour Justice Sackville, 13 February 1995. It is unreported, and in that case there was an allegation of bias against the Tribunal. The Refugee Review Tribunal member concerned, Ms McIllhatton, gave evidence - that is referred to at page 2. Counsel for the plaintiff there, Mr Rares wanted to cross-examine her on a number of matters and that was objected to, and the Tribunal took the immunity point in section 435 of the Migration Act. That is all set out on page 2.

It used to be known as - numbered 166G. The numbering of the Act was changed and it is now 435 of the Migration Act. That sets out that the Tribunal members have the:

same protection and immunity as a member of the Administrative Appeals Tribunal.

That, your Honours, can take it as the same protection and immunity as a High Court Justice has. In that case, it was held by his Honour Justice Sackville that the Tribunal, in effect, could not be cross-examined on matters that involved or concerned her reasoning process or motivation. At the bottom of page 7 of the print-out there of the transcript of the decision, the last three lines, it says:

In a particular case it may be appropriate, or even necessary for a judge (or a Tribunal member having the immunity of a judge) to give evidence about the course of events occurring in his or her courtroom:

and there is a reference there to Xiang Sheng Li v Refugee Review Tribunal. It continues there on page 8:

If that were sufficient to expose the judge to cross-examination on his or her reasoning processes or motivation, the rationale for the immunity, if not destroyed, would be severely undermined. The position might be different if the judge chooses to give evidence in chief about his or her reasoning processes or motivation. However, this is not the present case and I prefer to express no view about it.

The short of it is, your Honours, that we say the Tribunal member could put paid to this entire litigation in a few sentences.

KIRBY J: Is there a registrar of the Tribunal?

MR ROBINSON: Yes, there is.

KIRBY J: It may be that your submission would do less offence if the notion were that in the event that in a natural justice case a question arose as to what documents were before the Tribunal, that the registrar might provide an affidavit saying that - would the registrar know?

MR ROBINSON: We would accept that would be less troublesome and it could be done in this case.

CALLINAN J: Mr Robinson, I see Mr Basten in that case at pages 5 and 6 made some concessions.

MR ROBINSON: Yes, your Honour.

CALLINAN J: The argument then proceeded upon the basis that the member could be cross-examined about some matters. So there was not any debate about the question whether the Tribunal member could be cross-examined at all in relation to what she did or said.

MR ROBINSON: Your Honour, his Honour Justice Sackville held that there could be some area of cross-examination.

CALLINAN J: Yes, but what I am putting to you is that that does not seem to have been a matter for argument because at pages 5 and 6 Mr Basten made some concessions. So there was no debate about it.

MR ROBINSON: No, your Honour. In any event, in my submission, the exposure or the risk of exposure to cross-examination, were the Tribunal members here to put on a short affidavit saying what material comprised the record before them, would be minuscule. If there were cross-examination permitted on any basis, it would be extremely limited and, in any event, it would be a complete answer to the case - - -

GLEESON CJ: That is what I want to understand. I thought you said a moment ago that the Tribunal could put paid to this argument by filing a brief affidavit.

MR ROBINSON: Yes, your Honour.

GLEESON CJ: Now, what would be the substance of an affidavit that would put paid to this argument?

MR ROBINSON: The affidavit might read - well, your Honour, that is a good question. In terms of the allegation of denial of natural justice, where we say that the Tribunal by reason of the fact that it did not receive the Part B documents and by reason of the inference that it did not read them and that that was contrary to natural justice, the Tribunal having excited a legitimate expectation in the plaintiff - and I will take your Honours to that - - -

GLEESON CJ: What is the substance of the affidavit that would have put paid to the argument?

MR ROBINSON: The affidavit would then need to simply say, "I read the material and" - - -

KIRBY J: Well, that cannot be done by a registrar and, therefore, you are right into the question of whether a person who has the immunity of a Justice of this Court can be expected and required, or suffer some inference contrary to them if they do not, to give evidence in the face of what this Court has said ought to be ordinarily the conduct of a Tribunal before the Court.

MR ROBINSON: It may not need to be as high as I read the material, your Honour. It could be, "I had the material before me", or the registrar could say for the member, "I had this material before me in some form" and it could have been on the computer - - -

GLEESON CJ: All right. Now, what if she had said, instead of saying, "I read this material while I was considering this case", she had said, "I have dealt with dozens of these Indonesian refugee applications and I have read that article entitled `Tensions high as Catholics live in fear' so often that I could recite it in my sleep", would that be good enough?

MR ROBINSON: It depends, your Honour. It might be good enough - - -

KIRBY J: You might want to ask a few questions of that.

MR ROBINSON: Your Honour, it might be good enough at one level, but in terms of - - -

GLEESON CJ: I think there is a question we have to look at here. It is involved in this concept of referring to things or taking things into account. Where you are dealing with material of the kind listed in this document on the pages with numbers 25 and 26 on the bottom of them, is the only way you can take material of that kind into account by reading it afresh every time you deal with an application to which that material is relevant?

MR ROBINSON: If one has to, your Honour, in my submission, one ought. It would be the same, in my submission, possible error of a judicial officer hearing the same kind of case in the same jurisdiction such as, for example, the Dust Diseases Tribunal or a specialist court.

HAYNE J: But that is the point, is it not? You seek to equate what happens in the RRT to what happens in a court with a single, commonly referred to as "big bang" hearing. This is not an adversarial process, this is inquisitorial, or partakes more of the inquisitorial than the adversarial. You may be right to begin from the premise that it all culminates in the hearing before the Tribunal, but that is an assumption that must be tested. It cannot be assumed. The equation, without explanation, between curial process and the process of this Tribunal is, I would suggest, again, masking much more than it reveals.

MR ROBINSON: I would accept that, your Honour. Indeed, there are more points of departure in the process of the Refugee Review Tribunal in this case from that which occurs in a court. I would agree that it is quite misleading and unhelpful to go too far down this track.

HAYNE J: Because what you seek to do in your submissions is to portray the Tribunal in the position of the contradictor, where the Tribunal is, in effect, in the position of making out a case which the applicant for refugee status may controvert. Now, again, that may be an accurate description of the way in which this Tribunal's functions are to be analysed, but we need, again, to begin with the Act and to understand whether that is the way in which these Tribunals work, or not.

MR ROBINSON: Indeed, your Honour. I would accept that, and if your Honours are content, I am happy to do that now.

HAYNE J: I do not think my statement was a statement of content, Mr Robinson.

MR ROBINSON: Well, your Honour - - -

GLEESON CJ: I thought there was a judgment of this Court, Mr Robinson - I may be imagining this, or my memory may be playing tricks with me - in which reference was made to an English decision in which it was pointed out that our ideas of what constitutes a fair hearing are often bound up with our notions of the adversarial system of curial procedure. Those ideas might require considerable modification when applied to a context such as this.

MR ROBINSON: I would accept that, your Honour, but in this case, this particular case, the Tribunal did not just fail to receive them and consider the documents under 418, as we have alleged. That is our alternative argument. The Tribunal, in this particular case, in both Muin and Lie, said to the applicants, said to the plaintiffs, "We will ask for the documents from the Department. When we get the documents, we will look at them". And indeed, after that had occurred - that is called the review on the papers process - the Tribunal said to the plaintiffs in both cases, "We have looked at all the documents". So it is not just a case of the Department failed to send documents to the Tribunal which would then lead to the question, "Well, the Tribunal may have looked at this document before".

The Tribunal, in this case, actively said to the parties, "We have looked at the relevant material, We have looked at this material" and the plaintiffs in both cases were affected by that representation. And to the extent that the Part B materials contained favourable material - and, in my submission, there is a significant amount of favourable material in the Part B documents - the plaintiffs rested on their laurels, as it were. The plaintiffs assumed that the Tribunal had read this material, and made no submission in relation to it, and believed, because of what was said to them by the Tribunal, that this material had been taken into account in this particular case. In terms of what actually happened here, we say that both plaintiffs were misled.

GLEESON CJ: Now, let it be supposed as a matter of fact that the article entitled "Five die in mob attacks on Indonesian churches" contained material that was supportive of your client's case. Do you say it was necessary in order for there to be fairness for the Tribunal member to have actually read or re-read that document at or shortly before giving a decision in this case?

MR ROBINSON: Your Honour, the time at which it should have been read is at the review on the papers stage, but certainly we would say, yes, at some point before rendering her final decision.

GLEESON CJ: Now, what if it had been the case that she had read and been referred to this material, this data bank, repeatedly?

MR ROBINSON: Your Honour, that is not a question that, with respect, I need to be troubled with in that if the Tribunal member has read it 50 times and the document is physically before her or him on this particular occasion then it may be that the Tribunal can regard that document as having been read in an evidentiary sense. It may be the case, your Honour, but, in my submission, that is not the case here.

GLEESON CJ: I only asked the question because we are addressing a question that talks about facts and inferences of fact and what I would be interested in your submission on is: what would be the precisely relevant fact or inference of fact? Do we have to find that she had never read the document or do we have to find that she did not specifically refer to the document in the course of making this decision? If it is a document that was known to her from her past experience, for example, what would be the relevant fact?

MR ROBINSON: We would be asking your Honour to infer that - we would demonstrate the document was not referred to in the decision and we would ask your Honour to infer that it was not before the Tribunal member.

GLEESON CJ: What do you mean by the word "before"?

MR ROBINSON: In the bundle of material that comprised the record before the Tribunal, the premise being that the Act requires that a certain set of material is before the Tribunal at the time it is to perform its functions under 424(1).

GLEESON CJ: By "before" do you mean in front of her blotting paper on her desk or available on a computer?

MR ROBINSON: Your Honour, we say it needs to be in front of him or her.

GLEESON CJ: On the desk?

MR ROBINSON: On the desk or on the screen.

GLEESON CJ: So, it would be good enough if she called it up on the computer?

MR ROBINSON: If it is a computer document and it is only available on computer and it is only presented to the Tribunal member on computer and if that is appropriate, then, yes, your Honour, that is - - -

GLEESON CJ: Now, what if she had called it up on computer the week before in connection with another matter?

MR ROBINSON: Yes, your Honour.

GLEESON CJ: What if that? Would that be relevantly a document before her?

MR ROBINSON: Your Honour, we are sitting in the room of a decision-maker who has statutory immunity arising from section 435 of the Migration Act. That is analogous to the situation of a Justice of the High Court looking at, in the confines of his or her chambers, private chambers, the consideration of the evidence that was presented to him or her that day that was in Court, that is, that forms part of the record.

GLEESON CJ: A judge may take Donoghue v Stevenson into account without reading it every time.

MR ROBINSON: Yes, your Honour. This is not case law. This is evidentiary material that forms the basis of facts that are found and, we say, facts that are not found. That this is - - -

HAYNE J: Thus, is your central complaint not a complaint about relevant or irrelevant considerations? Is your central complaint a complaint about evidence?

MR ROBINSON: Yes, indeed, your Honour.

HAYNE J: Yes.

MR ROBINSON: We say favourable material that could have helped us was not there - - -

HAYNE J: It is a complaint about the evidentiary base for the decision?

MR ROBINSON: Indeed, your Honour.

HAYNE J: At the moment that enlivens, in my mind, questions about whether we are into merits review or jurisdictional error, but those are matters that perhaps will emerge as the argument develops. Can I understand: do you complain that the Tribunal failed to take account of relevant considerations, or that it took into account irrelevant considerations, as those concepts are understood in administrative law?

MR ROBINSON: In Muin, we say yes to both. In Lie, we say it failed to take into account relevant material.

HAYNE J: No, no. My question was intended to be more precise than that, it may not have been. My question was whether, as the expressions "relevant" and "irrelevant" considerations are used in administrative law, whether you seek to make a case of that kind?

MR ROBINSON: We say, your Honour, the case that we do make is relevantly identical to a failure to take into account relevant considerations, and the taking into account of irrelevant considerations. We have addressed the questions with specificity in the reply that is in the volume A of both matters. In the reply we state specifically that to the extent that we need to, we rely on those two classic grounds of judicial review. In the present case, your Honour, we have, as the Court is aware, pleaded denial of natural justice bare; breach of legitimate expectation, secondly, if there is not a plain denial of natural justice; and thirdly, procedural ultra vires. As it happens, in proving those, we are also in identical overlapping country to relevant/irrelevant considerations.

CALLINAN J: Mr Robinson, is your natural justice point that your client was misled into believing that certain material would be considered, which was not considered?

MR ROBINSON: In the Part B document case, no. In the Muin adverse materials case it is, in my submission, plain from the evidence, the agreed facts, that the Tribunal took into account an enormous number of documents - - -

CALLINAN J: Yes, but that your client was misled because your client was informed that - - -

MR ROBINSON: It is not the case that he was misled in Muin on the adverse materials case. It is the case of the plaintiff was surprised when seeing the decision that such an enormous number of adverse material was used by the Tribunal without any notice to him.

CALLINAN J: I was looking at paragraph 5 of your outline of the facts, and you say:

On 30 March 1998 the Tribunal wrote to the plaintiff and said the Tribunal would ask the Department of Immigration and Multicultural Affairs ("the Department") to send a copy of its documents about his case and the Tribunal will look at them on receipt for the purposes of a "review on the papers".

MR ROBINSON: That is the Part B list, your Honour, the second major point in Muin and the only point in Lie.

CALLINAN J: But is that a natural justice point?

MR ROBINSON: Your Honour, it is, in that the evidence of the plaintiff, as is agreed by both parties in the statement of agreed facts, that the plaintiff understood - - -

CALLINAN J: That is what I was putting to you before - - -

MR ROBINSON: That is where the misleading comes in.

CALLINAN J: - - - that you say your client was misled, and had your client not been misled, your client might have made some response to the material.

MR ROBINSON: In my submission, that is the case, yes, your Honour.

CALLINAN J: Now, that is in Muin - - -

MR ROBINSON: In Muin and Lie.

CALLINAN J: And Lie.

MR ROBINSON: The adverse materials point is only Muin, and this point that your Honour has raised is common to both parties.

CALLINAN J: That is the real mischief in it, the misleading aspect of it, you would say.

MR ROBINSON: In my submission, it is relevantly indistinguishable from what occurred in Miah's Case, where the court, in that case, misled the parties by saying that, "We have looked at all the material". In this case, if the plaintiff is able to establish the inference that it argues for, that they argue for in both cases, then the "misleading" would have been proven, as it were. In my submission, if that is the case, the Tribunal has plainly misled both parties in not just that letter, but in the second letter that was sent and in Lie's case, the Tribunal member, at the oral hearing, also said to Nancy Lie that, "I have considered all of the papers".

Now, in my submission, it was not just a single error but a culmination of instances of misleading the plaintiff actively. The evidence of the plaintiff is, of course, as your Honour has said, if we knew that the Tribunal did not receive the Part B documents which had favourable material in it, we would have done specific things. We would have made specific submissions; we could have put on evidence or sought to adduce further evidence; and, in my submission, it would have had a bearing on the outcome of the case.

CALLINAN J: You might get some assistance from a Queensland Full Court case, R v Muir; Ex parte Joyce (1980) Qd R 567, where, before a Tribunal, the Public Service Board, acting in relation to dismissals and promotions, advised an applicant, wrongly, that it would do something and did not, in fact, do it, and prerogative writs were held to go in that situation. That if there is a misleading element, then there may well be a breach of natural justice. There are some English cases referred to in that case.

MR ROBINSON: In our case, your Honour, on the Part B documents, that is the main case. The alternative case is what is termed the procedural ultra vires case, and that is, in not sending the documents pursuant to 418, the Tribunal did not receive them. Now, in terms of the material that I have handed up to your Honours, can I please explain that the smaller document, which is headed "Legend to Part B Document Analysis", relates, of course, to the Part B case in both Muin and Lie. The second page of that document is the Part B document list from Muin.

The "11" on the bottom of the page is a reference to volume B, page 11, which is taken directly out of the Minister's Delegate's decision. I have just literally copied the page where that Delegate lists the evidence which he relied upon in making his decision and that goes over the page to page 12. The legend is self-explanatory, but I will not take your Honour to that. I propose to deal with the adverse materials case in Muin first and then I will come back to this document.

