FEDERAL COURT OF AUSTRALIA

MIGRATION - judicial review - Refugee Review Tribunal - nature of proceedings before Tribunal - burden of proof - obligation to rationally consider probative evidence

EVIDENCE - whether Refugee Review Tribunal is a court for purposes of the Evidence Act 1995 (Cth) - effect of ss 8 and 9

Migration Act 1958 (Cth) ss 420(2), 476(1)(a), 476(1)(e)

Evidence Act 1995 (Cth) ss 8(1), 9(1), 150

Bushell v Repatriation Commission (1992) 175 CLR 408 mentioned

McDonald v Director-General of Social Security (1984) 6 ALD 7 mentioned

Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 considered

Sodeman v R (1936) 55 CLR 192 applied

Re Letts v Secretary to the Department of Social Security (1984) 7 ALD 1 mentioned

R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 mentioned

Kavanagh v Chief Constable of Devon and Cornwall [1974] 1 QB 624 mentioned

R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 465 applied

Mahon v Air New Zealand [1984] AC 808 applied

Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; on appeal (1980) 4 ALD 139 applied

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 considered

R v District Court; Ex parte White  (1966) 116 CLR 644 not followed

Roads Corporation v Dacakis [1995] 2 VR 508 not followed

Waterford v The Commonwealth (1987) 163 CLR 54 considered

Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 discussed

Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 referred to

Thambythurai & Anor v Minister for Immigration and Multicultural Affairs & Anor (unreported, 16 September 1997) applied

Baker v Campbell (1983) 153 CLR 52 mentioned

Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 mentioned

Controlled Consultants v Commissioner for Corporate Affairs (1985) 156 CLR 385 mentioned

Science Research Council v Nasse [1980] AC 1028 mentioned

Middendorp Electric Co Pty Ltd v Law Institute of Victoria [1994] 2 VR 313 mentioned

FAUSTIN EPEABAKA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 39 of 1997

FINKELSTEIN J

MELBOURNE

10 DECEMBER 1997

On appeal from a decision of the Refugee Review Tribunal

THE COURT ORDERS THAT:

1.         The appeal be allowed.

2.         The decision of the Refugee Review Tribunal be set aside and the matter be remitted to the Refugee Review Tribunal constituted by a different member to be heard and determined according to law.

3.         The respondent pay the applicant’s costs of the appeal.

Note: Settlement and entry of orders is dealt with in order 36 of the Federal Court Rules

On appeal from a decision of the Refugee Review Tribunal

REASONS FOR JUDGMENT

HIS HONOUR:  This case raises an interesting question concerning the approach that should be taken by the Refugee Review Tribunal in determining whether it has been sufficiently persuaded of the existence of facts which it is asked to determine.

The Tribunal was established by s 166J of the Migration Act 1958 (Cth): see now
s 457.  The members of the Tribunal are appointed by the Governor-General
(s 459) and there is no qualification for their appointment.  The principal function of the Tribunal is to review decisions to refuse to grant or to cancel a protection visa: s 411(1).  A protection visa may be granted to a non-citizen to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (see s 36 and the definitions of Refugees Convention and Refugees Protocol in s 5).  Those obligations are owed to a person who is a refugee as defined in Article 1 of the Refugees Convention.  In exercising its power to review a decision the objective of the Tribunal is to provide “a mechanism of review that is fair, just, economical, informal and quick”: s 420(1).  In that regard the Tribunal is instructed that it “is not bound by technicalities, legal forms or rules of evidence” (s 420(2)(a)) and that it “must act according to substantial justice and the merits of the case (s 420(2)(b)).  In deciding a case the Tribunal has power to take evidence (s 425) and can administer an oath or take an affirmation for that purpose (s 427).  In addition s 423 permits the Tribunal to receive statutory declarations in relation to any fact the Tribunal is to consider and also permits the Tribunal to receive written arguments relating to issues to be considered.

