FEDERAL COURT OF AUSTRALIA

Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277

IMMIGRATION – visa – special need relative – Immigration Review Tribunal – hearing – duty on Tribunal to make its own inquiries – psychiatric report – referred to but not produced before Tribunal by applicant’s representative – representative stated Tribunal would not be assisted by report – whether Tribunal had a duty to require production of report in light of other findings it made – whether entitled to infer that report would not be helpful to applicant – rule in Jones v Dunkel  - reasons for decision – material facts – whether reasons failed to set out material facts on which decision turned.

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 359, s 368, s 475(1), s 476(1), s 476(4)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 cited

Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95 cited

Tuamohetoa v Minister for Immigration and Multicultural Affairs (unrep, Fed Court, 4/11/1998) cited

Fuduche v Minister for Immigration Local Government and Ethnic affairs (1993) 45 FCR 515 cited

Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 cited

Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 cited

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

Dornan v Riordan (1990) 24 FCR 564 cited

Comcare Australia v Lees (1997) 151 ALR 647 cited

Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 followed

Kioa v West (1985) 159 CLR 550 cited

Enichem Anic Srl v Anti-Dumping Authority (1992) 111 ALR 178 followed

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 applied

Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 applied

Luu v Renevier (1989) 91 ALR 39 cited

Detsongjarus v Minister for Immigration and Ethnic Affairs (1990) 21 ALD 139 applied

Chan v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 379 cited

Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 cited

Minister for Immigration and Multicultural Affairs v Eshutu  (1999) 197 CLR 611 cited

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 cited

MD MAHBUBUR RAHMAN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1382 of 1999

FRENCH J

8 SEPTEMBER 2000

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The Applicant is to pay the Respondent’s costs of the application.

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

REASONS FOR JUDGMENT

Introduction

1                     Md Mahbubur Rahman seeks a visa which would permit him to reside in Australia on the basis that his sister, who is a permanent resident, has a continuing long term need for his assistance because of a depressive illness from which it is said she suffers.  Mr Rahman’s application for a visa was refused in the first instance by a delegate of the Minister for Immigration and Multicultural Affairs and subsequently, on review, by the Immigration Review Tribunal.  He now seeks judicial review of the Tribunal’s decision.  The case raises questions about the Tribunal’s duty to make its own inquiries into matters before it and its duty to provide reasons for its decision.

Factual Background

2                     Md Mahbubur Rahman is a citizen of Bangladesh who was born on 21 September 1968.  He is unmarried and a cook by occupation.  His father is deceased.  He has two brothers, one of whom is a step-brother, and five sisters, one of whom is a step-sister.  All but one of his siblings live in Bangladesh. One sister, Tarana Afsan Nitu who was born on 21 September 1967, is a permanent resident of Australia, and since 28 August 1997, an Australian citizen. She migrated to Australia in May 1995 with her husband, Anwarul Hoque, whom she had married on 22 November 1985. Mr Rahman has a close relationship with his sister who has suffered illness since her arrival in Australia and who says she is psychologically dependent on him. 

3                     On 22 August 1997, Mr Rahman, through his solicitors, lodged an application for a General (Residence) Class 806 Visa.  The application was said to be based on his special need relationship with his sister. On 10 December 1997, an officer of the Department of Immigration and Multicultural Affairs refused the grant of the visa sought by Mr Rahman.  In rejecting the application she said that the class of visa sought was designed for generally unforeseen circumstances afflicting individuals and families and the provision of assistance by particular family members.  It was never intended to encompass an inability to adjust to a new country, general homesickness or, as in the present case, anxiety caused by the absence of a family member in the home country.  Mr Rahman’s sister could not be said to be in any direct material or physical need of him.  She lived in a close family unit with her husband and two younger children.  Mr Rahman would need to undertake fulltime work to keep himself and this would necessarily limit his ability to provide the substantial and continuing assistance required under the regulation governing the grant of such visas.

4                     On 31 December 1997, Mr Rahman made an application for internal review of the decision.  On 14 April 1998, a Review Officer of the Department of Immigration and Multicultural Affairs advised that his application for review had been unsuccessful.  Reasons for rejection were substantially the same as those addressed by the primary decision-maker.  On 4 May 1998, Mr Rahman’s solicitors lodged an application for review of the decision with the Immigration Review Tribunal.  The application for review was not heard until 27 July 1999 by which time the Immigration Review Tribunal had been replaced by the Migration Review Tribunal.  In the event the hearing proceeded on 29 July 1999.  On 1 November 1999 the Tribunal affirmed the decision not to grant a Family (Residence) (Class AO), Sub Class 806 Family Visa to Mr Rahman.  On 26 November 1999 Mr Rahman lodged an application in this Court for an order of review of the decision of the Migration Review Tribunal.