What follows after that is page 25, that is volume B of the Lie case, and, again, I have just copied what is known as the Part B list of documents directly out of the Delegate's decision from volume B of the court books in that case. But I will take your Honours to the markings in the legend and show your Honours how the Part B documents can be discussed when I come to that.

In the second larger document that I have handed to your Honours - if you will pardon the significant colour change in copying that occurred so that that which is marked red is now a purple colour and that which on the legend is supposed to be orange has turned into a brown colour. But what I have attempted to do in this document is I have copied the Tribunal's decision in Muin first and the Tribunal's decision in Lie second directly out of the questions referred books in these cases and I have annotated them with the favourable findings marked in blue; the adverse findings marked in, well, it is purple now; the relevant issues that can be clearly identified as stated by the Tribunal marked in yellow; a precise reference to the Part B documents is marked in green - and you will see there is none of those in Muin and a couple of those in Lie - and a reference to the adverse materials number used in orange or brown. That is only in Muin's case, of course, not Lie's case, as we do not allege any adverse materials point in Lie.

That, in my submission, is a convenient way to take your Honours to the adverse materials point in the Muin case to commence with because that shows quite plainly on the face of the Tribunal's decision the documents that it took into account and at what point it took them into account and the adverse findings that flowed from the taking into account of those documents. Now, in my submission, I should not need to do this because we say that it is already agreed, in a sense, in dealing with the adverse material, that the documents did contain material capable of supporting the conclusion that the Indonesian authorities were willing and able to provide protection for Indonesians of ethnic Chinese background, as the plaintiff was in this case.

So, in my submission, the defendants here have already agreed, as it were, that these documents were capable of supporting that conclusion and that that conclusion is an adverse conclusion in that the plaintiff would then be held to be able to be sent back to his country of origin, the Tribunal having found, notwithstanding, for example, that persecution actually occurred on a number of occasions, that he could go back to Indonesia because the government is willing and able to provide protection to people of his race, ethnic Chinese background. So that would be almost a final conclusion of the Tribunal as it decides, as it did, that that was the case here.

KIRBY J: The Tribunal seems to have accepted that people of Chinese ethnicity in Indonesia would suffer discrimination but drew a distinction between what it called discrimination and what the Convention calls persecution.

MR ROBINSON: It did, your Honour.

KIRBY J: Is that a distinction that is accepted in the cases?

MR ROBINSON: Your Honour, we say that had the adverse material not been before the Tribunal, or had the adverse material been before the Tribunal, to the plaintiff's knowledge, and he could have then done something about it or done something with it or added to it or supplemented it, then the plaintiff would have been able to push the Tribunal either away from that conclusion or demonstrate to the Tribunal that the discrimination, or what the Tribunal saw as discrimination, was in fact persecution in a Convention sense. So, that is how the plaintiff casts its case, in this regard.

HAYNE J: Now, at what stage of the process was the Tribunal bound, on your submissions, to inform the applicant for a protection visa of either the existence of the material or the conclusions that it might draw from that material?

MR ROBINSON: At some point before the making of the decision, your Honour.

GAUDRON J: During the hearing?

MR ROBINSON: It could have been during the hearing. The practice direction that the Tribunal has published does indicate quite plainly, in my submission, that the Tribunal does tell people of adverse country information or material adverse to the plaintiff's cases, which as Miah establishes and, in submission, is plain, is country information adverse to the plaintiff's case, so that it would ordinarily and naturally be done at the hearing or prior to the hearing but, in my submission, were it done - - -

HAYNE J: You speak of a "hearing" and "hearing" may carry with it resonances that may be quite right or may be quite wrong. The hearing is what follows from section 425, is it not?

MR ROBINSON: Yes, your Honour.

HAYNE J: The invitation to appear, coupled with 426, and provisions about that part of the Act, but what is the Tribunal bound by the Act to do and what, if anything, is added to that obligation by the rules of natural justice or procedural fairness? It is that which I understand at the moment, but dimly, from your submissions. I want to understand precisely how you say all these elements fit together.

MR ROBINSON: In the adverse materials case alone is your Honour asking me on?

HAYNE J: In whichever aspect of the case you think will best elucidate the point for you.

MR ROBINSON: In the adverse materials case it is a natural justice case alone. We say the Tribunal took into account material that it never gave the applicant notice of. There is no provision in the legislation by which natural justice is accorded. The plaintiff, in that part of his case, in Muin, alone, relies solely on the authority of Miah in the High Court where it was held that the reliance on adverse country information in connection with the making of a decision by the Refugee Review Tribunal could constitute, and did in that case constitute a denial of natural justice.

HAYNE J: Did section 424A of the Act apply at the times with which we are concerned?

MR ROBINSON: No, your Honour, it did not exist.

HAYNE J: Yes, which raises a basic question. We should resort, should we not, to Reprint 6 of the Act as the applicable provisions. Is that right?

MR ROBINSON: That is correct, your Honour. That is set out at page 43 of my written submissions. That has been copied from Reprint No 6. Both parties are agreed that that is the form of the legislation for both Muin and Lie.

CALLINAN J: Mr Robinson, can I ask you something about section 426 and the facts of this case?

MR ROBINSON: Yes, your Honour.

CALLINAN J: Subsection (2) says that:

The applicant may . . . give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

The notice, I take it, is the notice that the person is entitled to appear before the Tribunal to give evidence. Is that right? It is the notice referred to in 426(1). Is that correct? What I was going to ask you then is, did the notice identify any person who might be a potential witness? Was there any persons or persons named in the notice?

MR ROBINSON: The answer to the second question is, in the present case, I do not think there was - I can take your Honour to it.

CALLINAN J: Well, let us assume for present purposes that there was not any person named in the notice and the only person who could have given oral evidence would have been the applicant himself. Is that right?

MR ROBINSON: Your Honour, the combination of 426(1)(b) throws it, really, back into section 426(2), so that the applicant is permitted to give evidence by reason of section 425(1)(a) - - -

CALLINAN J: Yes, but no one else can give oral evidence unless that person is named in the notice. Is that correct?

MR ROBINSON: That is correct, your Honour. That is my understanding of the operation of the - - -

CALLINAN J: So the opportunity to respond would therefore be confined to an opportunity to respond orally by the applicant or by the presentation of non-oral material, I take it. Is that right?

MR ROBINSON: It may be so, your Honour, but the opportunity to respond to material, adverse country information, may be by the calling of evidence, so that if the Tribunal is proposing to rely on an opinion of Professor Smith, say, the applicant might be notified of that before the hearing so that he or she can notify the Tribunal that - - -

CALLINAN J: I understand that, but subsection (3) also makes it plain that the Tribunal is not obliged to receive oral evidence, even from a person named in the notice.

MR ROBINSON: That is correct, your Honour. There is a similar provision, that it - - -

CALLINAN J: So that the opportunities to respond are, in that respect, limited, in any event.

MR ROBINSON: Well, they are discretionary in that sense, yes, your Honour. The Tribunal can also receive submissions from the applicant but not necessarily the applicant's adviser. There is a discretion there to limit the comments of a person assisting the applicant.

CALLINAN J: I suppose what I am really putting to you is that section 426 is an indication of the somewhat circumscribed nature of the hearing which can take place in a case of this kind, or in this sort of situation.

MR ROBINSON: I would accept that, your Honour.

HAYNE J: As to that hearing, do I understand that Division 4, as it then stood, as providing, first, by section 432(1), that the written arguments of the applicant, if they were to be given, had to be given before the review on the papers?

MR ROBINSON: I would not say "the" written arguments, your Honour. Certainly, there is provision for written arguments to be delivered straight away so that the applicant can take advantage of the review on the papers that occurs at section 424(1) as at - - -

HAYNE J: Is it plain then that the only statutory provision for written argument by the argument is section 423(1)(b)?

MR ROBINSON: That is correct, your Honour.

HAYNE J: What do we make of section 425(2) that "the Tribunal is not required to allow any person to address it orally"?

MR ROBINSON: It is not required to. It does not say that it is not permitted to receive any oral submission.

HAYNE J: Is it your contention that applying rules of natural justice, in at least some circumstances, despite what is said is section 425(2), would oblige the Tribunal to receive oral argument?

MR ROBINSON: Your Honour, it could be done orally or it could be done by written submission. All that the plaintiff contends is that it ought to be done at some stage; that the Tribunal ought to notify the plaintiff, at some stage prior to the making of the decision, so as to accord the plaintiff an opportunity to adduce evidence or to make some submission in response to it. That is all that the plaintiff alleges, and that is all the principle of natural justice, in classic terms, on the hearing rule, requires. It does not specify that the Tribunal must receive oral evidence from the plaintiff in a particular form or in a particular fashion. In my submission, it is wrapped up into, and cannot be taken out of, the concept of a true and fair opportunity to appear before it to give evidence in section 425(1)(a).

Indeed, it may be also wrapped up in paragraph (b). That is, in order for a plaintiff to obtain a true and fair opportunity to appear before the Tribunal to give his or her evidence, there needs to be a proper opportunity. In my submission, the rules of natural justice, to the extent that they relate here, would do their best operation at that point. Indeed, the practice direction of the Tribunal gives an indication that adverse material, to the extent it is going to be relied on by the Tribunal, is normally done at the hearing itself.

Indeed, if I could take your Honour to that in Muin, the practice direction is at the state of volume B, at page 1. It is just headed a "Practice Directions". The date of it is apparent from the last page, and that is 25 June 1997, the last page being on page 9 of volume B. It was a practice direction made by then Shun Chetty, the Principal Member of the Tribunal, and on page 1 it described what the Tribunal does and sets out parts of the Act.

In section 2 it sets out the processes and nature of the Tribunal and it describes in paragraph b., for example, that it deals with "Review `on the papers'".

Over the page, on the second page it talks about "confidentiality" and the form of the original application for the review. On page 3 is set out the "Review `On the Papers'" function of the Tribunal and it says at about line 30, "Under s424" of the Act:

if the Tribunal, upon a consideration of the material contained on the DIMA -

that is the Department file -

along with any material lodged under s423 -

that would be the written submissions of the applicant -

is prepared to make the decision which is most favourable to the applicant, it may do so immediately.

Accordingly, review "on the papers" must be conducted as follows -

and it talks about:

The initial review "on the papers" (s424) must take place as soon as practicable after the DIMA file is received by the Tribunal under s418 and must be conducted on the basis of the DIMA file and any s423 or other material in the possession of the Tribunal at that time.

Now, it is at that point, your Honours, that we say the first error occurred in the Part B documents case, that that is not the point in the adverse materials case, it is just convenient to see that while your Honours have the practice direction there.

GLEESON CJ: On that matter of making the "most favourable" decision to the applicant "immediately", in the questions referred book, volume A, in the case of Lie on page A57 at line 41, there is a reference to a procedure that is followed because "it would assist auditors to understand my decisions when I approved applications". Who are the auditors there referred to? Line 41 on page A57.

MR ROBINSON: Your Honour, that would be persons internal to the Department attempting to monitor or track, I would expect, the course of decisions made by this person. That is my impression.

GLEESON CJ: Thank you.

MR ROBINSON: Mr Basten might be able to clarify it better than that.

GLEESON CJ: No, that is what I would have inferred.

MR ROBINSON: Yes.

CALLINAN J: Mr Robinson, I see the practice direction in paragraph 5(b), which is at page A65 of volume A, the third paragraph of that, says:

In general, it will be sufficient to identify the source and provide the substance of the material. There is no legal requirement to provide the actual source document.

And the last paragraph:

The applicant will not normally be provided with any material which is referred to in the primary decision or is otherwise reasonably available to the applicant.

MR ROBINSON: Yes, your Honour.

CALLINAN J: Do you say that that paragraph offends, in some way, section 418? Can it be read consistently with section 418?

MR ROBINSON: On the Part B case that your Honour is talking about, we are not saying that we should have been given the material. On the Part B case, that is, the favourable materials case, we are saying that we knew that there was material that was favourable. It was listed by the Delegate in the Part B list. We were told by the Tribunal it would be delivered from the Delegate to the Tribunal, that the Tribunal received it and read it and took it into account. It did not, and had we known that it did not do that, we would have done something different that would have improved our chances of attaining refugee status. So, in my submission, it is not relevant to how the plaintiff puts their case.

HAYNE J: Can I just test that last proposition a little to understand it. At the time of the making of any written argument of the kind contemplated by 423(1)(b) of the Act, the applicant for a protection visa knows of the primary decision of the Delegate and knows of the material to which reference is made in that decision.

MR ROBINSON: Has a list of the material, yes, your Honour.

HAYNE J: Yes, and therefore has an opportunity, whether by reference to that material, or any other material of his or her choice, to make whatever he or she can of the material mentioned by the Delegate, or other material, in aid of the proposition that he or she is entitled to a protection visa.

MR ROBINSON: We would accept that, your Honour.

HAYNE J: What further opportunity should that person be given to ensure that the procedures followed are procedurally fair than the opportunity that I have just described?

MR ROBINSON: Your Honour, we make no complaint that what your Honour has set out as should occur has occurred. What we say is those documents were not sent. In the Part B case which I am not addressing on, but when I come to it, in the Part B case in Muin and Lie we say the Tribunal simply did not get the material.

HAYNE J: Is it, therefore, on this aspect of the case, a proposition that stands or falls on the operation of section 418?

MR ROBINSON: And 424(1) combined, your Honour.

HAYNE J: Yes.

MR ROBINSON: It is the combination of section 418(3) and 424(1) that makes it plain, in my submission, that documents were to be identified, sent to the registrar to go to the Tribunal member constituted to hear the case for a particular purpose, that is, to be taken into account on the review on the papers and then, ultimately, on the hearing to the extent that it can be some sort of ultimate event, but certainly to be considered by the Tribunal in a particular case before making his or her ultimate decision.

GAUDRON J: But do you not also complain that the Tribunal informed the plaintiff/applicant in these proceedings that she had read the documents?

MR ROBINSON: We say they had not read the documents, your Honour.

GAUDRON J: Yes. No. I know what you say but you have just answered Justice Hayne by relying on the statutory provisions. I am asking do you not also in your Part B case rely on the Tribunal having told the applicant for review that she had read all the papers?

MR ROBINSON: Yes, your Honour, we do as a primary submission - - -

GAUDRON J: When, in fact, she had not received all the papers.

MR ROBINSON: That is our primary submission, yes, your Honour.

HAYNE J: The legal significance that you attach to that fact is, is it, that there was thereby a departure from procedural fairness? Is that right?

MR ROBINSON: Yes, yes, your Honour.

HAYNE J: Now, let me again tease that out a bit to see if I understand it. If, in fact, the applicant for a protection visa has an ample opportunity to use court's terms, to make a case at the point of filing the written submissions, what is the legal significance that should be attached to a mistaken statement by the Tribunal that in these cases she had read all the papers? Why does that lead to the conclusion that although there was procedural fairness at the outset what thereafter happens is procedurally unfair? I do not understand that step in the argument yet.

MR ROBINSON: The answer is, your Honour, the plaintiff could have done something about it, firstly. Secondly, if he could not have, he could have applied to do something about it or sought to do something about it and that would have been at the stage of the hearing in ordinary circumstances where, under section 425(1) the plaintiff would have been able to attend and say something to the Tribunal and give his evidence. Indeed, the plaintiff was, in this particular case, as is set out in the questions referred book, volume C, for example, in Nancy Lie, they were told that "You will be given the opportunity to lodge additional evidence and make submissions at some later point". So they were not just told that "You have to put your submissions in now and the 424(1) review on the papers will take place now". The Tribunal in Lie certainly, and I think in Muin also, said in one of those letters, "You will be given the opportunity to lodge additional evidence and make submissions later on".

So, your Honour, the answer to your Honour's questions may not arise from the provisions of the statute alone, but in the concept of fairness, as the Tribunal indicated to the parties here, a course and conduct it proposed to undertake. I can take your Honours to that specifically in each case but, in my submission, the fairness is denied when the plaintiff could have done something about it, could have put on evidence and could have made submissions about it, as was permitted by the Tribunal and that opportunity was never given.

