FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845

MIGRATION – Application for protection visa – Review of decision of Refugee Review Tribunal refusing visa – Whether failure to comply with s 430(1) of Migration Act 1958 gives rise to ground of review pursuant to s 476(1)(a) – Whether requirements of s 430(1) are “procedures ... to be observed in connection with the making of the decision” – Requirement that Tribunal set out findings on material questions of fact – Whether materiality a question for Tribunal or for determination objectively by Court – Whether obligation to set out findings and refer to material on which findings based requires Tribunal to give reasons for rejecting or attaching no weight to material contrary to its findings – Content of obligation to set out reasons for decision

Migration Act 1958 ss 430(1), 476(1)(a)

Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24 considered

Logenthiran v Minister for Immigration & Multicultural Affairs [1998] FCA 1691 considered

Perampalam v Minister for Immigration & Multicultural Affairs [1999] FCA 165 considered

Thevendram v Minister for Immigration & Multicultural Affairs [1999] FCA 182 considered

Ahmed v Minister for Immigration & Multicultural Affairs [1999] FCA 811 approved

Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940 approved

Sivaram v Minister for Immigration & Multicultural Affairs [1999] FCA 1740 considered

Xu v Minister for Immigration & Multicultural Affairs [1999] FCA 1741 not followed

Doss v Minister for Immigration & Multicultural Affairs [1999] FCA 1780 approved

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 considered

Minister for Immigration & Multicultural Affairs v Yusuf [1999] FCA 1681 approved

Nguyen v Nguyen (1990) 169 CLR 245 cited

Transurban City Link Ltd v Allan (1999) 168 ALR 687 cited

Re Bolton; Ex parte Beane (1987) 162 CLR 514 cited

Newcastle City Council v GIO General Limited (1997) 191 CLR 85 cited

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 162 ALR 577 cited

Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247 approved

Minister for Immigration & Ethnic Affairs v Taveli (1990) 23 FCR 162 approved

Dalton v Deputy Federal Commissioner of Taxation (1986) 160 CLR 246 cited

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 approved

Comcare Australia v Lees (1997) 151 ALR 647 cited

Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 cited

Lamb v Moss (1983) 49 ALR 533 cited

Nguyen v Minister for Immigration & Multicultural Affairs (1998) 158 ALR 639 cited

Dornan v Riordan (1990) 24 FCR 564 cited

Demur v Minister for Immigration &Multicultural Affairs [1998] FCA 1308 considered

Re Poyser and Mills’ Arbitration [1964] 2 QB 467 considered

Arudselvan v Minister for Immigration &Multicultural Affairs [1999] FCA 1726 approved

Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402 cited

Dodds v Comcare Australia (1993) 31 ALD 690 cited

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v BALJIT KAUR SINGH & ORS

N 980 OF 1999

BLACK CJ, KIEFEL, SUNDBERG, KATZ, HELY JJ

30 JUNE 2000

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The orders of the primary judge be set aside and the decision of the Refugee Review Tribunal be affirmed.

3.                  The respondents pay the appellant’s costs of the proceedings at first instance.

4.                  There be no order as to the costs of the appeal.

5.                  The cross-appeal be dismissed.

6.                  There be no order as to the costs of the cross-appeal.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

BLACK CJ, SUNDBERG, KATZ & HELY JJ:

Introduction

1                     Mrs Baljit Kaur Singh arrived in Australia on 29 September 1993 with her husband Mr Harbhajan Singh and their three daughters.  All are citizens of India, from the state of Punjab, and are of the Sikh religion.  An application for a protection visa was made by each member of the family.  It was accepted that the applications by the daughters were governed by the outcome of the claims by their parents.

2                     The Refugee Review Tribunal (“the RRT”) accepted that Mr Singh was a deeply religious Sikh who had been arrested and detained by the Punjab police on a number of occasions between 1984 and 1993.  Mr Singh was victimised because he was a Sikh.  But the RRT concluded that there had been a significant change in the attitude of the Punjab police since 1993, such that in 1999, when Mr Singh’s application was being considered, he had nothing to fear from the Punjab police, and therefore could not show a well-founded fear of persecution for a Convention reason.

3                     The RRT accepted that Mrs Singh was raped by members of the Punjab police in the presence of her husband on 14 August 1993, and that the purpose of this attack was to humiliate her husband.  Mrs Singh was subjected to ill treatment because she was a Sikh, and was married to a Sikh.  Mrs Singh’s claim to refugee status was thus closely bound up with that of her husband.  But, in addition, she claimed that she would be persecuted by her community as a result of her rape by the police.

4                     There was a body of material before the RRT which suggested that by 1997 there had been a return to a very large measure of normalcy in the Punjab, with police excesses directed against Sikhs being a thing of the past.  Thus there was material before the RRT which provided support for the conclusion to which it came in this regard.

5                     But there was also material before the RRT, particularly a report prepared in September 1998, which suggested that persons in authority in India perceived a real risk of a further outbreak of Sikh militancy in the Punjab, with the associated risk that the police would revert to their former brutal treatment of Sikhs generally, in which Mr and Mrs Singh had been caught up.

6                     The RRT adverted to this material, but did not say expressly that it did not accept as reliable the statements in it which raised the prospect of resurgent Sikh activism in the Punjab.  If it did accept those statements, it did not in terms say why their contents did not lead it to conclude that there was a real risk that the police may respond with renewed persecution of Sikhs.

The legislation

7                     Section 430 of the Migration Act 1958 (Cth) (“the Act”) provides:

“(1)     Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)               sets out the decision of the Tribunal on the review; and

(b)               sets out the reasons for the decision; and

(c)                sets out the findings on any material questions of fact; and

(d)               refers to the evidence or any other material on which the findings of fact were based.

(3)               Where the Tribunal has prepared the written statement, the Tribunal must:

(a)               return to the Secretary any document that the Secretary has provided in relation to the review; and

(b)               give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.”

Section 476(1)(a) provides for the review by the Federal Court of a judicially reviewable decision on the ground:

“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 ... .”

The decision at first instance

8                     The primary judge reviewed a number of Full Court decisions on s 430 of the Act beginning with Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24 and including Logenthiran v Minister for Immigration & Multicultural Affairs [1998] FCA 1691, Perampalam v Minister for Immigration & Multicultural Affairs [1999] FCA 165, Thevendram v Minister for Immigration & Multicultural Affairs [1999] FCA 182 and Ahmed v Minister for Immigration & Multicultural Affairs [1999] FCA 811.  As a result of that review his Honour said:

“Apart from the majority’s reasons in Ahmed the line of authority commencing with Paramananthan to which I have referred speaks, in my opinion, with one voice in requiring the Tribunal to explain why it has rejected apparently probative material relevant to a material issue even though there may be sufficient or indeed even an abundance of material the other way to support the conclusion on that issue that the Tribunal, in fact, reached.”

His Honour concluded that the RRT had not complied with s 430 of the Act because of the failure summarised in par 6 above.  That non-compliance enlivened the operation of s 476(1)(a) of the Act.  A reading of his Honour’s reasons for decision suggests that it was not put to his Honour that a failure to comply with the obligation under s 430(1) cannot constitute a failure to observe procedures required by the Act within the meaning of s 476(1)(a).

9                     His Honour also found that there was a body of material before the RRT which suggested that the consequences for Mrs Singh, in terms of the likely community reaction to her having been raped by the police, are likely to be much more harmful than the RRT found to be the case.  He considered that the RRT had also failed to comply with s 430 because it did not explain why, in the face of that evidence, it came to the quite different conclusion which it did.

10                  However, his Honour declined, in the exercise of his discretion under s 481 of the Act, to set aside the decision of the RRT insofar as it related to Mrs Singh’s separate claim.  This was based on his Honour’s finding that there was insufficient material before the RRT to show that the ostracism which she fears is by reason of her membership of a particular social group (a rape victim) or that it is detrimental conduct in respect of which she could not claim effective protection from the Indian State.

11                  In the result, his Honour set aside the decision of the RRT and referred the matter back to it to consider whether the visas sought should be granted.  Further consideration by the RRT was to be limited to the applicants’ claims for protection visas based on their claim that they are refugees by reason of their having a well-founded fear of persecution by reason of their being Sikhs.

