FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Anthonypillai

[2001] FCA 274

MIGRATION – protection visa – appeal from single judge setting aside decision of Refugee Review Tribunal – claim of detentions and torture in Sri Lanka – letter from Sri Lankan lawyer purporting to corroborate claims – doubts raised by Minister’s delegate as to authenticity of letter – whether Tribunal should have caused enquiries to be made in Sri Lanka concerning letter – whether failure to give “proper, genuine and realistic consideration” to claim constitutes ground for review under Pt 8 of the Migration Act 1958 (Cth) – whether Tribunal failed to “review” decision or “consider” applicant’s claim

WORDS AND PHRASES – “proper, genuine and realistic consideration”

Migration Act 1958 (Cth) ss 427(1)(d), 476

Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470  applied

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

Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 28 at 64 discussed

Bruce v Cole (1998) 45 NSWLR 163 at 184-185 discussed

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

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at pars 20-26 applied

Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 discussed

Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435 at 448 mentioned

Dambagolla Arachchige v Minister for Immigration and Multicultural Affairs  [2001] FCA 121 mentioned

Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 579 mentioned

Byrne v Australian Airlines Ltd (1994) 47 FCR 300 at 304 mentioned

Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 560-561 mentioned

Telstra Corporation Limited v Treloar [2000] FCA 1170 at pars 23-28 mentioned

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at par 40 applied

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 549 cited

R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242 cited

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V

ANTHONYPILLAI

NO. V 812 OF 2000

HEEREY, GOLDBERG AND WEINBERG JJ

21 MARCH 2001

MELBOURNE

THE COURT ORDERS THAT:

1.         The appeal is allowed.

2.         The orders of the primary judge are set aside and in lieu thereof it is ordered that the application for review is dismissed.

3.         The respondent pay the appellant’s costs of the appeal and at first instance.

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

REASONS FOR JUDGMENT

THE COURT:

1                     The Minister appeals from a decision of a judge of this Court which set aside a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant the respondent a protection visa.

2                     The appeal raises two issues:

(i)         Does a failure by the Tribunal to give “proper, genuine and realistic consideration” to an application for a protection visa give rise to an available ground for review by the Federal Court under Pt 8 of the Migration Act 1958 (Cth) (the Act)?

(ii)        If  not, was there otherwise reviewable error?

The respondent’s claims

3                     The respondent is a citizen of Sri Lanka.  He was born in Colombo in 1961.   He is a Tamil.  In July 1983 ethnic violence broke out in Colombo.  The house of the respondent’s family was looted and partially burnt down by Sinhalese.  The family moved to a refugee camp in a suburb of Colombo and stayed there for eight months.  In the following year the respondent left the refugee camp and went to Jaffna.  From April 1984 until 1992 he worked as a cashier at a small restaurant in Jaffna City.  Throughout that time the city was under the control of the Liberation Tigers of Tamil Eelam (LTTE). The respondent’s employer had some connection with the LTTE.  LTTE men used to come to the restaurant regularly. The respondent’s employer told him that whenever he was asked for money by the LTTE he was to give it to them and he did so often.

4                     During the respondent’s time in Jaffna he met his wife.  They were married on 11 June 1992.  By this time he had become estranged from his own family who did not approve of him marrying a Hindu woman.  The respondent’s wife had four brothers all of whom were members of the LTTE.  The brothers took him to five or six meetings in secret LTTE locations.  Then urged him to join the LTTE.  The respondent knew that if he stayed in Jaffna he would be forced to participate in the fighting.  He was concerned about this so he left Jaffna with his wife in August 1992 without telling her brothers.  By this stage his wife was pregnant.  The respondent and his wife travelled from Jaffna to Colombo by bus.  On arrival in Colombo they went to a lodge where many other Tamils stayed.  The respondent registered his name in the lodge book.  About ten days after his arrival soldiers came to the lodge.  Shortly afterwards, during the night, police came and took the respondent and three other Tamils to Pettah police station.  The police separated the respondent from the others and beat him severely.  They stripped him.  They did not ask him any questions.  They then took him to another room where there were four soldiers.  The police then accused him of knowing everything about the Tigers and coming to Colombo to be a spy for the LTTE.  They again beat him.  They asked him to stick out his tongue, then they pierced it with a pencil.  He still has a hole in his tongue.  He became unconscious.  The following morning when new policemen arrived on the shift they were told that the respondent was a Tiger.  The new policemen came into the room and beat him.  He was given hardly any food or water.  The respondent’s wife came and she was verbally abused.  She left the police station and returned five days later with a lawyer.

5                     In his statement dated 21 January 1997 in support of his protection visa application the respondent stated:

“I do not know exactly what the lawyer did to get me released, but he managed to do it.  They (sic) no proof of me being a Tiger and so they had no grounds to hold me.  I was imprisoned simply because I was Tamil and because they suspected me of being an LTTE supporter.” (Emphasis added)

6                     Shortly after his release the respondent went to Dubai in the United Arab Emirates.  He lived and worked there until 1996.  At the demand of members of an LTTE organisation he paid them money every month.  He did not return home during those four years because he was too frightened to return, even though his wife was still in Sri Lanka, living with friends in Kandy.

7                     In 1994 there was a change of government in Sri Lanka.  The respondent thought peace would come so he returned on 5 June 1996.  His wife met him in Colombo and they moved to another lodge in Pettah.  On the day of his arrival  police arrested him and took him to the police station where they beat him for being a member of the LTTE.  When he told them his name they knew immediately that he was a Tamil.  He was held for twenty-four hours during which time he was constantly beaten and accused of being a Tiger.  In his statement he said:

“Once again, my wife arranged for a lawyer to come and obtain my release.  We had to pay him about 45,000 rupees and give him some jewellery to get his help.”  (Emphasis added)

Before his release the police told the respondent they would get him next time. 

8                     After his release he returned to the lodge but moved out the next day to stay with a friend.  Three days later he returned to Dubai.  He worked there for three months until he lost his job. While in Dubai on this occasion he obtained an Australian visitor’s visa.  In support of the visa application he had his employer, a United Kingdom citizen, write a letter of recommendation which falsely stated that he had been working at the company for nine years, even though he had only worked for four. 

9                     The respondent again returned to Sri Lanka on 12 September 1996 to see his wife and son.  They went into hiding in Kandy and were living with Moslem friends.  But somehow the police received information and in mid October he was once again arrested.  The police took him in a jeep.  There were four or five heavily armed police in the jeep.  They beat him throughout the journey until they arrived at the police station; they threatened to kill and burn him.  At the station they put him in a small cell and again beat him.  He was again accused of being a Tiger.  He was kept in detention for eight days and given a very hard time.  While in detention his wife travelled to Colombo to engage the services of the same lawyer as before.  This lawyer was called Thiliga Subramaniam.  The lawyer came to the police station with the respondent’s wife and managed to get him released.  He returned to his friend’s house in Kandy.  The friend was worried so the respondent thought it best to return to Colombo to live with another friend.  He did not register with the police because he had no identity documents and this would have made them suspicious. 