HAYNE J: Is the statement, "At that time you will be given the opportunity to lodge additional evidence and make submissions", a statement that is made after the applicant has given the declaration and arguments contemplated by 423(1), or is it a statement that is made before that has been done?

MR ROBINSON: Your Honour, in the Nancy Lie case, for example, the letter of 17 April 1997, at page 224 of volume C in the Nancy Lie matter, it is the first letter sent by the Tribunal. It says to her that it will request the Department:

to forward a copy of its documents about your case to the Tribunal.

We will get in touch with you again when the Tribunal is ready to deal with your case. At that time you will be given the opportunity to lodge additional evidence and make submissions.

HAYNE J: And what I read that as saying - correct me if I am wrong - as the Tribunal saying, "We will at a later time invite you to give the section 423 documents".

MR ROBINSON: It goes on, your Honour:

However, if you wish to submit any evidence or make submissions prior to receiving a letter from the Tribunal you may do so.

HAYNE J: Yes.

MR ROBINSON: So it is simply permissive, your Honour, but it does say that, "At a later point in time we will contact you and you will then have the opportunity to lodge additional evidence and submissions after that". Now, the next time that the Tribunal contacts the plaintiff, in both cases, is after the review on the papers has been conducted, so that the process of the Tribunal in each case is to notify them that something has happened and then to give them the opportunity to appear at an oral hearing, adduce evidence, and give evidence personally. So, in my submission, the rigours of the Act, as it were, at the time were not adhered to strictly by the Tribunal and a more open process was undertaken and was told to by the Tribunal to the plaintiffs, in both cases.

Now, at the practice direction that I was taking your Honours to in the adverse materials case in Muin, volume B at page 5 is the passage that is relied on by the plaintiff, only in the alternative case to the natural justice case. We say that this passage, that is in paragraph numbered b, from line 40 onwards, is that which, in the alternative to a case on natural justice - that the Tribunal took into account adverse material without first telling the plaintiff - we have an alternative case in legitimate expectation terms. We say, the Tribunal actually told the applicant that it would do these things, that it did not ultimately do, and that that created a legitimate expectation in the mind of the plaintiff and the plaintiff was denied that legitimate expectation. But this is what the Tribunal said at line 40 on page 5:

The applicant will be given an opportunity to respond to any relevant and significant material which is or may be adverse to his or her case.

In this regard it is not possible to prescribe a single procedure which will be fair, just, economical, informal and quick in every review. It will be for the presiding Member, in the individual circumstances of each case, to consider the appropriate stage of the review at which adverse material is to be brought to the attention of the applicant and the manner in which this should be done.

In general, it will be sufficient to identify the source and provide the substance of the material. There is no legal requirement to provide the actual source document.

Your Honour, in this case it is agreed that the adverse material, as I term it, the material that I will show your Honours - it is quite a number of documents - was not given to the applicant, was not told of to the applicant, the substance of it was not provided to the applicant. He, Mr Muin, knew nothing of their existence by the Tribunal. That much is agreed. It really is, in Mr Muin's case, a significant patch of documentation that came out of the blue. The adverse material: I have made a number of references to it in page 9 of my written submissions at paragraph 31. The adverse materials can be found in the papers before your Honours at a number of places.

It is, for example, listed in Schedule 2 of the agreed facts in Muin. It is referred to in the reasons for decision of the Tribunal Member at a number of places, and I will take your Honour to the coloured version of that shortly. It is also listed in a schedule attached to the statement of claim filed in these proceedings in that the adverse material has been specifically identified. It is described in the plaintiff's reply in Muin, upon which we rely in-chief, for the description there of the adverse material that we do rely on in some detail, and it is set out there in considerable detail. The adverse material is set out in full in the questions referred books, the court books, at volume B at page 287 onwards to the end of the book, and volume C, page 403. There is about 116 pages of adverse material that was taken into account by the Tribunal in the Muin case and I will take your Honours to that now.

In the coloured document, the legend in the coloured document that I have handed up to your Honours, the bound one, the decision of the Tribunal in Muin's case it set out. The page reference is volume B at page 266. That is the decision that is set out there. The Tribunal decision starts with the background which is agreed between the parties. The legislation is set out there and some discussion of the authorities of the Refugee's Convention is set out in the next few pages. The claims and evidence of the plaintiff is set out at page 269, and in this case there were some letters sent by the applicant's then migration agent adviser to the Tribunal, setting out some media articles on what was happening then in Indonesia in the period set out at the bottom of page 269.

The applicant's adviser sent another letter in April 1998 and over the page, at 270, the statement of the applicant that was sent to the Tribunal via the adviser is discussed at about line 5. The applicant there talks about "police threat of further imprisonment" and allegations in the nature of bribery which are set out further on. Instances of alleged persecution and discrimination are set out there. At about halfway down the page other letters from the applicant's advisers are sent to the Tribunal, media articles from 1998.

It is important to bear in mind in this case that the most significant factual event that occurred occurred after the applicant came to Australia. After he had had his adverse decision by the Delegate and just before the Tribunal's decision there was the significant event of the May uprisings in Indonesia where many people were killed, tens of thousands of people rioted across Indonesia and it ultimately resulted in the resignation of the then President Suharto and the coming into power of President Habibie which, in effect, brought in an entirely new government in Indonesia. Now, that event occurred on 21 May 1998.

KIRBY J: But that was not related to the Chinese ethnic minority, as such, was it? That was related to corruption, objection to - - -

MR ROBINSON: Your Honour, whatever triggered the riots in that case, at that time, they resulted in ethnic Chinese being killed, raped, beaten and persecuted - targeted specifically by the rioting mobs across Indonesia and that is something that is very well documented - and I will take your Honour to that in some detail - and, indeed, the Tribunal member concludes that those riots were induced by the military and that anti-Chinese sentiments were whipped up by the military, specifically. I will take your Honours to that.

For present purposes, the significant event is 21 May 1998. So, at that point in time the applicant had been in Australia for some time. He had, through his migration agent, made some submissions about the then situation, the pre-May 1998 situation in Indonesia and the Tribunal had that material before it. But what occurred then is the adviser - at the middle of page 270 at line 33 - wrote to the Tribunal on 21 October. It accepted the Tribunal's:

offer to attend a hearing and enclosing photographs of damage done to vehicles and building interiors.

It also attached a second statement from the applicant saying that his family home in Indonesia had been "ransacked" and there had been some destruction that occurred in relation to the riots there and that he was very worried about the situation in Indonesia at the time. Now, that is October 1998. That is four or five months after the uprisings and the change of government on 21 May 1998.

The applicant's adviser makes no reference to the change in government and to the May riots specifically, but they were, as your Honours will see when I come to it, plainly the primary features of the Tribunal's decision and, indeed, if one can point to any one thing that the Tribunal in this case, in Muin, hung its hat on, that was decisive of the issue against the applicant, it was that President Habibie and the military have made some remarks in the press and in the public fora since coming into power on 21 May 1998 and we believe them - the Tribunal believed them, that everything would be stable and secure and that ethnic Chinese in Indonesia would be protected and that the military and the government would be capable of protecting the ethnic Chinese in the event of any further outbreaks.

That is, in my submission, the primary reason why the Tribunal made its decision and it was not an issue that was made known to the applicant. It is a change of government, a radical change in the landscape of Indonesia, according to the Tribunal, and I certainly do not, in my respectful submission, submit that that was the fact. Indeed, there are in the additional material that is before your Honours decisions made after this by the same Tribunal which show a completely different picture on the facts, that, indeed, 21 May 1998 was not so significant and that riots continued and that it was not safe, even up to December that year, for persons of ethnic Chinese background to be returned to possible persecution in Indonesia. But this Tribunal member in Muin's case decided that everything changed in Indonesia after 21 May 1998.

Over the page at page 271 of the coloured book, the Tribunal deals with the applicant's specific claims. I set out a summary of those claims in the attachment numbered 1 to my submissions in reply, your Honours, so rather than take you to them in great detail, I can simply say that the applicant made a number of claims about events in 1991, 1993 and 1983. They are all set out there at pages 271 and 272, incidents for the motor scooter in 1989; an incident in 1991 when he was interrogated and taken by the police; incidents in 1995 were of bribery and corruption. But over the page on 273, the applicant then talks about the rioting in Medan. At line 7 on the page, he says:

At the time of general rioting in Medan, his aunt's neighbours took the opportunity to burn the vehicles parked in her yard, and to ransack the house.

That is not quite as the evidence pans out. The evidence was, indeed, that only some of the people who ransacked the house were neighbours and they took the opportunity to join in. That is set out clearly in the transcript at volume B, page 260. But either way, that is the finding of the Tribunal, that it was merely the neighbours who ransacked the house. Page 274 is where the adverse material really starts to come in, in the Tribunal's thinking. At line 5 of page 274, the Tribunal plainly sets out about "independent information relevant to the applicant's claims", and we say that that is a correct depiction of the documents, that they are documents relevant to the applicant's claims.

The first six documents set out on that page relate to the crisis in Medan that occurred in about April 1994, the rioting in Medan that led to ethnic Chinese then being killed. The rioting was set out in documents 1 and 2; and in May there were "widespread riots in Jakarta" and "anti-corruption rioting . . . in Medan, as in other centres, in June this year". Now, "this year" being 1998 because this decision was made in November 1998. There was also rioting in November, the very month this decision was made and that is referred to later on.

At line 29 the Tribunal says:

A number of sources confirm the existence of discrimination towards ethnic Chinese in Indonesia.

In my submission, that should read, when one took into account the Part B documents which I will come to, "an overwhelming number of sources". But in any event:

the US State Department Country Reports on Human Rights Practices for 1997 -

are set out there and relied on to support the findings that were favourable, at the top of page 275, in setting out some of the violence in Indonesia at the time. Document No 7 was set out there. Now, your Honours, we do not rely on documents 1 to 7 and, indeed, 1 to 8 as being heavily adverse. The adverse material that we do rely on I will take your Honours to shortly.

In the paragraph in the centre of the page that is highlighted in purple at page 275 shows in the Tribunal's thinking how the situation in Indonesia changed radically on 21 May 1998. Your Honours will see at about line 28:

President Suharto resigned on 21 May 1998, handing over to his vice-president, Mr Habibie. Since Mr Habibie's coming to power, rioting appeared to have been brought under control until the very recent eruption of the student riots in November.

That is the weeks and days before, and indeed the day before the Tribunal made its decision in this case there was rioting.

However, the concern expressed about the November riots is not about their being out of control but about their having been suppressed with such vigour that many students, as well as army personnel, were killed and injured.

Now, the Tribunal's decision from this point to the end takes on a very different complexion. It takes on pretty much the new material that the applicant has never seen, is not made privy to and is ultimately, in my submission, plainly the basis for the Tribunal's decision adverse to him. So, looking at the very next paragraph:

President Habibie soon after his accession announced a series of policy changes and the release of a substantial number of political prisoners. In June this year -

that is 1998, began -

a 5 year National Plan -

Now, that is document 8a over the page at 276. The numbering is purely arbitrary. It is from the schedule of adverse material that is in the agreed documents, schedule - one of the schedules attached to the agreed facts lists the adverse materials by number.

In No 8a, the defendants have not been able to provide a copy of that, so we do not have a copy, but, in my submission, it was plainly material relied on by the Tribunal. In about the middle of the page, document No 9 was relied on, setting out what has occurred since the riots in May, showing that there have been various riots in various Indonesian towns in which Chinese-owned shops were attacked. Document 10 sets out looting and rioting that have erupted - again: "Chinese shops and property bearing the brunt of the sporadic violence". There is not a copy of document 10. Document 9, I should point out at this juncture, is relied on by the Tribunal to support a finding that, following the May 1998 riots, the police and the army appeared on the scene quickly and suspected rioters were detained. In my submission, document 9 does not provide any support for such a contention.

The riots of November 1998 - that is in the days and weeks before the Tribunal rendered its decision - are set out at line 47 on page 276, and that is an indication there of the political motivation for the riots. The thing to remember, your Honours, is the material demonstrates that every time there is rioting in Indonesia, whatever be the spark, ethnic Chinese are targeted and are either killed, or assaulted, or their property is destroyed. That is a pattern that has been going on for 50 years in Indonesia against ethnic Chinese and the documents bear that assertion out plainly, in my submission.

Now, the riots in November are discussed and dismissed at the top of page 277. It is said that the riots were "almost exclusively political in character". However, document 12 simply does not deal with that point, though it is not clear how the Tribunal came to that conclusion. Documents 12 and 13 are set out there at the top of the page. Your Honours will see that document 12, for example, a NEXIS document - that is a document obtained from a computer, of course, NEXIS being a database based overseas - that was two days before the Tribunal hearing, 16 November 1998. Document 13 was one day before the Tribunal hearing, an article by David Jenkins in the Sydney Morning Herald.

The next document, document 14, an article by Gerry van Klinken - there is no copy that is available to be provided by the defendants, in any event, that could be used in evidence here. He is listed by the Tribunal later on, in these reasons, as respected commentator. I should say, later on, the Tribunal goes back to these articles and refers to them by a page number that is not quite exact. Later on in these reasons, the Tribunal says, "Here is my finding. I rely on the articles at pages 9 and 10". In my submission, the page numbering has been removed, so you are not able to see what is page 9 or 10, but from a close analysis of the decision, it is pretty clear what documents the Tribunal is referring to in its decision. I have attempted to list them in this coloured document. The issue is stated at 277, at about line 37, that:

The ability and inclination of the security forces to provide effective protection for ethnic Chinese is relevant.

Indeed, of course, as I have said earlier, it was ultimately determinative for the Tribunal. There is a highly prejudicial document that is then set out at the bottom of page 277, at about line 45. That is what is known as a DFAT cable, or a cable of the Department of Foreign Affairs and Trade, which was providing information relevant to the change of government and the recent events in Indonesia. At about line 46 it said:

In general, we believe that the security forces have the ability and inclination to provide this protection to all citizens, although the resources it can draw on and the speed with which it can react does vary across the archipelago.

So, your Honour, in my submission, to rely on that passage of document 15, a very, very influential and significant document, without the plaintiff ever even being aware of it, in my submission, is a straightforward denial of natural justice.

Over the page, at page 278, there is more of that cable that is relied upon and, indeed, I should take your Honours to document 15 before I continue. If I could take your Honours to the document itself, it is in volume C, at page 364. It is headed "COUNTRY INFORMATION REPORT". It is a cable and its type is characterised at the top. The date of the document appears to be 3 March 1998. I think the second date that appears above the report preparation, that is, 9 March 1998, seems to me to be the date that it was entered into the library or system of the migration department. It is a cable that at the time answered the question set out at line 29:

THE REFUGEE REVIEW TRIBUNAL IS SEEKING BACKGROUND INFORMATION TO ASSIST IN REVIEWING CLAIMS FOR REFUGEE STATUS LODGED BY VARIOUS INDONESIAN APPLICANTS OF CHINESE ETHNICITY.

They ask a number of questions such as the current situation in Indonesia regarding ethnic Chinese, and at paragraph E at line 40, the Tribunal asks the Department of Foreign Affairs:

FOR AN ASSESSMENT OF THE ABILITY OF AND INCLINATION OF SECURITY FORCES TO PROVIDE EFFECTIVE PROTECTION FOR ETHNIC CHINESE.

Now, as your Honours have seen in the passage that was quoted by the Tribunal, that passage is at page 367 - - -

HAYNE J: Can I understand what you say the Tribunal should have done with this document.

MR ROBINSON: You do not understand what I say?

HAYNE J: Could I understand what you say the Tribunal should have done with this document?

MR ROBINSON: The Tribunal should have either given it to the applicant, although it was not required to. It should have explained to the applicant that it had this document and then explained to the applicant the substance of what was contained in the document.

HAYNE J: With a view to the applicant doing what?