The Tribunal’s Decision

5                     The Tribunal referred to evidence in the case, including evidence given as to family circumstances and the help and support given by Mr Rahman to his sister when her husband was absent in Saudi Arabia and she gave birth to her daughter, Renesaah.  The Tribunal found, that there is and was a strong bond between Mr Rahman and his sister.  It considered her statement in support of the application and its reference to an assurance given by both her husband and Mr Rahman that arrangements would be made for regular meetings and visits.  It was always Mr Rahman’s intention to come to Australia to visit his sister.  When he did come it was to receive medical treatment in May 1997.  He had undergone surgery several days after his arrival.  On 26 November 1997, he lodged an application for a bridging visa with permission to work, a step which the Tribunal found not to be consistent with his claim to be a special needs relative.  This conclusion was supported by a letter from his legal adviser dated 8 September which stated:

“Our client has been living at his sister’s house and has been financially supported by her and his brother in law…However, Mr Rahman’s sister and brother in law do not have sufficient financial resources to continue to support Mr Rahman.  He is now proving to be a financial burden on them, especially as they also have their own children to support.”

In a statutory declaration from Mr Hoque of 1 September 1997 he said that if Mr Rahman obtained a work permit in Australia and were able to work here he could support himself in relation to food and lodging and take care of himself.  That statement, in the Tribunal’s opinion, clearly indicated Mr Rahman’s intention to move out of his sister’s house and set up his own accommodation and to live and work independently of his sister. 

6                     The Tribunal went on to observe that although the original application was made on 22 August 1997 and Mr Rahman had been represented since that time, no objective evidence had been presented in support of his claim until 12 August 1999 when the Tribunal received a copy of a medical report by Dr Anthony Dinnen dated 9 August 1999.  No objective medical evidence had been presented to the Tribunal at the hearing on 29 July.  The applicant’s adviser after hearing the evidence and making submissions had sought time to have medical evidence obtained and presented to the Tribunal after the hearing.  The Tribunal agreed to that request and it was in that way that Dr Dinnen’s report came to it with a supporting submission of 11 August.  Dr Dinnen’s report was of importance in this case and it is necessary to refer to its content. 

7                     The report was addressed to Mr Rahman’s solicitors.  It opened by referring to their detailed letter of 29 July and their request for an assessment of the relationship between Mr Rahman and his sister in connection with his application to remain permanently in Australia as a special need relative.  The report then described the assessment process adopted by Dr Dinnen.  He separately interviewed Mr Rahman, his sister and her husband, Mr Hoque.  All three had a joint discussion at the end of that process.  The assessment took about an hour.  No interpreter was present.  While there were difficulties in communication as to matters of fact and detail, Dr Dinnen said that the main thrust of his evaluation, that is the emotional response and behaviour of each individual transcended those problems.  He was satisfied that he had gained a good understanding of the family relationships through the process he adopted. 

8                     Dr Dinnen set out the substance of each interview.  In relation to Mr Rahman’s sister he referred to a letter from a Dr Zavras dated 2 August 1999 which stated that she had been taking 60mg of Doxepin daily and that she complained of tiredness and drowsiness.  Dr Dinnen described Ms Nitu as “shy, timid and slow to respond to questioning in the initial phases of the interview”.  Her interaction improved gradually and was much better during the joint family discussion.  He ascertained that she was attending not only Dr Zavras but a psychiatrist Dr Samad.  They spoke about her children and her marriage.  He said:

“I asked her about her brother.  She said “I like my brother”.  I asked what would happen if he had to go back to Bangledesh and she replied “again, I am trouble”.  She said she was not going to English school because her English was not good.” (sic)

9                     Dr Dinnen reported that he did not pursue the interview further as clearly Ms Nitu was anxious and apprehensive and was reluctant to talk at any great length without her family.  Her emotional responses and her form of speech were within normal limits to the extent that there was no indication of any major psychotic illness so far as he could tell.  In the course of his interview with Mr Hoque he was told that Ms Nitu had become progressively mentally depressed after they had come to Australia.  He thought she had been attending Dr Samad for up to a couple of years.  In the course of the joint discussion Dr Dinnen noted that Ms Nitu was much brighter, less preoccupied and troubled and more relaxed in the presence of her brother and husband than when alone with him.