Subsequent developments

12                  Whilst the statement by the primary judge referred to in par 8 was in accordance with the preponderance of authority in this Court, decisions to a different effect have since been made.  The view that s 430 does not require the RRT to give reasons for rejecting evidence inconsistent with findings of material facts now enjoys the support, in addition to the majority in Ahmed, of decisions of Full Courts in Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940, Sivaram v Minister for Immigration & Multicultural Affairs [1999] FCA 1740, Xu v Minister for Immigration & Multicultural Affairs [1999] FCA 1741 and Doss v Minister for Immigration & Multicultural Affairs [1999] FCA 1780.  That view of s 430(1)(c) and (d) was endorsed by McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407although his Honour also said that the obligation to set out “the reasons for the decision” (s 430(1)(b)) will often require the RRT to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings.

13                  In December 1999 differently constituted Full Courts handed down decisions in Minister for Immigration & Multicultural Affairs v Yusuf [1999] FCA 1681 and Xu v Minister for Immigration & Multicultural Affairs [1999] FCA 1741.  Yusuf decided that a failure to comply with s 430(1) enlivens the operation of s 476(1)(a).  The majority in Xu (Whitlam and Gyles JJ) decided to the contrary.  In Xu R D Nicholson J declined to join in the majority decision in this respect as, in his Honour’s view, it was both unnecessary for the resolution of the appeal to decide the point and involved issues which would benefit from more thorough argument.

14                  There is also a divergence of opinion in the two cases as to the content of the obligation under s 430(1)(c).  Yusuf decided that “materiality” is to be determined by the Court, and that the RRT cannot have the exclusive power to decide what is or is not material in a given case.  The nature of a particular asylum-seeker’s claim, and the way it is presented to the RRT, bear upon the issue of materiality.

15                  The majority in Xu expressed the view that the material questions of fact referred to in s 430(1)(c) are those the Act requires to be decided, and perhaps such other facts as the RRT considers to be material.  A decision cannot be upset because a decision-maker does not take into account a fact which the applicant propounds as material, but which is not made material by the Act.  There will only be a deficiency in a statement of reasons if the RRT omits to make a finding that it was legally required to make.  In any event, all members of the Court held that the RRT is not obliged to refer to pieces of evidence inconsistent with the findings on material questions of fact made by it.

16                  In Montes-Granados v Minister for Immigration & Multicultural Affairs [2000] FCA 60, Burchett J expressed the view that the judgment of Whitlam and Gyles JJ in Xu should be read as no more than “a discussion of some of the relevant principles, in which some conclusions are expressed by way of obiter dicta”, and that until the whole matter is reconsidered by a Full Court, a single judge is bound by the direct decision of the Full Court in Yusuf, and “indeed, by the many earlier decisions of Full Courts to the same effect”.  His Honour was of the view that it could not have been intended by the majority in Xu to overrule Yusuf, because they had not addressed the question of whether the decision in Yusuf is “plainly wrong”.

17                  In Minister for Immigration & Multicultural Affairs v Zheng [2000] FCA 50 Hill J said that it was apparent from a reading of the judgment in Xu that the majority were convinced that the decision in Yusuf was plainly wrong.  Whitlam J adhered to the views expressed by the majority in Xu and pointed out that the decisions in Yusuf and Xu were given practically contemporaneously.  Carr J expressed a provisional view that Yusuf was correctly decided, and that the majority in Xu may have fallen into error in declining to follow Yusuf and earlier authorities which are consistent with it.  But his Honour made it clear that he was open to persuasion that his provisional view was wrong.  We should observe at this point, that the principled, consistent and predictable development of the law ordinarily requires that in those infrequent and exceptional cases in which it can be said that departure from previous authority is warranted on the ground that it is clearly or plainly wrong (see Nguyen v Nguyen (1990) 169 CLR 245 at 269 and Transurban City Link Ltd v Allan (1999) 168 ALR 687 at 693-694), the question whether such a departure is warranted in accordance with the principles permitting it should be directly and specifically addressed.

18                  It seems to us that the majority in Xu made it plain that they were not prepared to follow the decision in Yusuf insofar as it held that a failure to comply with s 430 establishes the ground of review contained in s 476(1)(a) of the Act, because they considered that Yusuf and the earlier cases which give support to Yusuf in that respect had been wrongly decided.  One of the issues for determination on this appeal is whether their Honours were right in coming to that conclusion.

19                  The “further further amended” notice of appeal raises a number of issues, but in substance, they can be reduced to two main questions:

-                     Whether a breach of s 430 of the Act (if it occurred) would itself establish the ground of review contained in s 476(1)(a) of the Act.  That throws up the difference in opinion between Yusuf and the majority in Xu.

-                     Whether failure on the part of the RRT to state reasons for rejecting, or not attaching weight to, evidence or other material which is inconsistent with the findings made results in a contravention of s 430, and in particular s 430(1)(c) and (d).  This question was not directly addressed in Yusuf.

20                  By a notice of cross appeal Mrs Singh challenges the limitation his Honour placed, in the exercise of his discretion under s 481 of the Act, on the RRT’s further consideration of the claims for protection visas.

Section 430(1); s 476(1)(a)

21                  Section 476(1)(a) is enlivened where procedures required by the Act to be observed in connection with the making of the decision are not observed.  Section 430(1) provides that where the RRT makes its decision on a review, it must prepare the written statement for which the subsection provides.  In the appellant’s submission, s 476(1)(a) applies only to procedures which are to be observed prior to the decision being made, and the obligation to give reasons under s 430(1) does not satisfy that description.

22                  Durairajasingham decides that compliance with s 430 does not go to the jurisdiction of the RRT, as s 430 presupposes that a decision has already been made.  However, that is not determinative of the issue of construction of s 476(1)(a), since Abebe v Commonwealth (1999) 162 ALR 1 at [21] recognises that, whilst in important respects the jurisdiction of the Federal Court to review decisions under the Act has been severely truncated, in other respects (and footnote 4 refers to s 476(1)(a) as an example) the jurisdiction of the Federal Court is arguably wider than that of the High Court under s 75(v) of the Constitution.  Section 476(1)(b) suggests that s 476(1)(a) is not confined to matters which go to jurisdiction.

23                  There is a distinction between the decision the RRT makes on a review (which is made under s 415), and the statement of reasons under s 430(1), which is the record of the RRT’s decision.  It is the decision of the RRT that is subject to review under Part 8.  The statement of reasons may reveal matters that make the decision reviewable, but the statement of reasons is not itself reviewable.

24                  In the appellant’s submission, the distinction between procedures that are to be observed prior to the decision being made, and matters arising after or in consequence of the decision, is reflected in the scheme of the Act: Division 4 of Part 7 (ss 423-429; “Conduct of Review”) contains various powers, obligations and procedures which are to be observed in the review process, and is separated from Division 5 of Part 7 (ss 430-431; “Decisions of Refugee Review Tribunal”) which contains provisions as to the preparation and dissemination of a written statement of reasons for the decision after the making of the decision.  The statutory phrase is “in connection with the making of the decision”, rather than some broader expression such as “in connection with the decision”.

25                  The construction for which the appellant contends is said to gain support from the Explanatory Memorandum for the Migration Reform Bill 1992 (Cth).  The intention revealed in the Explanatory Memorandum is that s 476(1)(a) relates to that codified set of procedures contained in the Act which would otherwise be encompassed by the common law rules of natural justice.  The giving of reasons for decision is not part of those common law rules, and is thus not within the intended scope of s 476(1)(a).  But whilst of assistance, the Explanatory Memorandum cannot be determinative of the question of construction: Re Bolton; Ex parte Beane (1987) 162 CLR 514; Newcastle City Council v GIO General Limited (1997) 191 CLR 85.

26                  The decision of the majority in Xu supports the appellant’s submissions, which are substantially derived from holdings of Whitlam and Gyles JJ in that case.

27                  The appellant also refers to the fact that whilst the existence or otherwise of a link between s 430 and 476(1)(a) was not in issue in Abebe (supra), some members of the Court, when summarising the legislative scheme, did so in terms which accepted that ss 423-429 were procedural requirements, but did not treat s 430 in that way: see p 28 footnote 63 (Gaudron J) and p 41 footnote 122 (Gummow and Hayne JJ).  It seems to us that a general description of the legislation contained in footnotes, in a case in which the linkage was not in issue, provides too slight a foundation on which to base any conclusion as to whether or not s 476(1)(a) is confined in its operation to procedures required to be observed prior to decision.