MR ROBINSON: So as to permit the applicant to conduct his case in the knowledge that the Tribunal possessed what it regarded as cogent evidence that the security forces have the ability and inclination to provide all citizens of Indonesia with protection from violence.

HAYNE J: The central contention made by the applicant for a protection visa was that his or her country of nationality was unable or unwilling to protect the applicant from persecution on account of ethnic origin?

MR ROBINSON: Yes, your Honour.

HAYNE J: Is it your submission that the Tribunal should have made available to the applicant every piece of material which came into its possession and which it did not dismiss out of hand as unreliable or unworthy of consideration with a view to the applicant having an opportunity to do what: to comment upon it, to do what with it?

MR ROBINSON: All that is required, in my respectful submission, of natural justice is for the Tribunal to have identified that material upon which it could have made an adverse finding and to notify the applicant that it has that material and that it is capable of supporting an adverse finding to the applicant's case and to notify the plaintiff of the substance of that material. That is the minimum, in my submission, the minimum content of natural justice in this case.

HAYNE J: At the moment it seems to me that that is to engage in an exercise that is not obviously and immediately useful to the applicant. To say to the applicant "There is a lot of material which on its face seems to me to suggest that you do not qualify as an applicant for refugee status" simply invites the question: "What is the reaction of the applicant to be to that?" It is no good the applicant stamping the foot and going blue in the face and saying, "Yes, I am" and it is not a confrontational process like a court.

MR ROBINSON: I appreciate that, your Honour.

HAYNE J: So, what is the objective that you say is being pursued by giving this information to the applicant?

MR ROBINSON: Your Honour, it would not be useful and it would not serve the interests of natural justice for the Tribunal to simply say, "I am not convinced. Convince me". This case is not pitched at that level and it is not pitched at that generality.

We are not saying that the Tribunal should say at some point, "I have material that goes against you. What do you say to that?". It is a case in this case of the Tribunal having specific identified documents that found specific identified findings, which I am taking your Honours to, which the Tribunal could have with some specificity given the plaintiff notice of.

HAYNE J: Let us deal with by reference to this document. If the Tribunal said to the applicant, "It is DFAT's opinion that the army and other security forces in Indonesia can and will protect ethnic Chinese" - - -

MR ROBINSON: The applicant then would have been in a position to, (a) know that fact; (b) know the case with some specificity that he has to meet; and he may have been able to make some submission to say, "DFAT found that in 1989" or "DFAT found that in 1992 and it was not correct". He may have been able to say, "Here is Professor Smith from the University of Jakarta who I can present in evidence, and he can counter that assertion quite specifically". All of these are not facts, your Honour.

HAYNE J: That was the whole thrust of what he wanted to put before the Tribunal, namely, that "I am not going to be protected by my national government if I go home and I will give you anything and everything I have that supports that view".

MR ROBINSON: But, your Honour, how can he counter a specific case of a specific department being identified that as at this date, a date after he made his application, after he had made many of his submissions - how would he be aware of it? There are two aspects to this, your Honour. One is the then current and changing position. How is he to be alive to the issues of the current and changing position? But, similarly, your Honour, the applicant may have, even if he was not to make submissions about the current and changing position, or rapidly changing position, he could have taken the Tribunal on an historical excursus through the countless numbers of times that Indonesia has been declared officially to be safe, only to prove that that was not reliable then and to make submissions that it is not reliable this time.

Those are submissions that an applicant would not normally make at first instance. He would simply assert and prove as best he could the assertions that he has suffered persecution, he has suffered instances of these things, he has heard about other things and he believes he is afraid because he cannot get protection in his country of origin. In my submission, when the Tribunal turns to specific DFAT cables to answer evidentiary questions that are before it and it has the answer but the applicant does not, it changes the situation, as it did in Miah.

In my submission, Miah is almost identical to the current situation where the Tribunal relied on events that were happening in a rapidly changing political environment and it did not share that fact with the plaintiff, to the plaintiff's detriment. So, in my submission, there could be something that could be done about it in evidence or submission. Indeed, all that the plaintiff need establish in this case is that something might have been able to have been done about it and, in my submission, he certainly could have said something to counter this and the other material to which I will take your Honours.

KIRBY J: An element of disquiet that I feel, and it may be irrelevant - tell me if it is, or Mr Basten will tell me - is that otherwise, unless it is disclosed, you have this Tribunal within the Executive Government asking another part of the Executive Government, the Department of Foreign Affairs, for information. It is then provided by the department to the Tribunal and never revealed to the person who is affected and who is before an independent body, or a body committed to an independent decision-making, of material which, at least in respect of some of it, is adverse. He cannot comment on it, he cannot seek to respond to it, he cannot say it is out of date, he cannot call people to contravene it, and it is all coming from within the Executive Government.

MR ROBINSON: Yes, your Honour, some of it is. That which does come from the Executive Government is, indeed, the strongest material, the most influential material, to come before the Tribunal. Indeed, it is material that, as your Honour will see on page 364 at line 24, noteNo 3, it "is cleared for release to applicants" in a process known as "procedural fairness", whatever that means there. It is cleared specifically for release to applicants, so the Tribunal could have given the material over. It chose not to.

KIRBY J: There is a provision, is there not, the Delegate is an employee of the department?

MR ROBINSON: That is correct.

KIRBY J: There is a provision, is there not, that says the Tribunal is supposed to act independently?

MR ROBINSON: I do not know that it is a provision as such, your Honour. The Tribunal does indicate, and in most cases before the oral hearing gets under way, to the applicant that it is independent or intended to be independent. The word is not used in the description of the Tribunal, it is - - -

KIRBY J: Do members of the Tribunal take an oath or affirmation of office?

MR ROBINSON: They are appointed separately. The answer is that I do not know offhand, your Honour.

KIRBY J: Perhaps you can check that and tell us after lunch; do not delay now.

MR ROBINSON: The independence comes from the creation of the Tribunal as a separate statutory entity in the migration legislation.

KIRBY J: Even though an employee of the department is holding a statutory office, Delegate of the Minister, it must perform the function in a way that is conducive to the attainment of the expectations that are attributed to Parliament?

MR ROBINSON: Yes, your Honour.

KIRBY J: The Tribunal is a body with a higher degree of independence, one would think, and I thought there was some provisions in the Act that suggested that, but I may be wrong.

MR ROBINSON: I am not aware of a provision that says that, your Honour. The Tribunal itself is established as a separate juristic entity. The registrar is created by section 471. The registry and the registrars and officers are created under section 472. The registrar and those Tribunal officers are employed under the Public Service Act, although that might have changed, by section 472 of the Act.

I recall there is provision to share offices. It is the overall impression, in my submission, of the structure of the Tribunal, as it operates, and at 457 is the section establishing it and 458 provides for its membership, that they are to act independent of the Executive. So that there is no point at which the Tribunal ties into the Executive Government. That is why I submitted at the start of the morning that the Tribunal is a creature of statute alone and it can only act in accordance with the terms of the statute that created it and within accordance of the matrix of rules that the statute has set out for, but I do not think it goes further than that, your Honours.

In relation to the remainder of the adverse material, it is from this point on that it is fair to characterise the documents numbered 17 right through to 25 as being material relevant to things that happen in Indonesia after May 1988, so that the focus of the Tribunal's decision-making from this point onwards picks up and relies on documents setting out what the President will do, what the military will do and how things in Indonesia will be, according to them, politically stable and safe, as it were, for ethnic Chinese persons.

Now, that is contrary, expressly, to what the plaintiff's case was and, in my submission, was plainly relevant material to be given to the Tribunal, that should have been made available to the applicant in some fashion or another. The adverse material that I rely on as being truly heinous in these circumstances to the plaintiff's case are set out in Attachment One of the Muin reply submissions. Starting at page 9 of the plaintiff's reply submissions is Attachment One that I propose to read in-chief. I set out there a brief excursion of the evidence leading to the Tribunal's decision.

I set out there the applicant's claims by reference to the Court books, so that unless your Honours require me to, I do not need to take your Honours to every single piece of evidence that led to the Tribunal's findings here. But I set it out in a summary form at pages 9, 10, 11, 12 and 13. On page 14 I set out at paragraph 20 the 15 principal findings that were adverse to the plaintiff's case that I am taking your Honours to now in the coloured version and, indeed, the numbers in the margin of the coloured version relate to paragraph 20 and your Honours will see wherever there is a purple highlighting of an adverse finding, there is a marking in the margin referable to paragraph 20 and one of its subparagraphs.

The document that is relevant to that finding I set out at paragraph 20, and your Honours can see that each adverse document that we rely on is adverse to a particular finding in the material. From page 16 onwards is a schedule of the adverse material as was used by the Tribunal member, and your Honours will see from that table I have set out - - -

KIRBY J: Which page is this, I am sorry?

MR ROBINSON: The top right-hand corner numbering, page 16 of the reply submissions, your Honour. There is a table there, in which the adverse material is set out in some detail and where, and precisely how, it is used in the Tribunal's reasons. I will take your Honours to that in some small detail after lunch, before I move on to the Part B documents case.

GLEESON CJ: How long do you expect to require to complete your argument?

MR ROBINSON: On the adverse materials case, I will be fairly brief.

GLEESON CJ: How long do you expect to require to complete your submissions?

MR ROBINSON: I will be finished today, your Honour.

McHUGH J: Over the adjournment, would you mind giving some consideration to the problem of the Tribunal, or quasi-judicial tribunal, or, for that matter, a person required to provide natural justice, who has general knowledge of matters in a particular area or industry, and to what extent that person is required to disclose that information? Let me give you a concrete illustration from the field of racing. Supposing a jockey is charged with failing to allow a horse to run on its merits, and he is convicted of the charge because the chief steward says, "I know that in a very slowly run race, early, to give 10 lengths' start to the leader makes it impossible to win the race, and you, as an experienced jockey, would have known that".

Now, is the steward who has obtained that information over a lifetime of experience obliged to put that to the jockey before he convicts him? Do you follow?

MR ROBINSON: Yes, I do, your Honour.

McHUGH J: Yes. Bringing it back to this particular case, are these review tribunals who must in the course of their duties acquire a great deal of knowledge about the situation in many countries required to put these matters to an applicant if the information could adversely affect them? There are two matters. You might just give some consideration to those matters.

MR ROBINSON: I will, your Honour.

GLEESON CJ: We will adjourn until 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.20 PM:

GLEESON CJ: Mr Robinson and Mr Basten, we are honoured to have with us on the Bench this afternoon the Chief Justice of Malaysia, who has been in this part of the world last week attending in Christchurch a conference of Chief Justices of Asia and the Pacific region and he has honoured us with a visit on his way home to Malaysia. Yes, Mr Robinson.

MR ROBINSON: In answer to your Honour Justice McHugh's questions immediately prior to lunch, in answer to your Honour's first question about the extent to which the steward is required to disclose his specialist knowledge to a jockey or an applicant jockey, the answer is, in my submission, no. In the ordinary course, specialist knowledge of such a tribunal or entity would not be ordinarily imparted to an applicant. But to the extent that such specialist knowledge itself becomes a factor in determining a fact that is a critical fact, leading to a determination that is adverse to an applicant, he or she, the steward, would need to disclose that information as a fact known only by the tribunal that would ultimately be, or may be determinative of a factual issue, or the ultimate issue, against the jockey.

KIRBY J: That is a bit difficult, is it not, because take, for example, a judge of a compensation court who, over 15 or 20 years, might have picked up quite a lot of knowledge about heart attacks or subdural haematomas and so on. Now, does that mean that before he or she decides a case, they have to disclose everything they know? They might not even be able to articulate what they know.

MR ROBINSON: Your Honour, the principle of natural justice, in my respectful submission, goes no further than this. Once an issue is able to be determined adversely to an applicant, at that point the decision-maker must stop and do something. The decision-maker must stop and say, "Have I ensured, before making this factual finding, or this ultimate finding, against an applicant that he or she is fully aware of my reasons for doing so, and has he or she had an opportunity to fairly counter that, if it needs countering?"

McHUGH J: But that is the big problem about this legislation. These tribunals are a halfway house between a judicial tribunal on the one hand and a policeman, in effect, on the other. There is no contradictor. The legislation provides that you have to give an opportunity to put evidence in support of your application for a visa, but there are no issues between the parties. In fact, there are no issues, full stop, other than the fact that you are applying for a visa. You keep speaking about the case that you have to meet, but that itself seems to me to be an invitation to error. There is no such thing as having a case to meet. This is a person who has to make some inquiries and review a decision of another officer.

MR ROBINSON: All that your Honour has said, in my submission, raises the bar of natural justice a notch or two to the situation where natural justice would ordinarily apply in an administrative decision-making or Tribunal decision-making sense where there is a contradictor. In my respectful submission, the onus is therefore increased on the Tribunal member to be ever vigilant that this particular scenario where the applicant is uneducated often, unable to speak the language often, from a foreign jurisdiction always, unrepresented mostly and certainly in the cases here, and in the case of Nancy Lie uneducated to the point where the Tribunal devoted an entire paragraph to how little - - -

McHUGH J: Yes, but we have got to look at this as a matter of principle, and if your argument is right then decision making in the administrative sphere may become almost impossible. There are many people who are called upon to make decisions where they have to rely on their own knowledge. Architects, engineers, people in similar positions conduct all sorts of inquiries in town planning matters. Are they required to let the person in front of them know every fact that they may think may affect the decision?

MR ROBINSON: Yes, your Honour. Only the determinative facts, and if they are factual or ultimately determine the issue, my answer would be "yes" in all cases, but "no" as to general knowledge. In terms of letting the Tribunal determine its own course, as it were, in a jurisdictional sense would be to let in, in a back door sense, the Chevron principle or Chevron doctrine from the United States which this Court let go in the City of Enfield a few years ago. In my submission, notwithstanding that there is a specialist Tribunal and deference of a kind can be taken into account, that ought not to allow the Tribunal any lesser standard of natural justice that a court or any other administrative decision-maker should accord an applicant. Indeed, in my submission, it raises the bar a notch or two to the point where they must be even more vigilant because of the subject matter, because of the kind of applicant that they have before them, because of the nature of the proceedings and, indeed, because of their, to the extent that they may have it, expertise in an area.

KIRBY J: I do not know that it raises the bar because that is introducing into what is a quasi-inquisitorial proceeding some of the notions that we are used to in courts. But what we have to do is look at the analogy of Miah. Now, what, in your submission, were the features of Miah that led the Court to say in that case that the new material should have been brought to the attention of Mr Miah, because if you can anchor yourself in what the Court has done, then you are on safer ground. Thinking back at what struck me in Miah was that this was new and unexpected material.

MR ROBINSON: Yes, your Honour.

KIRBY J: It was not something that was just part of the general information about Bangladesh, it was something that was entirely new and ought to have been brought to his notice so he could respond and try to dissuade the Tribunal from where it was going.

McHUGH J: Information that came into existence many months after the hearing.

MR ROBINSON: Your Honour, this is entirely new information here, some of it just days before the Tribunal hearing of events that occurred in Indonesia months before the hearing in circumstances where the applicant made submissions without reference or deference to what occurred in Indonesia. In other words, the applicant's position can be fairly to have been, in my respectful submission, that the change of government in Indonesia on 21 May 1998 did not make a difference. In my submission, that is the plain inference to the position taken by the applicant when he made no reference to the change of government. The Tribunal, who sat there during the hearing and made not even a mention of the change of government during the hearing to the applicant, ultimately decided that because of it the applicant would not be persecuted in that country.

So it became determinative, in my submission, plainly. It was new material in that the applicant could not have known that the Tribunal would till, as it were, sources of information, country information, dating just a few days before the Tribunal hearing, that the Tribunal would take into account matters that had occurred at a time when the applicant had been living in Australia for a number of years. There is no evidence to indicate that the applicant was alive to: (a) what was happening in Indonesia; (b) the extent to which it was happening; (c) the nature of what was happening; or (d) that it would be determinative of the Tribunal's decision in this case.

HAYNE J: Thus the proposition which grounds your submissions is a proposition that a tribunal like the Refugee Review Tribunal must give the applicant notice of its tentative views. That is, it must give the applicant notice that it has formed a tentative view that pieces of evidence A to ZZZ are relevant and may tend against the claim which the applicant makes.

