FEDERAL COURT OF AUSTRALIA

Yilan v Minister for Immigration & Multicultural Affairs  [1999] FCA 854

IMMIGRATION – refugees – obligation of Refugee Review Tribunal to make inquiry – admissibility of evidence in relation to discharge of obligation – no evidence ground for review – existence of a particular fact – admissibility of evidence in relation to non-existence of a particular fact – medical evidence – non-acceptance of factual substratum for medical opinion – rejection of opinion warranted – unavailability of breach of substantial justice requirement as ground for review.

Migration Act 1958  (Cth) s 420, s 476

Administrative Decisions (Judicial Review) Act 1975 (Cth)

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 followed

Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 followed

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 applied

Kenal Ozberk v Minister for Immigration and Multicultural Affairs (Fed Court, unrep, 19 January 1998) referred to

Minister for Immigration and Multicultural Affairs v Singh (1997) 74 FCR 553 applied

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

Television Capricornia Pty Ltd v Australian Broadcasting Australia (1986) 13 FCR 511 followed

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 followed

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 applied

Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 followed

Lay Kon Tji v Minister for Immigration and Ethnic Affairs (1998) 158 ALR 681 followed

Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 508 followed

Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275applied

CIGDEM YILAN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 203 of 1998

FRENCH, R.D.NICHOLSON and FINKELSTEIN JJ

25 JUNE 1999

MELBOURNE

THE COURT ORDERS THAT:

1.         The appeal is dismissed.

2.         The Appellant is to pay the Respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT

Introduction

1                     Cigdem Yilan is a Kurdish woman who is a citizen of Turkey.  She was born on 1 February 1975.  She is single.  Her parents, two sisters and a brother live in Turkey.  On 5 May 1995 she was issued with a Turkish passport for a period of six months.

2                     On 8 July 1995 Ms Yilan entered Australia on a visitor’s visa granted on 30 May for a period of three months.  On 9 October 1995 she applied for a Protection Visa (866) claiming to be a refugee.  The processing of her application took a long time and it was not until 30 July 1996 that a decision was taken by a delegate of the Minister refusing the grant of the visa.  Ms Yilan was advised of that decision and her right to seek review of it on 1 August 1996.

3                     On 13 August 1996 Ms Yilan signed an application to the Refugee Review Tribunal for a review of the decision.  That was lodged on 22 August by her solicitors, Baker & Armstrong.  The hearing of her application did not take place until 4 February 1997 and a decision was made by the Review Tribunal on 30 April 1997 affirming the decision not to grant her a Protection Visa.  Ms Yilan then sought judicial review of that decision in this Court and on 28 April 1998 O’Connor J dismissed her application with costs.  She now appeals to the Full Court against the decision of O’Connor J.

4                     Some of the argument raised upon the appeal relied upon alleged breaches of a general duty of the Refugee Review Tribunal under s 420 of the Migration Act 1958 (Cth) to “act according to substantial justice and the merits of the case”.  Breach of that duty was said to give rise to a ground of review for failure to observe procedures required by the Act to be observed.  These arguments were overtaken by the contrary decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 which was delivered after the hearing of the appeal had concluded.  Supplementary submissions were received following that decision. 

5                     The appeal gives rise to questions about the Tribunal’s duty to make independent inquiries in relation to matters before it and the operation of the statutory “no evidence” ground for challenging administrative decisions.  A procedural question about the admissibility of evidence on review by this Court is also raised. 

Ms Yilan’s Case for Refugee Status

6                     In a statement forming part of her application for a Protection Visa (866) Ms Yilan said that as a student in Turkey she had supported a group called Dev Yol.  This was described in material which Ms Yilan sought to put before the primary judge as an “extreme leftist organisation”, Dev Yol being an abbreviation of Devrimci Yol, which means Revolutionary Path.  She became involved in student activities when she started her university studies in October 1992.  She was a member of the Ankara University Faculty of Education Student Association which included supporters of various organisations, one of which was Dev Yol.  She was involved in various student protests.  The first of these was in March 1993.  The protest concerned the oppression of Kurds in Turkey.  The protest took the form of a meeting in the student cafeteria to celebrate Newroz, the Kurdish spring day.  About 100 people attended.  She said police intervened and some, but not her, were arrested.  Police said the group was involved in subversive activities.  Subsequently, according to Ms Yilan, she was kept under surveillance by undercover police who were present at the university.

7                     The next occasion, which she described as involving “trouble with the police or authorities”, was on 3 July 1993 when a protest was organised against police brutality, specifically relating to the murder of people at Sivas by Islamic fundamentalists who supported the Islamic law.  According to Ms Yilan between 100,000 and 150,000 people attended the protest rally.  It was a semester break but she contacted friends and they joined the march under the banner of the United Socialist Party (BSP).  There were at least 500 people from or connected with the student association involved in the rally.  After the protest group had marched for about two hours they neared the Turkish parliament.  Police intervened.  According to Ms Yilan she was arrested along with about forty or fifty of the group with which she was associated.  She claims to have been detained for fifteen days at a police station.  During that time, she says, she was beaten and tortured.  In the statement in support of her application for a Protection Visa she said she did not feel able to make a detailed statement about her treatment in detention at the time but would prepare one and provide it to the Department of Immigration before she was interviewed. 

8                     After fifteen days Ms Yilan was released, it was her belief that this was because of lack of evidence.  She was lectured by police who told her that they knew her ethnic background and that she should give up this kind of protest.  As this was her first time they would let her off but next time she would not get away so easily.  For a while she kept a low profile but as events were happening around her which made her “upset” she became involved again in meetings and demonstrations.

9                     The next time she encountered problems with the police was in March 1994.  The  Newroz celebrations were imminent.  She and other friends had a meeting in a conference hall about the approaching celebrations.  300 to 350 people were present.  Ms Yilan said that she had helped to organise the event.  She was a member of the committee of administration of the student association.  The Dean’s office had refused permission to hold the meeting. 