28                  The case law on the phrase “in connection with” indicates that it is an expression of wide connotation that merely requires a relation between one thing and another: eg Perrett v Commissioner for Superannuation (1991) 29 FCR 581; Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280.  But in Burswood at 146 the Full Court quoted with approval a statement made by Davies J as follows:

“Expressions such as ‘relating to’, ‘in relation to’, ‘in connection with’ and ‘in respect of’ are commonly found in legislation but invariably raise problems of statutory interpretation.  They are terms which fluctuate in operation from statute to statute ... The terms may have a very wide operation but they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear.”

29                  The phrase “in connection with” does not necessarily require a causal relationship between the matters said to be connected: Perrett (supra), and phrases such as “having to do with” are sometimes referred to as a useful synonym: re Nanaimo v Community Hotel Ltd [1944] 4 DLR 638.  But so too are phrases such as “in the course of”, or “forming part of”: Dawson v Hoffman Brick and Potteries Ltd [1924] VLR 208.  As the Full Court emphasised in Burswood (supra) at 146 reference to reported cases is of little assistance, because the nature of the relationship between one thing and another which is encompassed by the phrase “in connection with” depends so much upon the statutory context in which the words appear

Reasoning

30                  The first question is whether the written statement for which s 430(1) provides is a “procedure” which the Act requires to be observed.  The bringing into existence of a record of a decision containing the other matters referred to in s 430 conforms to the common understanding of a “procedure” as it is a necessary step “more or less precisely identified” (cf Minister for Immigration & Multicultural Affairs v Eshetu (1999) 162 ALR 577 at [108]) which, when communicated, completes the administrative process.  In Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247 the Full Court held that the requirements imposed by s 430 are procedures: [22] and [51].  We agree with that view.

31                  As French J explained in Minister for Immigration & Ethnic Affairs v Taveli (1990) 23 FCR 162 at 178-179, in the context of s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”), the obligation imposed by the section is not satisfied by the provision of an ex post facto justification for the decision in question.  What is required under s 430(1)(b) is a specification of the actual reasons, good or bad, for the decision.  The duty under s 430, to borrow the language of the High Court in Dalton v Deputy Federal Commissioner of Taxation (1986) 160 CLR 246 at 250, is imposed upon a person “by reason of, and as an incident to” the fact that the person makes a decision.  That provides an obvious link or connection between the making of the decision, and the preparation of the s 430(1) statement.

32                  In Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 480 Wilcox J, in the context of s 5(1)(b) of the ADJR Act, said:

“Counsel for the second respondent point out that a decision to grant a licence will logically precede the making of a report.  They say that the obligation to report is not, therefore, a procedure ‘in connection with the making of the decision’.  But the words ‘in connection with’ do not import any particular temporal relationship.  As Nanaimo makes clear, the phrase may cover the relationship between some present event and a contemplated sequel of that event.  In its s 5(1)(b) context, I think that the words extend to any procedure required by law to be followed as part of the decision-making process; and whether that procedure is required, or happens, to precede or to follow the actual making of the decision.  Questions of degree may arise; but if, in a particular case, it can be seen that a particular procedure is part of the decision-making process prescribed by law, it must be regarded as a procedure required ‘in connection with’ that decision.”

33                  The crux of the decision of the majority in Xu emerges from the following short passage at [20]:

“Granted the width of the phrase ‘in connection with’, in our opinion the procedures laid down by Division 5 are not ‘in connection with the making of the decision’, but rather are in connection with the promulgation of the reasons for the decision.  The phrase in the section is not ‘in connection with the decision’.  It follows that the written statement of reasons is not reviewable pursuant to s 476(1)(a) ...”.

34                  Assuming that the expression “the making of the decision” refers to the exercise of the power of decision under s 415 of the Act, the giving of the s 430(1) statement is nonetheless appropriately seen as a procedure in connection with the exercise of that power, as it is an incident of its exercise.  The giving of the s 430 statement may not be a procedure to be observed in the exercise of the power of decision, but unless the context otherwise indicates or requires, the expression “in connection with” naturally encompasses matters which, although occurring after the making of the decision, are consequential upon it or incidental to it.  The fact that s 430 is concerned with the promulgation of the reasons for a decision which has been made does not deny that it may also be a procedure in connection with the making of the decision.  The two things are not mutually exclusive.  In any event, it may be noted that the duty to set out findings of fact and reasons is to record thought processes which actually preceded and provided the foundation for the making of the decision.

35                  The question then arises whether the context in which the phrase “in connection with” appears, or the object or purpose of relevant statutory provisions, indicates that s 476(1)(a) is not intended to apply to procedures which the Act requires to be observed after the making of a decision, even though consequential upon it.

36                  Provision of a s 430(1) statement allows a party dissatisfied with the decision to determine whether some reviewable error has been committed by the RRT in making its decision.  That is one of the objectives sought to be achieved by provisions similar to s 430: see Comcare Australia v Lees (1997) 151 ALR 647 at 656; Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88.  A failure to comply with s 430 may make it impossible to ascertain whether there is any other reviewable error in the decision-making process, and would frustrate the intended operation of the review process for which Part 8 provides.  In those circumstances it would be unsurprising that a decision is liable to be quashed or set aside if s 430 is not complied with, particularly as Part 8 does not contain any other mechanism for the direct enforcement of the s 430 obligation (this issue is discussed at pars 40-41 below).  As was said in Yusuf at [28], the Act manifests an overall policy that the way in which the RRT goes about its task is to be subject to judicial review by the Federal Court, though the merits of its decision are not.

37                  If the preparation of the statement under s 430(1) is a procedure required to be observed in connection with the making of a decision, then the same may be said of other post-decisional procedures for which Division 5 provides.  Thus the RRT must return to the Secretary any document the Secretary provided in relation to the review (s 430(3)).  Where an oral decision is given, the s 430(1) statement must be provided to the parties within fourteen days of the decision (s 430D(1)).  The appellant submits that it would be absurd if failure to observe procedures of that type led to the decision on review being quashed. We agree.  But the power of the Court to make orders under s 481 is discretionary, and the Court would be justified in declining to make any order on the basis of such trivial and inconsequential contraventions.  The discretion extends to whether or not to grant relief if a basis for relief is otherwise established, as well as to the form of any relief: Lamb v Moss (1983) 49 ALR 533 at 549-551; Nguyen v Minister for Immigration & Multicultural Affairs (1998) 158 ALR 639 at 647.

38                  Accordingly, neither the context, nor the object or purpose of Part 8 of the Act, suggests an intention to exclude a failure to comply with s 430 from the operation of s 476(1)(a).

39                  There is authority for the proposition that where a statement of reasons is a statutory requirement of the exercise of a decision-making power, a substantial failure by a Tribunal to state reasons for its decision may constitute an error of law which vitiates the decision: Dornan v Riordan (1990) 24 FCR 564, although this has been questioned: see Comcare (supra) at 656-659.  It was not submitted in this case that non-compliance with s 430 would trigger the operation of s 476(1)(e), hence it is not necessary to pursue this difference of opinion.

40                  There is no provision in the Act which specifically addresses either a failure on the part of the RRT to provide a s 430(1) statement at all (compare ss 477 and 481(2)) or the provision of an inadequate statement.  There is no provision in the Act equivalent to s 13(7) of the ADJR Act or s 28(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) dealing with the provision of inadequate statements by the original decision-maker.

41                  Section 481 of the Act sets out the powers of the Federal Court on a review of a decision by the RRT.  The RRT is not a party to the review proceedings in the Federal Court (s 480), hence the only paragraph in s 481 which might conceivably empower the Federal Court to make a mandatory order addressed to the RRT requiring it either to prepare a statement under s 430(1), or to remedy deficiencies in any statement which has been given, is par (b).  However, it seems to us that the “further consideration” for which par (b) provides is consequential upon the original decision being quashed or set aside under par (a): see Demur v Minister for Immigration & Multicultural Affairs [1998] FCA 1308 where Ryan J held (at 9) that an order of the kind contemplated by s 481(1)(b) of the Act can only be made in consequence of an exercise of the power conferred by s 481(1)(a) of the Act.  An order requiring compliance with s 430 is not aptly described as an order for further consideration of the matter to which the decision relates.

42                  The absence of a power in the Federal Court to order specific compliance with s 430 without setting aside the decision reached by the RRT does not bear upon the reach of s 476(1)(a).  Either the statement of reasons is a procedure in connection with the making of the decision, or it is not.  If it is, the Federal Court has a discretionary power to quash or set aside the decision in the event that the required procedure is not observed.