10                  He also referred to a five page statement signed by Ms Nitu on 22 August 1997.  In the event his opinion was expressed in the following terms:

“Opinion:  The account is in accord with the statement and the behaviour of all three members of the family was consistent with the picture that has been painted of Ms Nitu’s dependence on and intense affection for her brother.  At the same time her husband is an intelligent and educated man, and there is no doubt of the strength of the marriage and family relationships.

I believe, on the evidence obtained through interviewing all three family members, and from the documentation which you provided that it would be likely to cause a marked deterioration in Ms Nitu’s mental health if she and her brother were to separate.  If he were to return to Bangladesh I can confidently predict that she will return to a state of depressive illness which will be difficult to manage and which will lead to long term harm to both herself, her marriage and her children.

So far as I am able to understand these Immigration matters and the special definitions which may be found within this jurisdiction, I believe that Mr Rahman is indeed a special need relative of this Australia (sic) citizen, Ms Nitu.  I would emphasize yet again that I found all of these people to be intelligent and credible witnesses, and could detect no incongruency or inconsistency in the account which I obtained, nor the emotional responses which I observed.  There is undoubtedly a great deal of affection between all three.”

11                  The Tribunal found Dr Dinnen’s report to be a matter of concern as its opening paragraph clearly indicated that he had been “briefed” by Mr Rahman’s lawyer after the hearing and after Mr Rahman’s lawyer was aware of the deficiencies in his case.  Dr Dinnen had conceded that his assessment took an hour, that no interpreter was present and that there were communication difficulties as to fact and detail.  He interviewed Mr Rahman, Mr Hoque and Mr Rahman’s sister all together within the space of one hour.  He referred to documentation provided by the lawyers.  The Tribunal, however, was not satisfied that reliance upon what it described as “a self serving statement of the applicant” which was typed in English but not certified as having been translated to the applicant prior to him signing it and which was the basis of the original application would be sound practice for the basis of preparation of a medical report.  For these reasons the Tribunal said that it discounted the weight to be placed on Dr Dinnen’s report. 

12                  The Tribunal found that Mr Rahman and his sister have a great deal of affection for each other, but was not satisfied that her circumstances arose from death, disability, prolonged illness or other serious circumstances.  It found that his desire to work and establish his own lodgings was not consistent with his claims to provide for the needs of his sister on a substantial and continuing basis.  His sister had not provided medical evidence from those doctors mentioned in Dr Dinnen’s report.  She sought to rely solely on the report of the doctor who had not seen her on a long term basis.  The Tribunal inferred that the doctors referred to in the report could not or would not support her claims. 

13                  The Tribunal found that Mr Rahman’s sister was able to cope in Australia for a period of two years with only the support of her husband and children.  There was no evidence before the Tribunal showing how she was able to cope for that period.  It referred to the decision of the Federal Court in Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 in which it said the Court had taken a tighter approach to the meaning of “special need relative”.  It referred also to Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95 and Tuamoheloa v Minister for Immigration and Multicultural Affairs (unrep, Federal Court, 4/11/1998).  These were said to establish that the Court would no longer follow the “beneficial approach” of Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515.  The Court had found that there must be a connection between the “permanent or long term need for assistance” and the “disability or other serious circumstances affecting the citizen”.  The mere existence of a benefit to an Australian citizen would not automatically lead to the granting of a visa.  The circumstance must be serious.  The Tribunal concluded:

“The Applicant has failed to establish to the Tribunal’s satisfaction that there is a long term or permanent need for assistance arising out of disability or other serious circumstances affecting the Nominator.  The Tribunal is not satisfied that such assistance as may be required by the Nominator cannot be provided other than by the assistance offered by the Applicant.  No evidence is before the Tribunal that the Nominator has sought help or assistance form (sic) the services and facilities within the Australian community.”

Grounds for Review

14                  By its application for an order of review, amended by leave at the hearing of the application subject to any objection that might be taken to the Court’s jurisdiction to entertain any claim for relief under s 39B of the Judiciary Act 1903 (Cth), the grounds upon which review is sought are as follows:

“1.       Procedures that were required by the Act or the regulations to be served in connection with the making of the decision were not observed: s476(1)(a)

            Particulars:

            (i)  The MRT has not complied with s 368 of the Act in that it has not made a finding or given reasons or cited the evidence in respect of a material fact being whether or not the applicant’s sister, Tarana Afsan Nitu (the nominator), would relapse to a state of depressive illness in the absence of the applicant.

            (ii)  The MRT has not complied with s359 of the Act in that it failed to consider to enquire or enquire as to the conclusions reached by Dr Samad, information which was readily available and of central importance to the way in which it determined the applicant’s claim.