A proceeding before the Tribunal is not adversarial for the reason that there is no party opposing an applicant.  The Secretary of the Department of Immigration and Multicultural Affairs may put written submissions to the Tribunal in a particular case (see s 423(2)) but that is not sufficient to make the proceeding adversarial.  The proceeding may best be described as inquisitorial: compare Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 where Brennan J so described proceedings before the Administrative Appeals Tribunal. One consequence of a proceeding not being adversarial is that an applicant does not carry any burden of proof: see McDonald v Director-General of Social Security (1984) 6 ALD 7 at 9;  Bushell at 425.  I use the term burden of proof to refer to an obligation to prove or disprove a fact.  This is sometimes referred to as an evidential burden: G Williams, Textbook of Criminal Law (2nd ed) at 48 but compare Jayasena v R [1970] AC 618 at 624 where this expression was criticised.  Thus, the Tribunal must simply listen to all of the evidence and decide the case on the basis of that evidence.  (Note the criticism by the High Court in Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 282 of the use of the word “evidence” in the context of administrative proceedings).  Most usually the evidence will be adduced by an applicant, but the Tribunal has power to require the Secretary to provide it with information (s 427(1)(d)) and can also inform itself of relevant facts.  In considering the evidence the Tribunal is “under a duty to arrive at the correct or preferable decision in the case”: compare Bushell at 425.  Ordinarily such a duty would be imposed by the common law or as a necessary incident of the legislation that establishes a tribunal but in the case of this Tribunal s 420(2)(b) would also be a source of that obligation.

When deciding a case the Tribunal must have regard to what is an appropriate standard of persuasion.  In Sodeman v R (1936) 55 CLR 192 at 216 Dixon J said that the common law only knew of two such standards, that applicable to criminal cases, beyond a reasonable doubt, and that applicable to civil cases, the preponderance of probability.  However, Dixon J pointed out that “questions of fact vary greatly in nature and, in some cases, greater care in scrutinising the evidence is proper than in others, and a greater clearness of proof may be properly looked for”.  In Liang the High Court observed that the decision-making processes that are applicable to civil litigation, such as notions of burden of proof and the like, are not always applicable to administrative decision-making: see 185 CLR 282.  In some contexts, such as when the Tribunal is seeking to determine what might happen in the future or even what has already happened, the use of the term burden of proof might be misleading.  But when the Tribunal is required, as a step in the process of arriving at its decision, to determine whether a fact does or does not exist generally the civil standard should be held to apply to its decision-making with due regard being paid to serious issues: compare Re Letts v Secretary to the Department of Social Security (1984) 7 ALD 1 at 4.  Unless the Tribunal is required to apply some standard of proof it is not easy to see how the Tribunal should direct itself in determining whether the evidence before it permits it to make a particular finding of fact.  On one view the Tribunal could approach the matter solely by reference to “natural justice and common sense” (see McDonald at 9) but this does not give a sufficiently clear guide to the Tribunal in my opinion.  It is more likely to arrive at the correct or preferable decision if its obligation is to determine the existence of facts in accordance with the civil standard except in respect of those matters where the nature of what must be decided makes this inappropriate.

In the course of deciding whether it has been persuaded, on the balance of probabilities, of the existence of a particular fact or event the Tribunal is not bound by the rules of evidence.  That is not to say that the rules of evidence should be set aside.  In R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256 Evatt J pointed out that those rules were developed “to prevent error and elicit truth”.  Nevertheless, because it is not bound by rules of evidence the Tribunal can act on any material that is helpful in coming to a decision.  That includes material that might be admissible in a court of law.  It includes hearsay that might not be admissible in a court; presumably the hearsay must be reliable: Kavanagh v Chief Constable of Devon and Cornwall [1974] 1 QB 624 at 633.  But in all cases the evidence relied upon must be logically or rationally probative of the fact to be determined.  This was the point that was made by Diplock LJ in R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 465 at 488:

“The requirement that a person exercising quasi-judicial functions must base his decisions on evidence means no more than it must be based on material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant.  It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above.  If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.”

Lord Diplock returned to this topic when delivering the advice of the Privy Council in Mahon v Air New Zealand [1984] AC 808 .  There His Lordship said (at 820) that one rule that governed administrative decision-making was that the decision must be based “upon evidence that has some probative value”.  He explained (at 821) that “what is required is that the decision to make a finding must be based on some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory.”  Once it is accepted, as I think it should be, that the Tribunal is required to base its findings on probative evidence it must follow that the Tribunal is also under an obligation to rationally consider that evidence.  There would be little point to the imposition of an obligation upon a tribunal to decide a case on probative evidence if there was not an additional obligation to rationally consider that evidence.  Each obligation is designed to ensure, so far as may be possible, that the Tribunal does indeed arrive at a decision which is the correct or preferable decision.  Conversely if each obligation is not imposed there will be a tendency for administrative decision-making to be arbitrary. 