43                  For the reasons earlier given, we consider that the preparation of a statement of reasons is a procedure, and is one the Act requires to be observed in connection with the making of a decision by the RRT not to grant a protection visa.  If there is a failure to prepare any statement at all, then s 476(1)(a) is enlivened.  In principle the same result should follow if a statement purporting to be in conformity with s 430 is prepared, which does not satisfy the requirements of the section.  If the statement is said not to comply with s 430(1) because it fails to set out findings on a question of fact which a court holds to be material (but which the RRT did not), then the decision could be set aside under s 476(1)(a) for want of procedural compliance.  There is no contrariety between upholding a claim that a procedure required by the Act to be observed has not been observed, and the fact that a court engaging in judicial review is not to engage in merits review.

The content of the obligation under s 430

44                  Section 430 does not impose any obligation on the RRT to come to a correct decision, or to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it reached.  Subject to the qualification referred to in par 47 below, the section calls for a recording of matters that are essentially matters of fact, namely the decision to which the RRT came, the actual reasons for coming to that decision, the findings of fact that were actually made and the material on which those findings were based.

45                  If, for example, the reasoning process actually adopted by the RRT, as exposed by the statement, is unsatisfactory, that does not mean that there has been a failure to comply with s 430; it means that the decision was grounded in reasons which a court finds to be unsatisfactory, with whatever consequences (if any) that may entail.  In our view, statements to the effect that “proper and adequate reasons must be given” (see eg Re Poyser and Mills’ Arbitration [1964] 2 QB 467, 477-478) should not be read as indicating that something other than the actual reasoning process is required to be stated.

46                  There is no specific requirement in s 430 for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made.  That is the view endorsed by the decisions referred to in par 12 above, and in our view it is consistent with the language of the section.  The decision of the Full Court in Arudselvan v Minister for Immigration & Multicultural Affairs  [1999] FCA 1726 provides another illustration of this approach.  There the Court held that the RRT was not obliged to analyse material submitted by the applicant, and to give reasons for not accepting any of it that might be thought to be inconsistent with the conclusions it reached.  The endorsed view is subject to the important qualification that if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT’s actual reasoning process: see Durairajasingham (supra).

47                  The qualification referred to in par 44 concerns s 430(1)(c), insofar as it requires the RRT to set out its findings on any material questions of fact.  Ordinarily, materiality is an objective concept.  If the RRT fails to make a finding on a fact which is in truth, as a Court subsequently determines, a material fact, then s 430(1)(c) will not have been complied with, even though the RRT has recorded its findings in relation to the facts before it that it regarded as material.

48                  The generally accepted view in this Court has been that the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make.  It must make findings on questions of fact that are central to the case raised by the material and evidence before it.  In this respect, s 430 sets a standard of decision-making the RRT is required to observe.

49                  Xu does not deny that the RRT is required to make findings on material questions of fact.  Nor does it deny that the facts that are material are to be objectively ascertained.  However, the majority in Xu conclude that materiality does not depend upon the way in which a particular applicant chooses to present that applicant’s case.  Rather it depends upon the facts on which the Act expressly or impliedly requires the decision-maker to make findings when making the decision, or on which the Act expressly or impliedly requires findings not to be made when making that decision.

50                  In the view of the majority in Xu, s 430(1) only obliges the RRT to make findings on the ultimate facts – the facts that are an essential preliminary to the making of the decision.  In a case such as the present, ss 36 and 65 of the Act, when read in conjunction with s 415, specify the matters to be taken into account in making the decision to grant or to refuse to grant a visa.  The principal question flowing from s 36(2) is whether the applicant has a well-founded fear of persecution for a Convention reason if returned to his or her country of nationality: cf Eshetu at [193] per Callinan J.  As we understand the majority in Xu, it is the RRT’s findings on those ultimate questions that s 430(1)(c) requires to be set out, rather than its findings upon questions of primary fact raised by the evidence that may lead to the findings on the ultimate questions.

51                  The majority in Xu point to a “wrong turning” which is said to have occurred in relation to the construction of s 430.  The suggested “wrong turning” is that the materiality of factual questions has been determined by reference to the evidence or other materials before the RRT, rather than by reference to the statutory criteria on which the decision to grant or refuse a visa depends.

52                  If this is a wrong turning, it is one Full Courts of this Court have consistently taken since 1996, when Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402 was decided.  In Addo, decided by a Full Court in July 1999, the law in this respect is expressed in this way [19]:

“The Tribunal is under a duty to review the decision of the delegate on the merits and in doing so must have regard to all of the material and evidence before it and make findings on all of the material questions of fact raised by that material and evidence.”

53                  The view has been consistently taken in the past that where, for example, the well-founded fear of persecution is said to derive from past experiences, s 430(1)(c) obliges the RRT to set out its findings in relation to those claims because of their relevance to the ultimate question.  As we understand it the majority in Xu would deny that obligation.

54                  We do not accept that the material facts referred to in s 430(1)(c) are confined to the facts the statute requires to be decided.  Obviously they include those facts, but whether a question of fact is otherwise material may be influenced or determined by the way the Tribunal has approached the case, as revealed by its reasons for decision.

55                  The reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision.  Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c), as the process of reasoning adopted by the Tribunal has made that fact a material fact, since the decision is dependent upon it.  Conversely an applicant may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them.  As Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690 at 691, in the context of s 43 of the AAT Act:

“Section 43 is not to be construed in a pedantic spirit, but sensibly.  If the Tribunal’s reasons expose the logic of its decision, and contain findings on matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with a requirement to include ‘findings on material questions of fact’”.

56                  Accordingly if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one.  But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with: see Durairajasingham at pars [65] and [67].

57                  Thus whilst materiality will not necessarily depend upon how an applicant chooses to present the issues, we do not agree that the only material facts are those on which the Tribunal is legally required to make findings: contrast Xu at pars [49] and [51].  A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists.

58                  So, for example, an applicant’s arrest and torture in consequence of an expression of a political opinion may well be a material fact if, in a real practical sense, the outcome of the application for a protection visa can be seen as depending on whether the applicant’s claim of the existence of those facts is accepted or rejected.  It might be otherwise if, in the meantime, there had been a change in government, and the political party supported by the victim was in power, and likely to remain so.  In that case, whether or not the applicant had been so arrested and tortured in the past may be immaterial to whether or not the applicant presently has a well-founded fear of persecution.

59                  Having regard to the way in which the matter was presented to the RRT, one of the issues it had to decide was whether there had been such a significant change in circumstances in the Punjab since 1993 that the applicant husband no longer had a well-founded fear of persecution at the hands of the Punjab police.  The RRT answered that question in the affirmative, gave its reasons for so doing and identified the material before it on which it based that conclusion.  The fact that it simply noted material that might suggest to the contrary, without explaining why it did not regard that material as showing, contrary to the RRT’s conclusion, that there exists a real risk of future police persecution of Punjab Sikhs  who (as the RRT found was the case with the applicants) had no criminal record and were not high profile militants or secessionists, does not involve a failure to comply with s 430(1)(d).  As we have said, there is a distinction between material questions of fact and pieces of evidence.

60                  We agree with the primary judge’s conclusion that s 430(1)(c) is directed not to matters the RRT considers to be material but to matters that are objectively material to whether a person is in truth a refugee.  It follows from our conclusion that the matters in s 430(1)(a) are procedures for the purposes of s 476(1)(a) that the RRT cannot be the sole arbiter of materiality.  After all, as we have held, breach of s 430(1)(c) provides a ground of review by this Court.  But we are unable to agree with his Honour that the RRT was obliged by that paragraph or by par (d) to explain why it did not act upon the statements in the September 1998 report that raised the prospect of resurgent Sikh activism.  The RRT was alert to the existence and contents of the September 1998 report.  It twice referred to the report, and on each occasion summarised aspects of it.  It was conscious of the purpose for which the report had been submitted, for it recorded the submission based on it that “experts are concerned that peace will not last”.  The RRT referred to a great deal of material that supported its view that “most recent reports suggest that Sikh militancy is virtually at an end in Punjab today”, and indeed noted that some of the attachments to the September 1998 report accorded with the view to which it came on the material as a whole.  One of the supporting documents noted that the Punjab police force was demoralised by various legal suits filed against it for violation of civil liberties.  Another referred to the fact that because of prosecutions for past police excesses, a “feeling has sunk deep in the police ranks that fighting terrorism could lead to judicial wrath”.