MR ROBINSON: Your Honour, that is no more than what occurs every day in every royal commission that has been held.

HAYNE J: No. Mahon v Air New Zealand is, I think, perhaps the high point where what is required is that you give the party affected notice of the possibility of an adverse finding. That is, you give the person affected notice of an issue. But here there is no doubt about what the issue is. The issue is: will this person, if returned to Indonesia, be unable or unwilling to look to the government of Indonesia for protection?

MR ROBINSON: Your Honour, with respect, the issue is, will this government, in these circumstances, be able to provide effective protection and security to this particular applicant, or applicants of this one's race.

HAYNE J: Yes.

MR ROBINSON: Now, in my submission, the applicant put a case based on a situation in Indonesia that had changed. The Tribunal said, in its ultimate decision, that that change radically affects the way it is going to decide the case and it decided it without even hinting that that world change would factor so heavily in its decision making. A royal commission, were it faced with the same situation, would be obliged to notify the - - -

GLEESON CJ: I thought that was probably a Freudian slip when you first mentioned it, Mr Robinson, but are you suggesting that each of these immigration reviews should be conducted like a royal commission?

MR ROBINSON: Not at all. Not at all, your Honour. It was simply the principle in Mahon, that his Honour Justice Hayne mentioned that I was referring to, that is, the standard of the content of natural justice in inquisitorial matters where an inquiry starts with a blank sheet or just one page, as it were, and commences a free-ranging inquiry, the content of natural justice may not be large until the issues that can be adverse to a party or an entity before the Commission, are crystallised. It is at that point only that natural justice is enlivened and it has any content.

In this case, your Honour, this is a very different situation. It is not a free-ranging royal commission and it is not a court, it is somewhere in between. But, in any event, in my submission, the Tribunal here should not be clothed with a requirement to provide less natural justice than that which a royal commission has to accord, and that is all, in my submission. It most certainly is not and can never be like a royal commission. There is no representation in the Tribunal; there is no contradictor; there is no counsel assisting the Tribunal. It is only the Tribunal, and the applicant, and nobody else, in a closed private session.

KIRBY J: In a sense, your argument is not only based on fairness to the person affected, against whom in the result an adverse decision was made, but also in favour of good administration in the sense that the person affected may have some other information; some different sources; some more up-to-date data; some new developments may have occurred. It may or may not be accepted; it may or may not be believed; but at least it is then fed into the decision-making process and, therefore, contributes to good administration.

MR ROBINSON: I would adopt that, your Honour, in terms. It is something that would aid good administration and not something that would tie the hands of the Tribunal at all.

McHUGH J: But why not? Given that the class of person who comes before this particular Tribunal, it might be very difficult for a tribunal to avoid making available a copy of its proposed judgment or reasons, just to make sure that the person knows every factor that might be found against the - - -

MR ROBINSON: We do not contend that, your Honour - - -

McHUGH J: Well, I know you do not but - - -

MR ROBINSON: Cannot even get that out of a royal commission, your Honour.

McHUGH J: Mahon's Case is a very different case. Mahon's would probably be satisfied in this particular case if you were told that you were going to have an adverse decision made against you.

Mahon would be satisfied, it seems to me at the moment, in this case, if your client had been told, "I am proposing to find that you will be protected by the Indonesian government if you return there". That is enough notice. It is up to you to deal with. You want it to go further than that. You want precise details or the substance of documents put.

MR ROBINSON: Yes, your Honour. The substance of documents, at a minimum.

KIRBY J: Can I follow it up, just testing it by what Justice McHugh said in Miah. Mr Basten deals with this at 5.5. He says, "The features that Justice McHugh identified in Miah was":

(a) the material was new in the sense that it post-dated the application -

Now, was that so here?

MR ROBINSON: Yes, your Honour.

KIRBY J: The second was that it was - - -

McHUGH J: Well, some of it was, not all of it.

MR ROBINSON: Most of it was, your Honour.

KIRBY J: - - - "treated by the delegate as decisive of the prosecutor's claim".

MR ROBINSON: That is most certainly the case here, your Honour.

McHUGH J: Well, is that right, because there was a finding of no persecution here, was there not?

MR ROBINSON: Your Honour, I am in the process of taking the Court through that decision now - I am only halfway through that exercise. In the second half of the exercise, what I say will be perfected.

KIRBY J: Now, the third one, which may be more difficult for you:

(c) the underlying facts were seemingly irrelevant to the prosecutor's fears - - -

MR ROBINSON: Your Honour, it cannot be said that the factors here are irrelevant to the prosecutor's fears. They are what he claimed.

KIRBY J: And the fourth, that:

(d) the prosecutor could not reasonably have expected the information to be used as it was, nor could he reasonably have been expected to provide information himself in relation to a matter that he reasonably perceived -

to be irrelevant to his situation.

MR ROBINSON: Two things, your Honour. Firstly, the applicant did not know what the information was, let alone how it could have been used. Secondly, the applicant, in my submission, can be said to have put the case that if the change of government was an issue - and he did not put it as an issue - if it was to be an issue, that the discrimination and the persecution of which he complained continued in Indonesia. Indeed, he gave evidence, through photographs and oral testimony, of an actual instance where his family's house was attacked and ransacked in riots only a month or two before the Tribunal hearing and after the change of government. That evidence is of what occurred in September 1998, and the change of government occurred in May 1998.

So, if anything, the plaintiff maintained a case of discrimination because of his ethnicity, and discrimination because of his family's ethnicity, right up to the time of the hearing. If the Tribunal did not accept that, and believed that everything had changed, it would have been a very small matter, in my submission, a letter or a few words from the Tribunal, to simply say, "I have country information that says, X, Y and Z, that the situation is fine in Indonesia". In my submission, that would have radically altered the focus of the plaintiff's case. Indeed, it is agreed in the agreed materials that that is the case, and that the plaintiff, had he known that the adverse material would be taken into account, would have conducted his case differently.

McHUGH J: Well, I know these are agreed facts, but it strikes me that it is probably based on a fiction. But anyway, it is an agreed fact - - -

MR ROBINSON: It is an agreed fact.

McHUGH J: - - - of all the parties for the purpose of this litigation.

MR ROBINSON: Indeed, your Honour. Even without that agreed fact, it would be my submission that it would be open for a court to appreciate, as a matter of common sense, that there would be things that the plaintiff would have been able to submit that would have been able to pull the Tribunal away from the findings that it ultimately made, by way of evidence or submission.

McHUGH J: The only thing that you put forward in the stated facts was to identify some decisions made by other members of this Tribunal.

MR ROBINSON: They are in the bundle of additional material before the Court.

McHUGH J: Yes.

MR ROBINSON: I can take your Honour to those cases. Those cases say, "We hear from the Department's submissions and from the material before us, the independent country information, that the new President and the new general are saying that things are okay now in the country and we do not believe it for these reasons", and they number the reasons and they say why the President and the military chiefs' comments in the media should not be accepted, given the current events, the current riots, the continuing riots, the continuing targeting of ethnic Chinese - - -

McHUGH J: There are only two Tribunal members, are there not? There is Dr Hudson and Mr Haigh.

MR ROBINSON: There is Dr Hudson, Mr Haigh and Mr Raymundo. So there are six decisions of three of them, your Honour. The decision of Mr Raymundo is quite compelling, in my submission. That is the fourth decision that is set out in the bundle dated 21 September 1998.

KIRBY J: I do not quite understand this point. What is the utility of looking at the other decisions?

MR ROBINSON: Only to make the short point, your Honour, that it is agreed between the parties - and that is in the statement of agreed facts - that, had the plaintiff been aware of the use of the adverse materials, he would have done something about it and he would have made submissions of the kind that were ultimately persuasive in these six Refugee Review Tribunal decisions, or that he would have - - -

HAYNE J: The proposition that someone who is told "You are about to lose your case" might consider making further submissions is hardly astonishing. Really, does it amount to more than that?

MR ROBINSON: If it did not amount to more than that, your Honour, I would not be here because that would be at a level of generality so general that a plaintiff would not be expected to deal with it. I pitch my client's case, your Honour, at the particular that specific things could have been said, would have taken no energy by the Tribunal and, indeed, does not hold the Tribunal to any higher standards than that which is in its own practice direction that was applicable at the time. We are simply asking the Court to hold the Tribunal to its then practice direction made public. Really, the bar does not need to go, as it were, any higher than that on the Muin adverse materials case.

Now, in relation to the coloured document, I had taken your Honours to the first Tribunal decision in Muin and I was up to page 279 in volume B. On that page your Honours will see adverse materials documents numbered 18 to 24 in the coloured version of that document. That is where the bulk of the new material is laid out and over the page, document No 25 is laid out and the way this Tribunal decision is structured, having set all those individual pieces of country information out, the Tribunal then goes on to make its findings commencing at line 41 of page 280.

The Tribunal accepts the applicant as a credible witness that says that he had several demeaning and at times frightening experiences. Ultimately, it did decide that that was discrimination, but even it if it was discrimination, in my submission, a finding that the applicant would happily, as it were, go back to his country of origin being ethnic Chinese, is a different issue altogether and the Tribunal recognised it as such.

Over the page, at page 281, there is that finding in the middle of the page. The issue is identified at about line 40 on that page:

The Tribunal is required to assess whether there is a real chance that the applicant will be persecuted for a Convention reason if he returns to Indonesia in the foreseeable future. The volatility of the political and socio-economic situation in Indonesia, particularly in 1998 -

and I am stopping there for a moment. It is important to note that the Tribunal member did not say "exclusively in 1998". The Tribunal member did take into account material that pre-dated the May 1998 riots, and I will come back to that on the favourable materials case -

has required the careful assessment of a substantial number of information sources, which have been quoted from extensively.

I will come back to that sentence later on. On the inferences question, in my submission, the Tribunal has plainly there said the information that it has taken into account has been set out in the Tribunal's decision. In other words, in Muin's case there will not be a need for the Court to make an inference that the Tribunal did not consider the Part B documents. I will be basing my primary submission on the words of that paragraph alone and making the inference submission as an alternative submission.

In any event, there is another adverse finding about Buddhists who are not at risk at the bottom of page 281. At the top of page 282 the issue there, going from the bottom of 281:

The Tribunal has therefore concentrated on the situation of ethnic Chinese in considering the potential risk to the applicant.

In my submission that is the primary issue that the Tribunal decided its case on.

The next paragraph is a significant paragraph where the Tribunal, your Honours will see in purple there, ultimately took the view that taking into account that independent information, the violence against ethnic Chinese, both before and after the May riots, could not be described as systematic. There is a fairly significant error that precedes that which I mentioned in my Attachment One to the submissions in reply, and that is the violent action taken by groups of people has not been confined to action taken against ethnic Chinese. The article that is alleged to support that simply does not support it, with respect to the Tribunal member, but no point specifically is taken.

McHUGH J: Or could be taken.

MR ROBINSON: It is simply noted in passing. Then there is the submission that I made earlier that the Tribunal found, in the blue, the favourable finding that the May riots were significantly different to other riots in Indonesia in that they were orchestrated by senior military officials as part of a political struggle and that attacks on ethnic Chinse were deliberately provoked in those riots, and they certainly were not prevented by the military. That is set out plainly in that passage in blue on page 282 and, in my submission, would be appropriately characterised as a favourable finding.

The reason that the Tribunal member did not then go on to find that the applicant was safe to go home to Indonesia is because of the bulk of the country information that I have made reference to over the page at page 283. Your Honours will see I have listed there in support of the findings in purple at about line 36 that:

The Tribunal is satisfied that public statements by the Indonesian president and the head of the armed forces are, effectively, state policy . . . violence against Chinese Indonesians, including Chinese Buddhists, does not have an official quality and is not officially tolerated.

That is supported by the articles that are listed in the margins, articles 23, 24, 25 and so on, expressly, in my submission. That is borne out in more detail in my table on adverse materials that are attached to the Muin reply submissions.

Over the page the other articles that are used in support of the Tribunal's ultimate decision are also listed there and the final table of adverse material that is directly relevant to the determinative findings of the Tribunal are also listed there. So, in my submission, it is the plainest of cases that a large swag of material, quite a number of documents, were determinative of the issues ultimately decided against the applicant, the plaintiff, in this case, that they were adverse materials and it would have been a simple matter for the Tribunal to have made the plaintiff aware that it proposed to rely on this material and, indeed, that it was possible that such material could sway the Tribunal to find that everything was fine in Indonesia at that time from the Tribunal's - - -

KIRBY J: You do not need to put it that high, do you? You do not have to say that it is going to affect the decision. You just have to say that you want to have the chance of endeavouring to do that. I suppose there would be an exception if it was absolutely futile or a waste of time but, because we cannot anticipate what might be made of the material, your complaint is that you just have not had the chance to persuade and that that is something which natural justice and procedural fairness require that you have.

MR ROBINSON: Yes, your Honour.

HAYNE J: Let me examine that a moment. "Persuade", "issue", "adverse" are all words to which we are used in the curial context. Was there in the proceedings before the Refugee Review Tribunal any dispute that was being adjudicated?

MR ROBINSON: There was a case that was being presented.

HAYNE J: There was a claim being made, was there not?

MR ROBINSON: Yes, your Honour.

HAYNE J: Was there any contradictor?

MR ROBINSON: No, your Honour, there is not permitted to be a contradictor.

HAYNE J: The procedure is informa.

MR ROBINSON: Yes, your Honour.

HAYNE J: It is not adversarial.

MR ROBINSON: No.

HAYNE J: Why then should we apply what Professor Allars has called the judicial paradigm in her article in [1991] SydLawRw 25; 13 Sydney Law Review 335 to determining what the content of natural justice or procedural fairness is in an informal, inquisitorial determination of a claim made by the applicant with no contradictory case being presented?

MR ROBINSON: Your Honours, I am not proposing that this Court deal with the Tribunal issues in a manner that is comparable to a court. In my submission, this Court is already well experienced in dealing with the Refugee Review Tribunal and understands it and its role well. I do not propose to say anything more by saying that it was contrary to the applicant's case than to merely say, in the absence of a contradictor, when an applicant seeks to make out his case, or seeks to make out certain propositions before the Tribunal decision-maker, the Tribunal ought not possess and use secret information without making it public.

HAYNE J: You see, again there is an implicit assumption in that proposition, the assumption again being one to equate this Tribunal with a court in which judicial officers may not receive information except as is presented by the parties. This Tribunal is not a court. It is not in a position where it can receive information only via the parties. Indeed, it is required, is it not, to set about making its own inquiries? Is that not so? And thus to classify information as "secret" is simply a rhetorical flourish which again masks more than it reveals?

MR ROBINSON: Your Honour, it is empowered to make its own inquiries. I do not know that the legislation goes as high, and I may be wrong, as to say that the Tribunal is required to make its inquiries and this Court and Federal Courts, certainly Federal Courts, have held that there is no duty to inquire of the Tribunal here, it is only a permissive power in the Migration Act that permits the Tribunal to go and investigate.

KIRBY J: One thing that it is required to do under section 420(1) is to provide a mechanism of review that is fair, just, economical, informal and quick, but the words "fair" and "just" cannot be removed. Normally, "fairness" and "justice" requires that if there is something significant in the mind of a decision-maker, whether a tribunal or a delegate or anybody else, and whether sitting in an adversarial or inquisitorial mode - I am sure this is so in France - if it is important to you, you have to reveal it, so that you can be dissuaded or affected, get other information.

HAYNE J: For my part, that is a proposition that requires demonstration by reference to authority. You should not assume, for my part, that the proposition is self-evidently true. The application of the judicial paradigm to inquiries of this kind is something that I need to hear you about, not simply by means of assertion, but by reference to the Act and by reference to relevant authority.