There is sufficient judicial support for these principles to leave me in no doubt as to their correctness.  I refer in particular to the decision of Brennan J in Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41-42 and on appeal (1980) 4 ALD 139 to the decision of Deane J with whom Evatt J agreed.  Deane J expressed the matter in the following terms at 4 ALD at 155-156:

“In my view, the Tribunal was bound, as a matter of law, to act on the basis that any conduct alleged against Pochi which was relied upon as a basis for sustaining the deportation order should be established, on the balance of probability, to its satisfaction by some rationally probative evidence and not merely raised before it as a matter of suspicion or speculation or left, on the material before it, in the situation where the Tribunal considered that, while the conduct may have occurred, it was unable to conclude that it was more likely than not that it had.  It seems to me that this conclusion follows, as a matter of law, from the authorities referred to and the reasoning advanced by the Tribunal to establish the proposition as a general principle to be observed by it as a matter of administrative practice.”

It is true as Mason CJ has observed in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357 that this principle has not so far been accepted by the High Court.  And there are occasional statements in the High Court which, if accepted, would deny the existence of the principle.  For example in R v District Court; Ex parte White  (1966) 116 CLR 644 at 654 Menzies J said, in relation to an argument that the District Court’s finding that Whitehad made out a case for conscientious objection to military service lacked any sound basis, if the “reasoning whereby the [District] Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law”.  However, Menzies J was the only member of the High Court to express this view and there is no binding decision of that Court which has accepted it.  It might be said, not unfairly I hope, that when Menzies J made his observations the modern principles of administrative law were in their early stages of development and much has happened since then.  Nevertheless, in Roads Corporation v Dacakis [1995] 2 VR 508 at 520 Batt J said that he could not accept as correct the principles stated by Brennan J and Deane J in Pochi because he took Mason CJ in Bond as saying that those statements did not represent the common law in Australia.  Not without some hesitation I am unable to agree with this view.  For it to be correct Bond must be taken to have overruled Pochi and I cannot read the language of Mason CJ as intending to go that far.  It must also be remembered that Brennan J was also a member of the Court in Bond and agreed with the reasons for decision given by Mason CJ: see Bond 170 CLR at 365.  If the position was that Brennan J had formed a view different to the view his Honour had expressed in Pochi it might be expected that he would have made some comment about it.  Bond does affirm the principle expressed by Brennan J in Waterford v The Commonwealth (1987) 163 CLR 54 at 77 that “[t]here is no error of law simply in making a wrong finding of fact” (my emphasis).  But a failure to rationally consider probative evidence is not the same kind of error as making a simple mistake of fact.  That is to say while a decision-maker may make a mistake in a finding of fact the reasoning process that produced that mistake may not have been irrational in the sense just explained.  If follows from what I have said that I regard Pochi as binding on me in the absence of a decision of the High Court that is inconsistent with it.  My researches do not disclose the existence of such a decision. 

I should point out that a failure to rationally consider probative evidence is not the same as saying that a decision is “irrational” in the sense that Lord Diplock used that term in Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374.  There his Lordship was considering so called Wednesbury unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223.  That type of error, which his Lordship referred to as “irrationality”, “applies to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”: [1985] 1 AC at 410.  A decision that is not the result of a rational consideration of probative evidence is not “irrational” in this sense.  Indeed the decision may be the correct or preferable decision even though that it is not reached as a result of the rational consideration of probative evidence.  This cannot be true of a decision that is “irrational” in the Wednesbury sense.