2.         The decision involved an error of law, being an error of law involving an incorrect interpretation of the applicable law and an incorrect application of the law to the facts: s476(1)(e)

            The MRT erred in interpreting and applying the definition of Special Need Relative in Regulation 1.03 of the Migration Regulations:

            Particulars

            (i)  The MRT found that it was necessary for it to be satisfied that the assistance that the applicant could provide to the nominator cannot be provided other than by the applicant.

            (ii)  The MRT has not correctly applied the law to the facts as found by it in that it failed to enquire as to the conclusions reached by Dr Samad, information which was readily available and of central importance to the way in which it determined the applicant’s claim.

3.         The MRT based its decision on the existence of a fact and that fact did not exist: s476(1)(g) and s476(2)(b)

            Particulars:

            The decision was based on the following facts:

            (i)  That Dr Samad would not support the claims of the nominator

            (ii) That Dr Samad could not support the claims of the nominator

            And there is no evidence that these facts exist.

4.         There was constructive failure of jurisdiction: s476(1)(c)

            Particulars:

            The MRT did not address the real question that it was its duty to determine because it did not obtain all of the relevant information which it had a duty to consider in that it failed to consider to enquire or enquire as to the conclusions reached by Dr Samad information which was readily available and of central importance to the way in which it determined the applicant’s claim.”

15                  The relief sought was an order that the decision under review be set aside and the matter remitted to a differently constituted Tribunal.  Alternatively, a declaration was sought that the reasons for decision do not comply with the requirements of s 368 of the Migration Act 1958 (Cth).

Statutory Framework

16                  Division 3 of Part 1 of the Migration Act deals with visas for non-citizens.  Section 29 confers general power on the Minister, subject to the Act, to grant a non-citizen permission, to be known as a visa, to travel to and enter Australia and/or to remain in Australia.  There are to be prescribed classes of visas (s 31(1)) as well as classes provided for specifically in the Act (s 31(2)).  The Regulations may prescribe criteria for a visa or for visas of a specified class (s 31(3)).  A non-citizen who wants a visa must apply for a visa of a particular class (s 45).  The Minister is required to consider valid applications for visas (s 47).  In deciding whether to grant or refuse to grant a visa the Minister must have regard to all of the information in the application (s 54).  After considering a valid application for a visa the Minister, if satisfied that health criteria for it (if any) have been satisfied and the other criteria for it prescribed by the Act or the Regulations have been satisfied and that other conditions, not relevant for present purposes, have been met, is to grant the visa.  If not so satisfied, the Minister is to refuse to grant the visa (s 65).

17                  Regulation 2.01 provides that for the purposes of s 31 of the Act the prescribed classes of visas are those set out in the respective items in Schedule 1 and transitional (permit) and transitional (temporary) classes.  By reg 2.03 prescribed criteria for the grant to a person of a visa of a particular class are primary criteria set out in the relevant part of Schedule 2 or where a relevant part of Schedule 2 sets out secondary criteria, those secondary criteria.  One of the classes of visa mentioned in Schedule 1 is Family (Residence) (Class AO).

18                  At the time of the application there was a subclass 806 referred to in Schedule 2 which has since been repealed.  It included a criterion for the grant of a visa, criterion 806.213(a), in the following terms:

“At the time of the application, the applicant is an aged dependant relative, an orphan relative, a remaining relative or a special need relative of another person who is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen.”

The definition of “special need relative” which appeared in reg 1.03 but is now repealed, was as follows:

“special need relative” in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or an eligible New Zealand citizen, means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

(a)       the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and

(b)       the assistance cannot reasonably be obtained from:

            (i)         any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

            (ii)        welfare, hospital, nursing or community services in Australia.”

19                  Division 2 of Part 1 of the Act deals with decisions reviewable by the Migration Review Tribunal which include decisions to refuse to grant a non-citizen a visa subject to the application being made while the non-citizen was in the migration zone and the visa being one which could be granted in such a case (s 338(2)).  Such decisions are included in the category of MRT-reviewable decisions.  The Tribunal in carrying out its functions under the Act is required to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 353(1)).  In reviewing a decision the Tribunal is not bound by technicalities, legal forms or rules of evidence and is required to act according to substantial justice and the merits of the case (s 353(2)).

20                  Under s 359 it is provided that:

“359(1)  In conducting the review, the Tribunal may get any information that it considers relevant.  However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. 

     (2)  Without limiting subsection (1), the Tribunal may invite a person to give additional information.

     (3)  Subject to subsection (4), an invitation to an applicant must be given to the applicant by one of the methods specified in section 379A.”

