Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411
Outcome: applied
In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411 ( VEAL ), the High Court considered the Tribunal's obligation to accord procedural fairness in circumstances where it was aware of allegations against a protection visa applicant and where the author of the information containing the allegations has requested it be confidential. In that case, the Tribunal did not inform the applicant about a letter containing allegations which were adverse to his application, but said in its reasons for decision that it gave the letter no weight. The High Court said the Tribunal should have told the applicant of the substance of what was said against him. 18 The Court said at [17]: ...what is "credible, relevant and significant" information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. ... "Credible, relevant and significant" must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. 19 In the instant case, the Tribunal informed the appellant prior to making its decision that it would not take the exempt documents into account. However, this does not mean that the Tribunal applied proper procedure in not telling the appellant the substance of the allegations and allowing him to comment. 20 In VEAL , the Court said at [20]: The information set out in the letter about the appellant could not be dismissed from further consideration by the tribunal as not credible, or not relevant, or of little or no significance to the decision. The Court considered the material to bear "upon whether [the appellant] had a well-founded fear of persecution for a Convention reason". 21 As discussed at [16], the Federal Magistrate said in his Honour's reasons for judgment at [36] that some of the material in the exempt documents was "potentially derogatory of...the credibility of [the appellant's] refugee claims". It may be logically considered that the material in the exempt documents bore directly on whether the appellant had a well-founded fear of persecution for a Convention reason. It is immaterial that the Federal Magistrate was not satisfied the exempt documents had any influence on the Tribunal or whether it was probable that they did. The exempt documents were tendered, confidentially, on appeal. In my view, they had the potential to impact adversely on the credibility of the appellant's refugee claims. 22 Counsel for the Minister submitted that what is "credible, relevant and significant" material is a matter for the Tribunal alone and that a degree of latitude should be given to the Tribunal's views, in circumstances where it announces before making its decision that it will not take the material into account. However, counsel conceded that the Tribunal's view on the credibility, relevance and significance of material could be reviewed by a Court in circumstances where the material is, of its nature, so obviously credible, relevant and significant that a reasonable tribunal could not regard it as otherwise. 23 As indicated at [21], the exempt documents were tendered confidentially on the appeal. Having read them, I cannot fathom how any reasonable tribunal would not be influenced by them to form an adverse view of the appellant's credibility generally and in respect of his refugee claims. Some of the allegations raised in the exempt documents against the appellant are very serious. 24 In my view, no reasonable tribunal could consider that the documents were not "credible, relevant and significant". Some of the material in the exempt documents was supported by other parts of it. That impacts on its potential credibility. The exempt documents could not be divorced from an assessment of the appellant's claim to have a well-founded fear of persecution. At the very least, they could not, by their nature, be reasonably dismissed as not bearing on the credibility of the appellant's refugee claims in a real and substantial way such that the material in them could be put to one side and out of the decision-maker's mind. 25 I note the Tribunal's decision preceded the High Court's judgment in VEAL [2005] HCA 72 ; 222 ALR 411 by about ten months. However, in accordance with VEAL [2005] HCA 72 ; 222 ALR 411 at [29] , the Tribunal, to accord procedural fairness to the appellant, should have informed him of the substance of the allegations made in the exempt documents and asked him to respond to them, or at the very least informed him of the substance of those parts of the exempt documents which bore on the credibility of his claims to have a well-founded fear of persecution, and asked him to respond. In failing to do so, the Tribunal failed to accord the appellant procedural fairness. 26 The decision of the Tribunal must be set aside and the matter remitted to a differently constituted Tribunal. The failure to accord the appellant procedural fairness having been established, it is unnecessary for the Court to consider whether the Tribunal's decision was affected by apprehended bias, as a consequence of it being aware of the allegations made against the appellant. There is no utility in examining this issue because if the matter is remitted to the Tribunal it will bring the substance of the exempt documents, which bear on the appellant's credibility, to his attention and no issue of apprehended bias should arise. 27 The Tribunal dealt with the appellant's claim to fear persecution on account of his political opinion at pp 9-27 of its decision record under the heading "Claims and Evidence". Essentially, the appellant claimed to be involved with and to support the Bangladesh National Party (BNP). At p 13, the Tribunal noted the appellant's claim that, in 1992, the BNP appointed him regional director of the AsiaNews Network Overseas (Network), which he described as "a joint venture between BNP and overseas supporters".