10                  In early November 1996 he was arrested again and detained for two weeks.  He was beaten constantly. The police asked why he had been travelling around so much, including being in Kandy.  Again they threatened to kill him.  Once again his wife arranged for Miss Subramaniam to come to the police station and get him released.  The lawyer asked for money to bribe the police officers.  She advised him to leave Sri Lanka, saying she was unable to help him any further.  He was released on 21 November 1996 and flew out of Colombo on 2 December 1996.  He arrived in Australia on the following day.

11                  On 22 January 1997 the respondent lodged an application for a protection visa.  For the purposes of the Department’s consideration of his application the respondent later produced a letter from the Sri Lankan lawyer he said had obtained his release.  The letter is on a printed letterhead bearing the name Miss Thiliga Subramaniam, Attorney-at-Law and Notary Public, and two Colombo addresses.  It is in the following terms:

“March 28, 1997

This is to confirm that Mr. Ravindrakumar Anthony Pillai being a Sri Lankan Jaffna Tamil, and a married man with wife and child, was arrested by the Police on suspicion in June 1996 when he was in Colombo.  He was detained under the Terrorism Act and was alleged to have been helping in numerous ways under false grounds.  On my intercession he was released.

Again he was arrested in October 1996 in Kandy on the false charges of collecting funds for the Terrorists, and was detained.  This was brought to my notice and with great difficulty and using some influence I got him released.

Then he was taken to custody for the third time from temporary resident [sic] in Colombo.  Again using some influence he was released from Police custody with greatest difficulty.

Since his life is in danger and in order to save his life and further harassment from the Police on my advice the said Ravindrakumar Anthony Pillai left Sri Lanka end 1996.”

Delegate’s refusal

12                  By letter dated 29 May 1997 a delegate of the Minister advised the respondent that his application for a protection visa had been refused.  The letter enclosed a decision record giving the reasons for the refusal.  In the decision record the delegate commented at some length on the lawyer’s letter.  The delegate noted that in his initial statement lodged with the Department the respondent claimed to have been released from custody as the result of the intervention of a male lawyer but was provided with a letter from a female lawyer who claimed to have been responsible for his release.  There was little detail regarding the arrest.  The date in June 1996 was not given nor was there reference to the name of the police station to which the applicant was taken.  The delegate thought

“the content and the imprecise use of language and terminology of the letter tended to belie the applicant’s assertion that the letter was written by a lawyer who was instrumental in his release.”

The delegate had “serious misgivings about the authenticity of the document and (found) it to be self serving”.

13                  After the respondent had lodged an application for review of the delegate’s decision by the Tribunal the respondent’s solicitors forwarded under cover of a letter dated 22 July 1997 copies of correspondence between the respondent and his Dubai employer concerning his request for a reference.  This correspondence included a letter from the employer dated 13 June 1997 and thus obtained by the respondent after receipt of the delegate’s decision. 

14                  However the solicitors’ letter does not mention Miss Subramaniam’s letter. There is no attempt to answer the criticism of that letter by the delegate. 

Hearing before the Tribunal

15                  A hearing took place before the Tribunal on 13 April 1999.  In the course of the hearing the Tribunal made some critical comments about the lawyer’s letter and in particular the lack of precision as to dates.  Both the respondent (through an interpreter) and a solicitor appearing on his behalf suggested that the Tribunal contact the lawyer independently.  The solicitor suggested that the lack of specificity might have been caused by the lawyer’s files being archived. 

16                  On 28 April 1999 the respondent’s solicitors wrote to the Tribunal dealing with a number of matters which had arisen at the hearing, including the lawyer’s letter.  Amongst other things it was noted that the letter did not confirm the applicant’s arrest in 1992.  The solicitors suggested that the Tribunal could assume that the lawyer had a great number of clients and could not remember details and that it was possible that she had destroyed some of her older files.  Also, she may have been asked only to confirm the detentions in 1996.  Again the suggestion was made that the Tribunal should contact Miss Subramaniam directly.

Tribunal’s decision

17                  The Tribunal’s decision was given on 16 July 1999.  After referring to the legislation and a number of authorities on the Refugees Convention, the Tribunal under the sub-heading “Claims and Evidence” proceeded to summarise the claims already referred to.  In the course of dealing with the 1992 arrest the Tribunal noted that the respondent

“… stated in the hearing that the lawyer’s name was Miss Thilga Subramaniam.  When it was put to him that there was no mention of this detention in her letter, he stated that his wife had arranged this letter and he had no control over what was in it.”

18                  At a later stage the Tribunal again referred to the lawyer’s letter.  The Tribunal said:

“The applicant stated that his wife had obtained this letter.  It was pointed out to the applicant that the letter appeared vague in that the letter did not provide any precise dates as to when she acted for the applicant.  It also did not mention his alleged detention in 1992 when this lawyer allegedly also assisted.  The applicant stated that there was a telephone number and the lawyer could be telephoned to confirm the information.”

19                  Under the sub-heading “Findings and Reasons” the Tribunal accepted that the respondent lived in Jaffna from 1984 until 1992 and was prepared to accept his explanation that the employer’s letter stating that he worked in Dubai for nine years was concocted to assist him in obtaining a visa.  However this did not mean that the Tribunal accepted that during his period in Jaffna the respondent had developed an LTTE profile.  This claim was based on him working in a restaurant frequented by the LTTE and having brothers-in-law who were active members.  However the authorities would have to know about these matters before imputing to him an opinion of support of the LTTE.  The Tribunal said:

“In the Tribunal’s view, his willingness to return to Sri Lanka from Dubai in 1996 indicates that he did not have and did not consider he had an actual or imputed LTTE profile.  Further in the Tribunal’s view he had taken no action during his time in Jaffna that would lead the security forces to consider him an LTTE operative.”

20                  The Tribunal then noted it had “considerable difficulty” with the applicant’s evidence about detentions.  As to the 1992 detention, when the respondent claimed his tongue was pierced with a pencil, the Tribunal did not accept his explanation that he did not seek medical treatment as he would have to tell what happened to him.  Had he been seriously tortured in the way claimed by the authorities the Tribunal believed he would have sought treatment.  Moreover, given the severity of the claimed tortures and the threats he received, the Tribunal did not believe he would have returned to Sri Lanka on two occasions after moving to Dubai.  In addition the applicant did not appear to have made any arrangements for his wife to leave but appears to have been content for her to remain in Sri Lanka.  As she was actually born in Jaffna and had brothers in the LTTE she would have been in at least as vulnerable a position as the applicant.  The Tribunal concluded this topic by noting:

“Further in the letter from his lawyer detailing his detentions, no mention is made of this first and apparently most horrific detention.” 