Subsection (4) is not relevant for present purposes.

21                  Section 368 provides for the preparation of a written statement of reasons by the Tribunal thus:

“368(1)  Where the Tribunal makes its decision on a review, the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b) prepare a written statement that:

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

(b)       sets out the reasons for decision;

(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.”

22                  In relation to review of Tribunal decisions, s 475(1) provides:

“475(1)  Subject to subsection (2), the following decisions are judicially-reviewable decisions:

(a)       decisions of the Migration Review Tribunal;

(b)       decisions of the Refugee Review Tribunal;

(c)        other decisions made under this Act, or the regulations, relating to visas.”

The exclusions set out in subs (2) are not relevant for present purposes.  The reviewability of a Migration Review Tribunal decision in relation to a visa would appear to arise by virtue of s 475(1)(c).  The grounds for review are those set out in s 476 of the Act.   They include:

“476(1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

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

.

.

.

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

.

.

.

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

The ground in paragraph (g) is elaborated in s 476(4) thus:

“476(4)  The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

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

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

Failure to Give Reasons in Accordance with Section 368

23                  It was submitted for Mr Rahman that the Tribunal made no reference at all to Ms Nitu’s claim that she would relapse into depressive illness should he return to Bangladesh.  This failure, it was said, constituted a non-observance of procedures required by the Act to be observed in connection with the making of the decision and therefore a ground for review of the decision pursuant to s 476(1)(a). 

24                  The threshold question is whether a failure to comply with s 368 amounts to a failure to observe procedures in the sense contemplated by s 476(1)(a).  In relation to the like obligation of the Review Refugee Tribunal, imposed by s 430 of the Act, to provide a statement of its reasons for decision, Full Courts of the Federal Court have expressed conflicting views as to whether that section prescribes a procedure which the Tribunal is required to observe in connection with the making of its decision within the meaning of s 476(1)(a) – Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 and Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681.  The question was recently considered by a Full Court comprising five judges – Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845.  Propositions emerging from the joint judgment of Black CJ, Sundberg, Katz and Hely JJ can be summarised as follows:

1.         The statement of reasons provided under s 430 is the record of a reviewable decision.  It is the decision which is reviewable, not the statement of the reasons for it. (par 23)

2.         The duty to set out findings of fact and reasons imposed by the section is a duty to record thought processes which actually preceded and provided the foundation for the making of the decision. (par 34)

3.         The giving of the s 430 statement is appropriately seen as a procedure “in connection with” the exercise of the power of decision as it is an incident of its exercise. (par 34)

It was not necessary to decide for the purposes of the decision in Singh whether non-compliance with s 430 constituted an error of law providing a ground for review of the decision under s 476(1)(e).  There was a difference of opinion on this point between Dornan v Riordan (1990) 24 FCR 564 and Comcare Australia v Lees (1997) 151 ALR 647 at 656-659.  In the event of a failure to comply with the procedural requirement the Federal Court has a discretionary power to quash or set aside the decision.  In summarising their findings at par 43 of the judgment their Honours said:

“For 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 the 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.”

25                  The joint judgment also considered the content of the obligation under s 430.  In summary the propositions emerging from the joint judgment in that respect were as follows:

1.         Section 430 requires a recording of the decision to which the Tribunal 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.  It does not impose any obligation on the Tribunal to come to a correct decision or to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it reached. (par 44)

2.         There is no requirement in s 430 for the Tribunal to give reasons for rejecting or attaching no weight to evidence or other material which would tend to undermine any finding it made. (par 46)

3.         The preceding proposition is subject to the requirement under s 430(1)(c) that the Tribunal set out its findings on material questions of fact – materiality being determined objectively.  That is to say the Tribunal must make findings on questions of fact that are central to the case raised by the material and evidence before it. (pars 47 and 60)

4.         The material facts are not only those ultimate facts specified by the statute such as the existence of a well-founded fear of persecution they extend to facts which are necessary to complete the logical chain the Tribunal has adopted as the basis for its decision. (par 55)  A fact is material if the decision in the practical circumstances of the particular case turns on whether that fact exists. (par 57)

26                  Against the background of principle established by Singh the first limb of the first ground of appeal can be considered.  The contention that Ms Nitu would relapse into a depressive illness should her brother be returned to Bangladesh was in fact an opinion expressed by Dr Dinnen in the second last paragraph of his report of 9 August 1999.  The weight to be given to that opinion depended critically upon the Tribunal’s view of Dr Dinnen’s report.  The Tribunal expressed its “concern” about Dr Dinnen’s report and discounted the weight to be placed on it for the following reasons, which it set out:

1.         The opening paragraph of the report indicated that the doctor was briefed by Mr Rahman’s adviser after the hearing and after the adviser was aware of the deficiencies in his case.