61                  The RRT’s ultimate conclusion that there has been a significant change in circumstances in the Punjab since 1993, and that peace and normalcy have returned, which amongst other things led to its ultimate conclusion that the applicants have nothing to fear from the Punjab police, shows that it did not accept that part of the material in the September 1998 report that there was a concern by some experts that peace would not last.  If this were a case in which the RRT was obliged by s 430(1)(b) to reveal that it rejected material inconsistent with other material upon which it acted (cf Durairajasingham at par 65), it in substance did that.  It is at least implicit in the course of its reasoning as described above that it did not accept those parts of the September 1998 report that recorded that some experts are concerned that peace will not last.  That is clear from its reference to the report and to other reports followed by the expression “most recent reports suggest ...”.

62                  We think it also implicit in the RRT’s reasoning that it concluded that the weight of the material before it strongly favoured the conclusion to which it came.  Moreover, it explained that the September 1998 report focused on activities in which the applicants did not claim to be involved and did not focus in any significant way on the excesses of the Punjab police, which is what the appellants claimed to most fear.  We consider that on a fair reading of its lengthy and detailed reasons the RRT did explain why it reached the decision it did.  The applicants and their advisers would, as a practical matter, not be significantly better informed as to why their applications had been rejected if the RRT had expressly, rather than implicitly, stated that it did not accept that part of the material relied upon because, insofar as it was relevant, it was against the weight of all the material before it.  Having said this, we should emphasise that the adequacy of reasons for decision – a matter of great importance in administrative law – must depend upon the circumstances of each case, but that fundamentally the reasons need to reveal to the parties why the decision went the way it did.  We consider that in the particular circumstances of the present case that obligation was fulfilled.

63                  The primary judge found that there was a body of material before the RRT “suggesting that the consequences for Mrs Singh, in terms of the likely community reaction to her having been raped, are likely to be much more harmful than the Tribunal found to be the position”.  His Honour held that the fact that the RRT did not even refer to some of this evidence or explain why, in the face of this evidence, it came to the quite different conclusion it did, constituted a failure to comply with s 430.

64                  It follows from the reasons earlier given that a failure to comply with s 430 is not made out by reason only of a failure on the part of the RRT to explain why it had not accepted and acted upon material which was contrary to the findings which it had made on an issue.  This of course is not the only question to which s 430 may give rise.  But for the reasons given in par 67 in relation to Mrs Singh’s cross appeal, it is not necessary for us to pursue that aspect further in her case.

65                  The appeal should be allowed.  The orders of the primary judge should be set aside and the decision of the RRT affirmed.  The applicants (the respondents to the appeal) should pay the costs of the proceedings at first instance.  As this case was selected to be argued as a test case, there should be no order as to the costs of the appeal.

Cross appeal

66                  We have already explained above the approach the primary judge took to Mrs Singh’s independent claim of well-founded fear of persecution.  However, although his Honour found reviewable error in relation to Mrs Singh’s case so far as it was based on community reaction to her rape, he declined in the exercise of his discretion under s 481 of the Act to set the Tribunal’s decision aside on this ground.  He otherwise set aside the Tribunal’s decision affirming the delegate’s decision not to grant protection visas, and referred back to the Tribunal the question whether visas should be granted.  Conformably with the exercise of his discretion on the community reaction issue, his Honour qualified the remittal order by saying that further consideration of that issue by the Tribunal was to be limited to the applicants’ claims based on a well-founded fear of persecution by reason of them being Sikhs.  The Minister has not filed a notice of contention against that part of the primary judge’s decision holding that there was reviewable error in the Tribunal’s treatment of Mrs Singh’s claim.

67                  Mrs Singh has cross-appealed against the limitation placed upon the reference back to the Tribunal.  The primary judge gave detailed reasons for the exercise of his discretion under s 481.  We are not satisfied that the exercise of discretion is open to attack on the limited grounds upon which such an exercise can be interfered with on appeal.  Cf House v The Queen (1936) 55 CLR 499 at 504-505 and Lovell v Lovell (1950) 81 CLR 513 at 532-534.  The fact that the primary judge took a view of s 430 wider, and thus more favourable to Mrs Singh, than that we favour does not invalidate the exercise of his discretion.

68                  The cross-appeal should be dismissed.  As the cross-appeal did not materially increase the costs associated with the hearing of the appeal, there should be no order as to the costs of the cross appeal.

Associate:

Dated:              30 June 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

KIEFEL J:

69                  Mr and Mrs Singh and their children are Sikhs from the State of Punjab and were applicants for refugee status.  The Refugee Review Tribunal, which rejected their claims, did not accept some of Mr Singh’s claims - that he was persecuted by the Punjab police because he was an active supporter of a Sikh separatist religious leader and that he had been one of the Sikh defenders of the Golden Temple against the Indian Army’s assault on 3 June 1984.  It accepted that he was a deeply religious Sikh who had been arrested and detained by the Punjab police on a number of occasions between 3 June 1984 and 1993.  There was a pattern of arresting, brief detention and release which reflected the then practice of the police.  The Tribunal went on:

“There has been a significant positive change in the attitude of the Punjab police since 1993 as discussed above.  There is no reason to believe that the Punjab police would have any continuing interest in the applicant husband.  The Tribunal does not accept that the applicant husband is on a police list of habitual offenders.  The applicant is not a high profile militant suspect, nor is he a high profile sucessionist (sic).  He has never engaged in violent anti-state acts.  The Tribunal finds, therefore, in light of the independent evidence discussed above and the applicants’ own evidence, that the applicant husband has nothing to fear from the Punjab police and therefore does not have a well-founded fear of persecution for reasons associated with his run-ins with Punjab police.”

The Tribunal impliedly accepted, his Honour found, that Mr Singh was, like a large number of young Sikh men, mistreated by the police because other Sikhs were causing violence in the Punjab. 

70                  The rejection of Mr Singh’s claim to refugee status was largely based upon the Tribunal’s view that there had been an improvement in conditions in the Punjab.  It considered that the available material showed that the government had attempted to control the Punjab police since 1993, by suppressing their behaviour towards Sikhs generally, and there had been a measure of success achieved.  Further, with respect to Mr Singh, he was not, in the Tribunal’s view, a person with such a high profile as would attract police attention to him in these more stable times. 

71                  Mr and Mrs Singh, however, claimed that they were frequently harassed by the police.  Mrs Singh attributed this to Mr Singh having been identified as involved in the incident at the Golden Temple (which claim was not accepted).  They were called into the police station and on a number of occasions abused and beaten.  On one particular occasion, on 14 August 1993, they were taken to the police station at Batala.  After interrogation, a police officer beat her husband with a stick and then raped Mrs Singh in front of him.  They left India soon afterwards and came to Australia.  The Tribunal accepted that the incident occurred as claimed.  It went on however:

“The Tribunal notes, however, that this incident was a single isolated event. Despite the applicant’s claim that she has been harassed by the police for many years, she was never raped or physically abused in any way prior to August 1993.  It is apparent that the applicant was raped on this occasion in order to harm her husband.  The rape of a man’s wife in front of him is the ultimate humiliation which a man could suffer.”

In view of the last mentioned sentence, it is necessary to state that the correctness of that finding, or opinion, is not here in issue.

72                  His Honour observed:

“This finding, while not necessarily inconsistent with the Tribunal’s finding that Mr Singh does not have a high profile with the police as a Sikh activist, emphasises the extent to which the police were prepared to go in persecuting Mr Singh, who was singled out for mistreatment solely because he was a Sikh.”

73                  The Tribunal, in its reasons, maintained the view that Mr Singh was of no continuing interest to the police and, despite the incident referred to, found that there was no evidence to suggest that there was a real chance that the incident would be repeated.  It went on:

“It was a single, violent attack made by a police officer who was taking advantage of the position of power which he held.  The Tribunal is confident that the steps taken by the Indian and Punjabi authorities to rein in the past excesses of the Punjab police mean that the applicant no longer faces the prospect of being arrested and treated in this brutal way again.  The Tribunal finds that the applicant does not have a well-founded fear of being raped again by the Punjabi police.”