21                  The Tribunal did not accept the respondent’s claim that he returned to Sri Lanka in June 1996 because he thought that with the new government there would be safety.  The new government had been elected in late 1994 but by April 1995 the peace talks had broken down and the war had recommenced.  By June 1996 the peace talks were well over, the government had taken Jaffna by force and the war, including bomb blasts in Colombo, was continuing.  It was likely that this information would have been available to the respondent in Dubai given the respondent claimed there was a substantial Tamil population there.  In the Tribunal’s view:

“Rather than returning because the applicant thought things had improved, in the Tribunal’s view, this return indicates that the applicant has not previously had any problems in Sri Lanka or that he had a subjective fear of persecution.”

22                  The Tribunal thought it did not make sense, and was implausible, that immediately after returning to Sri Lanka in June 1996, indeed the very same day, he was detained by the police and beaten.  There was no reason why he would be suspected of being involved in the LTTE.  Whilst it was the case that the lodges were checked from time to time, the respondent had a ready explanation of his arrival, the purpose for his visit and presumably his passport to prove it.

23                  As to the respondent’s return to Sri Lanka from Dubai after obtaining his Australian visa, the Tribunal did not accept that this was the action of someone who was in fear of being detained and beaten by the security forces as a suspected LTTE operative or someone who was detained and beaten on his first night in Sri Lanka on his previous visit.  The respondent’s actions were, in the Tribunal’s view, consistent with those of a person who did not fear persecution in Sri Lanka.  The Tribunal did not think plausible the respondent’s account of being arrested in Kandy.  He had just re-entered Sri Lanka and could explain where he had been.  There did not seem to be any plausible reason why he would again be of interest to the authorities, nor was there any plausible reason for his detention again in November for 16 days.  He claimed he was released on 21 November 1996 but did not leave the country until 2 December.  Even at this stage he did “not appear to be hurrying to leave”.

24                  The Tribunal was satisfied that the respondent had been “prepared to concoct a number of instances of detention”.  The respondent had also admitted that he had fabricated the truth about his past employment in order to obtain a visa application and this displayed a “preparedness to falsify the truth”.  The Tribunal did not accept the claim that the respondent’s wife, who was still in Sri Lanka, was detained in 1999 as a result of her brothers’ activities.  Also the Tribunal did not accept that the respondent had been without an identity card for the period claimed.  He had returned to Sri Lanka on a number of occasions without claiming to have had any particular problems at check points as a result. 

25                  In a passage which is important for the purposes of the present appeal the Tribunal said:

“The letter from the lawyer was obtained by his wife.  It was obtained after his arrival in Australia.  On the one hand it does not detail all of his claimed detentions.  On the other the ones it details are not detailed with any precision.  Given the findings above and the way the letter came into existence it does not satisfy the Tribunal that the applicant was detained as claimed.  The applicant also invited (the Tribunal) to make further inquiries of this lawyer.  However, given the findings that the Tribunal has made, and the applicant’s admissions of obtaining false documents for his visa application, the Tribunal does not consider it will be assisted by making further inquiries of someone in Sri Lanka.  The applicant has had ample opportunity to provide details to this person since the hearing.  Further even if the Tribunal took the course of telephoning this person as suggested in the hearing the Tribunal would have no way of knowing or confirming who was on the other end of the telephone.  In addition the Tribunal is satisfied about its findings.  The Tribunal does not consider at this stage that evidence from this person would assist it.  Of course the applicant could at any stage have sought further material from this person himself and has not provided anything further.”

26                  The Tribunal then set out a substantial amount of country information as to the history and present condition of Tamils in Sri Lanka.  The Tribunal summarised that material as showing that for some significant period of time young Tamils from the North or East have been and continue to be at risk of detention in Colombo.  The respondent did not fit within this profile. The Tribunal did not accept that the respondent had been suspected or would be suspected of being an LTTE supporter.  It was not plausible, without more, that the respondent who had lived in Dubai since 1992 and Australia since late 1996 would be suspected of being involved in the LTTE.  The country information indicated that those detained at security checks were released once their identity and reason for being in Colombo was established.  Given this country information and given that the Tribunal had rejected the respondent’s accounts of detention in the past and his claims for being detained as a suspected LTTE supporter or operative, the Tribunal concluded there was no real chance that he would face persecution should he now return to Sri Lanka.  In relation to assisting and obtaining money for the LTTE there was no evidence that the respondent has done this, no evidence he has ever been stopped on entering or leaving Sri Lanka for this reason and no evidence that he has been accused of this.  Given this, the Tribunal would consider the chance of the authorities imputing to him involvement in such activities as remote.

Decision of the primary judge

27                  After rejecting some criticisms not relevant for present purposes his Honour noted as the issue of substance raised by counsel for the respondent the manner in which the Tribunal dealt with the lawyer’s letter.  Reliance was placed on s 427(1)(d) of the Act which provides that the Tribunal may

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

28                  Following Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470 and Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 his Honour concluded it was unlikely that the mere failure to exercise a power under s 427(1)(d) to cause enquiries to be made would amount to a breach of any duty by the Tribunal in the absence of some special or exceptional circumstances such as failure by the Tribunal to honour an undertaking to enquire.  However, in his Honour’s view, it did not follow that the Tribunal discharged its statutory duties in the matter by stating that the making of enquiries of the Sri Lankan lawyer would not assist it.  That statement raised the issue whether the Tribunal “gave proper, genuine and realistic consideration” to the respondent’s detention claims.  His Honour said (at par 17) that it was

“… well established that, in arriving at its decision, the RRT is under a duty to determine the material questions of fact before it for its determination after giving ‘proper, genuine and realistic consideration upon the merits’ to those questions of fact:  see Kahn v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 at 12-15 per Sheppard J; Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472 at 483 per Gummow J; Surinkova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 96 per Hill J; Mocan v Refugee Review Tribunal (1997) 42 ALD 241 at 245 per Merkel J and Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 28 at 64 per Merkel J.”

29                  His Honour concluded (at par 18) that

“… on a fair reading of the reasons of the RRT as a whole:

·            the RRT arrived at the finding that ‘the applicant has been prepared to concoct a number of instances of detention’ before considering the attorney’s letter, which proffered direct corroboration of some of those instances of detention; and

·            in doing so the RRT failed to give proper, genuine and realistic consideration upon the merits to the applicant’s detention claims.”

30                  His Honour said the letter was corroboration of the 1996 detention claims and that while it may have been open to the Tribunal to reject the respondent’s detention claims it was

“… difficult to accept that it could properly do so by first finding that the respondent had concocted instances of his detention (which plainly included some or all of the instances referred to in the attorney’s letter), and then used that finding as a reason for not considering the authenticity of the attorney’s letter.” 