MR ROBINSON: Your Honour, I am not seeking to put my client's case in the context of a judicial paradigm at all. I am seeking to treat this Tribunal as the entity with which it is, and I accept it at that, and I do not wish to seek to, or be seen to, push a square into a round hole, your Honour. I prefer to, in conceptual terms, think of this Tribunal as an administrative decision-maker, sitting alone, who has the protection of a High Court Justice in the manner in which he or she makes its decision. That is the conceptual framework that I put this case to this Court and I do not propose to, and to the extent I have, I would, as your Honour perceives that I have, withdraw it, I do not propose to say that the adversarial scenario has any relevance or any bearing on the Tribunal and its conduct. It plainly does not.

In my submission, it is that which raises the bar, in the sense that the Tribunal is supposed to be independent. It is all done in closed doors. Even though it has the trappings of a court and it has the trappings of a quasi-judicial tribunal, it is not a quasi-judicial entity. It is merely an administrative decision-maker clothed with special powers and special status.

GAUDRON J: Mr Robinson, I suppose the search is for the reasonableness of an opportunity to make your claim. I presume that is the bedrock principle.

MR ROBINSON: Yes, your Honour.

GAUDRON J: Yes, and that has to be put in the context of the Act, the established procedures, and so forth and so on. Certainly, there was nothing at the beginning of that process, was there, to prevent the applicants, we will say, or to detract from the opportunity of the applicants to put their case?

MR ROBINSON: No, your Honour, apart from the Part B issue, which - we will come to that.

GAUDRON J: Yes, well, we are not talking about that. So you really do have to come though to the point, do you not, and say there was a changed circumstance? What day was the case put?

MR ROBINSON: The case was brought in - - -

GAUDRON J: No, the written application, I suppose, is really when you come to - - -

MR ROBINSON: He came to Australia in 1996. The written application was 26 August 1996.

GAUDRON J: For review?

MR ROBINSON: That was to the Delegate.

GAUDRON J: Application for the protection visa, which - - -

MR ROBINSON: That was 26 August 1996.

GAUDRON J: Which went to the Tribunal anyway.

MR ROBINSON: It ultimately went to the Tribunal by application on 26 March 1998.

GAUDRON J: And then you had the elections in May.

MR ROBINSON: On 21 May 1998.

GAUDRON J: When were the hearings?

MR ROBINSON: The hearing was in November, on 18 November 1998.

GAUDRON J: These applicants, we can assume, would have been aware of the change of government.

MR ROBINSON: There is nothing in the evidence, your Honour, that would permit that to be said of this applicant. Indeed, the applicant's adviser made a number of submissions before 21 May, talking about the situation in Indonesia generally, and one submission after 21 May, in October, which talked about the ransacking of the applicant's family's house in Indonesia, said the situation is still not good and provided some photographic evidence, but did not mention the change of government at all. So, in my submission, from the applicant's point of view, the change of government did not change the situation in Indonesia at all, because no mention was made of it.

KIRBY J: We went through something like this in Miah, because it was said that Mr Miah must have known that the government of Bangladesh had changed and he should have taken his own initiative, but I think that was put against the argument. In the end, that did not prevail.

MR ROBINSON: Well, your Honour, in this case there is no evidence that the plaintiff was even aware of the change of government.

KIRBY J: That is pulling our legs, is it not? I mean, you would have to be living on another planet not to have known that the government of Indonesia fell.

MR ROBINSON: That may be so, that may be so. Your Honour - - -

GLEESON CJ: You used an expression, the applicant's adviser?

MR ROBINSON: I am sorry, your Honour?

GLEESON CJ: You used an expression a moment ago in answer to a question asked by Justice Gaudron which was the "applicant's adviser". To whom are you referring?

MR ROBINSON: He had a migration agent to appoint and that agent made submissions and - - -

GLEESON CJ: Now, you have said earlier that there was no evidence that the applicant knew this or knew that or knew something else. You said, for example, that there was no evidence that the applicant knew that there was departmental material to which the Tribunal might have access?

MR ROBINSON: Yes.

GLEESON CJ: When you say the applicant knew or did not know, where does the applicant's adviser fit into the scheme of things in that respect? What would the position be if the applicant did not know it, but the adviser well knew it?

MR ROBINSON: The adviser being the applicant's agent, your Honour, that knowledge can be expected to be that of the applicant in the sense that if the adviser knew it the Court could accept that - - -

GLEESON CJ: Now, are you suggesting to us that the applicant's adviser did not know that there was a change of government in Indonesia?

MR ROBINSON: I did not put that, your Honour. I only put that there is no evidence that the applicant or his adviser knew of the change of government.

GLEESON CJ: What is the significance of the fact that there is no evidence about it?

MR ROBINSON: Your Honour, the significance is the applicant cannot be taken to have assumed that there was a significant issue before the Tribunal concerning the change of government.

GLEESON CJ: You mean the applicant or her adviser cannot be taken to have assumed it?

MR ROBINSON: Indeed, your Honour, in this case.

GLEESON CJ: Because if it is the case that the applicant's adviser knew certain things, it does not matter what the applicant personally knew or did not know about those things, does it?

MR ROBINSON: That may be the case, your Honour. The situation here is - - -

GLEESON CJ: When you say, "it may be the case", in what circumstances would it not be case?

MR ROBINSON: Your Honour, in this case the applicant, through his adviser, made no mention of the change of government. It is not known whether they were aware of it. In practical terms, I would accept that they would be likely to have been aware of it. But be that as it may, on the facts in this case, the Court can take it as the case that the applicant's position before the Tribunal was that if the change of government was an issue, it did not affect the position of ethnic Chinese in Indonesia at the time of making those submissions.

GLEESON CJ: Now, let us pass from the state of knowledge of the applicant or the applicant's adviser about the change of government in Indonesia to a different subject. What about the state of knowledge of the applicant's adviser about the existence of a departmental bank of information which was updated from time to time and to which Delegates and Tribunal members might have recourse? Do we happen to know what the applicant's adviser knew about that?

MR ROBINSON: No, your Honour. In fact, there is no evidence that anyone knew of that, other than - - -

GLEESON CJ: No, just as there is no evidence that anybody knew of the change of government in Indonesia.

MR ROBINSON: Well, your Honour, we can assume that somebody knew of that, indeed; but in terms of what documents passed in the night, usually at midnight, on the evidence, from the Department to the Tribunal and what sources the Tribunal obtained, how it obtained them, those things we cannot assume were known to the applicant or his adviser.

GLEESON CJ: What do we know about the applicant's adviser?

MR ROBINSON: Not very much at all, your Honour, only his letterhead that he is a migration agent and that he has made certain submissions for the applicant, mainly along the lines of "Here is a piece of media report about the situation in Indonesia. The situation in Indonesia is terrible for ethnic Chinese. Here is a statement from the applicant setting out his position. Here are some photographs and another statement". That is it, your Honour. He did not attend the hearing and there is no other involvement from him as on and from a date in October when he sent his final piece of evidence before the Tribunal. He did not attend with the applicant and he did not give any other submissions other than what is set out in the documents.

GLEESON CJ: It is a little awkward to deal with factual issues about what an applicant knew or did not know, when we know that the applicant had an adviser, and we have no idea what the adviser knew or did not know.

MR ROBINSON: We certainly know from the evidence of the applicant that has led to the agreements between the parties about what the applicant knew and did not know, and to the extent that that is able to be imparted, that is in the agreed statement of facts, your Honour, so there is something there on this issue.

GLEESON CJ: Does the agreed statement of facts cover what the adviser knew and did not know?

MR ROBINSON: It covers what the adviser did, but not what he knew or did not know, your Honour.

GAUDRON J: I suppose the real issue is, is it reasonable in the context of the way this Tribunal operates and the fact that these people are Indonesians, to say the Indonesian applicants should have said, "After May 1998, we wish to put material before you to show that nothing has changed in the lack of protection for ethnic Chinese Indonesians." That, I suppose, has to be considered in the light of the fact that they are in Australia and out of their country.

MR ROBINSON: Yes, your Honour.

GAUDRON J: I suppose that is really what it comes down to. If you are appearing in court and you know what the issues are and you say "But I did not address on that" - say, "You should have known" or "Yes, of course you would not have known that that was in my mind".

The question is, is it that we come to this point where we have to ask would a reasonable applicant have had in mind that the Tribunal might think the change was significant or could be significant?

MR ROBINSON: In this case, determinative.

GAUDRON J: Yes, but, it does not matter. In this area we are talking only about opportunities.

MR ROBINSON: Yes, your Honour.

GAUDRON J: We talking only about reasonable opportunity. There was absolutely nothing up until the date of the decision to stop you writing and saying "X, Y and Z", or saying "Nothing has changed". The only possible thing that could be stopping you from doing that was the notion that nobody would think it was relevant, that nobody would be inclined to take the view that things had changed by reason of the change of government.

MR ROBINSON: That may be the situation here, your Honour.

GAUDRON J: But do you not have to go that far? If we are talking simply about reasonable opportunity, you have the opportunity. The only thing that would make it not a reasonable opportunity is you could not be reasonably expected to think it was necessary to avail yourself of the opportunity that existed.

MR ROBINSON: In my submission, that is the case here, where the applicant has, after the change of government, made through his adviser a submission that his family's house had been ransacked in a mob riot. In my submission, the plain implication from that is that ethnic Chinese are still not able to be protected. That is something that the adviser, I think, says plainly in his submission, that the ethnic Chinese are still in danger. So that the change of government, in my submission, was plainly, according to the applicant's adviser, not an issue.

GLEESON CJ: What makes me slightly ill at ease, Mr Robinson, is that when people are represented by lawyers, I am fairly comfortable that I know what kind of services will be rendered to those people by lawyers. I am far from confident that I know the same about migration advisers.

MR ROBINSON: Your Honour, in the Act "immigration assistance" is defined. I think it is 276.

KIRBY J: They cannot have lawyers before this Tribunal, is that not right?

McHUGH J: You cannot have representatives.

MR ROBINSON: You cannot have a representative before - - -

GLEESON CJ: How closely do advisers keep in touch with their clients about these matters? I just do not know.

MR ROBINSON: Your Honour, under the Act, if an adviser turns up, he or she, under the provisions that his Honour Justice Hayne referred to earlier before lunch, may not be permitted to speak. The Tribunal is not required to permit any submission to be made or any oral evidence to be adduced. So that if an adviser turns up, be it migration agent or lawyer or both, they may not be permitted to speak.

GLEESON CJ: The agreed facts, I gather, do not go beyond what Ms Lie, for example, knew or did not know about particular things, is that so?

MR ROBINSON: There is some evidence about what she knew and what she believed.

GLEESON CJ: What I wanted to ask you was: what does it matter what Ms Lie personally knew or did not know about certain things if, for example, her adviser knew about them?

MR ROBINSON: She did not have an adviser, your Honour. I withdraw that. She had an adviser who said and did some things that were plainly wrong, so she may as well not have had an adviser.

GLEESON CJ: I am not quite sure it is as easy as that, but let me ask you the question again. When it is relevant to an argument about procedural fairness to inquire what a party to litigation knew or did not know, if the party to litigation has a lawyer, it may not matter at all what the party knew or did not know if the party's lawyer knew it. Do you accept that?

MR ROBINSON: Yes, your Honour.

GLEESON CJ: In the case of a person such as Ms Lie, who has a migration adviser, doing whatever migration advisers do - and as I mentioned to you, I am not entirely sure what that is - what does it matter what Ms Lie knew or did not know if the adviser knew something about that subject?

MR ROBINSON: What would matter, your Honour, is what the adviser knew.

GLEESON CJ: Exactly. Now, what do we know about what the adviser knew?

MR ROBINSON: Nothing, your Honour, other than what is in the adviser's letters.

GLEESON CJ: Then what is the relevance of telling us what Ms Lie knew?

MR ROBINSON: In relation to Ms Lie and the Part B documents case, she only gives evidence about the things that she would have done had she been aware that the Part B documents had not been received and/or considered by the Tribunal. In relation to Mr Muin, he says that had he been aware - and that he was not aware - that Part B documents had not been received or considered by the Tribunal, he would have done certain things and he says had he been aware that material which is described as adverse material, had he been aware that that was to be taken into account by the Tribunal, he would have done certain things.

Now, in my submission, coming, as it is, as an agreed fact between the parties, this Court ought not to be troubled by whether or not the migration agent may have known some particular fact or some thing that might have impacted on that. In my submission, the Court should accept that, coming from both parties as an agreed fact, as the situation, as it were, untroubled or unencumbered by issues of what migration agents may have known.

Certainly, if I were here asserting that this is what the plaintiff knew in a trial situation, I would expect that to be tested by the other side, and it will be maybe even tested by the Court, and it would be more pertinent what the adviser knew in those circumstances. In this case, where a lot of that nutting-out, as it were, has been done between the parties, in my submission, it does not go higher than the plaintiff would have been able to do something about it had they known. Now, in the adverse materials case - - -

HAYNE J: Again, while you are interrupted, before you turn to that again, can the Refugee Review Tribunal, under the regime that existed at the relevant time, ever act on material received after the opportunity which section 425(1) required it to give to the applicant to give evidence had been exercised?

MR ROBINSON: That is after the oral hearing had occurred?

HAYNE J: Yes. Your proposition, as I understand it, is, no, it can never act on material received after the oral hearing.

MR ROBINSON: I would never countenance that as a proposition, your Honour. Of course, in my submission, they can take into account material, but to the point where that new material is capable and is likely to, indeed, change the Tribunal's mind about an issue, that is, to cause it to formulate an issue that is adverse to an applicant, or, in the classic sense, if the material is personal to the applicant, as opposed to adverse to the applicant's case, as put before the Tribunal alone, then, in my submission, the Tribunal has a duty to inform the applicant.

It would only take a letter, a simple letter, to say, "The Tribunal has become apprised of the material. The substance of the material is this. You have seven days in which to send your submissions or to say what you will in response to it". That would be all that is required, in my submission, to accord fairness to the applicant, to the plaintiff, and to accord natural justice.

It is not a tremendous burden. The Tribunal can certainly take into account new material that is favourable to an applicant. It can certainly take into account new material that is equivocal. But in terms of new material that the Tribunal is going to use to slam an applicant, as it were, and find adversely against an applicant on an issue, or on the ultimate question that arises after a hearing, in my submission, yes. On the law as it stood then, the Tribunal should have put that issue to the applicant in some fashion.

McHUGH J: But may not a distinction have to be drawn between what in the United States is called the distinction between adjudicative facts, which affect the parties, and legislative facts, which go as the basis for rules of law policy. Judges do it every day. They go outside the record and look at facts, in law review articles, in social science articles, for the purpose of formulating an article. Take Justice Dixon's judgment in the Communist Party Case. His Honour refers to writings on communism, and so on. Was he supposed, in that case, to have called the parties back before the courts to put views that he had obtained from his readings? Judges do not do it. Why should this type of tribunal have to do it when the question is not something that affects the parties in the sense of who, what or why did this, but when one is looking at the state of affairs in a particular country, why should not one draw a distinction between those two types of facts?

MR ROBINSON: Because different material can be relied on by different tribunals for different purposes. That is one point, your Honour. Secondly, the idea that a court can look at a fact in a general fashion, in a way that might aid it in understanding the issues involved in a case, is a far cry removed from a tribunal taking a piece of factual information and using it to make a factual finding. His Honour Justice Dixon did not do that, and no court, to my mind, has, without notice to any party, taken notice of a fact - other than judicial notice of a fact, which is well established - taken notice of a fact adverse to a party's case and used it to found a factual finding.

McHUGH J: Well, I am not sure that that is right. Take the negligent representation case, Esanda's Case. In that case, I certainly did, and I think Justice Gummow did, refer to a lot of material as to what the effect would be of formulating a rule of law which would impose liability on auditors to third parties. One reads material from other jurisdictions. The judgments of Justice Kirby are full of a tremendous amount of research about social facts. Now, surely, his Honour does not have to put it to the parties every time he wants to make some statement as the basis of some rule, or a reason why a rule should or should not be extended.

MR ROBINSON: Those materials, in my submission, generally go to questions of principle, the importance of questions of principle, questions of law, the rationale and policy for those laws, for principles, and they do not go, in the main, to findings of particular facts in particular cases adverse to particular applicants.