10                  Police entered the hall.  Scuffles broke out between some members of the organising committee and police.  She was arrested and taken to the police station.  She was beaten on the way there and was detained for twenty one days.  According to Ms Yilan she was again beaten and mistreated during her detention.  Eventually, however, she was let go, she believed, because of lack of evidence.  She claims to have been threatened by the police particularly when they found out about her ethnic background.  They said they would give her “special treatment”.  She believed that what they meant by this was that they would kill her.  After this incident she sought some assistance from a psychology lecturer at the university and was referred to a consulting psychologist at a hospital.

11                  In March 1995 there were more protest marches about the bombing of a coffee shop in the Gazi district of Istanbul which is occupied largely by Kurdish and Alevi people.  The student association and Ms Yilan wanted to protest against government handling of the incident.  She marched with the student association and other people.  She was experienced enough to get away without being arrested.  Some of her friends had their fingers broken as a result of being beaten by police.  After this Ms Yilan says she decided to leave Turkey.  There were a lot of arrests following the protest and word went around that there was going to be a lot of police pressure on the Faculty of Education.  A person called Hassan Ocak disappeared at that time.  His body was later found.  This affected her because she saw him as  a victim of a process of disappearance and murder with which she claims police had threatened her on the last occasion she had been arrested and detained. 

12                  In the course of her interview by a departmental officer, Ms Yilan gave some further detail of her treatment at the hands of Turkish police.  She said that on the occasions that she had been detained at police headquarters she was blindfolded and handcuffed, beaten, undressed and interrogated while naked and pressured to sign a confession that she had attacked police.  She also claimed to have been hung by her wrists and said that while she was in that position an investigator hung off her shoulders so she was supporting both their weights while suspended.  Although not raped she was often “touched” and insinuations were made such that the fear of rape was always present.  Her family, although it knew she had been detained, could not find out where she was being held and was unable to see her.

13                  In her written application Ms Yilan said she had difficulties getting a passport and that  relatives helped her by paying a bribe to someone high up in the administration at the airport.  In the course of interview however she corrected this saying that what had been written in the form was a misinterpretation by the person completing it.  Her family had sold jewellery to bribe a high ranking officer at police headquarters to ensure that she would not be apprehended and would be able to leave the country.  While her passport was issued on 5 May 1995 and her visa to visit Australia was issued on 30 May 1995, she did not leave Turkey for Australia until July.  The initial decision maker in the Department observed that that date coincided with the summer holiday period for educational institutions.  Ms Yilan said at interview that her parents had wanted her to leave Ankara after her detention but that she had refused because she wanted to continue her schooling.

14                  Ms Yilan also submitted some documents to the Department after interview.  There was a translation of a letter from her father which, inter alia, warned her not to even think about coming back to Turkey.  It said:

“They constantly ask about you.  If you come back, you might put us in a difficult situation, too.”

Another letter began with the words “Don’t even think of coming back here.  The police are looking for you everyday.”  The notice dated 18 October 1995 said to have been issued by a senior sergeant of police and directed to security forces in the town of Cankaya Dikmen police station.  That notice asserted that Ms Yilan was a member of the Board of Administration of the Student Association at Ankara University, that she had encouraged student actions against the school administration and security forces at the school and had helped to create disturbances and was involved in subversive propaganda activities to weaken the students’ feelings towards their country.  According to the notice, she was a militant of illegal organisations DEV-YOL and DEV-GENC and “she must immediately be apprehended and brought before the court.”

15                  A letter of 8 January 1996 from a senior sergeant at the same police station addressed to Ms Yilan’s father said that a statement had to be taken from her in relation to an investigation on a political matter and that she had failed to attend the police station with her identity card as required by several summonses.  Her father was asked to make sure that she attended the police station or inform them of her address. 

16                  The original decision maker noted that despite requests to provide the original documents from which these translations were taken, they had not been provided and consequently he had been unable to verify their authenticity.  In any event he considered they did not support Ms Yilan’s claims.  Given that the Turkish authorities had had an adequate opportunity to take any action they might have wanted to take against Ms Yilan before her departure in 1995, the decision maker was of the view that she did not face a real chance of persecution for a convention reason if returned to Turkey and that her fear of persecution was consequently not well founded.  On that basis the Protection Visa (866) was refused.

17                  In addition to her affidavit and oral evidence put before the Refugee Review Tribunal, Ms Yilan tendered a medical report from the Mooreland Community Health Service.  The report, signed by Dr. Joanne Gardiner, appears to have accepted as correct the accounts of her detention, including claims that she had been subjected to electric shock torture and “almost daily sexual assault, which was more severe during the second interrogation”.  Dr Gardiner concluded that Ms Yilan was suffering both physically and psychologically as a victim of torture in her country of origin because of her ethnicity and political beliefs. 

The Tribunal’s Decision

18                  The Tribunal accepted that those involved in the organisation of Newroz celebrations in Turkey had faced serious harassment amounting to persecution.  This was because Newroz was considered to be an unacceptable expression of Kurdish nationalism and harshly suppressed.  It also accepted that a student organisation in Ankara may have been involved in organising such an event and that police may have harassed those involved and that the applicant may have been involved in a student organisation.

19                  Although Ms Yilan had claimed before the Tribunal that she was a supporter of and involved with Dev Yol, her level of knowledge of it was such that the Tribunal did not accept she was involved to the extent she claimed.  It did not accept the authenticity of the Notice to the Security Forces.  It was observed that police had had ample opportunity to arrest Ms Yilan prior to her departure from Turkey.  She had not done anything after her alleged arrest in March 1994 which would have alerted police to her involvement if they did not already know about it.  The Tribunal did not accept that although she was able to go about her life without interference from March 1994 until she left Turkey in July 1995, the police started looking for her and trying to arrest and summons her only after that departure. 

20                  In relation to the demonstration in Ankara on 3 July 1993 on the day following the Sivas incident, the Tribunal noted that there was ample evidence of the incident and of a large demonstration in Istanbul.  In this respect it referred to the Xinhua Newsagency, the Sunday Times, the Guardian and the Irish Times which reported that demonstration but did not mention any demonstration in Ankara.  The Tribunal concluded that the lack of any mention of large demonstrations or of arrests in Ankara indicated strongly that there were no such demonstrations or arrests at least in the days immediately following the Sivas incident.