31                  Further, if the Tribunal was engaging “in its fact finding functions according to law” it was most unlikely that it would find that the making of enquiries with the lawyer in relation to her letter would be of no assistance.  Enquiries might have either reinforced or undermined the conclusion that the claims of detention were concocted, and thus could be expected to “assist” the Tribunal.  The “adverse credibility finding” against the respondent was based on

“general credit findings that led to a conclusion that the instances of detention were concocted rather than any specific or direct evidence that established or tended to establish that the applicant hadconcocted the evidence concerning the detentions.”  (Emphasis in original)

32                  Other matters such as the fact that the letter did not refer to the 1992 detention or give precise details of the 1996 detentions might be matters going to weight, as was the fact the respondent had obtained false documents in quite different circumstances.  The statement that the respondent could have sought further material from the lawyer but had not done so was

“unfair and unreasonable given that the RRT had initiated the suggestion that the letter appeared to be contrived and as a result was invited by the (applicant) to satisfy itself as to that matter”. 

33                  That statement his Honour thought

“sits uncomfortably with the earlier suggestion that a reason for the RRT not inquiring was that the applicant had ‘ample opportunity to provide details to this person since the hearing’, presumably meaning that the evidence would therefore be tainted.  The basis for the implied presumption that a Sri Lankan attorney at law, unknown to the RRT member, could be so easily corrupted is not stated or readily apparent.”

34                  There would have been no difficulty, in his Honour’s view, in requesting the Secretary to request an officer at the Australian High Commission in Colombo to undertake enquiries of the lawyer at the addresses set out in her letter.  His Honour said (at par 27):

 “The unreasonableness and unfairness of the RRT’s response, as set out in its reasons, to the applicant’s request to it to make inquiries of the attorney has not been outlined by me in an endeavour to retry this issue on the merits, or to suggest that the RRT erroneously made findings of fact.  Rather, the RRT’s response supports the conclusion that, although the RRT purported to give proper, genuine and realistic consideration to the applicant’s detention claims, it did not in fact do so.  Of course, in an application for review under Pt 8 of the Act, unsatisfactory reasoning or illogicality do not of themselves constitute errors of law:  see Minister for Immigration and Multicultural Affairs v Singh [(2000) 98 FCR 469 at 44]; Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411 at 420-422 and Hill v Green (1999) 48 NSWLR 161 at 174 and 176.  However, unsatisfactory reasoning or illogicality may nevertheless be indicia which, together with other factors, might persuade a court that the RRT has purported to give but has not given proper, genuine and realistic consideration to the issues it is required to determine.”

35                  His Honour concluded (at par 28) that

“in failing to give proper, genuine and realistic consideration to the applicant’s claims of detention and mistreatment on three occasions in 1996, the RRT failed to properly discharge its functions under the Act in accordance with law.  The failure constituted a failure to comply with the procedures required to be observed under the Act, an error of law or a constructive failure to exercise jurisdiction by not giving proper, genuine and realistic consideration to the questions it is required to address:  see s 476(1)(a),(b),(c) or (e).”

“Proper, genuine and realistic consideration”

36                  Senior counsel for the Minister pointed out that the authorities cited by his Honour at par 17 of the judgment, other than Paramanthan, were concerned with the ground of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(d) and 5(2)(f) where a discretionary power is exercised in accordance with a rule or policy without regard to the merits of the particular case.  A similar ground is available under Pt 8:  s 476(1)(d) and (3)(c).  But there was no suggestion in the present case that the Tribunal’s decision was the application of some rule or policy.  Moreover, making a decision to grant or refuse a protection visa is not, in any relevant sense, the exercise of a discretionary power.

37                  Support for the Minister’s submission comes from Bruce v Cole (1998) 45 NSWLR 163.  The plaintiff, a judge of the Supreme Court of New South Wales, sought common law judicial review of a finding of the Conduct Division of the Judicial Commission of New South Wales.  Spigelman CJ, with whom Mason P, Priestley, Sheller and Powell JJA agreed, said (at 185):

       “Mr Conti also invoked the well-known ground of taking into account irrelevant considerations, and failing to take into account relevant considerations.  In this regard, he invoked a formulation which finds its origin in the judgment of Gummow J, then of the Federal Court of Australia:  Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, in which his Honour said that a decision must give ‘proper, genuine and realistic consideration to the merits of the case’.  This particular formulation of words has been applied in a number of subsequent judgments of the Federal Court, including Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 at 13, per Sheppard J; Surinokova v Minister for Immigration, Local Government and Ethnic Affairs  (1991) 33 FCR 87 at 96, per Hill J; Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs (1993) 34 ALD 169 at 178-179, per Burchett J.

       The special characteristics of the applicable statutory framework in the Administrative Decisions (Judicial Review) Act 1977 (Cth), require particular care before applying the administrative law jurisprudence of the Federal Court to the common law.  There is specific provision in s 5(2)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) that a finding of improper exercise of power may be based on:

       ‘(2)(f)  An exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.’

The Federal Court cases involved the alleged application of a policy in this sense, as is made clear by the words ‘to the merits of the case’, in the formulation of Gummow J in Khan.

       Nevertheless, a similar proposition may be appropriate in the context of the relevant/irrelevant considerations ground at common law:  see, for example, ‘any real sense’, Turner v Minister for Immigration (1981) 55 FLR 180 at 184, per Toohey J; ‘genuinely and realistically’, Howells v Nagrad Nominees Pty Ltd (1982) 66 FLR 169 at 195, per Fox J and Franki J; ‘proper consideration’, Kioa v West (1985) 159 CLR 550 at 604, per Wilson J; and in this Court, the formulation ‘no real opportunity … to give consideration to’, in Parramatta City Council v Hale (1982) 47 LGRA 319 at 331, per Street CJ; see also at 335-336.

       These particular formulations must be treated with care, so that the relevant/irrelevant considerations ground is not expanded to permit review of the merits.  That ground is restricted in accordance with the now classic judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42, to matters which the decision maker was obliged to take into account.”

38                  Insofar as authorities have applied the “proper, genuine and realistic consideration” formula, or similar tests, in cases dealing with the relevant/irrelevant considerations grounds, either at common law or under the AD(JR) Act s 5(1)(e) and (2)(a) and (b), they are of no assistance in the present context because these grounds are expressly excluded from Pt 8 review:  s 476(1)(d) and (3)(d) and (e).

39                  The first application of the “proper, genuine and realistic consideration” formula to the fact finding process of the Tribunal in a Pt 8 review case came in Paramanthan when Merkel J, sitting as a member of a Full Court, said (at 64): 

“Closely related to that duty arising under s 420 is the duty of a decision-maker or tribunal to give the questions before it for its determination ‘proper, genuine and realistic consideration upon the merits’:  see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Hindi v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 1 at 12-15 per Sheppard J; Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472 at 482-483 per Gummow J; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 96 per Hill J; Mocan v Refugee Review Tribunal (1996) 42 ALD 241 at 245 per Merkel J.