2.         The doctor conceded that his assessment took an hour, that no interpreter was present and that there were communication difficulties as to fact and detail.

3.         Dr Dinnen relied upon a self serving statement of Ms Nitu which was typed in English but not certified as having been translated to her prior to her signing it. 

Although the Tribunal used somewhat equivocal language when it said it “discount[ed] the weight” to be placed on Dr Dinnen’s report it is plain that it gave the report no weight at all.  In the circumstances there is implicit in that finding, a finding that it could not rely upon the report to support the conclusion that Ms Nitu would relapse into a depressive state were her brother to be returned to Bangladesh.  Having regard to the finding it made about the report which offered that very conclusion, there was no requirement for it to expressly reject the conclusion itself.  The existence of one material fact may be contingent upon the existence of another.  When the question whether a material fact exists depends upon the opinion of an expert that it does, then the finding that the expert’s opinion is not reliable is a finding of material fact which may determine, as a matter of logic, whether the material fact which depends upon it exists.  The Tribunal has not erred in the approach it took in this case.  The first limb of the first ground of appeal therefore fails.

Failure to Inquire in Accordance with Section 359

27                  Dr Dinnen’s report disclosed that Ms Nitu had been seeing a psychiatrist, Dr Samad, for some two years.  However no report from Dr Samad was tendered to the Tribunal.  At the commencement of the oral hearing before the Tribunal, the following exchange had occurred between the member, Mr Holloway, and counsel, Mr Dobbie, representing the applicant:

“MR HOLLOWAY: Have you got anything further, any submissions, Mr Dobbie?

MR DOBBIE:  It is pleases the Tribunal, we have been seeking to get a psychiatric opinion in support of the application.  We did obtain one earlier and I was going to forward it for consideration but when I read it again although it confirms that the psychological and physical dependency it doesn’t give reasons why and I thought that wouldn’t very helpful to the Tribunal. (sic)

MR HOLLOWAY: No.

MR DOBBIE:  We have arranged for a psychological assessment to be done by Dr Anthony Dinnen next week, that was the earliest he could squeeze us in when we got notification of the hearing.”

28                  It is now submitted that, in the exchange cited, the applicant’s adviser put the Tribunal on notice that he had material from another psychiatrist which confirmed psychological dependency.  It is said that the Tribunal regarded it as important that no objective medical evidence had been provided at the hearing and discounted Dr Dinnen’s report partly because he had not been seeing the applicant on a long term basis.  It is submitted therefore that the reports of Dr Samad were material that was centrally relevant and readily available.  It was submitted that when the Tribunal reached the point of discounting Dr Dinnen’s evidence, the earlier reports by Dr Samad took on a new significance. 

29                  Generally speaking when a statute provides for a person to apply to some authority for the grant of a right or privilege the decision-maker is, absent some relevant statutory direction, entitled to rely upon the materials supplied by the applicant as that which is presented in favour of the application.  There is no general duty on the decision-maker to seek additional material which may remedy deficiencies in the applicant’s presentation – Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392-393 (Toohey J); Kioa v West  (1985) 159 CLR 550 at 587 (Mason J).  As Hill J said in Enichem Anic Srl v Anti-Dumping Authority (1992) 111 ALR 178 at 190 (Gummow J agreeing):

“Decision-making is a function of the real world.  A decision-maker is not bound to investigate each avenue that may be suggested to him by a party interested.  Ultimately, a decision-maker must do the best on the material available after giving interested parties the right to be heard on the question.”

30                  There may be cases in which a decision maker who unreasonably fails to ascertain relevant facts known to be readily available will be taken to have exercised the decision-making power improperly.  In Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170, Wilcox J said:

“It is no part of the duty of the decision-maker to make the applicant’s case for him.  It is not enough that the court find that the sounder course would have been to make inquiries.  But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.  It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.”

On judicial review at common law or under the ADJR Act, the Court is entitled to consider those facts which were known to the decision-maker, actually or constructively, together only with such additional facts as the decision-maker would have learned but for any unreasonable conduct by him – Prasad at 169 (Wilcox J) and Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 178 (Toohey J).

31                  The possibility that, in certain circumstances, the failure of a decision-maker to make inquires would vitiate the purported exercise of a power as unreasonable was advanced by Wilcox J in Prasad and confirmed by the Full Court in Luu v Renevier (1989) 91 ALR 39 at 50:

“The underlying rationale of the approach suggested in Prasad is that the ground of unreasonableness, in the context of the Administrative Decisions (Judicial Review) Act 1977, may be related to the manner in which power is exercised.