21                  In the course of the oral hearing the Tribunal member, Ms Borsody, put questions to Ms Yilan about the Ankara demonstration.  She referred to newspaper reports which she had consulted and said, inter alia, “I will follow that up but we have not been able to find anything on any demonstrations on 3 July” (AB 127).  At the close of the oral hearing on 4 February 1997, the Tribunal member said she would delay making a decision for a fortnight so that any additional psychological report could be provided.  No additional material in relation to the Ankara incident was submitted to the Tribunal in that time.

22                  The Tribunal did not accept that if Ms Yilan had been detained and tortured on the two occasions she had spoken of she would have remained in Turkey for over a year after the second incident.  It did not accept that the summons from police was what it purported to be.  Ms Yilan had departed Turkey on a legal passport in her own name.  If authorities were looking for her they would have been able to ascertain that she was no longer in Turkey.

23                  The Tribunal went on to refer to the medical report from Dr Gardiner but did not accept that the traumatic events upon which the diagnosis was based actually occurred.

24                  Acknowledging that an applicant does not need to prove his or her case, the Tribunal nevertheless was confronted on its view with an applicant who was not credible and a story that was not plausible.  Reference was made to the decision of the Full Federal Court in Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 and the observation of Foster J that mere doubts or concerns as to an applicant’s credibility are not sufficient to exclude the possibility that what the applicant asserts is correct.  For that result to occur a positive state of disbelief would be required on the part of the decision maker.  The Tribunal said that in this case it had a positive state of disbelief that Ms Yilan was arrested and tortured by Turkish authorities.

25                  The Tribunal considered the position of Kurds in Turkey generally and accepted that there had been an ongoing “war” between Turkish authorities and the PKK.  It also accepted that there were serious abuses of human rights throughout Turkey and referred to US Department of State reports.  It was not the case, however, that a person faced a real chance of persecution solely based on ethnicity.  In this respect reference was made to reports from the Department of Foreign Affairs and Trade which observed, inter alia:

“The question of the extent to which the Turkish and Kurdish communities within Turkey are polarised is often overestimated.  The majority of Kurds in Turkey are fully integrated and participate in all aspects of Turkish life, including business and politics, and appear in all social and economic strata.”

26                  The Tribunal summarised its findings at the end of its reasons:

“65.     The applicant was not a credible witness.  I do not accept that she was arrested and tortured on two separate occasions due to her involvement with a student organisation, nor her involvement with Dev Yol.

66.       I do not accept that she was involved with Dev Yol to the extent which she claimed; nor do I accept that she faced persecution in the past based on this.

67.       I do not accept that she would have remained in Turkey for over a year after the torture she describes had it in fact occurred.

68.       That is, I find she was not persecuted prior to her departure from Turkey.

69.       The applicant claimed that she has been involved with radio 3CR and community associations in Australia.  I accept that this is true, but there is no evidence to indicate that the authorities are interested in this.  There is not a real chance that the applicant would be persecuted for this were she to return to Turkey.  I do not accept that the applicant would be involved to any greater extent in politics were she to return to Turkey than she was previously.

70.       I find there is not a real chance that she would be persecuted on the basis of her political opinion, actual or imputed were she to return to Turkey.

71.       I do not accept that she had been persecuted in the past on the ground of her ethnicity, and I find there is not a real chance that she would face persecution for this reason were she to return to Turkey.

72.       Based on the evidence available to me, and the findings I have made on that evidence, the applicant does not satisfy the definition of refugee in that:

                        Although she is outside her country of nationality, and is unwilling to avail herself of the protection of that country, she does not have a well-founded fear of persecution, in the sense that there is no real chance that she will be persecuted for a Convention reason if she returns to Turkey.” (pp 105-106 AB)

Statutory Framework

27                  The grant of visas is authorised by s 29 of the Migration Act, which provides, in part:

“29(1)  Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:

(a)       travel to and enter Australia;

(b)       remain in Australia.”

28                  The Act provides for prescribed classes of visa and for the prescription of criteria for visas of specified classes (s 31).  Section 36 specifies a class of visa known as “protection visas” in the following terms:

“36(1)  There is a class of visas to be known as protection visas.

     (2)  A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

29                  Regulations are authorised to provide that visas or visas of specified classes may only be granted in specified circumstances (s 40).  Regulation 2.04 of the Migration Regulations provides that for the purposes of s 40, and subject to Regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part.

30                  Schedule 2 sets out various sub-classes of visa.  Subclass 866 is the Protection (Residence) visa.  Clause 866.211 of subclass 866 specifies the following criteria for the grant of such a visa:

“866.211 The applicant claims to be a person to whom Australia has protection obligations under the refugees convention and:

(a)       Makes specific claims under the refugees convention; or

(b)       Claims to be a member of the same family unit as a person who:

            (i)         Has made specific claims under the refugees convention; and

            (ii)        Is an applicant for a Protection (class az) visa.”

It is also a criterion that the Minister must be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee Convention (866.221).

31                  The Refugee Convention  is to be read with the Protocol Relating to the Status of Refugees 1973.  Article 1A of the Convention, read with the Protocol, defines a refugee as a person who fulfils the following conditions:

“…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

32                  Section 411 of the Act sets out a class of decisions designated as “RRT-reviewable decisions”.  The class of decisions so designated includes a decision to refuse to grant a protection visa (s 411(1)(c)).  An application for review of an RRT-reviewable decision is made to the Refugee Review Tribunal (s 412(1)).  Where a valid application is made for review of an RRT-reviewable decision, the Tribunal is required to review the decision (s 414(1)).  The Tribunal may, for the purposes of the review, exercise all the powers and discretions conferred by the Migration Act on the person who made the decision (s 415(1)).  The Tribunal is expressly empowered to affirm or vary the decision under review, remit it for reconsideration or set it aside and substitute a new decision (s 415(2)).

33                  Part 8 of the Act provides for the review of decisions by the Federal Court and in s 475 sets out a class of decisions known as “judicially-reviewable decisions”.  This includes decisions of the Refugee Review Tribunal (s 475(1)(b)).

34                  An application for review by the Federal Court of Australia for a judicially-reviewable decision is limited by s 476(1) to any one or more of the following grounds:

“(a)     that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b)       that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)        that the decision was not authorised by this Act or the regulations;

(d)       that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e)        that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f)        that the decision was induced or affected by fraud or by actual bias;

(g)       that there was no evidence or other material to justify the making of the decision.”