74                  Mrs Singh also claimed that if she returned she would be subject to severe social disapproval in her community because of the rape.  The Tribunal found that although attitudes of the community might be distressing to her, they did not constitute persecution in the Convention sense.  It would not affect her ability to live a normal and safe life in her community.  The Tribunal concluded:

“In sum, the Tribunal does not accept that the applicant husband was at the Golden Temple during Operation Bluestar in June 1984 and was not arrested and detained as he has claimed following that incident.  The Tribunal also does not accept that he was a Bhindranwale preacher, although he is a deeply religious man.  The Tribunal does not accept that the applicant husband was arrested and briefly detained on many occasions between 1984 and 1993.  However, the Tribunal has found that since 1993 the Indian and Punjabi authorities have taken significant steps to reign in the excesses which the Punjab police committed in the past.  The Tribunal finds that there has been a significant change in circumstances in Punjab since 1993 such that the applicant husband no longer has a well-founded fear of persecution at the hands of the Punjab police.  The Tribunal finds that the applicant was raped in front of her husband by a Punjab police officer in August 1993.  However, the Tribunal finds that this was a single isolated event and there is no reason to believe, given the significant change in circumstances in Punjab since 1993, that it will be repeated.  The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason at the hands of the Punjab police.  Finally, the Tribunal accepts that the applicant and applicant husband may be treated unkindly by members of their community in Punjab.  The Tribunal finds, however, that this is not a significant detriment or disadvantage which could amount to persecution in the Convention sense.  The applicant husband and applicant wife do not have a well-founded fear of persecution in India for a Convention reason.  They are not refugees.”

75                  Before his Honour, Mr and Mrs Singh relied on s 476(1)(a) Migration Act 1958 (Cth) which provides that it is a ground of judicial review under the Act:

“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.”

76                  It was submitted on their behalf that the procedures of the Act not observed were those in s 430(1):

“Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)       sets out the decision of the Tribunal on the review;  and

(b)       sets out the reasons for the decision;  and

(c)        sets out the findings on any material questions of fact;  and

(d)       refers to the evidence or any other material on which the findings of fact were based.”

77                  In particular, it was submitted that the Tribunal failed to deal with their submissions as to the lack of durability of peace in the Punjab;  and that it failed to set out its reasons, the material findings, or to refer to the evidence or material concerning Mrs Singh’s claim of persecution by her community as a consequence of the rape.

78                  His Honour said that the Tribunal had information before it touching on conditions in the Punjab from 1984 up to the time of its decision.  The impression gained from the survey of material undertaken by the Tribunal was that there had been a return to a very large measure of normalcy in the Punjab by the beginning of 1997 with police excesses being something of a thing of the past.  “In sharp contrast”, however, his Honour observed that the Country Research Service report of September 1998 procured by the applicants conveyed that the perception of people in authority in India in recent times was that of a real risk of a further outbreak of Sikh militancy.  His Honour listed a number of outbreaks of violence referred to in the report.  The Tribunal had explained away the report by saying that it focused on the current state of the Sikh separatist movement and of recent action by militants;  but did not focus in any significant way on the excesses of the Punjab police, which is what the applicants actually claimed.  His Honour went on:

“The report, with its theme of the risk of resurgent Sikh militancy, raises issues material to the applicants’ claims to refugee status. That Mr Singh may personally be of no interest to the police and that the police may, since the early 1990s, have been brought under greater control than was the case in the years following June 1984 is no answer to the issue raised by this report of the risk of a resurgence of Sikh militancy in the Punjab.  If the risk of a significant further outbreak in Sikh militancy is realised, there is the associated risk that the police will revert to their former brutal treatment of Sikhs generally in which the Tribunal found Mr Singh was caught up. 

In view of the material concerning the risk of renewed Sikh militancy, the risk of renewed police persecution of Sikhs is one which the Tribunal needed to consider.”

His Honour then went on to deal with other country reports and then posed the question that:  given that the Tribunal did deal, in some detail, with the Country Research Service report, can it be said that it breached its duty under s 430 to explain why it did not regard this report as showing there exists a real risk of future police persecution in the Punjab?  Critically, his Honour considered that the Tribunal did not explain whether it accepted the reliability of the statements made in the report about the issue concerning the further outbreak of Sikh militancy in the Punjab and its likelihood, including statements the report attributed to highly placed Punjab officials.  If it did accept those statements as reliable it did not give any explanation for declining to hold that they raised, as a real risk, that the police may respond with renewed persecution of Sikhs.

79                  His Honour held that the Tribunal failed to comply with s 430 in the respects mentioned and in doing so his Honour applied the reasoning of earlier cases.  The purposes of s 430 had been held to include one to inform unsuccessful applicants for a protection visa why their application had failed:  Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24, 27 and 31.  There, Wilcox J added the observation that it was incumbent upon the Tribunal to say if it rejected a significant factual claim and indicate the factual material on which the adverse finding was based.  The need for the Tribunal to explain its dealing with the claims and the material was again stated in Logenthiran v Minister for Immigration and Multicultural Affairs [1998] FCA 1691.  It was not, in their Honours’ view, open to the Tribunal to reject claims made in a report without setting out its own findings in respect of the situation claimed in the report and the evidence or other material on which those findings were based.  That case was in turn applied in Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165;  Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 and Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247.  His Honour the primary judge held:

“These authorities show that s 430, in requiring the Tribunal to set out its findings on material matters, is not directed to matters which the Tribunal considers material:  it is directed instead, to matters that are objectively material to whether a person is in truth a refugee.  They also show that s 430 imposes a more stringent fetter on the Tribunal’s freedom of decision-making than does the existence of error of law constituted by a want of evidence to support the decision, as a ground for review.”

80                  His Honour also held that the Tribunal failed to fulfil the requirements of s 430(1) in rejecting Mrs Singh’s claim that she would be persecuted by her community.  There was a body of material before the Tribunal suggesting that the consequences for her were likely to be more harmful than the Tribunal found to be the position and yet it was not dealt with in the reasons.  The material to which his Honour referred was identified by him as evidence by Mr Singh; answers in Mrs Singh’s application for refugee status;  the report of the psychologist as to Mrs Singh’s account given to her;  and the decision of the Tribunal, who had first dealt with the applicants’ claims, when it accepted that she would be constantly humiliated - an assertion which corresponded with the range of country information available on gender in India, although it did not consider that that could amount to persecution in the Convention sense.  His Honour declined to make an order setting aside the decision on this breach of s 430(1), since it had not been shown that it was open to the Tribunal to find that Mrs Singh was, by reference to these facts, a member of a particular social group or that the ostracism to which she would be subjected would amount to persecution. 

81                  His Honour set aside the Tribunal’s decision, on the basis that it had not fulfilled its duty in explaining how it dealt with the evidence that the risk of police persecution remained a real one.  His Honour also ordered that further consideration of the Tribunal be limited to Mr and Mrs Singh’s claim to refugee status on the basis of fear of persecution for the reason that they are Sikhs, which is to say Mrs Singh’s additional claim was to be further considered.  The Minister appeals from that decision.  Mrs Singh cross-appeals with respect to the exercise of his Honour’s discretion limiting the remittal.

Subsequent Decisions

82                  Subsequent to his Honour’s decision, two Full Courts of this Court considered the requirements of s 430 and whether a breach of that section could constitute a ground under s 476(1)(a): Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 and Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741.

83                  In Yusuf, the primary Judge held that the Refugee Review Tribunal had failed to set out a finding on a material question of fact, namely a claim, by the respondent to the appeal, that her family home had been attacked by members of another clan.  The contravention of s 430(1)(c) constituted a failure to comply with s 476(1)(a).  The matter was, in his Honour’s view, significant, and could be said to be central to the events relied upon as grounding the fear of persecution.

84                  The Full Court (Heerey, Merkel and Goldberg JJ) upheld his Honour’s decision.  As to the question of what was a material question of fact, their Honours considered that the nature of the asylum-seeking claim and the way it is presented to the Refugee Review Tribunal must be examined, but observed “this is not impermissible merits review in a new guise”.  Their Honours referred to other statutes which imposed the obligations of setting out findings of fact and evidence and the reasons for the decision (the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13(1) and the Administrative Appeals Tribunal Act (Cth) 1975 s 43(2B)) which had been construed to require more than a statement of bare conclusion as to the ultimate statutory criterion.  Earlier in their Honours’ reasons, their Honours held that the “statutory setting” in which s 430(1) is to operate includes, importantly, provisions such as ss 414, 415, 425, 426 and 430, which concern its duty to review the decision before it.  In particular s 423(1)(b), by which an applicant may give the Registrar written arguments relating to the issues arising in relation to the decision under review; and s 425(1) by which the Refugee Review Tribunal must invite the applicant to give evidence and present arguments relating to such issues, suggested to the Court that:

“in any given case it can be objectively determined what are the issues.  It is these issues which the RRT has to consider in its review of the decision under s 414 and on these issues it has to make findings on any material questions of fact, in the sense of “deal(ing) with the substantial issues on which the case turns”  (Muralidharan, at 414).”