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One may say that the making of a particular decision was unreasonable – and, therefore, an improper exercise of the power – because it lacked a legally defensible foundation in the factual material or in logic.  But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained.”  

It has been suggested that the failure to inquire may breach the duty to act fairly towards the applicant.  In Detsongjarus v Minister for Immigration and Ethnic Affairs (1990) 21 ALD 139 at 143, Pincus J, after referring to Prasad, Kioa, Chan v Minister for Immigration and Ethnic Affairs  (1989) 169 CLR 379 and Luu said that a decision-maker does not necessarily accord to an applicant for an entry permit the degree of fairness to which the applicant is entitled by considering only the material produced by the applicant.  His Honour essayed four general propositions:

1.         The decision-maker is not obliged to make the applicant’s case.

2.         The decision-maker ordinarily may decide the application on the basis of such information and material as the applicant puts forward.

3.         The decision-maker may sometimes be obliged to make further inquiries where a proposed ground of objection is information obtained from a source other than the applicant, which information has been dealt with by the applicant.

4.         Further information may have to be sought where the decision-maker knows that there is available other factual material likely to be of critical importance in relation to a central issue for determination. (143)

32                  The cases cited arose in the context of judicial review under the Administrative Decisions (Judicial Review) Act 1977.  The grounds of review available under that Act reflecting, and to some extent extending, common law grounds of judicial review are not all available in respect of decisions made under the Migration Act.  The grounds upon which the Court may review such decisions, including the decision presently in issue, are confined to those set out in s 476.  In Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553, there was a question whether the duty of the Refugee Review Tribunal under s 420 to “…act according to substantial justice and merits of the case” required the Tribunal in appropriate circumstances to make inquiries on its own account in relation to an application pending before it.  The issue upon which it was said to be obliged to make inquiries related to the authenticity of the documents purporting to be warrants for the arrest of the applicant for refugee status and his wife in their home country.  The Court referred to s 424 of the Act, the equivalent provision for the Refugee Review Tribunal of s 359, which applies to the Migration Review Tribunal.  The Court also referred to ss 425, 426 and 427 and said:

“These provisions  show that the Tribunal’s role in cases that come before it for review is not a passive one, although the circumstances in which the Tribunal could be found to be under an obligation to make a particular inquiry will no doubt be rare, as they have been in cases under the ADJR Act.” (560-561)

This observation was made on the assumption, accepted for the purpose of argument that s 420, requiring the Tribunal to act according to substantial justice and the merits of the case, imposed a procedure to be observed in connection with the making of the decision, failure to observe which would be a ground of review under s 476(1)(a) of the Act.  That assumption has now been falsified by the decision of the High Court in Minister for Immigration and Ethnic Affairs v Eshutu (1999) 197 CLR 611 also the discussion of this issue in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 289-290 (Mason CJ and Deane J), 302-303 (Toohey J), 304-305 (Gaudron J) and 320-321 (McHugh J).  All of these decisions arise in settings where there was or was assumed to be a wider range of grounds of review available than is now the case under the Migration Act.  So called Wednesbury unreasonableness is not available as a ground of review, nor is breach of the rules of natural justice save for the case of actual bias.  No available ground has been suggested which might be relied upon to review a decision of the Migration Review Tribunal on the basis of its alleged failure to make inquiries.  In any event, in the present case there was no such failure.  The applicant’s counsel told the Tribunal that he did not propose to rely upon the psychiatric reports which he now says the Tribunal should have asked him to produce.  The submission is insupportable.  Ground 1(b) therefore fails. 

Error in Interpreting the Applicable Law

33                  The Tribunal is  said to have erred in its interpretation of the definition of “special need relative”.  In the last paragraph of its reasons for decision, the Tribunal said:

“17.  The Applicant has failed to establish to the Tribunal’s satisfaction that there is a long term or permanent need for assistance arising out of disability or other serious circumstances affecting the Nominator.  The Tribunal is not satisfied that such assistance as may be required by the Nominator cannot be provided other than by the assistance offered by the Applicant.  No evidence is before the Tribunal that the Nominator has sought help or assistance form (sic) the services and facilities within the Australian community.”

The applicant submits that the statement reflects an erroneous interpretation of reg 1.03.  The regulation, it is said, does not require that assistance only be available from the applicant.  It was necessary for the Tribunal to consider the particular assistance that the applicant could offer and whether it could reasonably be obtained elsewhere.