These grounds are a somewhat reduced version of the grounds of review specified under s 5 of the Administrative Decisions (Judicial Review) Act 1975.

35                  Subsection 476(2) excludes from the grounds of review breach of the rules of natural justice and Wednesbury unreasonableness.  Subsection (3) requires that the reference in par (1)(d) to an improper exercise of power construed as a reference to exercise of power for a purpose other than that for which the power is conferred, exercise of a personal discretionary power at the direction or behest of another and exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.  Subsection (3) expressly excludes from the purview of par (1)(d) reference to taking an irrelevant consideration into account or failing to take into account relevant considerations, bad faith exercise of discretionary power or any other exercise of the power in such a way that represents an abuse of power not covered by pars (a)-(c).  The “no evidence” ground in par (1)(g) is also confined by subs 476(4) in the following terms:

“(4)  The grounds specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)       the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)       the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

Paragraph 476(1)(g) and subs 476(4) use the language of par 5(1)(h) and subs 5(3) of the Administrative Decisions (Judicial Review) Act.

36                  In this case the appellant has also relied upon s 420 of the Migration Act which provides:

“420(1)  The Tribunal in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

      (2)  The Tribunal, in reviewing a decision:

(a)       is not bound by technicalities, legal forms or rules of evidence; and

(b)       must act according to substantial justice and the merits of the case.”

37                   Reliance was also placed, particularly in supplementary submissions lodged on behalf of Ms Yilan, upon the provisions of ss 424, 425 and 427.  Section 427 permits the Tribunal to make its decision on the papers provided to it by the Secretary of the Department under s 418 and by the applicant under s 423 where it is prepared to make the decision or recommendation on review that is most favourable to the applicant.  If the Tribunal is not prepared to make a favourable decision on the papers, it must give the applicant an opportunity to appear before it to give evidence and “may obtain such other evidence as it considers necessary” (s 425(1)(b)).  The powers conferred upon the Tribunal under s 427 include the power conferred by par 427(1)(d) to:

“require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give the Tribunal a report of that investigation or examination.”

The Application for Review

38                  Ms Yilan sought review of the Tribunal’s decision before the Federal Court.  She also moved for leave to refer to new evidence contained in an affidavit of Paul Joseph White, a lecturer specialising in Kurdish, Turkish and Alevi affairs.  Mr White’s affidavit exhibited, inter alia, a report which he had prepared and which confirmed that a funeral demonstration took place in Ankara on 6 July 1993 in relation to the Sivas incident.  He exhibited extracts from newspapers including photographs of the funeral demonstration.  O’Connor J, who was the primary judge, was not prepared to admit and consider this material.  She observed that the purpose of the tender of the material was to demonstrate the alleged inadequacy of the inquiry made by the Tribunal as to the existence of a demonstration in Ankara in which Ms Yilan had said she was a participant and following which she had been arrested and tortured.  It did not however concern a failure to inquire at all which was the case in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505  Rather the additional material was concerned with the quality of the inquiry or the nature of the inquiry made.  This would involve the Court engaging, albeit indirectly, in merits review.  Reference was made to a judgment of Marshall J in Kenal Ozberk v Minister for Immigration and Multicultural Affairs (Fed Court, unrep, 19 January 1998).  Her Honour identified four issues raised at the hearing in support of the grounds of review.  She said that the majority of the grounds for review and the submissions put were based on the proposition that the Tribunal had a positive duty to assist Ms Yilan to establish her case.  In respect of the documents she had submitted, including the security notice, it was said the Tribunal member erroneously failed to ask herself the question whether she should have the documents authenticated.  O’Connor J however considered that the decision maker was entitled to make the finding that she did without any question or further inquiry as to the authenticity of the document.  The bases of the Tribunal’s finding were properly dealt with in the decision and it was not a case where to fail to ask the question was to whether a further inquiry should be conducted amounted to a breach of substantial justice.

39                  A second aspect of a duty to inquire was raised in relation to the demonstration in Ankara about which Ms Yilan had given evidence.  The Tribunal had referred to newspaper reports of demonstrations in Turkey at the time.  Counsel for Ms Yilan argued that the Tribunal looked in the wrong places and that using newspapers like the Irish Times in the decision demonstrated an inadequate inquiry.  However her Honour rejected this submission as being no more than an invitation to the Court to conduct merits review.  The question whether the Tribunal might have come to a different view on some issue had it had access to other newspapers was not a matter which could be agitated as part of the judicial review process.

40                  The final submission related to the opinion as to the medical condition of the applicant and again the learned primary judge found the submission not made out.  The Tribunal had rejected Dr Gardiner’s evidence on the grounds that she was not a specialist psychiatrist and that the factual substratum of the diagnosis was not accepted as having occurred.  The decision maker was entitled to come to the conclusion that she did according to the learned primary judge and no error of law was made in so doing.

Grounds of Appeal

41                  The grounds of appeal against the decision of the learned primary judge were some twelve in number.  They raised the following issues:

1.         The refusal of the learned trial judge to admit in evidence the affidavit of Paul Joseph White in whole or at least as to that portion concerning a demonstration in Ankara (Grounds 1 and 2).

2.         The rejection by the Tribunal of the two police documents tendered by Ms Yilan and the extent to which it should have conducted or considered whether to conduct inquiries (Grounds 3, 4 and 5). 

3.         The determination by the Tribunal that there no demonstrations in Ankara at the time stated by Ms Yilan and its failure to make any inquiry in that regard (Grounds 6 and 7).

4.         The rejection of the evidence of Dr Gardiner (Ground 8).

42                  Ground 9 alleged that the learned primary judge erred in failing to determine that procedures required by the Migration Act could be observed by the RRT in connection with the making of the decision were not observed within s 476(1)(a) of the Migration Act.  Ground 12 alleged that the learned primary judge erred in failing to determine that the RRT had acted in breach of s 420(2)(b) of the Migration Act.  These two grounds were linked in the submissions with the matters raised in grounds 1, 2, 6 and 7 which were the subject of pars 1 and 2 of the outline of submissions.  Under grounds 9 and 12 the outline of submissions asserted that by reason of the matters set out in pars 1 (relating to grounds 1 and 2), 2 (relating to grounds 6 and 7), 3 (relating to grounds 3, 4 and 5) and 4 (relating to ground 8), the RRT had failed to observe the obligations imposed upon it by s 420(2)(b) of the Migration Act and as a consequence the grounds set out in s 476(1)(a) of the Act were made out.