85                  At the commencement of that passage [21], their Honours said:

“If the RRT’s obligation to set out findings on any material questions of fact is, like other obligations under s 430(1), subject to judicial review, the RRT itself cannot have the exclusive power to decide what is or is not material in a given case.  If the statement of reasons contains no finding of fact on an issue it is no answer to say that if the RRT did not mention the issue it is therefore not material.”

86                  The Full Court in Yusuf held that the line of authorities, commencing with Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 , was to the effect that s 476(1)(a) applied to s 430(1).  It held that s 430 is concerned with procedures required of a decision-maker.  It rejected an argument that s 430 speaks of acts which are to occur after the decision in question was made, and held that the section was concerned with the culmination of a series of interrelated procedural duties.  The phrase “in connection with” in s 476(1)(a) is neutral as to time; and “where” in s 430(1) is used in the sense of “on the occasion of”.

87                  The composition of the Full Court in Xu was the same as that in Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740, (Whitlam, RD Nicholson and Gyles JJ).  In both cases, the Court preferred the conclusion reached by the Full Court in Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940, which had held that s 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the Tribunal’s findings of fact are based;  and did not require reasons to be given for rejecting evidence inconsistent with the findings made.

88                  In Sivaram, their Honours had pointed to the distinction between material questions of fact and pieces of evidence, and considered that pars (c) and (d) of s 430(1) confirmed the distinction.  Materiality was not to be determined by relevance alone.  The findings of fact made by the Tribunal required reference to evidence or other material;  but nothing in the plain reading of the section required it to set out the evidence contrary to its findings where the evidence was not evidence upon which the finding, positive or negative, was based.

89                  In Xu, Whitlam and Gyles JJ further considered the requirement of “materiality” in s 430(1)(c).  Paragraph (c), in their Honours’ view, referred to findings of fact necessary to the decision, which is to say the “ultimate facts”, and (d) referred to the evidence which proved those facts.  Materiality in an administrative law sense required reference to the statute in question.  A statutory provision may expressly or impliedly oblige the decision-maker to take certain facts into account or prohibit them from being taking into account when making the decision.  Where no such constraints are present, “the decision-maker is the sole judge of materiality and there can be no judicial review of that question, no matter how wrong or illogical the decision-maker is seen to be by a judge.  In those circumstances, a fact is material only if the decision-maker considers it so.”  In their Honours’ view, for a Court to make an assessment that a fact not dealt with is material, other than on the basis of what the statute requires, is to involve a merits review and to intrude into the decision rather than to supervise compliance with s 430.

90                  Their Honours also held that s 430(1) did not refer to  procedures “in connection with the making of the decision,” to which s 476(1)(a) referred.  In their Honours’ view, the proper emphasis was upon the making of the decision, and the ordinary grammatical meaning of s 430 assumes that a decision has been made and provides for other steps to be taken consequent upon that fact.  The decision itself is made pursuant to s 415.  A statement prepared pursuant to s 430(1) is one which records the decision and provides reasons for it in a particular form.  The giving of reasons under s 430 is not part of the decision-making process.  The procedures under s 430, Part 7, Div 5, are not those “in connection with the making of the decision”, but rather are in connection with the promulgation of the reasons.  The written statement did not furnish grounds for review and the cases which had held that it did were in error.  Reference to the Explanatory Memorandumrelevant to s 476(1)(a) provided further support for this view.  If there was a failure to comply with s 430 the remedy, in their Honours’ view, was in prerogative writs although only the High Court could now make orders with respect to them.

Reasoning on the Appeal

Section 430 - What it Requires

91                  The line of cases since Muralidharan, approached the question of the extent of the Tribunal’s obligations under s 430 largely by reference to its purposes.  In particular, they focused upon the objectives of disclosure of the Tribunal’s reasoning process and informing those affected by the decision, so that they would be in a position to understand why the decision went against them:  see The Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65, 88;  Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500, 507;  Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR 465, 481.  (Other objectives identified by the authorities are listed by Finkelstein J in Comcare Australia v Lees (1997) 151 ALR 647, 656).  In a number of the cases, it was held that the statutory obligation remained unfulfilled because evidence put forward by the applicant was not dealt with in the reasons.  In that event, the unsuccessful applicant could not know and understand why that part of their case was not taken into account or rejected. 

92                  An early warning that, of necessity, there must be limits to a requirement that the Tribunal deal with matters raised had been expressed in Our Town FM, 481 and Muralidharan, 414.  It then became necessary to identify whether the evidence or other material in question was of importance.  It was held that whether it required the Tribunal’s attention could be determined objectively, having regard to the case as presented, because it was a “key element in the appellant’s case”:  Muralidharan, 415;  a “significant factual claim”, “substantive issues raised by the material”: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24, 28, 31, 42-3; 63;  Logenthiran v Minister for Immigration and Multicultural Affairs [1998] FCA 1691; or amongst “various matters identified”:  Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165 [22]; or “important elements of the applicant’s claims which required consideration”:  Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, [17].  By that process the Court became involved in identifying what was relevant or material to the questions posed for the Tribunal in a given case.  Although it was explained, from time to time, that the Court was saying no more than that the reasons were deficient because of the omission, the inescapable conclusion was that they were holding the Tribunal to have been obliged to take a matter into account in its reasoning process, as the majority in Xu points out.  This would not appear to conform with a statutory regime where judicial review on the ground of failure to take into account a consideration relevant in the administrative law sense is excluded (s 476(3)(e)) and no review of the facts otherwise to be taken into account is permissible.

93                  In my respectful view, neither the words of s 430 nor the purposes for the obligation to give reasons require or warrant the imposition of a duty to deal with all the evidence put forward, even if it appears to the Court to have relevance or that otherwise the applicant might be left uncertain as to why it had not been accepted.  The subsection requires that the Tribunal disclose its process of reasoning, not that it provide a full explanation of its views on all serious factual contentions.

94                  The earlier cases relied upon in connexion with the relevant statutory purposes do not suggest any more than the section seems to require, namely that the Tribunal disclose its reasoning process.  In Ansett Transport Industries, Woodward J described the obligation as requiring:

“…that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions (507).”

This passage was referred to in Our Town FM, 481, together with one from ARM Constructions Pty Ltd v Deputy Federal Commissioner of Taxation (NSW) (1986) 10 FCR 197, 203-204 (referring to the same provision appearing in the Administrative Decisions (Judicial Review) Act 1977):

“Section 13 is a crucial provision designed to ensure that the basis upon which a decision is made is able to be seen, so that its legality can be determined.  It should not be viewed by any decision-maker as a threat to be evaded by a camouflage of obscurity.  All it requires to be set out is a statement of the matters the administrator must have considered in making the decision in the first place - what he found the facts to be, what material he considered in arriving at those findings, and the reasons for his ultimate decision.”

In the same case Burchett J said that the obligation to give reasons (204):

“demands the furnishing of reasons which make intelligible the true basis of the decision.”

95                  In Minister for Immigration, Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162 French J, in pointing out that the obligation was not satisfied by an ex post facto justification for the decision (in a case which concerned the admissibility of a statement of reasons furnished much later), went on to say that what was required were the real findings and the real reasons:  (179).

96                  It may be observed that, in holding the Tribunal to be obliged to make findings on all facts important or relevant to an applicant’s case, the cases have, to an extent, treated the Tribunal’s duty as akin to that of a Court.  In civil litigation, the issues of course are raised by the parties in their pleadings; they can be objectively ascertained and the Court is obliged to determine them.  In this respect, regard might be had to Yusuf’s case, where the Court considered that the issues for the Tribunal were defined by the evidence and arguments of the applicant, for which provision was made in ss 423(1)(b) and 425(1), and the Tribunal was bound to deal with them.  By contrast, the role of the Tribunal is to answer the question as to the applicant’s status.  In that approach, it is not constrained in its review of the factual material and may obtain such further information as necessary, subject to express requirements of procedural fairness. 

97                  Whilst the Migration Act contains provisions which regulate the process of receipt of information and arguments and associated steps prior to the Tribunal making its decision, as I discuss further below, they contain no requirement that the Tribunal conduct the inquiry according to the applicant’s conception of what is material.  Section 423(1)(a) provides only that the applicant may provide a statutory declaration “in relation to any matter of fact that the applicant wishes the Tribunal to consider”.  Where it provides that the applicant may also give arguments “relating to the issues arising in relation to the decision under review”, it can only mean issues as the applicant sees them.  The applicant may request the Tribunal to call witnesses it considers to be relevant, but the Tribunal is not obliged to do so (s 426).  The Tribunal may, as I have said, obtain its own information and call witnesses it considers may be helpful.