I now turn to the applicant’s account of the facts that give rise to the issue before the Court.  The Republic of Congo became an independent nation in 1960 but it has had a troubled history since then.  There has been much political instability, violent conflict between different ethnic groups and human rights abuses by or with the sanction of the government.  The applicant is a Mbochi, an ethnic group that lives in the northern part of the Congo.  Presently three other ethnic groups (the acronym for which is Nibolek) control the government.  The Nibolek persecute, arrest and torture the Mbochi.  The applicant is concerned that if he is required to return to the Congo he will be persecuted for the reason that he is a Mbochi.  The applicant is also a member of the Congolese Labour Party, a left-wing opposition party, and a trade unionist.  His union is the Postal Union Federation.  That union organised an illegal strike in January 1996 to protest the proposed privatisation of the postal service.  The applicant was instrumental in organising the strike and, as a result, the government believes that the applicant seeks to destabilise it and organise a coup d’etat so that the Congolese Labour Party can take control of the government.  After the strike a number of unionists were arrested and tortured and some of the strikers were dismissed.  The applicant received a summons to attend at the office of the Central Investigation Department (CID) on 15 February 1996 presumably to be dealt with for his role in the strike.  Fearing persecution because of his race and political activities the applicant fled to Zaire and with the assistance of a friend who worked in the French Consulate obtained a French visa.  He then flew to Paris.  While in Paris the applicant went to the Congolese Embassy and handed his passport to embassy staff with the request that it be renewed.  The applicant was told by the Embassy staff that his passport would not be renewed as he was wanted by the police in the Congo and that he should return to his country. The Embassy staff refused to return his passport and sent it to officials in the Congo.  The applicant then met one Malou Timissi through a common friend, Roger Bokolo.  Timissi held a passport with a visa entitling him to visit Australia.  The applicant stole Timissi’s passport and visa and travelled to Australia arriving on 2 April 1996.  Upon his arrival the applicant posted the passport to Timissi but did not keep a copy of it. 

On 9 April 1996 the applicant applied to the Minister for Immigration and Ethnic Affairs for a protection visa.  There were two grounds put forward to support the contention that the applicant was a refugee and therefore entitled to a visa.  The first was that if the applicant was required to return to the Congo he feared that he would be persecuted for the reason that he is a Mbochi.  The second was that the applicant feared that he would be persecuted because of his participation in the postal workers’ strike. 

A delegate of the Minister considered the application and refused it.  The applicant then applied to the Tribunal for a review of that decision.  The Tribunal affirmed the decision not to grant the applicant a protection visa on the ground that there was no basis for the applicant’s fear that he would be persecuted on his return to the Congo.  In its reasons it explained that it was not satisfied on the evidence that there was any persecution of the Mbochi people occurring in the Congo.  The Tribunal also said that there was no “real chance” of the applicant being persecuted because of his participation in the postal workers’ strike.  In reaching these conclusions, especially with regard to the possibility of persecution based on the applicant’s political beliefs, the Tribunal rejected much of the evidence that had been given by the applicant because it did not accept that evidence as reliable or truthful.  I need do no more than summarise some of the comments made by the Tribunal about the applicant’s evidence to demonstrate the view that it took.

The applicant had been asked questions about ethnic violence in the Congo, especially during 1993 and 1994.  The Tribunal noted “strangely, though he regards violence and discrimination against the Mbochi as a major part of his claim, he made not a single mention of these months of extreme violence in the city where he lived and worked.  Asked about this period, he appeared to me to be reticent and evasive”.  The Tribunal was dissatisfied with the applicant’s evidence about the strike in January 1996.  The Tribunal said that “the applicant’s version of the history of the strike differs in several important respects from the publicly available independent information”.  It instanced the following examples.  The applicant had given the incorrect date for the commencement of the strike.  He had given the incorrect date on which the unionists who led the strike were arrested and he did not know the period of their imprisonment.  The Tribunal then pointed to what it saw as inconsistent statements made by the applicant concerning the strike.  These included statements about the duration of the strike, statements concerning the position the applicant held at the post office at the time of the strike and statements concerning whether he was at work or not when the strike commenced.  With regard to the summons from the CID it is clear that the Tribunal did not regard this as a genuine document.  Even if the summons was to be accepted as genuine the Tribunal said it did not fit well with the account of the facts given by the applicant.  Here is an extract from the reasons where the summons is discussed:

 “Even if it is accepted as genuine and as truly issued to the applicant, it does not fit well with his account.  It makes no reference to an alleged offence which is connected in any way with the strike.  Rather, its wording suggests that it related to a matter which the applicant was already aware of as concerning him.  It was delivered to him well after the strike was over and he had returned uneventfully to work.  It gave two days notice before he was required to report, hardly likely if there was an intention of arresting him.  At the time the applicant was residing at his usual address and working normally at his usual (Government) workplace;  it would have been a simple matter for the authorities to arrest him if they had such an intention.  The summons makes no reference to any proposed arrest, detention or punishment, or to any actual or possible charge or legal proceedings against the applicant.”

The Tribunal concluded its discussion about the summons with the following statement:  “It hardly seems like the sort of document which would make a person flee the country in fear.”  Further the Tribunal regarded as “implausible” the evidence that the applicant participated in the postal strike yet returned to work thereafter without suffering adverse consequences.  The Tribunal said the applicant’s account of being wanted by the authorities in connection with his role in the strike was “difficult to accept”.