43                  Grounds 10 and 11 of the Grounds of Appeal alleged error on the part of the primary judge in failing to determine that the decision of the Tribunal involved an error of law being an incorrect interpretation of the applicable law within s 476(1)(e) and an incorrect application of the law to the facts as found by the Tribunal within s 476(1)(e).  The outline of submissions in relation to grounds 10 and 11 referred back to the outline of submissions in relation to grounds 3, 4, 5, 6, 7 and 8.  It was asserted under grounds 10 and 11 that in respect of each of those grounds the Tribunal had failed to observe the obligations imposed upon it by s 420(2)(b) and that as a consequence the grounds set out in s 476(1)(e) of the Act were made out.  Thus grounds 9, 10, 11 and 12 between them each relied upon establishing that a failure to comply with the provisions of s 420 gave rise to a ground of review under s 476.

44                  It was the interaction between s 420 and s 476 which was in issue in the case of Minister for Immigration and Multicultural Affairs v Eshetu (supra), a judgment of the High Court which was reserved but had not been delivered at the time the appeal was argued.  That judgment was delivered on 13 May 1999 and in the light of it further submissions were invited and were received from the parties on 3 and 4 June 1999.  Somewhat surprisingly it was contended in the supplementary submissions lodged on behalf of the appellant that the decision of the High Court was of no consequence to the appeal because none of the bases upon which the decision of the Tribunal was challenged was dependent upon a breach of s 420(2)(b) of the Migration Act by the RRT.  It seems however that the supplementary submissions were advancing the proposition that the various grounds could be sustained independently of any reliance upon s 420.  These contentions can be dealt with as each of the grounds is considered below. 

The Primary Judge’s Refusal to Admit Additional Evidence –  Relevance to the Tribunal’s Duty to Inquire - Grounds 1 and 2

45                  The first two grounds of appeal relate to the decision of the learned trial judge rejecting the tender of certain evidence which, it was submitted, would have demonstrated that the inquiries made by the Refugee Review Tribunal in relation to Ms Yilan’s application were “both inadequate and flawed”.  The Tribunal’s findings attacked in this respect rejected Ms Yilan’s evidence that a demonstration had occurred in Ankara in July 1983 and that she had taken part in it. 

46                  The challenge before her Honour to the Tribunal’s finding that the alleged demonstrations had not occurred was expressed in a number of the grounds of review set out in the application for review which was before her Honour.  Thus it was said in ground 1:

“1.       Procedures that were required by the Migration Act to be observed by the RRT in connection with the making of the decision were not observed within s 476(1)(a) Migration Act.”

There were particulars provided of  this ground.  These related to the Tribunal’s findings in connection with the alleged police documents, the existence of psychological injuries resulting from Ms Yilan’s torture and mistreatment and the finding that no demonstration had occurred in Ankara in July 1993 as alleged by Ms Yilan.  Each of these matters was raised in par (a) of the particulars which opened with the words:

“In making the decision the RRT failed to act according to the substantial justice and merits of the applicant’s case as required by section 420(2)(a) and (b) of the Migration Act in that the RRT did not accept the history of events experienced by the applicant in Turkey between 1992 and 1995 by reference to incorrect or extraneous matters.”

47                  As can be seen the first ground of review relied upon the proposition that a failure by the Tribunal to act in accordance with s 420(2)(a) and (b) constituted a non-observance of procedures required to be observed by it in connection with the making of the decision and thereby provided a basis for review under s 476(1)(a).  That is a linkage which cannot be sustained since the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (supra).  Her Honour did not have jurisdiction to entertain the first ground of review.  So to the extent that the material referred to in grounds 1 and 2 of the appeal to this Court could have been prayed in aid of the first ground before her Honour, it would have been of no assistance to Ms Yilan.  

48                  The second ground of review before her Honour asserted that the decision of the Tribunal “involved an error of law being an incorrect interpretation of the applicable law within s 476(1)(e) of the Migration Act”.  The ground was particularised, inter alia, thus:

“(e)     The RRT failed to construe the powers given to it by s 427(1)(a), (d) as enabling the RRT to itself inquire as to whether demonstrations occurred in Ankara after the Siwas incident of 2 July 1993, or alternatively require the Secretary to make such an investigation and cause a report thereof to be lodged with the RRT.”

49                  But this was a ground which would stand or fall on the reasons for the decision of the RRT and perhaps by reference to the record of proceedings before it.  It would not be assisted one way or the other by a reference to ex post facto material which could ultimately go only to what might have been discovered by the RRT upon further inquiry and the utility of remitting the matter to the RRT for such inquiry concerning the alleged incident.  There was therefore no error on her Honour’s part in declining to receive the additional evidence as an aid to the resolution of ground 2 of the grounds of review.

50                  It is to be observed at this point that the Tribunal had made some inquiry in relation to the alleged Ankara incident.  Moreover it had alerted the applicant to its concerns about that incident at the oral hearing. To allow the provision of an additional psychological report, the Tribunal member undertook to defer her decision for a fortnight after the conclusion of the oral hearing.  This provided an opportunity for the applicant to submit any additional material to establish the occurrence of the Ankara incident.  It is difficult to see in the light of these events how any complaint could lie of a failure by the Tribunal to properly construe the powers conferred upon it by s 427(1)(a) and (d).

51                  In Minister for Immigration and Multicultural Affairs v Singh (1997) 74 FCR 553 at 561, the Full Court by majority held that there may be circumstances in which the Tribunal’s obligations under s 420, to act according to substantial justice, requires it to make inquiries.  But, so much being accepted, any failure to comply with s 420 does not for that reason give rise to a ground of review under s 476.  In Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (supra), Wilcox J (with whom Burchett J generally agreed subject to some additional comments of his own) said that affidavits which had been tendered before the primary judge (Lindgren J) would have been admissible for the limited purpose of showing that the effect of the want of inquiry by the Tribunal was to visit a substantial injustice upon the appellant (at 528).  However that observation was made in the context of an acceptance of the proposition that failure to accord substantial justice under s 420 gives rise to a ground for review under s 476.  That is not the law since the decision of the High Court in Eshetu.