McHUGH J: Yes, but if you look at this particular case, what is the finding of which you complain? It is a finding that by reason - it is at a high level of generality in one sense, that by reason of a change in government that you are going to have a change in the conditions in Indonesia so far as ethnic Chinese are concerned.

MR ROBINSON: Your Honour, it is a finding that as at, in this case, 25 November 1998 it was safe for this ethnic Chinese Indonesian, Mr Muin - he has no first name, your Honours, it is just Muin - to go back to Indonesia and he would not be persecuted in that the government of Indonesia and the army would be able to control it. The finding is that the violence against ethnic Chinese is neither official, nor officially tolerated, nor uncontrollable, and it is not persecution in the Convention sense.

GLEESON CJ: Well, that is a level of fact that is a long way removed from whether somebody had too much to drink before getting behind the wheel of a motor car or whether somebody made a fraudulent misrepresentation to induce another person.

MR ROBINSON: It is the ultimate fact, your Honour. Before coming to that, at the bottom of page 284 - - -

GLEESON CJ: The ultimate fact is whether there was a well-founded fear of persecution, is it not?

MR ROBINSON: Yes, your Honour. Before coming to the finding that I read - your Honour's finding is the one made after this finding. The ones made before this finding that lead to it, I have taken your Honours to in some detail in the pages before 284. They form the springboard for making those ultimate findings. So it is in the course of making findings leading to the one I have read that led to, ultimately:

The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of his ethnicity.

GLEESON CJ: But the Tribunal did not make a finding that he was safe, that he would be safe, did it? The Tribunal made a finding on the road to a conclusion about whether there was a well-founded fear of persecution. The Tribunal made a finding that the government of Indonesia had both the will and the capacity to prevent a certain form of persecution.

MR ROBINSON: Yes, your Honour.

GLEESON CJ: That was the finding.

MR ROBINSON: Yes, your Honour.

GLEESON CJ: What I am suggesting for your comment is that that is a finding at a level of generality, or about a matter in relation to which questions of what might be called justiciability are a long way removed from the kind of finding with which courts are familiar, about whether or not somebody drove a car too fast or made a particular statement in the course of negotiating for a contract. A finding that the government of Indonesia has the will to do something or that it has the capacity to do something is a kind of finding a long way removed from what the courts usually have to deal with, is it not?

MR ROBINSON: I agree that in terms it is a long way removed. In principle, your Honour, I do not agree that it is so far removed as to be completely not comparable in that what is needed to found a finding such as that in either case is evidence, and that evidence - - -

HAYNE J: No, no, and that is the point at which the argument appears to me at the moment to break. It is not a question of evidence. This is not a Tribunal that takes evidence and a finding at a high level of generality about the general state of political affairs in a country is a finding about which the individual applicant can himself or herself say very little. Telling the applicant, "I am about to find on the basis of pieces of information A to ZZZ that the general state of political affairs in Indonesia is such that persecution is not tolerated and the government does its best to stamp it out, what do you say about that?", is simply inviting the applicant to reargue, not getting the applicant to tell anything that he or she can bring to the table uniquely.

MR ROBINSON: Your Honour, the way the legislation is crafted, evidence in tomes is to be brought to the Tribunal by the applicant and by others of whom he has given notice. He is to give oral evidence by section 426(1)(a). The Tribunal's powers are to take evidence, indeed, in 427(3)(c) to summon persons to give evidence, "administer an oath" and take evidence and, indeed, through an interpreter if required. Under section 428 the Tribunal is permitted to empower or authorise somebody else to take evidence on its behalf.

KIRBY J: Evidence is used throughout the Part, is it not? I think 433, for example, provides for punishment for people who refuse to give evidence or give false evidence.

MR ROBINSON: Yes, your Honour.

KIRBY J: So it is an evidence Tribunal.

HAYNE J: Oh, what about 420(2), it is not an evidence Tribunal.

MR ROBINSON: Its intent is in the next provision.

KIRBY J: You cannot wish the word "evidence" away, it is throughout the Part.

MR ROBINSON: Indeed, my only point in saying that is that the Tribunal, with respect, does receive evidence, does - - -

HAYNE J: It undoubtedly does and can receive it, but it does not act exclusively on evidence. It may inform itself as it sees fit, do you not accept that?

MR ROBINSON: I do accept that, your Honour.

HAYNE J: It can take country information in the form of cables from DFAT. You do not dispute that, do you? This is not an evidence Tribunal, it is not a Court.

GAUDRON J: But do you go so far as to say, "We had to be made aware of the evidence"? You do not, do you? You accept, do you not, that procedural fairness would have been served in this case if at the hearing the Tribunal said, "We have a lot of information to say that whatever the situation might have been before, President Habibie is going to bring it under control so that these people are not the subject of victimisation".

MR ROBINSON: Yes.

GAUDRON J: That is all you - - -

MR ROBINSON: That is all that we require, your Honour.

McHUGH J: You have moved away from your argument earlier this afternoon. When I specifically asked you, you were saying you want the substance of the documents.

MR ROBINSON: Your Honour, that is the gist of the bulk of the material used by the Tribunal here. There are statements made and everything is - - -

McHUGH J: No, but what is it that you want? The substance of what is in each document or just some general issue such as: "There has been a change of government in Indonesia. What do you have to say about its effect on your alleged persecution?" Is that sufficient?

MR ROBINSON: As in the Mahon Air Mount Erebus Case, your Honour, the gist of the documents is sufficient, in my submission.

McHUGH J: What do you mean by "the gist of the documents"?

MR ROBINSON: The gist of the documents were imparted to the applicant so that he or she knew in some general fashion at least the character of what it was that was being considered by the Tribunal or going to be considered by the Tribunal, so much so that they had an opportunity to deal with it.

McHUGH J: Is the Tribunal required to take each document which may have information about different areas, about different events? Is the Tribunal required to give the substance of each individual document or is it sufficient for it to have a wrap-up question two or three lines which states an issue which arises from a mass of material?

MR ROBINSON: As I indicated earlier, all that we require is that the Tribunal accord with what it said in its practice direction. That is, it will generally be sufficient to identify the source and to provide the substance of the material. There is no legal requirement to provide the actual source document.

McHUGH J: Mr Robinson, I am afraid that does not help me very much. That is at a very high level of generality. Would you formulate at some time for me exactly the statement or statements that should have been given to the applicant in this case so I will understand?

MR ROBINSON: I can do that, your Honour.

GLEESON CJ: Mr Robinson, can you give me some information about the history of this legislation. I gather from the way the case has been argued on both sides that the distinction I am about to mention is not relevant to the form of legislation with which we are concerned, but there has been a time when this Act in procedural provisions distinguished between information personal to the applicant and what I might call country information. When did that distinction come or go from the Act?

MR ROBINSON: In relation to the Refugee Review Tribunal, from 1 June 1998.

GLEESON CJ: I see. So it is not relevant to this case because of the timing of this case?

MR ROBINSON: That is right, your Honour.

GLEESON CJ: So it was after the time with which this litigation is concerned that this Act introduced a distinction of the kind that Justice McHugh was putting to you in his questions earlier.

MR ROBINSON: Yes, your Honour. 1999, my learned friend corrects me - 1 June 1999, I am sorry, your Honour. There is a reference to it in my written submissions.

GLEESON CJ: That is the explanation, thank you.

MR ROBINSON: The provision that came in was 424A, that brought in that distinction.

GLEESON CJ: There does seem to be a distinction of kind, does there not, between a finding of fact about whether or not conflict is continuing in a particular village in a particular locality in Indonesia and a finding of fact about the current will of the Indonesian government?

MR ROBINSON: Yes, your Honour, I would agree with that.

GLEESON CJ: I understand how you would go about proving the first fact. How do you prove the second fact?

MR ROBINSON: Your Honour, it depends, to some extent, on whether or not the Tribunal makes some reference to the internal protection principle whereby the applicant can be said to be at risk in one particular area of the country but not at risk in another area, in which case the Tribunal very often says the applicant can go to another area of the country of origin.

GLEESON CJ: I can understand that Tribunal saying, "We want to hear further evidence from you about whether or not fighting is continuing in" whatever is the Indonesian equivalent of the town of Wingham, but what does the Tribunal do when it is considering whether or not President Habibie is genuine in his expressions of desire to protect ethnic Chinese? Does the Tribunal say to the applicant, "I want to hear you on that matter"?

MR ROBINSON: It should, in my respectful submission. It does, in some cases, and it formulates its decision based on the material available to the Tribunal as at the time of making its decision.

McHUGH J: But this creates, it seems to me, Mr Robinson, enormous problems. Take the Trade Practices Tribunal. Surely, it does not have to inform the parties that it holds the view that marginal cost pricing will enhance economic efficiency. The members of the Tribunal will include an economist and a judge with expertise in the particular area. Surely, the Tribunal can act on economic theories without having to have everyone of them proved. As was said in one of the American cases, a regulatory agency is not required to conduct experiments to show that an unsupported stone will fall. There are all sorts of rules and theories of expert opinion which particular tribunals just take notice of. They never inform anybody. They just act on them.

MR ROBINSON: I would accept that, your Honour. In the present case, the Tribunal's opinion goes to a specific fact and the fact is whether the applicant will be likely to be suffering from persecution in a Convention sense when he or she goes back to their home country. Now, that is a purely factual finding. There might be some expertise involved, your Honour, but it might also be the Tribunal's first case on this question. There is no training that is particularly relevant to a Tribunal member in the sense that they are an engineer, when doing depositions on engineering, or that they are an architect involved in building disputes. There is no relevant training by which the Court can assume that the Tribunal can bring to it a body of learning, or skill, or professional quality and care to their decisions.

GLEESON CJ: I think the problem that is being put to you concerns the nature of the facts with which we are concerned. Is the corollary of your argument that the rules of natural justice require the Tribunal not to permit itself to be influenced by evidence or information having a bearing on those facts which does not come before it through the hearing process?

MR ROBINSON: That question does not arise, your Honour, but if it did, I would say that the Tribunal should not take into account material that would surprise an applicant, as a general response to it. In any event, your Honour - - -

GLEESON CJ: I have a particular question, not a general one, in mind. Do people who occupy these tribunals watch television at night?

MR ROBINSON: They may, your Honour. They may not.

GLEESON CJ: They are not supposed to switch it off, though, are they, when news about the state of affairs in Indonesia comes on their television sets?

MR ROBINSON: Well, your Honour, that is fairly constantly, but in my submission, it does not matter. There is a procedure in the Migration Act for the Tribunal to receive certain information. That is the case I will come to - the Part B material. It did not. So, at a bare minimum, the Tribunal is to have some sort of record before it. The other category or species of material that it plainly must have is that which is permitted by the applicant to be filed and given orally. That is the second species. There is a third species of material that it can get through its own devices, through its own research, in a fashion, in accordance with section 420, where it is not bound by "legal forms or rules of evidence". That means it can go and get its information in any fashion it thinks fit.

GLEESON CJ: I am not suggesting there is a simple answer to this problem, Mr Robinson. It seems to me to be a very awkward problem. The members of these tribunals must soak up information, from a wide variety of sources, about matters that have a bearing on the performance of their functions.

MR ROBINSON: That is so, your Honour, and indeed, the agreed facts, to some extent, goes that far.

GLEESON CJ: I suppose that is why they ordered the legislation later to draw this distinction between material personal to an applicant, and other material which is more in the nature of information that they would soak up.

MR ROBINSON: Your Honour, all I can say is that the legislation was introduced some months after the proceedings in Herijanto were first commenced in these proceedings. This point was made quite plainly in the Herijanto matter.

GLEESON CJ: Maybe you can draw some comfort from the fact that - - -

MR ROBINSON: I draw an inference from that, but I do not say that that is - - -

GLEESON CJ: - - - the argument that you are putting shows the need for remedial legislation that was ultimately enacted.

MR ROBINSON: Your Honour, I will not speculate on why Parliament did what it did.

GAUDRON J: Now, I feel I am misunderstanding things. You do not say, do you, that the Tribunal had to give them these documents?

MR ROBINSON: No, your Honour.

GAUDRON J: You do not say that they even had to give them references to the particular documents, is that right? You say in this case not one word was said in November, do you not, when the person came to the hearing, to suggest to him or her that there was an issue that even if things had been bad in the past, they were not going to be that way in the future?

MR ROBINSON: That is precisely it, your Honour.

GLEESON CJ: I must have misunderstood you because I thought you said that whilst the Tribunal was not required to show them the documents or give them a reference to the documents, it was required to convey the substance of what was in the documents.

McHUGH J: And the source.

MR ROBINSON: And the source. The source is important, your Honour.

GLEESON CJ: Is that right, both things? It was required to convey the substance of what was in the documents - - -

MR ROBINSON: And the source.

GLEESON CJ: - - - and the source?

MR ROBINSON: Yes, your Honour.

GAUDRON J: The practice direction says that that is generally sufficient.

MR ROBINSON: Yes, your Honour.

GAUDRON J: But do you say that that is necessary and, if so, why? Is it not the fact that in this case there was not one word said in the November hearing to suggest that there was now an issue that things would change to the point where they would be different for ethnic Chinese?

MR ROBINSON: That is correct, your Honour.

KIRBY J: Presumably, you can pitch your case - your preferred case is it should be what the practice direction says, but it is enough for you to win the case that they must have called to notice something to alert him to the fact that they were going to act on a basis that everything had changed and everything in the garden was now roses and they did not.

MR ROBINSON: That would be enough to win the case, your Honour. The preferable situation would be that the substance and the source of the documents were to be imparted at some point so that the applicant could then know the authoritativeness of the alleged sources of information, the gist of which had been imparted.

KIRBY J: Did Miah say that? Did Miah go as far as that? I did not think it did. I thought Miah simply said that in the circumstances of this new and unexpected information, crucial to the case, not confidential, having regard to the long delay, ought to have in some way been brought to his notice so he could inform the decision-maker of his point of view on the matter.

MR ROBINSON: In Miah, your Honour, the documents that were missing, as it were, were known to the plaintiff, were known to the parties - except for the Tribunal, of course, who did not take them into account - but in this case the documents are not known to the plaintiff at all. He does not know of their existence until he received the decision in November 1998. So it is different to the situation in Miah, in that sense.

GAUDRON J: You say, then, do you, if they had said, "Well, we have got material here to suggest things have now changed", you could have said, "Well, we want an opportunity to produce evidence to show that they have not", whether or not you got the documents?

MR ROBINSON: Yes, your Honour.

GAUDRON J: Yes.

HAYNE J: Again, can I understand that. On 18 November 1998 the applicant gave oral evidence in the Tribunal, is that right?

MR ROBINSON: Yes, your Honour.

HAYNE J: Was the ultimate proposition for which the applicant was then contending that, "If I am sent back to Indonesia, I hold a well-founded fear that I will in the future be persecuted for Convention reasons"?

MR ROBINSON: Yes, your Honour.

HAYNE J: That is to say, at the time the applicant gave evidence, that is on 18 November, the applicant was contending about the position as it then obtained.

MR ROBINSON: Yes, your Honour.

HAYNE J: Why was the Tribunal bound to put to the applicant, "Well, things are as they are today"?

MR ROBINSON: Because the Tribunal identified particular evidence - - -

HAYNE J: I understand your point about evidence, but can you stick with me at the moment at the point of generality. Was the Tribunal bound to say to the applicant, "Is that the position today?"?

MR ROBINSON: Your Honour, the applicant is entitled to be aware that the Tribunal is making its assessment as at the day that it made its decision, and the applicant was aware of the case that he was putting to the Tribunal and he would presumably have been aware of the material that he had submitted through his migration agent prior to giving his oral evidence, all of which I have set out in Attachment One to the Muin reply which set out in essence, I say, his case.

Your Honour, if the Tribunal was privy to information or material that was counter to that and knew it at the hearing or some time before it made its decision, and that factual material, which it was in my submission, it is appropriately characterised as factual material, ran directly counter to the position or case being put by the applicant to the Tribunal, yes, the Tribunal should have said or done something in relation to it.