Ordinarily, a decision arrived at as a consequence of the assessment of the credibility of an applicant or a witness is not one that is capable of review when a review is confined to an error of law  In this connection it is important to recall the remarks of Kirby J in Liang where his Honour said (CLR at 292):

“The decision-maker will usually have advantages over the reviewing judge in evaluating evidence and submissions.  Those advantages will include the conventional ones of seeing any parties and witnesses who are heard and having time to reflect upon all of the material.  But there are additional reasons for restraint and resistance to any temptation to turn a case of judicial review into, effectively, a reconsideration of the merits.  Often, the decision-maker will have more experience in the consistent application of applicable administrative rules to achieve fairness to a wide range of people than typically come before the courts”.

But that will not be the case where it can be demonstrated that the Tribunal erred in law in the process of deciding that the evidence before it should be rejected as not reliable or not honestly given.  The applicant says that this is what occurred here. 

To understand this contention it is necessary to deal with one aspect of the case before the Tribunal that has not so far been mentioned.  It concerns whether the applicant was Faustin Epeabaka and a citizen of the Republic of Congo.  The Tribunal was of the opinion that there was serious doubt about the applicant’s identity.  It is clear that at one stage the Tribunal thought that the applicant was not the person he said he was.  The Tribunal referred to a number of factors which it said gave rise to that doubt.  These included the fact that the applicant did not take “the elementary step” of taking a photocopy of Timissi’s passport so that his version of the events could be checked, the “implausibility” of the applicant taking Timissi’s passport without Timissi noticing its absence, the “implausibility” of Timissi mentioning that he had a visa for Australia, the “implausibility” of the applicant being able to use Timissi’s passport and the “implausibility” of the Congolese Embassy in Paris returning the applicant’s passport to the Congo.

Although the Tribunal expressed the view that there was a “very serious credibility problem” with regard to the applicant’s identity it had available to it evidence that firmly established this part of the applicant’s case.  The applicant had produced to the Tribunal his birth certificate and his Congolese identity card.  The identity card bore a photograph of the applicant and what was said to be his fingerprint.  The Tribunal sent the birth certificate and the identity card for examination by the Document Examination Unit of the Department.  The Document Exchange Unit reported that it could find “no evidence which would suggest that either document is not what it purports to be”.  In addition, the applicant sent a sample of his fingerprint together with his identity card to a former Chief Inspector of Police with expertise in fingerprinting.  The report obtained from the former Chief Inspector confirmed that the fingerprint on the identity card was that of the applicant.  Thus both the photograph and the fingerprint on the identity card established the identity of the applicant seemingly beyond doubt.

Here is what the Tribunal said about the evidence.  First, with regard to the report from the Document Examination Unit:

“On this basis, I think it is proper to accept that both documents are indeed documents of Faustin Epeabaka.  However, this does not rule out the possibilities that: 1) the applicant is Malou Timissi and has stolen certain documents of Faustin Epeabaka; or 2) Faustin Epeabaka and Malou Timissi are one and the same person using two identities; or 3) the applicant and Malou Timissi have collaborated to arrange the travel of the applicant to Australia, the applicant perhaps being Faustin Epeabaka born in Congo, but having subsequently acquired a second nationality, or having stamps on his passport which are inconsistent with the story he has given.”

The first possibility was not open.  Once it had been established that the documents were genuine it necessarily followed that the applicant was Faustin Epeabaka.  He was the person in the photograph on the identity card.  The second and third possibilities were open but I note that in dealing with the third possibility the Tribunal persisted with the suggestion that the applicant “perhaps was Faustin Epeabaka born in Congo” (my emphasis).  Notwithstanding the report that had been received from the Document Examination Unit the Tribunal questioned the applicant “to test his knowledge of facts concerning Congo” for the purpose of determining his true identity.  The reasons show that the Tribunal did not regard the applicant as having passed this test or, if he had passed the test, that he did so satisfactorily. 

Then the Tribunal dealt with the expert evidence that confirmed that it was the applicant’s fingerprint that appeared on the identity card.  It said:

“Notwithstanding the many difficulties surrounding the applicant’s account of his identity and country of origin, it must be accepted that the applicant is Faustin Epeabaka from the Congo in the light of evidence submitted by Mr Howlett after the Tribunal hearing, namely, a report from a fingerprint expert, Mr Brian James Norton, who took a fingerprint of the applicant and affirmed that it was the same as that on the identity card of Faustin Epeabaka”.