The Primary Judge’s Refusal to Admit Additional Evidence – Relevance to the “No Evidence” Ground – Grounds 1 and 2

52                  The third ground of review before her Honour conflated error of law under par 476(1)(e) and the “no evidence” ground under par 476(1)(g).  The error of law was said to lie in incorrect application of the law to the facts as found by the RRT. However the particulars of the ground, which were inserted by amendment, went entirely to the question of the absence of evidence to justify the finding concerning the Ankara demonstration. The particulars were expressed thus:

“The RRT based its decision on a particular fact being the fact that no demonstration concerning Kurdish rights occurred in Ankara on 3 July 1993 and consequentially that the applicant could not have been arrested at the demonstration that she claimed occurred in Istanbul on that date.  This finding was a particular fact within s 476(4)(b) Migration Act and that fact did not exist in that there was a demonstration concerning Kurdish rights in Ankara on 3 July 1993.  The applicant contends that there was no evidence or other material to justify the decision made by the RRT within s 476(1)(g) and (4)(b) Migration Act.” (AB 140)

53                  A perusal of the transcript of proceedings before the learned trial judge discloses that no argument was addressed to her on the application of par 476(1)(g) of the Act.  Nor was any argument addressed to this Court on the hearing of the appeal.  The matter has, however, been raised in the supplementary submissions filed on behalf of the appellant.

54                  Paragraph 476(1)(g) and subs 476(4) replicate the no evidence ground for review set out in par 5(1)(h) and subs 5(3) of the Administrative Decisions (Judicial Review) Act 1975 (Cth) (ADJR Act).  Error of law in par 5(1)(f) of that Act embraces the no evidence ground at common law while the statutory no evidence ground in par 5(1)(h)  and subs 5(3) expands that ground of review in the applications for which pars (a) and (b) of subs 5(3) make provision – Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 358 (Mason CJ, Brennan and Deane JJ agreeing).  The effect of subs 5(3) is “to limit severely the area of operation of the ground of review in para 5(1)(h)” – Australian Broadcasting Tribunal v Bond (supra) at 357.  These observations apply with equal force to subs 476(4) and par 476(1)(g) of the Migration Act.

55                  The first comprehensive discussion of par 5(1)(h) and subs 5(3) of the ADJR Act was undertaken by Wilcox J in Television Capricornia Pty Ltd v Australian Broadcasting Australia (1986)13 FCR 511.  Consideration of the report of the Committee of Review of Prerogative Writ Procedures (Ellicott Committee) and the Explanatory Memorandum disclosed that the ground was “intended to embody the reasons for decision of the House of Lords in the Tameside case”, this latter being a reference to the decision in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014.  There had been a finding in that case of the non-existence of a fact found by the decision-maker and relevant to the decision.  Given that background and the fact it was breaking new ground it was understandable, as his Honour said, that “…when parliament turned to non-jurisdictional findings of fact in s 5(3)(b), it required the applicant to show more than that there was no evidence before the decision-maker of the fact found, or assumed on the basis of the decision.  The applicant was required to negative the fact.” (156)

56                  The kind of fact which will enliven this ground of review is a “particular fact” on the existence of which the decision was based.  If the existence of the fact is critical to the decision then the claim is said to be based on that fact – Curragh Qld Mining Ltd v Daniel (1992) 34 FCR 212 at 220.  That does not mean that the “particular” fact is required to be the only or the predominant fact upon which the decision is to be based – Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 364, approved in Curragh Qld Mining Ltd (supra) at 721.  In the latter case, Black CJ (Spender and Gummow JJ agreeing) said at 220-221:

“Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision.  A decision may be based upon the existence of many particular facts; it will be based upon the existence  of each particular fact that is critical to the making of the decision.  A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance.  A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so comes to a different conclusion.

If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence and the fact does not exist, the decision is flawed whatever the relative importance of the fact.”

57                  Paragraphs 5(3)(b) of the ADJR Act and 476(4)(b) of the Migration Act contemplate that an applicant will be able to establish that the particular fact did not exist. In so doing the applicant is not limited to the material before the decision-maker.  The requirement of establishing that a particular fact did not exist can be satisfied by admissible evidence in court not limited to the material before the decision-maker – Curragh Qld Mining Ltd (supra) at 224.  In Lay Kon Tji v Minister for Immigration and Ethnic Affairs (1998) 158 ALR 681 Finkelstein J received in evidence a press communique issued by the Embassy of Portugal which established the non-existence of certain critical facts found by the Tribunal leading to its conclusion that the Portuguese nationality of East Timorese people was an “effective” nationality for the purposes of Article 1A(2) of the Refugee Convention as construed by the Full Court in Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1997) 14 FCR 508.  The tender of the communique was objected to by the Minister in that case but Finkelstein J observed at 698:

“…its reception into evidence is permitted by reason of the fact that s 476(1)(g) of the Migration Act requires an applicant who seeks to establish the “no evidence” ground of review to lead evidence that the “fact” in question does not exist.  In the ordinary case the non-existence of the asserted “fact” will usually be proved by the tender of evidence at the hearing of the application for review ….”

58                  The requirement posited by the Full Court in Curragh Qld Mining Ltd (supra) that evidence adduced, upon judicial review of an administrative decision, to demonstrate the non-existence of a particular fact be “admissible evidence” may at first seem unduly stringent.  The decision-maker’s findings, after all, are not required to be based upon such evidence.  The RRT in particular is not bound by the rules of evidence – Migration Act s 353(2)(a).  The requirement that material to support the no evidence ground of review be admissible is however consistent with the policy of the ADJR Act and Part 8 of the Migration Act which generally limits judicial review of administrative and tribunal decisions  to grounds of law and procedure.  Review of basic error in fact finding lies at the border between traditional judicial and merits review.  It is appropriate therefore that the non-existence of the particular fact found by the Tribunal to be proved be established in the judicial review process according to the rules of evidence.  The argumentative material contained in the report prepared by Paul White, whose affidavit it was sought to tender, would not be admissible to prove the fact of the Ankara demonstrations.  The content of the Turkish newspaper reports and statements about what is depicted in accompanying photographs which were exhibited to that report would also appear to be inadmissible as hearsay.  Given the difficulty of establishing the admissibility of this additional evidence it is perhaps not surprising that the submissions about it were limited to its use as demonstrating the inadequacy of the Tribunal’s inquiry, rather than the non-existence of a particular fact.  In the event, whatever criticism may be made of the Tribunal’s selection of newspaper references, the no-evidence ground has not been made out.