34                  In my opinion however the passage complained of, read as a whole and in context, does not disclose legal error.  The submission made to the Tribunal by the applicant’s adviser in a letter dated 11 August 1999 put the case on the basis, quoted by the Tribunal at par 11 of its reasons, that:

“…the assistance that Ms Nitu requires cannot otherwise be obtained in Australia.”

The Tribunal in par 17 rejected that proposition in the terms in which it was put when it said it was not satisfied that the assistance required by Ms Nitu “…cannot be provided other than by the assistance offered by the Applicant”.  The Tribunal expressly found that Ms Nitu had been able to cope in Australia for a period of two years “with only the support of her husband and children” and there was “no objective evidence before the Tribunal as to how she was able to cope for that period”.  These findings and the want of any evidence that Ms Nitu had sought help or assistance “from the services and facilities within the Australian community” in my opinion adequately establish that the Tribunal’s conclusion answered the questions posed by the definition of “special need relative”.  The applicant was legally represented.  The Tribunal had to be satisfied on the evidence that assistance could not reasonably be obtained from sources other than the applicant.  Plainly on the material, it was not so satisfied.  In so far as ground 2 is concerned with the Tribunal’s interpretation and application of the definition of special need relative, the ground fails.

35                  A further particular of ground 2 asserted that the Tribunal has not correctly applied the law to the facts in that it failed to inquire as to the conclusions reached by Dr Samad, information which was readily available and of central importance to the way in which it determined the applicant’s claim.  This was simply a revisiting of the want of inquiry point raised under ground 1 and fails for the reasons set out in relation to that ground.

Decision Based on Non-existent Fact

36                  This ground represented another attempt to revisit evidence that could have been presented from Dr Samad.  The applicant referred to the passage in the judgment of the Tribunal at par 10 of its reasons where it was said:

“The Nominator has not seen fit to provide medical evidence from those doctors mentioned in the report of Dr Dinnen.  The Nominator has sought to rely solely on the report of a doctor who had not seen her on a long term basis, and who saw her only for the purposes of these proceedings, which must lead the Tribunal to assume that the said doctors, could not, or would not, support the claims of the Nominator.”

The applicant, before this Court, sought to rely upon the reports of Dr Samad made on 3 August 1998, 2 September 1998 and 28 October 1998.  These were said to demonstrate that Ms Nitu had been diagnosed as suffering a major depressive reaction which had shown some improvement, that she was more dependant on the applicant than upon her husband and that the dependency was both psychological and physical.  So it was said each of the reports is to an extent supportive of the applicant’s case.  The submission for the applicant therefore was that the Tribunal’s inference about the reports not produced to it was without foundation.  The inference was said to be critical to the decision made by the Tribunal.  The Tribunal was said to have discounted Dr Dinnen’s evidence that Ms Nitu was liable to suffer from a depressive illness should she be separated from her brother although no express finding had been made to that effect.  It also appeared to be of the view that the evidence of Ms Nitu could not be relied upon in the absence of objective corroboration.  The inference the Tribunal drew that no such objective corroboration from treating doctors existed, was thus critical to its decision.

37                  The Tribunal’s inquisitorial mode of operating was said not to be suited to the application of the rule in Jones v Dunkel (1959) 101 CLR 298.  The failure of a witness to give evidence in any event could not be used to fill gaps or to convert suspicion into inference.  The decision not to tender the evidence of the treating doctors had been adequately explained by the applicant’s representative.  The Tribunal’s statement that the report which was not produced to it would not support Ms Nitu’s claims was little more than a paraphrase of the explanation given to it, namely that although the report confirmed psychological and physical dependency, it did not give reasons and would not be very helpful to the Tribunal.  In my opinion there is nothing in this ground. 

Constructive Failure of Jurisdiction

38                  This ground as particularised was yet another attack upon the failure of the Tribunal to inquire into the conclusions reached by Dr Samad.  The Tribunal addressed the questions which it was required to address and did so on the material put before it.  It had no duty to inquire further into what might be in Dr Samad’s report having regard to the attitude adopted by counsel for the applicant in relation to the production of that report.  There is no reviewable ground under this heading.

Conclusion

39                  For the above reasons the application will be dismissed with costs.  A foreshadowed amendment claiming a declaration under s 39B was contingent upon the Full Court in Singh holding that a failure to disclose material findings of fact in the reasons was not a breach of procedure.  The Full Court held to the contrary and, in any event, I have concluded that there was no failure to comply with the requirements of s 368.  The amendment on that basis is not pressed. 

Associate:

Dated:              September 2000