FEDERAL COURT OF AUSTRALIA

Gamaethige v Minister for Immigration & Multicultural Affairs [2001] FCA 565

IMMIGRATION – appeal – review of decision of Refugee Review Tribunal  – whether irrationality or want of logic a ground of review   – whether s 476(2)(b) of the Migration Act 1958 (Cth) applies to an implied obligation to act reasonably  – whether the decision affected by actual bias

PRACTICE AND PROCEDURE –leave to amend Notice of Appeal –grounds of appeal not raised at first instance –no prejudice to the administration of justice or to the respondent

Migration Act 1958 (Cth) s 476(1)(b), s 476(1)(c), s 476(1)(e),s 476(1)(f), s 476(2)(b)

Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 considered

Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 at 37-38 referred to

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 considered

Waterford v The Commonwealth (1987) 163 CLR 54 at 77 followed

Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303 followed

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 considered

Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 followed

Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 considered

Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240 at 249 referred to

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410 referred to

R v North and East Devon Health Authority; Ex parte Coughlan [2000] 2 WLR 622 referred to

R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488 referred to

Mahon v Air New Zealand Ltd [1984] AC 808 referred to

T A Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 at 995  referred to

Kavanagh v Chief Constable of Devon and Cornwall [1974] 1 QB 624 at 633 referred to

Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 referred to

Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 referred to

Kruger v Commonwealth of Australia (1997) 190 CLR 1 at 36 referred to

Hill v Green (1999) 48 NSWLR 161 referred to

Annetts v McCann (1990) 170 CLR 596 referred to

Wu Shan Liang v Minister for Immigration and Multicultural Affairs (1996) 185 CLR 259 at 282–283 referred to

H v Minister for Immigration & Multicultural Affairs [2000] FCA 1348 at [8] referred to

Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 referred to

Attorney-General (N.S.W.) v Quin (1990) 170 CLR 1 at 36 referred to

Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at [32] referred to

Vakauta v Kelly (1989) 167 CLR 568 at 576 referred to

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 150 referred to

Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 436 followed

ROHAN KAPILA GAMAETHIGE V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 909 OF 2000

HILL, FINKELSTEIN & STONE JJ

21 MAY 2001

SYDNEY

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         the appeal be dismissed;

2.         the appellant pay the respondent’s costs.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

HILL J:

1                     I have had the advantage of reading in draft form the judgments of Finkelstein and Stone JJ.  I agree with Stone J that the appeal should be dismissed and for the reasons her Honour has given.

2                     In the light however of the detailed reasons for judgment of Finkelstein J, I would wish to add some further comments on the issue of irrationality as a ground of review in migration decisions.

3                     His Honour expresses the view that a decision of the Refugee Review Tribunal (the “Tribunal”) based on flawed logic is reviewable notwithstanding the provisions of s 476 of the Migration Act 1958 (“the Act”).

4                     As Finkelstein J points out, the Act in s 476(1) provides only limited grounds of judicial review of a decision of the Tribunal.  Relevantly, those grounds are, as Finkelstein J says:

“ ...

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

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

...

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

5                     Notwithstanding the narrowness of the grounds of review they are further limited by subsection (2) of s 476 of the Act which provides relevantly:

“The following are not grounds upon which an application may be made under subsection (1):

(a)       that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)       that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.”

6                     A useful starting point is the decision of the House of Lords in Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 referred to by Mildren J in Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 at 37-38 to which Finkelstein J has referred.  In that case, an appeal was competent only where the Commissioners had made an error of law.  It was argued that the error made was one of fact not law.  Viscount Simons was of the view that even if the error was of fact the decision could be set aside where the Commissioners had acted upon a view of the facts which could not reasonably be entertained.  It was pointed out that where the case is one where all the admitted or found facts point one way but the tribunal makes an inference in the opposite way, it is merely a matter of conjecture why that inference has been made so it must be assumed that the tribunal has misdirected itself in law.  A similar approach has been taken where the question arises whether an appeal from the Administrative Appeals Tribunal is an appeal on a question of law and so competent.

7                     Implicit in Edwards v Bairstow, however, is that the error of law that has been made cannot easily be identified.  Where all the facts are found, that is to say all primary facts, and where the conclusion of a tribunal could not reasonably be drawn, there must have been an error of law even if that error cannot readily be identified.