Independently of s 420, the RRT must apply itself to the question which the law prescribes.  If the RRT misconceives its duty or fails to address the correct legal question committed to it by not applying itself to all the issues it is required to consider in determining the matter before it, there will have been a purported, but not real, exercise of its functions and jurisdiction.  In such circumstances there will have been a constructive failure by the RRT to exercise its jurisdiction:  see Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 per Jordan CJ; Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 480 per Barwick CJ and at 483 per Gibbs J; Guo v Minister for Immigration and Ethnic Affairs at 165-166 per Beaumont J; Guo at 578; 581; and Calado at 75.”

40                  Senior counsel for the Minister submitted that this supposed ground did not fit within any of the limited grounds made available for Federal Court review by s 476.  As already noted, the primary judge had identified the error as falling within s 476(1)(a),(b), (c) and (e).  As to par (a), senior counsel for the Minister said that “procedures” meant statutory requirements of a procedural nature that were explicitly prescribed in the Act or the Regulations.  As to par (b), this was directed to the case where the purported decision-maker lacked authority, for example a Tribunal member whose acting appointment had expired (s 469(3)).  As to par (c), this was the converse of (b); the decision was not one for which legal authority existed.  As to par (e) it was directed towards the interpretation and application of the applicable law, for example the concepts of “persecution” or “membership of a particular social group”.

41                  Senior counsel stressed the clear legislative intention that emerged from the amendments to the Act made by the Migration Reform Act 1992 (Cth) (the 1992 amendments).  Merits review was to be the function of an independent tribunal.  Detailed codified decision-making procedures were laid down to replace “the somewhat open-ended doctrines of natural justice and reasonableness” (Minister’s Second Reading Speech, Hansard 4 November 1992 at 2621).  The focus of judicial review under Pt 8 was to ensure that the comprehensive legislative code spelt out in the Act had been correctly construed and applied by decision-makers.  There was, senior counsel contended, no room for common law concepts such as “constructive failure to exercise jurisdiction”.

42                  Apart from the foregoing matters relied on by the Minister, it is in our view instructive to note the traditional judicial review grounds, both at common law and under the AD(JR) Act, which have been expressly excluded by s 476:  breach of the rules of natural justice (s 476(2)(a)), Wednesbury unreasonableness (s 476(2)(b)), taking into account irrelevant considerations (s 476(3)(d)), failing to take into account relevant considerations (s 476(3)(e)), bad faith (s 476(3)(f)) and the limitations on the “no evidence” ground (s 476(1)(g) and (4)).  In addition, it is now clearly established that the Australian rule which rejects factual mistake or want of logic as a ground for judicial review (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321) is applicable to review under Pt 8:  Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at pars 20-26.

43                  It is not easy to conceive of a case where a tribunal ignores relevant considerations, takes into account irrelevant considerations, denies natural justice, applies illogical reasoning, and reaches a decision so unreasonable that no reasonable tribunal could have reached it (thus far, being immune from Pt 8 review), yet does something else which can be characterised as not giving “proper, genuine and realistic consideration” and thus provides a ground for review.

44                  The “proper, genuine and realistic consideration” formula has not been the subject of High Court consideration.  In the Full Court of this Court the authorities are as follows.

45                  In Paramanthan the other members of the Court resolved the case on different grounds.  Wilcox J (at 31) held the Tribunal had failed to make factual findings and had applied an incorrect concept of  “persecution”.  Lindgren J (at 42) also held there was a failure to make a finding on material questions of fact – a procedure required by s 430(1)(c), the failure to observe which procedure provided a ground under s 476(1)(a). 

46                  In Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 the Tribunal had disbelieved the applicant’s claims of detention and maltreatment by the Sri Lankan army but, in the Full Court’s view, had wrongly failed to consider his fear of persecution based merely on the fact that he was a young Tamil male.  Wilcox and Madgwick JJ held this was a breach of  the Tribunal’s obligation under s 414 to review the decision, which in their Honours’ view meant all of the substantial claims.  This was an incorrect interpretation of the law (s 476(1)(e)) and non-observance of a “procedure”  (s 476(1)(a)); procedures may be “required” by a statute by clear implication as well as by express provision (at par 20).  There was also “a constructive failure by the Tribunal to exercise its jurisdiction”.  Their Honours (at par 21) cited Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 579 which “implicitly endorsed the legal analysis (though not the factual conclusions) of Beaumont J at first instance”.  (We note however Guo concerned a review under the AD(JR) Act and not Pt 8.)  Thus the decision was “not authorised by the Act” (s 430(1)(c)) and was an “error of law” on both limbs of s 476(1)(e).  Further, there was a breach of s 430(1)(c) in the failure to set out findings on questions of material fact (par 22).  Their Honours adopted the conclusions of Merkel J in Paramanthan “although not necessarily (agreeing) with each step of his Honour’s reasoning supporting them” (at par 23).

47                  The other member of the Court in Sellamuthu (Hill J) found (at par 50) “some difficulty” in bringing the failure to address issues within s 476(1)(e) although failure to address issues might characterise the decision as one not authorised by the Act and thus the ground in s 476(1)(c) would be available.  His Honour’s preferred ground however was s 476(1)(a) by reason of the non-observance of s 430(1):  par 51. 

48                  In Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435 at 448 one member of the Court would have relied on the “proper, genuine and realistic consideration” formula as an alternative ground for setting aside the Tribunal’s decision.

49                  In Dambagolla Arachchige v Minister for Immigration and Multicultural Affairs  [2001] FCA 121 it was submitted to a Full Court that the Tribunal failed to give proper, genuine and realistic consideration to the authenticity of certain documents.  The Full Court (at par 5) said that it understood the submissions to be based on alleged non-compliance with s 476(1)(a) because it was suggested there had been a constructive failure to exercise jurisdiction in the Tribunal not performing its statutory function.  The decision of the primary judge in the present case was cited.  In dismissing the appeal the Full Court held that the Tribunal’s decision was open to it on the evidence.  Counsel for the Minister did not contest the validity of the “proper, genuine and realistic consideration” formula in a Pt 8 context and thus the Full Court did not consider the issue.

50                  The “proper, genuine and realistic consideration” formula does not on our reading form part of the rationes decidendi of the foregoing Full Court decisions.  We are not departing from them in the sense of rejecting the reasoning essential to the decisions.  Thus we do not see this as a case calling for application of principles which guide a Full Court when called upon not to follow a decision of an earlier Full Court:  see Byrne v Australian Airlines Ltd (1994) 47 FCR 300 at 304, Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 560-561 and Telstra Corporation Limited v Treloar [2000] FCA 1170 at pars 23-28.  Neither side argued to the contrary.