Obviously enough this finding was inevitable having regard to the evidence that was before the Tribunal.  Any other finding would have been unreasonable.  Nevertheless the Tribunal went on to say:

“At the same time, the many credibility problems surrounding the applicant’s identity cannot be ignored.  I do not rule out the possibility that the applicant may also be Malou Timissi who uses two identities, or that his account of his travel to Australia may be substantially false, though these must remain speculative hypotheses as to which the evidence does not permit me to reach any definite finding.  The credibility problems surrounding the applicant’s identity, outlined above, need to be taken into account in considering the overall credibility of his claims”.

There are two comments that can be made about this passage.  The first is that a good deal of “the many credibility problems surrounding the applicant’s identity” had evaporated once the evidence firmly established, as it did, that his identity was as claimed.  Hence to say that those credibility problems “cannot be ignored” demonstrates a misunderstanding of the position that had been reached.  The second comment is that to state that those “credibility problems” should be taken into account in considering the overall credibility of the applicant’s claims demonstrates that the Tribunal adopted an impermissible approach to the assessment of that other evidence.  When the Tribunal had resolved in the applicant’s favour that he had given truthful evidence about his identity no “credibility problems” remained in respect of that evidence. 

I am not suggesting that all of the matters to which the Tribunal referred as having cast doubt on the applicant’s claim that he was Faustin Epeabaka were not relevant to the other issues that the Tribunal was required to determine.  For example, if the Tribunal was satisfied that the applicant had been giving untruthful evidence on some aspects of his case the Tribunal was entitled to act on the basis that such evidence might cast doubt on other aspects of the applicant’s evidence.  Thus, if certain of the evidence given by the applicant which bore on the issue of his identity was untruthful the Tribunal could take that into account in determining the veracity of the his evidence on other issues which the Tribunal was required to determine.  But the error made by the Tribunal was that it did not distinguish between that part of the evidence which related to identity and which, having regard to its finding about identity, could no longer be regarded as “problem” evidence, and other evidence which related to the applicant’s identity that might be untruthful notwithstanding that the applicant’s evidence about his identity turned out to be true.  The Tribunal’s approach in this regard was both illogical and self-contradictory and its decision can be set aside for that reason if this is an error of law in respect of which relief can be obtained under the Migration Act.

The grounds upon which a decision of the Tribunal can be set aside for error of law are found in s 476(1).  Two grounds may be applicable in respect of the error which I have identified.  The first is that the “procedures that were required by [the Migration] Act to be observed ... in connection with the making of a decision were not observed”: s 476(1)(a).  The relevant procedures are those imposed by s 420(2)(b) in pursuance of which the Tribunal is required to “act according to substantial justice and the merits of (a) case.”  There has been much judicial controversy about the nature of the obligation (if any) that is imposed upon the Tribunal by
s 420(2)(b) and whether that obligation is a procedural one so that a breach of it will permit a review under s 476(1)(a) of the decision arrived at.  I considered these issues in Thambythurai &  Anor v Minister for Immigration and Multicultural Affairs & Anor (unreported, 16 September 1997).  There I expressed the view that s 420(2)(b) did impose a procedural obligation on the Tribunal requiring it to act rationally and reasonably.  The Tribunal would not be acting rationally or reasonably if it made a finding of fact upon which its decision was based that was not supported by probative evidence.  The Tribunal would also fail to act rationally and reasonably if it failed to rationally consider the probative evidence that was before it.  Here it failed to observe that obligation and its decision should be set aside. 

The second possible ground for review is that the decision involved an error of law “being an error involving an incorrect interpretation of the applicable law”: see s 476(1)(e).  Here what I have in mind as the applicable law is the law that governs the powers, duties and obligations of the Tribunal as prescribed by the Migration Act and by the common law.  By acting in the manner that it did with regard to the evidence the Tribunal did act on an incorrect interpretation of the law that regulated to its decision-making processes.  It is not clear whether s 476(1)(e) confers jurisdiction on the Court to review a decision of the Tribunal in these circumstances.  Principally s 476(1)(e) is concerned with an incorrect interpretation of the substantive law that governs a case before the Tribunal.  It may also be that s 476(1)(e) permits a review if there is an incorrect interpretation by the Tribunal of the procedural law that governs its processes.  In either case it seems correct to describe those laws, that is whether substantive or adjectival, as laws that are “applicable” to the decision arrived at by the Tribunal.  On the other hand, s 476(1)(a) may be said to be the only ground which can be relied upon when there is a complaint about the Tribunal’s processes and that paragraph is confined to a failure to observe the procedures required to be observed by the Migration Act and the regulations made thereunder.  Fortunately, it is not necessary for me to resolve this issue on this appeal.