8                     Not all errors of law ground a right of review under s 476(1)(e) of the Act.  It is only the errors of law identified in that paragraph.  It can be argued that in a case such as Edwards v Bairstow, where the error of law is not readily identified but the end outcome is illogical or irrational, it will be difficult to be certain whether the error falls within either of the categories in paragraph (e) unless these two categories are exhaustive, which would not seem to be the case.

9                     The precise relationship between natural justice, error of law and unreasonableness is far from clear.  Wednesbury unreasonableness would seem to be limited to discretionary powers, cf per Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 649-650.

10                  Whether or not Wednesbury unreasonableness is limited in the way suggested by Gummow J, unreasonableness is only a ground of review if the decision is so unreasonable that it could not be arrived at by a reasonable decision-maker.  That would be so if the decision is one which is irrational or illogical, provided that it can be said that it is not one that could reasonably be arrived at by any reasonable decision-making process.  Irrationality or illogicality seem hardly consonant with that process.

11                  For present purposes, the point to be made is that there is an overlap between Wednesbury unreasonableness on the one hand and error of law on the other.

12                  It is clear enough that wrong findings of fact do not of themselves involve errors capable of being the subject of judicial review:  Waterford v The Commonwealth (1987) 163 CLR 54 at 77; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303 per Dawson, Gaudron, McHugh, Gummow and Kirby JJ, and this would be so even if the wrong finding of fact were affected by illogicality.  In one sense, Eshetu is an example of this.  While it is true that a finding of fact made without evidence to support it may be classified for administrative law purposes as a decision made without jurisdiction: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, there is again an overlap in that s 476(1)(g) of the Act provides a specific ground of review for the case where there is no evidence or other material to justify the making of the decision but subject to the qualifications which appear in s 476(4).

13                  As Finkelstein J points out, a full Court of this Court in Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411 expressed the view that want of logic in arriving at a decision did not involve a reviewable error of law.  Recently, another full Court of this Court comprising Heerey, Goldberg and Weinberg JJ, relying on Epeabaka,  proceeded on the basis that it was clearly established that factual mistake or want of logic is not a ground for judicial review under Pt 8 of the Act: Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at para 42.  This Court should follow a decision of another full Court unless it is clearly wrong.  In my view, it follows from Epeabaka, unless clearly wrong which I am of the view that it is not, that a discretionary decision cannot be set aside merely because it is the product of flawed logic unless the case is one that falls within the category of Wednesbury unreasonableness or, perhaps, error of law.  But, the former category is excluded as a ground of review.

14                  As a matter of construction of s 476(2) of the Act it seems to me that, notwithstanding the possible overlap of Wednesbury unreasonableness and error of law, a case where Wednesbury unreasonableness applies cannot be the subject of judicial review even if it falls also within the category of error of law.  The giving effect to the parliamentary intention requires that conclusion.  The same is so where the ground of natural justice may overlap some other ground of review in s 476(1) of the Act.

15                  Whatever developments in administrative law may take place in other jurisdictions, or for that matter outside the migration area, in the category of reviewable decisions under the Act the statutory grounds of review in s 476(1), subject to the exclusions in s 476(2), provide the only grounds of review available.  They constitute a code.  While I am prepared to accept that the common law rules of administrative law may well expand or may well indeed have already expanded, they cannot operate to expand the statutory grounds of review under the Act beyond their ordinary reach.

16                  It is for this reason that I am of the view that it is not presently a ground of review under the Act that a decision of the Tribunal is the product of illogical reasoning.  I should say that I do agree that it is difficult to see how the Tribunal could have reached the conclusion it did on rational grounds but like the learned primary Judge I do not think that the lack of rationality in the Tribunal’s decision provides a relevant ground of review not excluded by s 476(2) of the Act.

17                  I would accordingly dismiss the appeal with costs.

Associate:

Dated:              21 May 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

FINKELSTEIN J:

18                  In 1946, in England, a licensing authority granted a licence to the proprietors of a cinema to open their cinema on Sunday, on condition that “no children under the age of fifteen years shall be permitted to any entertainment, whether accompanied by an adult or not”.  The condition was imposed to protect the spiritual well-being of the children.  The proprietors challenged the decision.  They said it was unreasonable.  The court did not agree.  It upheld the authority.  But the court did accept the proposition that if a decision by an authority is so unreasonable that no reasonable authority could ever come to it, the decision will be set aside.  That principle is usually referred to by the shorthand expression “Wednesbury unreasonableness” after the name of the case, Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223.  It is one of the circumstances in which a court will quash the exercise of an administrative discretion:  Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240 at 249.