51                  Turning then to the issue identified at the outset of these reasons, is a failure by the Tribunal to give “proper, genuine and realistic consideration” to an application available as a ground for review by this Court?  Put another way, does a conclusion in these terms necessarily mean that, without more, a ground or grounds of review under s 476 have been made out?

52                  At the risk of stating the obvious, it must first be said that no such formula appears in Pt 8, or elsewhere in the Act.  As a general proposition, it is doubtless true that procedures, and other obligations, may be “required” by statute by clear implication as well as express provision:  Sellamuthu at par 20.  However, whether any implication should be made in a given case will depend on the terms of the legislation and its object and purpose as disclosed by those terms and other legitimate aids to statutory construction.  Amongst other things, the more a statute makes detailed express provisions in relation to a topic, the less easy it will be to read in something unexpressed.

53                  Divisions 4 and 5 of Pt 7 of the Act contain very detailed provisions as to procedures to be followed.  The applicant for review and the Secretary of the Department may give the Tribunal written arguments and the former may give a statutory declaration:  s 423.  The Tribunal may “get any information that it considers relevant” and must “have regard to that information and may invite a person to give additional information”:  s 424.  The Tribunal must give to the applicant particulars of any information that would be a reason for affirming the decision and invite comment thereon:  s 424A.  Invitations to give additional information or provide comment must comply with certain requirements, such as fixing the period in which information or comment is to be provided and, if by way of interview, the place and time at which the interview is to take place:  s 424B.  If there is a failure to respond to invitations for information or comment the Tribunal may make a decision on the review without taking any further action:  s 424C.  The Tribunal must, subject to certain exceptions, invite the applicant to appear before it:  s 425.  The notice to appear must comply with certain requirements:  s 425A.  The Tribunal may, on the written request of the applicant, obtain evidence from a person notified by the applicant:  s 426.  If the applicant does not appear before the Tribunal, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it:  s 426A.

54                  The Tribunal is given various powers, including taking evidence on oath or affirmation, adjourning the review, summoning persons to give evidence or produce documents and directing that evidence be given through an interpreter:  s 427.  The Tribunal may authorise another person to take evidence:  s 428.  The review is to be in private: s 429.  Evidence may be taken by telephone or closed circuit television:  s 429A. 

55                  Division 5 of Pt 7 deals with decisions of the Tribunal.  It is to prepare a written statement setting out the decision and the reasons for it and findings on material questions of fact:  s 430.  The Tribunal must invite parties to the handing down of the decision:  s 430A.  The decision is to be handed down on the day and at the place notified:  s 430B.  It is sufficient to notify an applicant’s representative of the handing down of a decision:  s 430C. Where an oral decision is given, a statement under s 430(1) must be given to the applicant and the Secretary within 14 days:  s 430D. Certain Tribunal decisions are to be published:  s 431.

56                  This level of detailed procedure in a statute is unusually prescriptive for a Commonwealth administrative tribunal.  By contrast for example, the procedure of the Administrative Appeals Tribunal is, subject to its enabling Act and regulations and any other enactment, within the discretion of the Tribunal:  Administrative Appeals Tribunal Act 1975 (Cth) s 31.  The Veterans’ Review Board, apart from notifying parties that a review is to be conducted and inviting them to appear, and fixing a time and place to conduct its proceeding, is subject only to directions of the Principal Member or directions by the presiding member in a particular review:  Veterans’ Entitlements Act 1986 (Cth) s 148.  There is no specification as to what the Principal Member’s or presiding member’s directions should or should not contain. 

57                  The argument that the expression “procedures that were required by this Act or the regulations to be observed” in s 476(1)(a) means the procedures specifically prescribed by the Act or regulations, and in particular by Div 4 and 5 of Pt 7, is compelling. 

58                  Extrinsic material supports this conclusion.  In the Second Reading Speech, the Minister said:

“Under the reforms, decision making procedures will be codified. This will provide a fair and certain process with which both applicant and decision maker can be confident.  Decision makers will be able to focus on the merits of each case knowing precisely what procedural requirements are to be followed.  These procedures will replace the somewhat open-ended doctrines of natural justice and unreasonableness.” (Hansard, 4 November 1992, at 2621)

and again:

“As I have indicated, the Government wishes to make the application of the legal concepts of migration decision making predictable.  Judicial review rights for decisions on the grant or cancellation of a visa will be set out in the Migration Act.  Judicial review will only be possible after the applicant has pursued all merits review rights or whether merits review is not available.  Grounds for review will include failure to follow the codified decision making procedures set out in the Act.  As the codified procedures will allow an applicant a fair opportunity to present his or her claims, failure to observe the rules of natural justice and unreasonableness will not be grounds for review.”  (ibid, at 2623)

59                  These considerations in our view weigh against a conclusion that the “proper, genuine and realistic consideration” formula provides a ground of review, or that so characterising the proceedings or decision of a Tribunal in a given case will establish one or more of the grounds in s 476.  Support for this conclusion is provided by an examination of the language in question.

60                  To say that consideration is or is not “proper” necessarily assumes some pre-existing standard of propriety against which the consideration under review can be measured.  But what is the content of such a standard?  It must be something other than the procedures prescribed by the Act or regulations.  It would usually be thought not “proper” for the Tribunal to ignore relevant considerations, take into account irrelevant considerations, deny natural justice and come to an extremely unreasonable decision (so unreasonable that no reasonable Tribunal could make it).  Yet none of these matters could make the consideration not “proper” within the meaning of the formula because they are expressly excluded as grounds of review under Pt 8.  The problem is that the suggested formula is at once too narrow – because little room is left after matters have been expressly dealt with (either by inclusion or exclusion) by the Act – or too broad because it may, by a process of re-characterisation, enable matters to provide a ground for review notwithstanding that they have been excluded by the Act.

61                  As to being “genuine”, it is not clear whether, to apply the Macquarie Dictionary definitions, the consideration has to be real or authentic (an objective test) or sincere and free from pretence or affectation (a subjective test).  If the former, it is not easy to see how the test differs from the statutorily excluded ground of failing to take into account relevant considerations.  If the latter, we note that fraud or actual bias are available grounds:  s 476(1)(f), but general  abuse of power is not:  s 476(3)(g).  (Bad faith is also excluded: s 476(3)(f) – but in relation to review of exercise of discretionary power.)  The Act seems to have covered the field so far as the subjective state of mind of the Tribunal is concerned. 

62                  “Realistic” is a concept especially likely to lead into the forbidden territory of merits review.  In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at par 40 Gleeson CJ and McHugh J said:

“Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as ‘illogical’ or ‘unreasonable’, or even ‘so unreasonable that no reasonable person could adopt it’.  If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.”

