Case: Applicant S416 of 2003 v Refugee Review Tribunal [2003] FCA 1630
Outcome: referred to
That proceeding before Madgwick J was a challenge by the appellant to a previous Tribunal's decision to affirm the delegate's decision not to grant him a protection visa. Justice Madgwick, on 5 December 2003, set aside that Tribunal's decision by consent, on the basis that certain country information which the Tribunal relied on was not brought to the appellant's attention, nor was he given a chance to comment on it. In Applicant S416 of 2003 v Refugee Review Tribunal [2003] FCA 1630 ( Applicant S416 of 2003) , Madgwick J said at [3]: There may well have been other reasons which the applicant would have wished to urge as to why the Tribunal Member's decision should be quashed. I am aware, for example, that certain material was sent to the authorities on a confidential basis, making serious allegations against the applicant. I upheld a claim for public interest immunity, made by the Minister, against a requirement that the relevant documents making allegations should be produced to the applicant's legal advisers. The nature of that material, it seems to me, was such that it might well give rise to a claim that if a Member of the Tribunal were to look at it and not show it to the applicant or apprise him of sufficient of the substance as to enable him to deal with it for fear of compromising the identity of the informant, among other things that could give rise to a claim of apprehended bias on the part of the Tribunal Member. It therefore seems to me that in order to forestall, so far as possible, any such dispute, it would be desirable upon the remitter of the matter to the Tribunal for re-consideration according to law that the President of the Tribunal should, with the benefit of legal advice, give the matter his consideration. (Emphasis added.) 11 The Federal Magistrate set out this paragraph of Madgwick J's judgment in Applicant S416 of 2003 [2003] FCA 1630 at [23] of his Honour's reasons and emphasised a passage commencing with the words "(t)he nature of that material" until the end of the paragraph. 12 The Federal Magistrate considered at [25] that "a fair-minded lay observer" would appreciate Madgwick J's warning offered to the Tribunal, but would also note that Madgwick J had left it to the Tribunal "to form its own judgment on how to deal with that material". 13 The Federal Magistrate said at [28]: ...once the material did reach the Tribunal, it was the duty of the member constituting the Tribunal personally to consider its potential relevance, weight and usefulness. To allow another person to perform this assessment, would mean that the Tribunal, as properly constituted by a member designated under ss. 421 and 422, had failed to perform the "review" required by ss. 414 and 415. 14 The Federal Magistrate set out passages from the transcript of the hearing before the Tribunal on 5 August 2004 at [33]. At those passages, the Tribunal: &#8226; referred to the appellant's concern about the exempt documents unfairly influencing the Tribunal's decision; &#8226; said it could not go into much detail about the contents of the exempt documents; &#8226; said the accusations in them were "unsupported"; and &#8226; said it would not be taking them into account but would "put them aside".