19                  In 1985, Lord Diplock said that the grounds of judicial review could conveniently be classified under three heads – illogicality, irrationality and procedural impropriety:  Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410.  By irrationality, Lord Diplock was referring to “Wednesbury unreasonableness”.  He said ([1985] AC at 410) that “it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”  However, the cases show that it is very difficult to establish “Wednesbury unreasonableness”.  An administrative decision-maker is often guilty of faulty or erroneous reasoning, but it is not easy to prove that he has taken leave of his senses.  And this is what is required to establish that ground.

20                  To meet this difficulty, the principles of administrative law in England have not stood still since 1948.  Irrationality has now developed to the point where it can be said (and Lord Woolf MR has said), that it has two faces:  “one is the barely known decision which simply defies comprehension; the other is a decision which can be seen to have proceeded by flawed logic”:  R v North and East Devon Health Authority; Ex parte Coughlan [2000] 2 WLR 622 at 647.  As Lord Woolf MR went on to indicate, a decision may satisfy the first criterion because it is not outrageous, but the courts in England are just as concerned with ensuring that the decision passes the second test. 

21                  Not every administrative decision involves the exercise of a discretionary power.  A decision-maker is often required to make findings of fact, and sometimes findings of a “jurisdictional” fact.  Those findings may be of primary facts, or findings by way of inference from primary facts.  In either case, the decision-maker may make a wrong finding, or what appears to be a wrong finding.  One cause for error may be that the decision-maker has proceeded on a flawed basis, so that the result might be described as illogical.  Is an administrative decision that is based on flawed logic reviewable? 

22                  The basic premise from which any discussion on this topic must begin is that “[t]here is no reviewable error simply in making a wrong finding of fact”:  Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303 per Dawson, Gaudron, McHugh, Gummow and Kirby JJ, citing Waterford v The Commonwealth (1987) 163 CLR 54 at 77 per Brennan J.  That is not to say, however, that every finding of fact (primary or secondary) is immune from review.  For example, it is now accepted that a decision that is based on a finding of fact made without evidence to support it, is a decision made without jurisdiction:  Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.  When the disputed fact is a primary fact, often the question that is asked is “Was there any evidence to support the finding?”.  But where the case concerns a finding by inference, the question must be different.  In Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 at 37-38 Mildren J explained:

“If there are no primary facts upon which a secondary fact could be inferred, and the secondary fact is crucial to the ultimate finding as to whether or not the case fell within the words of the statute, there is an error of law. If there are primary facts upon which a secondary fact might be inferred, there is no error of law.  It is not sufficient that this Court would have drawn a different inference from those facts.  The question is, whether there were facts upon which the inference might be drawn.  In Instrumatic Ltd v Supabrase Ltd [1969] 1 WLR 519 at 521; [1969] 2 All ER 131 at 132, Lord Denning MR, with whom Edmund Davies LJ and Phillimore LJ agreed, said that ‘if a tribunal draws an inference which cannot reasonably be drawn, it errs in point of law, and its decision can be reviewed by the courts.  That was settled, once and for all, in Edwards (Inspector of Taxes) v Bairstow [1956] AC 14’ (emphasis mine).  The word ‘reasonably’ suggests that this Court could interfere if it thought the inference drawn was unreasonable.  With respect, I think difficulty of understanding may arise by the use of pejorative words such as ‘perverse’, ‘unreasonable’, illogical’ and the like expressions which by their nature indicate only that in the opinion of the user, the decision ought not to have been made, and the user holds that opinion rather strongly.  It is better not to use such words.  In the context of this discussion, if an inference cannot reasonably be drawn, it will be because the inference cannot be drawn from the primary facts.  However, if the inference is one about which minds might differ, it being a question of judgment or degree, the inference not only can be drawn but it would not be unreasonable to draw it.”

23                  What is the position according to the common law when the complaint is that a finding of fact (primary or secondary) is the product of illogical reasoning?  I will use the word “illogical” to refer to a situation where the reasoning that led to the finding is unsound.  Usually reasoning is used to establish the truth of a proposition.  In most proceedings a tribunal is not concerned with ascertaining whether a proposition is true, but only whether it is probable to an appropriate degree.  For the purposes of the proceeding before that tribunal the proposition will then be regarded as true. The process of reasoning to establish that a proposition is probable to the appropriate degree is one that is either deductive or inductive.