There is one other complaint that is made about the manner in which the Tribunal decided the case with which I should deal.  It concerns the Tribunal’s treatment of the summons to the applicant purportedly issued by the CID.  The applicant says that by s 150 of the Evidence Act 1995 (Cth) the Tribunal was required to accept that the summons had been validly issued and the Tribunal failed to observe that requirement.  Section 150 provides, among other things, that if what purports to be a seal of a body established by a law of a foreign country appears on a document that document shall be deemed to have been duly sealed unless the contrary is proved.

I have already set out the passage from the reasons of the Tribunal where it dealt with the summons.  While the Tribunal obviously had grave doubts about the genuineness of the document it is clear that the Tribunal determined the case on the assumption that the summons had been regularly issued.  Accordingly, there is no basis for the complaint made by the applicant.  However, as the matter will be referred to the Tribunal for its reconsideration it will be helpful if I set out the views that I have formed about the applicability of s150 to proceedings before the Tribunal.

Section 4(1) of the Evidence Act provides that the Evidence Act applies in relation to all proceedings in a federal court.  Section 5 provides that certain provisions of the Evidence Act, being those set out in the Table to that section, apply to all proceedings in an Australian court.  One of the tabled provisions is s 150.  If the Tribunal is either a federal court or an Australian court then, prima facie, it would be bound to apply that section. 

In the Dictionary at the end of the Evidence Act (see s 3(1)) there is a definition given for “federal court” and a definition given for “Australian court” as follows:

“ federal court means:

            (a)        the High Court; or

            (b)        any other court created by the Parliament (other than the Supreme Court of a Territory;

and includes a person or body (other than a court of magistrate of a State or Territory) that, in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence.”

“Australian court means:

(a)       the High Court; or

(b)       a court exercising federal jurisdiction;  or

(c)        a court of a State or Territory; or

(d)       a judge, justice or arbitrator under an Australian law; or

                                    (e)        a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or

                                    (f)        a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence.”

In clauses 9(1) and (2) of Pt 2 of the Dictionary “a law of the Commonwealth” is defined to be a written or unwritten law of the Commonwealth and an “Australian law” (which according to the definition in Pt 1 includes the law of the Commonwealth) is also defined to be a written or unwritten law. 

Most of the limbs of each definition of federal court and Australian court refer to an actual court.  They can have no application to the Tribunal for in no sense is it a court.  But each definition includes as a court a body that is not in fact a court.  It is to these parts of the definitions to which I must now refer. 

The Tribunal will be an Australian court if it is “a body that, in exercising a function under an Australian law, is required to apply the laws of evidence “and it will be a federal court if it is a body that “in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence.”  However, the Tribunal is not such a body because s 420(1) of the Migration Act provides that the Tribunal is “not bound by ... rules of evidence”.  This is sufficient to take the Tribunal outside those limbs of the definition of Australian court and federal court just mentioned. 

In arriving at this conclusion I have ignored the difference in language between s 420(1) which provides that the Tribunal is not bound by the rules of evidence and the definitions which refer to a body that is required to apply the laws of evidence.  I do not regard this difference in expression as material.  Each expression is apt to refer to the same subject namely matters that are or are not admissible in a proceeding and the method by which those matters are placed before a decision-maker:  see Sopinka Lederman & Bryant, “Laws of Evidence in Canada” (1992 Butterworths) at p 1, and Halsbury’s Laws of England (4th ed) vol 4 para 1.