59                  There is a constructional question which was not debated before the Court, namely whether the no evidence ground can apply to a finding that a particular event did not happen.  Having regard to the conclusions already reached in relation to this ground it is unnecessary to explore that question in this case.  It can await debate on another day.     

60                  For the reasons set out above her Honour did not err in refusing to admit the additional evidence tendered at the hearing.  Grounds 1 and 2 of the appeal fail.

Findings and Inquiries as to Police Documents – Grounds 3, 4 and 5

61                  By these grounds of appeal it was asserted that the learned primary judge erred in:

1.         Failing to determine that the RRT should not have rejected evidence relied upon by Ms Yilan concerning the “Notice to Security Organisations in Cankaya” and the Summons dated 8 January 1996.

2.         Failing to determine that the RRT should have considered whether to conduct inquiries as to the authenticity of the said Notice and the said Summons.

3.         Failing to determine that the RRT should have had inquiries made as to the authenticity of the notice and the summons.

62                  The Tribunal referred to the Notice of 18 October 1995 but did not accept that it was what it purported to be.  That non-acceptance must be seen in context of the Tribunal’s reasons where it said:

“The applicant claimed she was a supporter of, and involved with Dev Yol.  Her level of knowledge of Dev Yol, for example its direct descent from Dev Genc, was such that I do not accept that she was involved to the extent which she claims to be.  I do not accept that the Notice to the Security Forces, mentioned above, is what it purports to be.  The police had ample opportunity to arrest her prior to her departure from Turkey; she had not done anything after the alleged arrest in March 1994 which would have alerted the police to her “involvement” if they did not already know about it.  I accept that coincidences do happen, but I do not accept that although the applicant was able to go about her life without interference from March 1994 until her departure in July 1995, the police started looking for her, trying to arrest and/or summons her, only after that departure.”

And later in its reasons the Tribunal said of the summons specifically:

“I do not accept that the summons is what it purports to be.  The applicant departed the country on a legal passport in her own name.  If the authorities were looking for her, they would be able to ascertain that she is no longer in Turkey.”

63                  The learned primary judge said that in this case only copies of the documents relied upon had been provided to the Tribunal, who came to the conclusion that they were not genuine.  As she correctly pointed out, the Tribunal had relied upon background material and the view it formed as to Ms Yilan’s credit.  Having formed the view that Ms Yilan was not deeply involved in the activities in which she claimed to be involved, the likelihood of the documents having come into existence in the way that they purported to come into existence was found to be remote and rejected by the Tribunal.  Her Honour considered, contrary to the submissions made on behalf of Ms Yilan, that the Tribunal was entitled to make the finding that it did without any question or further inquiry as to the authenticity of the document.  The bases of the finding were properly dealt with in the decision and the case was not one where to fail to ask the question whether a further inquiry should be conducted amounted to a breach of substantial justice.

64                  To this observation may be added the comment that even if the failure to inquire constituted a breach of the requirement of s 420 for substantial justice, that breach does not give rise to a ground of review under s 476.

65                  Counsel for Ms Yilan argued on the appeal that the failure by the RRT to ask itself the question whether it ought to have conducted inquiries about the authenticity of the documents was a breach of a positive duty and moreover that in failing to conduct such inquiries it had acted in breach of its duty.  Reliance was placed by counsel for Ms Yilan in supplementary submissions upon the provisions of ss 424, 425(1)(b) and 427(1)(d) of the Act.  These provisions, it was said, gave rise to a procedural requirement, failure to comply with which would be reviewable under par 476(1)(a).  This argument bypasses s 420.    Section 424 deals with review on the papers and imposes no procedural requirement relevant to the present case.  It is, however, to be read with s 425.  In the case in which s 424 does not apply, s 425 obliges the Tribunal to give the applicant an opportunity to appear before it to give evidence.  That requirement was met in this case.  It also empowers the Tribunal to “obtain such other evidence as it considers necessary”.

66                  Consideration was given to this provision by Foster J in Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 289 where his Honour, after referring to par 425(1)(b) and par 427(1)(d) said:

“The legislation, therefore, in my view, imposes upon the Tribunal (at least where circumstances so dictate) an obligation to consider whether it is necessary to obtain further evidence for the proper conduct of the review.  A failure to enter upon this consideration would be reviewable error.”

However the decision of the Full court in Minister for Immigration and Ethnic Affairs v Singh (supra) lies against Ms Yilan on this point.  The observation of Foster J in Yao-Jing must be read subject to it.  The Singh case was concerned, inter alia, with the conclusion by the RRT that documents purporting to be warrants for the arrest of the applicant and his wife in their home country were not authentic.  It had been held at first instance that the Tribunal should have verified the authenticity of the warrants through official channels.  Allowing the appeal, the majority (Black CJ, von Doussa, Sundberg and Mansfield JJ, Lee J dissenting) said, at 561:

“Although we have concluded that there may be circumstances in which the Tribunal’s obligation to act according to substantial justice requires it to make inquiries, we are respectfully unable to agree with the primary judge’s general proposition that where an applicant produces a document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by the Tribunal through official channels, if by that her Honour intended to convey (as the respondent suggested) that the Tribunal was under a duty to verify in such cases.   In a particular case the Tribunal may indeed be obliged to verify a document in this fashion, but there is no general rule to that effect.”

The Tribunal in that case had been given no information about the provenance of the warrants other than that they were forwarded with letters which it was entitled to conclude were not authentic.  And although a failure to ask the Tribunal to exercise its power to make inquiries could not be decisive there was nothing to indicate in that case that it was ever suggested to the Tribunal by the applicant or his agent that it should take any steps of its own to authenticate the documents in question.  No such request was made in this case.  Ms Yilan was represented throughout and her representative was present at the Tribunal hearing (AB 109).