98                  For these reasons, there is nothing in the process provided by the Act which would suggest that s 430 should have engrafted upon it a requirement that the Tribunal, in stating its decision, must deal with all matters which might be adjudged important to the applicant’s case, even if the rejection to be inferred is of facts inconsistent with those found, as Addo holds.  It will, however, be obliged to deal with its rejection of evidence where that amounts to one of its reasons:  Re Minister for Immigration and Multicultural Affairs;  Ex parte Durairajasingham (2000) 168 ALR 407, 422-3, where McHugh J referred with approval to that aspect of Addo’s case.

99                  Whilst the circumstances of this appeal do not require reference to what is meant by “findings on any material questions of fact” in s 430(1)(c) (emphasis added), it is necessary, in light of Xu, to do so.

100               What is required by s 430(1) is that the Tribunal disclose its actual process of reasoning.  The subsection outlines the steps in a rational and ordered approach to a conclusion.  It is, however, only the Tribunal’s reasoning that is to be disclosed.  If it be faulty then it may be that there is a ground for review of the resultant decision by this Court under the Act.  It is not consistent with a requirement that the Tribunal set out its reasons, that the Court may itself objectively determine what is necessary to that process of reasoning.  In my respectful view, par (c) of the subsection refers to factual findings which the Tribunal has drawn upon in its reasons.  To the extent that it is for the Tribunal to identify those facts and make findings, I am in agreement with the majority in Xu.  I am, with respect, unable to agree that materiality might depend upon what a statute requires, for the reason that it would appear to import into the question of construction the grounds for review which depend upon what are relevant and irrelevant considerations. 

Section 476(1)(a) and Section 430

101               As their Honours, the majority, pointed out in Xu, the ground in s 476(1)(a) is concerned with an act done in breach of a condition regulating the exercise of a statutory power.  Section 430 does not involve anything done in the process leading to the decision, which is made under s 415.  Section 430 cannot be said to concern a procedure which might possibly have had some bearing on the decision reached or the fairness accorded to the applicant in the process towards decision.

102               An example of a procedure connected with the making of the decision, commonly referred to in connection with the ground of review found in s 476(1)(a), is the process of consultation required prior to a decision:  see Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 44 ALD 1; R v Commission for Racial Equality; ex parte Hillingdon London Borough Council [1982] AC 779.  In the Migration Act, there are certain statutory procedures which are to be followed.  Some of these are referred to above.  The Tribunal may obtain any information, provided it then has regard to it in the process of making its decision (s 424(1)); the Tribunal must give the applicant particulars of any information that it considers may provide a reason for affirming the decision under review and invite the applicant to comment upon it (s 424A); the applicant must be invited to appear before the Tribunal and present evidence and arguments (s 425); and the Tribunal is able to summons a person to give evidence or produce documents (s 427(3)).  Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324 considered that they were among the procedures to which s 476(1)(a) refers.  One may then compare the steps involved in preparing a written statement for the parties, setting out how the decision was arrived at.  In my view, a procedure required by the Act has the “connection” to which paragraph (1)(a) refers if it is one which precedes the decision and is part of or concerns the process by which the decision is reached, which is to say the “making of the decision” and not the decision itself.  A statement of reasons records or evidences the reasons:  Taveli, 179-180.

103               It may be thought that the process of reasoning to a decision necessarily involves, or should involve, the steps referred to in s 430(1).  A distinction may, however, be drawn between making some notes of the process undertaken and reducing it to a formal statement intended for the information of the parties, which is what s 430(1) is concerned with.  The making of a decision has been described as a mental process:  Evans v Friemann (1981) 53 FLR 229, which may be communicated orally or in writing and may precede the communication or manifestation of it.  The objective of the discipline of a reasoned approach identified in Comcare Australia v Lees (1997) 151 ALR 647, and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 [117] may be met without the preparation of the final statement.  In any event, it seems to me that the Act treats the statement as a separate and distinct task from the decision.  The decision is made.  The statement is prepared.  If the parties are present when the decision is handed down, they are given a copy of the statement (s 430B(5)) and if they are not, they are later provided with it (subs (6) and (7)).  A similar view, as to the separateness of a decision and the notice of it, was taken in Commonwealth of Australia v Human Rights and Equal Opportunity Commission & Ors (1999) 167 ALR 268 at 272-3.

104               I have referred above to some of the procedures having a connexion with the making of a decision to which s 476(1)(a) may be taken to refer.  It will be seen that they are also concerned with affording procedural fairness.  Non-compliance with these provisions may result in an order setting aside the decision.  Section 476(1)(a) may then be seen to create an exception to the exclusion generally of denial of natural justice as a ground of review:  s 476(2)(a).  If there be ambiguity in s 476(1)(a) (although it is my view that there is not) about whether it refers to procedures occurring after the making of the decision itself and connected only by the fact that it records the process of the making of the decision; as well as to procedures leading up to or forming part of the process to decision itself, as discussed above, resort may be had to the Explanatory Memorandum: s 15AB Acts Interpretation Act 1901.  It explains that s 476(1)(a) is intended to provide similar protection to that afforded by natural justice principles, but by reference to an identified set of procedures.  It refers, by way of example, to s 424A.  Whilst the giving of reasons is another consideration of the requirements of natural justice, the Explanatory Memorandum states plainly that s 476(1)(a) is concerned with procedures in the “decision-making process”. 

105               It does not follow, in my view, that there is no remedy available in the event that the obligations imposed by s 430 are not fulfilled.  It would, however, be by way of a mandatory order, obliging compliance and would not be one setting aside the decision on account of the breach.  The Migration Act has no equivalent provision to s 13(7) Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”), by which the Court may require the giving of further and better particulars of findings, or the evidence upon which it is based.  It is not necessary to examine that provision, but merely to observe that it would not appear to provide a basis for finding a ground of review in s 476(1)(a) but rather to the contrary, given that it was found necessary to make express provision in the ADJR Act for it, despite the presence of s 5(1)(b), and that an order setting aside the decision was not thought appropriate.  Nor, as their Honours pointed out in Xu, can one draw much from the limitations the Act has imposed on this Court’s jurisdiction, with the result that only the High Court can make such an order.

106               In Repatriation Commission v O’Brien (1985) 155 CLR 422, 445-6, Brennan J in dealing with the same provision in s 43(2) Administrative Appeals Tribunal Act 1975 held that a failure by a tribunal adequately to fulfil its statutory obligation to state the reasons for an administrative decision does not, without more, invalidate the decision or warrant its being set aside.  If one was able to infer that there has been a failure to exercise power according to law, for instance taking into account irrelevant considerations, the Court may set it aside.  The result is not, however, invalid because of the failure to state reasons, but because there was a failure to make a decision according to law.  A number of the cases referred to above have proceeded upon the footing that a failure to provide adequate reasons amounts to error of law itself, justifying the decision being set aside.  Such an approach tends to confirm the appropriateness of s 476(1)(a) as a ground for review, since the only order which it would seem could be made when the ground is made out, would be one setting the decision aside (s 481(1)(a)).  Section 481(1)(d) does provide for an order directing that something be done, but it is referrable only to the parties, not the Tribunal.  The view that breach of s 430 discloses error of law is derived from the decision of a Full Court in Dornan v Riordan (1990) 24 FCR 564.  Finkelstein J in Comcare v Lees, 656-9 concluded that the Court was in error in not accepting the reasoning of Brennan J as a correct statement of the law.  I respectfully agree with his Honour for the reasons there given.  An unfulfilled statutory duty would seem to require that the omission be corrected.  If the problem is not the omission itself, but what it tells you about the exercise of the power, it is then that one turns to the grounds as may be available for review.

Conclusions on Appeal

107               It follows, in my view, that s 430 did not require the Tribunal in this case to provide an explanation as to how it had dealt with other, inconsistent, evidence concerning the risk of future police persecution.  The Tribunal did as it was required and set out the process of reasoning actually employed by it.  No further ground of appeal arises with respect to the material which was not mentioned, for there was no duty on the Tribunal to take it into account.  I agree that Mrs Singh’s cross-appeal fails for the same reasons given by their Honours in the majority.

108               The appeal should be allowed and cross-appeal dismissed.  The orders of the primary Judge should be set aside and the Tribunal’s decision of 10 February 1999 affirmed.  No order for costs is appropriate, given that this appeal was chosen as the vehicle for the resolution of a question affecting a number of other matters.  No order for costs of the cross-appeal is warranted.

Associate:

Dated:              30 June 2000