Further, I do not regard the fact that the Tribunal is obliged to observe certain rules that are sometimes called rules of evidence as affecting my conclusion.  The rules that I have in mind are the various privileges that may be relied upon to exclude evidence being led before the Tribunal.  The privileges are legal professional privilege, the privilege against self incrimination and what was once referred to as Crown privilege but is now known as public interest immunity.  While each of these privileges is commonly regarded as part of the rules of evidence, they have application to a proceeding before the Tribunal not because they are rules of evidence but because they are fundamental principles of the common law that are capable of being exercised not only in curial proceedings but in administrative and investigative proceedings as well: see Baker v Campbell (1983) 153 CLR 52 with regard to legal professional privilege, Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 and Controlled Consultants v Commissioner for Corporate Affairs (1985) 156 CLR 385 with regard to the privilege against self incrimination and Science Research Council v Nasse [1980] AC 1028 and Middendorp Electric Co Pty Ltd v Law Institute of Victoria [1994] 2 VR 313 with regard to public interest immunity.

The result is that the Tribunal does not fit within any limb of the definition of federal court.  However, the Tribunal is a body that is authorised by an Australian law, the Migration Act, to hear, receive and examine evidence: see the discussion of the powers and functions of the Tribunal earlier in these reasons.  It follows that the Tribunal is an Australian court in accordance with para (e) of the definition of that court.

But it does not follow from the fact that the Tribunal is an Australian court that proceedings before it are governed by the tabled provisions in s 5(1).  The effect of s 8(1) of the Evidence Act must be considered.  Section 8(1) is one of a number of provisions in Pt 1.2 which are concerned with the application of the Evidence Act.  The subsection provides that the Evidence Act does not affect the operation of the provisions of any other Act.  The question thus raised is whether s 8(1) prevents the tabled provisions in s 5(1) having application to proceedings before the Tribunal.

The scope of operation of s 8(1) is not clear.  There will be no difficulty in applying the sub-section in the case where a provision of the Evidence Act is directly inconsistent with the provision of some other enactment.  In that event the provision of that other enactment will prevail.  But what if there is no direct inconsistency.  Some indication of how s 8(1) is to operate in that circumstance may be gathered from s 9(1) which provides that:

 “For the avoidance of doubt, this Act does not affect an Australian law so far as the law relates to a court’s power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding.”

When s 8(1) and s 9(1) are considered together the legislative intention that is disclosed is that where a court, whether it is an Australian court or a federal court, is not required to observe the rules of evidence the Evidence Act will not operate so as to impose that obligation.  Here again reference should be made to s 420(1) of the Migration Act which provides that the Tribunal is not bound by the rules of evidence.  If a proceeding before the Tribunal was governed by ss 150 the Tribunal would be required to receive a particular document as part of the evidence in a proceeding before it when it would not be required to do so if s 420(1) was the sole provision that applied.  Thus there is, in a general sense, an inconsistency between the two provisions.  It follows, in my opinion, that s 8(1) renders s 5(1) inapplicable to proceedings before the Tribunal.

I should add that if I had been unable to arrive at this conclusion unreasonable consequences would follow.  Earlier in these reasons I described the nature of a proceeding before the Tribunal and the manner in which it is to receive and consider evidence.  Two points that I made during the course of that discussion are important here.  The first is that the proceeding is not adversarial and the second is that an applicant does not carry any burden of proof. If
s 150 was to govern the admissibility of a document in a proceeding before the Tribunal, once that document is received in evidence in pursuance of that section its genuineness would be difficult to impeach.  Section 150 would require the Tribunal to treat the document as having been duly sealed “unless the contrary is proved”.  In a proceeding before the Tribunal it is usual for only the applicant to appear.  Who then would assume the task of disputing the genuineness of the document?  The Secretary of the Department might do so or might be requested by the Tribunal to do so.  But it seems wrong to impose that obligation on the Secretary.  The Tribunal itself could assume that responsibility but that would not be consistent with its duty to act as an independent and impartial decision-maker.  So, for all practical purposes, if a document is admitted into evidence pursuant to s 150 there is little prospect of it being established that the document is not genuine.  The same problem would arise in respect of each tabled provision which requires an Australian court to make an assumption about a fact or thing unless the contrary is proved.  The tabled provisions which would have that effect include ss 153, 154, 155 and 163.  A construction of s 8(1) that avoids these consequences is to be preferred.

The decision of the Tribunal will be set aside with costs, and the matter will be remitted to a differently constituted Tribunal for determination according to law.

I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein    

Associate:

Dated:                                      10 December 1997

Counsel for the applicant:          I Freckelton

Solicitor for the applicant:          Victoria Legal Aid

Counsel for the respondent:       R Downing

Solicitor for the respondent:      Australian Government Solicitor

Date of Hearing:                       13, 15 August 1997

Date of Judgment:                     10 December 1997