63                  Their Honours made this remark in the course of discussing a case where one judge of this Court had described the Tribunal’s conclusion as “totally lack(ing) logic” while another judge had said a conclusion to the contrary of the Tribunal’s would “(border) on perverse”.  The issue, the conclusion as to which provoked such disparate judicial reaction, was whether an alleged event in Ethiopia – the arrest of 25 student leaders and their being detained and badly beaten over three days – did or did not occur.  In concluding that it did not occur, the Tribunal reasoned that, if it had, it would have become known to at least some of the organisations monitoring human rights abuses in Ethiopia and reported in their publications.  In the discourse in which lawyers and judges debate questions of fact, “realistic” is often used as a synonym for “reasonable”, “rational”, “logical” or “commonsense”.  Whether the non-publication of reports about the alleged detentions and mistreatment logically (or reasonably or realistically) tended to show they had not in fact occurred was a matter on which experienced judges differed.  It was a classic example of a factual issue, of the sort which lawyers sometimes refer to as a jury point.  But this is precisely the sort of merits review issue that Parliament has entrusted to the Tribunal and not to this Court.

64                  Reference might also be made to the observation of Spigelman CJ in Bruce (at 184-185):

“In cases which engage the sense of compassion of a judge such as this, it is necessary to avoid the temptation to express a conclusion in terms of one of the recognised grounds for judicial review, whilst in truth making a decision based on the merits.  In a democratic society such conduct transgresses the proper limits of judicial intervention.  It will, if often repeated, undermine the basis for judicial independence and the fundamental role which judicial impartiality plays in the social stability of the nation and the maintenance of personal freedom of its citizens.”

65                  In 1992 Parliament made major changes to the system for administrative and judicial review of migration decision-making.  In relation to refugee decisions, some grounds of judicial review previously available under the AD(JR) Act or at common law were abolished. Part 8 (as the amendments were subsequently designated) was to be a code but at the same time a specialist independent administrative tribunal was established.  Detailed procedures for that tribunal were spelt out in the legislation and compliance with those procedures was to be enforceable by this Court.  The “proper, genuine and realistic consideration” formula runs counter to this scheme.  It creates a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised.

66                  In our view, to say that the Tribunal failed to give “proper, genuine and realistic consideration” to an application does not make out any available ground for review under Pt 8.

Was there otherwise reviewable error?

67                  It is clear from what we have said that whatever may be the position regarding the use of the expression “proper, genuine and realistic consideration” in the context of principles of judicial review generally, a failure to accord such consideration does not, of itself, give rise to a ground of review in this Court under Pt 8 of the Act.

68                  In stating that conclusion we emphasise that nothing we have said should be taken to diminish in any way the importance of the obligations which the Act imposes upon the Minister and the Tribunal.  Section 65 requires the Minister to “consider” a valid application for a visa.  Section 414 imposes upon the Tribunal an obligation, when a valid application for review is made, to “review” an RRT-reviewable decision.  What is required by these provisions is, in our view, best understood by considering carefully the language in which they are expressed.  It is dangerous to depart from that language, and to adopt instead a formula which attempts to paraphrase it in circumstances where that formula may easily be misinterpreted. 

69                  It was determined in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 that when the Administrative Appeals Tribunal was asked to review a decision of the Minister it stood in his or her shoes.  As Bowen CJ and Deane J observed at 589:

“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him.  The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.” (Emphasis added)

70                  Those comments were directed specifically to the Administrative Appeals Tribunal.  An application to the Refugee Review Tribunal is dealt with in exactly the same way.  The review is by way of rehearing de novo.  It follows that the Tribunal must “consider” a valid application for a visa.  If the Tribunal is satisfied that the criteria for the grant of that visa are satisfied, it must grant the visa.  If the Tribunal is not so satisfied, it must refuse to grant the visa.

71                  The word “consider” is defined in the Oxford English Dictionary, in part, as:

“to view or contemplate attentively…examine…scrutinise…to fix the mind upon…to reflect upon”.

72                  It is precisely that obligation which s 414 imposes, albeit indirectly, upon the Tribunal.  If the Tribunal fails to discharge that obligation that does not, of itself, give rise to a right of review in this Court.  However, if the Tribunal fails to discharge that obligation by reason of any of the grounds set out in s 476(1), there is such a right of review.

73                  The expression “proper, genuine and realistic consideration” had its genesis in the broadly analogous doctrine of “constructive failure to exercise jurisdiction”.  That doctrine seems to have developed in the context of the common law principles governing the grant of mandamus and, in particular, in the context of the requirement that there be a demand that the respondent perform a relevant duty, and an actual or constructive refusal. 

74                  In Aronson and Dyer Judicial Review of Administrative Action (2^nd ed) the learned authors comment (at 583):

“Whether there has been a “constructive refusal” has more to do with legal questions as to the extent of the official’s power, than with the facts.  In the case of a constructive refusal, a purported performance of the duty is treated as an instance of the official declining or refusing to perform it, because their [sic] purported performance is legally void.”

75                  In R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-243, Rich, Dixon and McTiernan JJ stated, in what has been described as a classic formulation:

“A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed.  If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him.  In the case of a tribunal, whether of a judicial or an administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal.  It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void.  But the prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal’s decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded.  The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies.” (Emphasis added)

76                  This formulation has been followed repeatedly in this country and may be regarded as an authoritative statement of principle.  Curiously the doctrine of “constructive failure” appears never to have taken root in England, and modern English texts such as De Smith, Woolf and Jowell Judicial Review of Administrative Action (5^th ed 1995) and Wade and Forsyth Administrative Law (7^th ed 1994) barely allude to it. 

77                  One difficulty with applying the principles in Ex parte Bott to applications under Pt 8 of the Act is that at least one of the matters identified as giving rise to a “constructive failure” in the passage set out above, namely taking an irrelevant consideration into account, is expressly excluded by s 476(3)(d) as a ground of review in this Court.  That makes it necessary to tread warily when seeking to invoke “constructive failure”, or some variant of that doctrine, in the context of an application brought under Pt 8.

78                  Nonetheless, it seems to us that there is some scope, albeit limited, for the argument that the Tribunal may, in a particular case, have failed to “review” the decision of the Minister.  In other words, although we consider the use of the formula “proper, genuine and realistic consideration” to be an unsuitable method of expressing the circumstances in which that contention can be maintained, we accept that there may be some cases where it can properly be said that the Tribunal has not in truth “considered” the application for a visa at all.

79                  It is often dangerous to seek to elucidate a principle by the use of examples, particularly when they are far removed from the facts before the Court.  However, were the Tribunal to misconceive the nature of its statutory obligation, as for example by mistakenly believing that it was engaged in appellate review of the Minister’s decision (rather than a rehearing de novo), it would be difficult to avoid the conclusion that it had failed to “review” the decision, in accordance with the requirements of the Act.  Similarly, were the Tribunal to address the wrong question, rather than the question properly before it, there would be a constructive failure to exercise jurisdiction.  Again, speaking hypothetically, were the Tribunal merely to pay lip service to its task, as for example by determining an application without reading the material filed before it, it would be difficult to conclude that it had “considered” the application. 