67                  At the oral hearing the Tribunal put questions to Ms Yilan about the Police Notice.  She was asked how she got it.  She said that after she came to Australia her father sent it to her.  She was asked how her father had got it.  She guessed he had obtained it with a bribe.  The Tribunal put it to her that there was nothing in the Notice that was not known to the Police at the time she had been arrested.  Ms Yilan said this was an excuse to call her in and arrest her one way or the other.

68                  The Tribunal inquired about the document from the person whom one would expect to have been in a good position to give evidence as to its authenticity.  Given the responses which the Tribunal received and the surrounding circumstances to which it adverted in its decision, the Tribunal had every reason to come to the conclusion it did.  It had no obligation to embark upon a further inquiry as to the authenticity of the document.  Nor was there any obligation to set out in its reasons a statement to the effect that it had given consideration to embarking upon a further inquiry.  It had made inquiry at the hearing and the sufficiency of that inquiry is not a matter which is able to be considered upon review by this Court.

69                  An additional submission was put that it was not open to the RRT in circumstances where there was no evidence to the effect that the two documents were not what they purported to be, to have rejected this portion of the appellant’s case.  Plainly, however, the Tribunal was entitled, on the evidence it referred to, to come to the conclusion that it did not accept the authenticity of the documents.  The lapse in time between the events referred to by Ms Yilan and the Notice and summons which were allegedly issued in relation to her was material the Tribunal was entitled to take into account in coming to the conclusion that the documents were not authentic. 

70                  For these reasons Grounds 3, 4 and 5 of the appeal cannot succeed.

The Tribunal’s Findings as to the 1993 Ankara Demonstration – Grounds 6 and 7

71                  In grounds 6 and 7 it was said that the learned primary judge erred in:

“...failing to determine that the RRT had erred in determining that there were no demonstrations in Ankara at the time stated by the Appellant herein before the RRT.

…failing to determine that the RRT had made an inadequate inquiry as to whether there was a demonstration in Ankara at the time stated by the Appellant herein before the RRT.”

72                  The consideration of the matters raised in these grounds has already been, to a great extent, covered in the reasons dealing with grounds 1 and 2.  It was submitted for Ms Yilan that she had placed much material before the RRT about her involvement in a demonstration in Ankara in July 1993.  This material, it was said, was not contradicted and nor was there any evidence before the Tribunal that no such demonstration had taken place.  Nevertheless the Tribunal rejected this portion of her case.  The rejection in turn supported findings of the Tribunal that Ms Yilan was not credible and that her story was not plausible.  The rejection was said to have been in circumstances where the Tribunal proceeded to conduct inquiries by reference to newspaper reports into the question whether there had been demonstrations.  The Tribunal, it was said, is under a duty to ensure that its inquiries are adequate, complete and sound.  By reason of the evidence exhibited to the affidavit of Mr White, it was submitted the Tribunal had wrongly answered the question and therefore acted in breach of its duty to undertake an adequate, complete and sound inquiry.  And even without regard to that additional evidence, the inquiries undertaken were inadequate, incomplete and unsound.

73                  So far as these grounds rely upon the evidence of Mr White, they cannot succeed for that evidence was properly rejected.  So far as they seek to sustain the ground without reference to that evidence, they cannot succeed for they invite the Court to enter upon a review of the Tribunal’s decision upon grounds which are not available under the Migration Act.  To the extent that these submissions might have relied upon alleged breaches of a duty imposed on the Tribunal by s 420 of the Migration Act, they do not give rise to any ground of review under s 476 – Minister for Immigration and Multicultural Affairs v Eshetu (supra).  Grounds 6 and 7 therefore also fail.

Rejection of Medical Evidence of Dr Gardiner – Ground 8

74                  By this ground it was asserted that the learned primary judge erred in failing to determine that the Tribunal had erred in law in rejecting the medical evidence of Dr Gardiner, such evidence having been relied upon by the appellant before the Tribunal.

75                  The Tribunal referred to the report from Dr Gardiner as follows:

“The applicant provided a medical report from Dr J Gardiner.  I note that Dr Gardiner does not have specialist qualifications in psychiatry.  Dr Gardiner diagnoses the applicant as suffering from post-traumatic stress disorder (PTSD), based on her nightmares, her difficulty sleeping and intrusive recurrent thoughts.  I note that the diagnostic criteria for PTSD include, as the first criterion, that the person have been exposed to a traumatic event (Diagnostic and Statistical Manual of Mental Disorders, fourth ed – DSM – IV).  In this case, I do not accept that the traumatic events described actually occurred.”

The Tribunal went on to make the point that while it is one thing to accept the diagnosis if made by a professional, it is quite another to accept all the facts, especially where there is dispute about those facts.  In this case the Tribunal had a positive state of disbelief that Ms Yilan was arrested and tortured by the Turkish authorities. 

76                  The Tribunal was entitled to reject the medical report of Dr Gardiner to the extent that it was based, as it appeared to be, on a factual substratum which the Tribunal did not accept.  The learned trial judge on this point said:

“The final submission of the applicant that the decision-maker, without expertise, came to a conclusion or expressed an opinion as to the medical condition of the applicant, is, in my view not made out.  A proper reading of the decision – in particular paragraphs 51 and 52 – would conclude that the decision-maker rejected Dr Gardiner’s evidence on two grounds; (a) she was not a specialist psychiatrist, and (b) the “factual substratum” of the diagnosis, ie a traumatic event was not accepted as having occurred.  The decision-maker was entitled to come to the conclusion she did and no error of law was made in so doing.”

77                  Her Honour was correct in so saying and there is no error on her part in the way she dealt with this aspect of the Tribunal’s decision.

78                  For the preceding reasons, ground 8 of the appeal fails.

CONCLUSION

79                  There is no additional matter in the grounds of appeal 9, 10, 11 and 12 which, as elaborated in submissions to this Court, rely entirely upon asserted breaches by the Tribunal of its obligations under s 420(2)(b) of the Act as giving rise to grounds for review under par 476(1)(a) of the Act. 

80                  For the preceding reasons the appeal must be dismissed.

Associate:

Dated:              23 June 1999