GAUDRON J: That must come about, must it not, because of the way in which these things start? They start first of all with an application for a protection visa, in this case something like 18 months beforehand. That becomes your foundation case, as it were. That produces a decision. The decision is the subject of review and you then put a case saying, in essence, why the decision should be otherwise, but all going back to the foundation statement right at the beginning when you first claim - refugee statement.

The question, I think, comes down to this: is it reasonable for an applicant to assume it is going to be decided by reference to those documents and so on, subject to the ways in which the Tribunal acts unless the Tribunal tells him or her otherwise, or should the applicant at all stages have it in mind - is it reasonable to expect the applicant to have it in mind because of the precise legal question that comes about to be decided, namely, well-founded fear, unable and unwilling, that the Tribunal might decide this on the basis of the situation in the country?

MR ROBINSON: Whatever it may be.

GAUDRON J: Whatever it may be when the Tribunal comes to give the decision. That is really what it comes down to, is it not?

MR ROBINSON: Yes.

HAYNE J: Can we root that in the Act? Please, at some point your submissions have to grapple with the legislation. I have said this now three or four times. Can I draw your attention particularly to 415. The proposition you advance may well be right. I am not saying it is not right, but I am looking for some help. We have to write a judgment; we have to write a judgment that refers to the Act. Section 415(2) says what the Tribunal may do. Amongst other things, (d), it may "set the decision aside and substitute a new decision." On its face, that seems to me at least to be consistent with the Tribunal having in some cases the power to say, "Things have moved on. What the Delegate did has been overtaken by events because things have moved on. Set it aside, that is irrelevant, and I decide it afresh". If that is what the Tribunal has to do, the anterior history takes on a very different complexion, whereas if the Tribunal is there to affirm or set it aside and that is all it is to do, then the anterior history takes on a great significance. But at some point, can we root it back into the words of the Act?

MR ROBINSON: Your Honour, in my submission, the character of what the Tribunal does here is appropriately described as de novo review. It does not examine the original decision for its correctness except in the review on the papers stage where a close and careful and immediate and quick, as section 424(1) seems to indicate, study of that decision is to be made. At that point afterwards, the Tribunal goes into traditional, in my submission, merits review in which the correctness of the Minister's decision below assumes a lesser importance. That flows from the powers that your Honour has rightly pointed out at section 415 that on the face of it alone, it would be a de novo review tribunal. But on the particular provisions of 418 and 424(1), before the Tribunal does undertake a general de novo review of the decision, it undertakes a review on the papers.

In doing that exercise, it looks at - in a sense it is required to look at the Delegate's decision and the evidence that was obtained by the Delegate in making that decision and 424(1) is intended, it seems to me, in my submission, to facilitate a quick check of the Delegate's decision by reference to the material the Delegate decided on as well. If a decision favourable to an applicant cannot be made immediately, then the oral hearing mechanism in section 425 is enlivened.

HAYNE J: But in the events that have happened in these cases, do you say that it is a de novo review that was being undertaken by the RRT?

MR ROBINSON: On the 424(1) review on the papers, your Honour?

HAYNE J: No, in the events that happened in these cases where the applicants were told, "Review on the papers does not reveal the decision most favourable to you", that being so, do you accept that what the Tribunal was undertaking was de novo review?

MR ROBINSON: Yes, your Honour, making the Delegate's decision less important or, indeed, non-determinative anyway of how the Tribunal is to make its decision and, indeed, the Tribunal is bound by law - I think it is Singh's Case - to make its decision based on the material then available to the Tribunal. Indeed, if the situation changes in the country of origin, then the Tribunal has a duty to look at new material relating to the current or then situation in the country of origin as it pertained to an applicant. So it makes the case for de novo review compelling.

KIRBY J: That was said in this Court in Singh, was it?

MR ROBINSON: I think it was the Full Federal Court when they sat five judges in Singh's Case.

KIRBY J: Yes, but that came up here, did it not?

MR ROBINSON: It might have, your Honour.

KIRBY J: It is another Singh, lots of Singhs.

MR ROBINSON: There are, your Honour, but it was in the one that five judges in the Federal Court - - -

KIRBY J: I think the one that came to us was five judges of the Federal Court - in fact I am sure of it.

MR ROBINSON: Then it was that case, your Honour, but it has plainly been established and the Tribunal accepts that it has to look at the decision as at the time of the Tribunal's decision. So new material is expected to be put. That was all that I had intended to say - in addition to relying on how it is cast in my written submissions, that is all that I intended to say on the adverse materials. The primary case is a bare denial of natural justice. The alternative case is a legitimate expectation was enlivened by the practice direction that was breached and the adverse materials case, as it were, is pitched on those two alternative bases.

GLEESON CJ: I think we understand that.

MR ROBINSON: It might be convenient, your Honour - I am content to press on and present the Part B case.

GLEESON CJ: You will finish that tonight, I presume, will you?

MR ROBINSON: No, your Honour, I expect that will take an hour and a half to two hours to present the Part B case in both Muin and Lie.

GLEESON CJ: We were hoping to give Mr Basten an opportunity to address us also.

MR ROBINSON: Yes, indeed, your Honour. I will be as brief as I can in relation to that, but the thing that will take up a bit of time in the - - -

GLEESON CJ: The time to deal with that is right now.

MR ROBINSON: All right, your Honour. In relation to the Part B case, in Muin to start with, the Part B documents are set out in a number of places. They are defined in paragraph 12 of the agreed facts and in Muin that is page A66 of volume A, paragraph 12. The Part B documents at paragraph 12, at about line 20, described as:

Evidence used in making my decision is found in the following documents -

of the Minister's Delegate. That Delegate:

then listed 31 documents, the first being the file of the Department -

we are not concerned about that, and the remainder are described in these proceedings, it was agreed between the parties, as the Part B documents. Now, in the coloured document that I gave your Honours this morning, the small one, not the bound one, the first page of that document, it is B11 from the Muin materials, is the list of 31 documents, the Part B documents, as it were, that were used in the Delegate's decision. The Delegate said at the beginning, "Part B Evidence Before Me". She said:

Evidence used in making my decision is found in the following documents:

Your Honours can take it that at two or three other places in the Delegate's decision, Ms Dinning said that this is the material that she relied on in coming to her ultimate conclusions.

KIRBY J: Could you state in one sentence what your general proposition is? That is to say, the argument on the Part B documents?

MR ROBINSON: I have attempted to do that in - - -

KIRBY J: I just want to have the conceptual framework to which all the detail is being addressed - your words.

MR ROBINSON: Yes, your Honour, it is paragraph 9 of my submission, page 3. The plaintiff contends the Tribunal member failed to receive or consider relevant material that contained information favourable to the plaintiff's case. Had the Tribunal member properly received and considered this information, the plaintiff would have had better prospects of obtaining a favourable decision. The said failure of the Tribunal member to receive and consider the document known as the Part B country material was a breach of procedural fairness.

GLEESON CJ: How do we know what the Tribunal member received and considered?

MR ROBINSON: I will come to that, your Honour.

GLEESON CJ: Or, more precisely, how do we know that the Tribunal member did not receive and consider these documents?

MR ROBINSON: By a combination of the agreed facts and the Tribunal decision itself and a number of other facts that I will take your Honours to.

GLEESON CJ: As you understand it, is there a factual issue in this case about whether the Tribunal member received and considered these documents?

MR ROBINSON: Yes, your Honour. In the alternative, the failure that I have identified, that is the failure of the Tribunal to receive and consider the Part B material, was a breach of section 418(3) and section 424(1) of the Act, rendering the decision procedurally ultra vires. So the Part B document in both Muin and Lie which is relevantly identical is based on those two propositions: natural justice, firstly, in a legitimate expectation sense, and procedural ultra vires, secondly.

CALLINAN J: But it is not necessarily just a legitimate expectation. If you have made out your fact that the documents were not sent and received, there was a disappointment of an actual expectation engendered by the letter of 30 March 1998, which misrepresented, in that event, the facts. That alone might, arguably, constitute a denial of natural justice. You may not even have to look to a legitimate expectation. This case, I must say, looks to me, in that respect, a little like Aala's Case, in which I said something about an expectation which had been engendered there, on the basis of a misrepresentation. It is in paragraphs [212] to [214]. The point being that you may not even need the doctrine if you have made out your fact, your basic fact, of legitimate expectation. You had an actual expectation, and your client has sworn, has he not, that he expected - - -

MR ROBINSON: Yes, your Honour.

CALLINAN J: - - - the documents to have been sent and received as it was represented in the letter of 30 March, which is set out in paragraph 22 of the agreed facts.

MR ROBINSON: We would accept that, your Honour, and indeed, that is where the Tribunal, in our submission, misled the plaintiff actively - - -

CALLINAN J: Yes.

MR ROBINSON: - - - in both cases.

GLEESON CJ: Does all this argument turn upon the fact that the Tribunal had them on a computer screen instead of in pieces of paper?

MR ROBINSON: No, your Honour. That is one small part of it. The Tribunal may have had them on a computer screen. We do not know.

GLEESON CJ: You see, you keep talking about receiving and considering documents, but it is information that is important, is it not? And if the fact is that, available to the Tribunal, in electronic form, was all the material listed on this sheet of paper, and if it were the fact - and this is an area of contest - that the Tribunal member took the information in those documents into account, then the fact that pieces of paper were not received would not matter, would it?

MR ROBINSON: That might be the case, if that were the fact, your Honour. If the Tribunal took into account each of the 31 - minus one or two - if it took into account the 31 documents - - -

GLEESON CJ: More accurately, took into account the information contained in the 31 documents.

MR ROBINSON: Indeed, your Honour. If the Tribunal took into account the information contained in the document, I would expect, if I have made out my case otherwise, that your Honours would find a breach of natural justice had occurred, in terms of Stead's Case, which your Honours applied in Miah, and that, as a matter of your Honours' discretion, the Court would give the plaintiff no relief, because the breach of natural justice or the breach of the procedures resulted in no error, or no unfairness, as it were, to the plaintiff. But that is certainly not the case here, your Honour. Many of these documents were not on CISNET. Some of them were on CISNET but were in a different form, or were extracts, or were simply not on any database whatsoever. It is not a straightforward case as that these documents were all resident on CISNET. That CISNET database was sent from one server to another server - - -

GLEESON CJ: I understand it is not as simple as that, but your repeated use of the expression, "receive and consider documents", in a situation where the real issue, at least, as it seems to me at the moment, concerns taking account of information, may tend to mask a problem.

MR ROBINSON: Your Honour, I am mirroring section 418(3) which refers to documents.

HAYNE J: Yes, where there is tangible things.

MR ROBINSON: Yes, your Honour. I am mirroring section 424(1) which is receive and consider the material delivered pursuant to section 418, in particular 418(3).

GLEESON CJ: But I would understand to acknowledge that if all that went wrong in the present case was that they read that information in an electronic form rather than handling pieces of paper, you would lose.

MR ROBINSON: Your Honour would deny us relief. That is what I would expect, your Honour, or I would anticipate would be an available option for your Honours on relief.

HAYNE J: Now, Aala's Case concerned a submission that Aala had made in the course of the procedures that had been followed, did it not? It was a statement of Aala, himself, that was said to have been received when in fact it had not been, is that right?

MR ROBINSON: Yes, I think that is right, your Honour.

HAYNE J: All this material with which we are now concerned is country information that is not information personal to the applicant, is that right?

MR ROBINSON: None of it is personal to the applicant, that is correct, your Honour.

HAYNE J: The applicant well knew, did he not, or she not, from the Delegate's decision that there was material to which the Delegate had referred and upon which the Delegate had, at least as to part, based a decision to deny the applicant a protection visa?

MR ROBINSON: Indeed the applicant had the Part B list.

HAYNE J: Knowing that, and accepting for the purposes of argument that there was then a mistaken statement made about what was transmitted - and I try to adopt entirely neutral language - what was the want of procedural fairness which the applicant suffered when the applicant, knowing of this information, knowing that it had been used against the applicant, was thereafter afforded an opportunity to make whatever submissions the applicant wanted to make, whether about that information or any other information that the applicant sought to rely on?

MR ROBINSON: Your Honour, in this case the applicant was aware - in both cases both plaintiffs were aware that the Part B material contained favourable information.

HAYNE J: Let that be assumed. What was the denial of procedural fairness when knowing of this information the applicant then was given an opportunity to make whatever submissions the applicant desired to make about the significance that the new decision-maker should accord, whether to that material or information or any other?

MR ROBINSON: Your Honour, the applicant was under the mistaken impression that this favourable country information was delivered to the Tribunal and that the Tribunal had it before it. The applicant in this case - - -

HAYNE J: That is the assumption I ask you to make, that that is a mistaken belief, that the applicant has a chance to make whatever arguments he or she desires to make, whether founded on those documents or other documents, that information, any information. Where is the denial of procedural fairness?

MR ROBINSON: Your Honour, the applicants did have the ability, in both cases, to make submissions going to those documents. They did not avail themselves of that opportunity by taking the Tribunal to specific documents. What they did do in both cases was to assume, having been told by the Tribunal that it had those documents and had read them, that the Tribunal would be influenced favourably towards them on a country information sense. It is that assumption that they were led by the Tribunal to believe. If they did not have that assumption, if that was proved wrong, then there are things that they would have done. They would have taken steps, for example, to draw this information to the Tribunal's attention and they would have conducted their case differently. Your Honours, that is an agreed fact in both cases, that the plaintiffs would have conducted their case differently. Had they known that the Tribunal had not considered this favourable country information, they would have done something different.

GLEESON CJ: What is not an agreed fact is that the Tribunal did not consider this information.

MR ROBINSON: No, that is correct, your Honour. That is the one - - -

GLEESON CJ: I notice that one of these documents is a decision of this Court, and another of these documents is a legal textbook.

MR ROBINSON: That is not relied on, your Honour.

GLEESON CJ: It may not be relied on, but how does section 418 apply to it?

MR ROBINSON: Your Honour, we do not say that documents numbered 1 to 4 in that list need go.

GLEESON CJ: I know you do not say that but, having regard to your submission about section 418, why do you not say that? I understand why it would be inconvenient for you to say that. Perhaps you could let us know at 10.15 in the morning. How do you say section 418, which you would have us read literally, applies to documents numbered 2 and 3 on this list?

MR ROBINSON: Your Honour, it applies in terms but, if it was not complied with, we take no issue with it. I do not put it any higher than that. I do not say that section 418 does not apply to items 1 to 4, it does apply in terms but, in my submission - - -

GLEESON CJ: What does it mean?

MR ROBINSON: That means that, to the extent that the decision in Chan in the High Court comprises evidence before the Tribunal, it should be delivered before the Delegate - - -

GLEESON CJ: Should actually be given, should it not?

MR ROBINSON: Should actually be given to the Refugee Review Tribunal, bearing in mind that we take the view that it was a legal citation used for legal interpretation. Then it is not something that we say ought to have gone to the Tribunal. It might be a technical breach, but we do not complain of it in this case, your Honour.

GLEESON CJ: We will adjourn now until 10.15 tomorrow morning.

McHUGH J: Before you do, Mr Robinson, you might have a look at a case, and Mr Basten might look at it as well, it is an American case which seems to be almost identical in substance with this particular case and which assists you, it is a case called Castillo-Villagra F 2d 1017 and it concerns change of government in Nicaragua and as to whether the Sandinistas were still a source of a well-founded fear of persecution of the applicants in that particular case, and it was held by the Ninth Circuit that the petitioner should have been given notice by the Tribunal before it acted on that information.

MR ROBINSON: I will look at that overnight, your Honour.

McHUGH J: There is a suggestion I did not give it accurately.

HAYNE J: You gave a year not a volume.

McHUGH J: It is [1992] USCA9 2160; 972 F 2d 1017 (9th Cir 1992).

MR ROBINSON: Thank you, your Honour.

GLEESON CJ: We will adjourn until 10.15 tomorrow.

AT 4.17 PM THE MATTERS WERE ADJOURNED

UNTIL WEDNESDAY, 10 OCTOBER 2001