80                  These examples are admittedly extreme. However, they serve to illustrate the principle.  Where an applicant for review in this Court contends that there has been a failure on the part of the Tribunal to perform its statutory duty, that submission must be shown to fall within an existing ground of review contained in s 476(1).  A failure of that type may well fall within the ambit of s 476(1)(e).  The first two of the examples set out above would seem to do so.  The third example is more problematic, though it might be said that the obligation which s 54 of the Act imposes upon the Minister “to have regard to all of the information in the application” is relevantly a “procedure required by the Act to be observed in connection with the making of the decision” for the purpose of s 476(1)(a).  It should be remembered that a constructive failure to exercise jurisdiction which does not fall within any of the grounds for review contained within s 476(1) may, nonetheless, give rise to a claim for relief in the High Court.  It will not, however, form the basis for review of any decision in this Court. 

81                  For the following reasons we are satisfied that the Tribunal did not misconceive its function, nor did it fail to address the issues which it was required to address.  We do not address the question whether the Tribunal failed to give proper, genuine and realistic consideration to the merits of the applicant’s detention claims as, for the reasons already indicated, we do not consider that an affirmative answer leads to an available ground of review.  Rather we address the issue whether the Tribunal may have failed to “review” the Minister’s decision in the sense discussed above.

82                  The criticism made by his Honour of the Tribunal’s reasoning is that its consideration and use of the attorney’s letter was flawed (par 30 above) and that it erred in finding that enquiries which might be made of the attorney would not assist the Tribunal. His Honour’s criticism, in essence, was that the Tribunal’s reasoning was circular – it found that the detentions were concocted so that any enquiry of the attorney to determine whether the detentions referred to in the letter were concocted, or whether there had been another detention not referred to in the letter, would not assist the Tribunal because of its findings that the detentions were concocted.

83                  Even if this criticism be valid, at most the Tribunal’s reasons might be characterised as illogical and unreasonable.  But such conclusions are of no assistance to the respondent on a Pt 8 review.

84                  In any event, the Tribunal’s reasons read as a whole do not support his Honour’s conclusion (par 29 above) that the Tribunal “arrived at the finding that ‘the applicant has been prepared to concoct a number of instances of detention’ before considering the attorney’s letter”.  This suggests that the Tribunal ignored the letter, made its mind up, and then refused to consider the letter because it contradicted the conclusion the Tribunal had arrived at.

85                  In fact (see pars 17, 18 and 20 above) the Tribunal made a number of references to the letter in a way which clearly conveyed scepticism about it.  As a matter of personal style a decision-maker (or judge) may prefer to set out a factual narrative or recitation of submissions in neutral terms and then proceed to discussion, analysis and conclusion.  Or the decision-maker may interweave through the narrative comments (sometimes implicit) which indicate his or her thinking. As a matter of law either approach is perfectly valid, as long as the decision-maker complies with the obligation to make findings of fact related to the evidence and give reasons for the decision.

86                  If, as his Honour in our view correctly held, s 427(1)(d) does not impose any duty on the Tribunal to make further enquiries, it is difficult to see how the Tribunal could have erred in law by assigning what is said to be a reason that is factually incorrect (that such enquiries would not assist) for not doing something it was not legally obliged to do.

87                  His Honour criticised the Tribunal for not acceding to the respondent’s request for it to make enquiries because the Tribunal had “initiated the suggestion that the letter appeared to be contrived” (par 32 above).  That criticism does not take into account, as we have already noted (par 12 above) that the delegate had raised serious doubts about the authenticity of the letter in her decision which was sent to the respondent on 29 May 1997, almost two years before the Tribunal hearing.  The delegate analysed the letter in considerable detail and concluded:

“I have serious misgivings about the authenticity of the document and find it to be self-serving,”

88                  Subsequent to the delegate’s decision the respondent, as a result of issues raised by the delegate, did procure some further material in the form of a letter from his former employer in Dubai setting out details relating to his period of employment.  But the respondent, who at all times had solicitors or migration agents in Melbourne acting for him, did nothing to obtain more satisfactory details from a person (who was after all his own lawyer) concerning a central part of his case.

89                  His Honour criticised the Tribunal’s statement that the respondent “had ample opportunity to provide details to this person since the hearing” as amounting to a presumption that the evidence would be “tainted” (par 33 above).  The suggestion appears to be that the Tribunal was saying that further enquiries would merely enable the respondent and the lawyer to patch up defects exposed in the letter.  But at the hearing the solicitor for the respondent had responded to criticism of the letter by pointing out that the Sri Lankan lawyer might not have had adequate filing systems, or might have archived or destroyed the file relating to the 1992 arrest, or might not have received adequate instructions when requested to provide details, or might not had had a file at all.  Similar observations were made in the respondent’s solicitors’ post hearing letter to the Tribunal dated 28 April 1999, par 9.  Against that background, all the Tribunal was saying in its decision was that the respondent or his Melbourne solicitors could well have overcome such problems by providing further information when requesting clarification of the lawyer’s letter.

90                  His Honour considered (par 34 above) that the Tribunal’s response to the request that it make enquiries was unreasonable and unfair and involved “unsatisfactory reasoning or illogicality”.  While accepting that such matters did not “of themselves constitute errors of law” (citing authorities, including Epeabaka) his Honour thought that they may be “indicia which, together with other factors, might persuade a court that the RRT had purported to give but has not given proper, genuine and realistic consideration to the issues it is required to determine”.

91                  His Honour did not identify the “other factors” in the case which took it beyond mere unsatisfactory reasoning or illogicality.  We cannot for ourselves find any such factors.  The Tribunal’s reasons extend to 17 pages.  There could be no complaint that the primary facts relied on by the respondent as founding his fear of persecution – the occasions of detention, beating and torture, one in 1992 and three in 1996 – were not carefully considered.  Indeed this case is notable in that the complaint upheld relates not to consideration of substantive issues – as for example occurred in Sellamuthu – but to a particular piece of evidence relating to those issues.  The Tribunal’s reasons contain a detailed analysis of the inherent improbability of the respondent’s account, and in particular how after a history of unprovoked arrests and horrible torture the respondent obtained a valid Australian visa in Dubai but nevertheless returned to Sri Lanka.

Orders

92                  The appeal will be allowed and the decision of the primary judge set aside.  In lieu thereof it will be ordered that the application for review be dismissed.  There will be an order that the respondent pay the appellant’s costs of the appeal and at first instance.

Associate:

Dated:              21 March 2001