24                  Lord Diplock was of the view that findings or inferences were reviewable for error of law on the ground that they could not be reasonably made from the evidence (primary facts) or could not reasonably be drawn from the primary facts.  In R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488, he said that a decision-maker must base his decision:

“[o]n material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant.”

In Mahon v Air New Zealand Ltd [1984] AC 808, he said (at 821) that a decision-maker must base his decision on probative evidence and that “[w]hat is required is that the decision to make the finding must be based upon some material that tends to logically show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory.”  See also the views of Lord Denning in T A Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 at 995 and Kavanagh v Chief Constable of Devon and Cornwall [1974] 1 QB 624 at 633, which are to the same effect.

25                  This approach found favour with both Brennan J and Deane J when they were members of the Federal Court.  In Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33, Brennan J said (at 41-42) that a decision-maker can find facts fairly without observing the rules of evidence, yet the findings must be based on logically probative material.  On appeal, ((1980) 4 ALD 139), Deane J, with whom Evatt J agreed, said (at 155-156):

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

26                  However, the Full Court has rejected this view.  In Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411, Black CJ, von Doussa and Carr JJ (referring to comments made by Mason CJ in Bond at 356-357) declared that, according to the common law of this country, want of logic in arriving at a decision is not a reviewable error of law.  So, in the view of the Full Court, a decision-maker will not fall into legal error when he fails to rationally consider only probative evidence to arrive at a decision. 

27                  Accordingly, provided a decision is not outrageous, it will be valid notwithstanding that it is based on flawed logic or is arrived at from self-contradictory conclusions.  Recognising the import of this conclusion, the Full Court accepted that a decision based on flawed reasoning may well be an indication that the decision-maker had erred in one of the traditional categories.  Although Epeabaka was concerned with an attack on findings of fact, the case is regarded as having wider effect.  It seems, from the manner in which the Full Court analysed the issue, that it would reject as incorrect the proposition that a discretionary decision could be set aside if it were the product of flawed logic.  That is to say, the court in Epeabaka would not accept as a ground of review the second of the “two faces” of irrationality described by Lord Woolf in Ex parte Coughlan.

28                  It is not possible to predict whether the common law in Australia will develop any further in this area.  It is possible to conclude, however, that, as a matter of construction, an obligation along the lines imposed by the common law in England does exist in relation to a decision made in exercise of a statutory power.  It has been held that when a discretionary power is conferred by statute, “the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised”:  Kruger v Commonwealth of Australia (1997) 190 CLR 1 at 36 per Brennan CJ.  What if the power is not discretionary but the decision-maker is authorised to act if certain matters exist or if he or she is satisfied that they exist?  In that circumstance the decision-maker should be under a similar constraint.  That is the view of Spigelman CJ in Hill v Green (1999) 48 NSWLR 161, a view with which I would readily agree.  After referring to the holding in Epeabaka and stating that the common law of Australia does not impose a requirement of logical reasoning, Spigelman CJ said (at 175-176):

“In my opinion, where a statute or regulation makes provision for an administrative decision in terminology which does not confer an unfettered discretion on the decision-maker, the court should approach the construction of the statute or regulation with the presumption that the parliament or the author of the regulation intended the decision-maker to reach a decision by a process of logical reasoning and a contrary interpretation would require a clear and unambiguous words.”

On this approach, a decision that is logically flawed, in the sense that the process of reasoning (inductive or deductive) is not logical, whether in the course of finding primary facts or in the process of inferring secondary facts, will be reviewable for error of law.

29                  When it is sought to apply these principles to a decision made by the Refugee Review Tribunal under the Migration Act 1958 (Cth), a potential difficulty arises.  In the first place, the Migration Act has a code for the review of decisions made by the tribunal.  Few grounds of review are available.  The grounds are found in s 476.  Relevantly s 476(1) provides:

“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)       …;

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

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

(d)       …;

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

(f)        …;

(g)       ….”

30                  In the second place, the limited grounds of review specified in s 476(1) are subject to restrictions that are found in s 476(2), which provides:

“The following are not grounds upon which an application may be made under subsection (1):

(a)       that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)       that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.”

31                  There is little difficulty in fitting into s 476 a decision based on flawed logic that a non-citizen is not a Convention refugee.  In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, Gummow J explained that a decision whether the Minister is satisfied that a person is a Convention refugee is a decision concerning a “jurisdictional” fact; that is, it is a decision that is a precursor to the exercise by the Minister of his duty to grant or to refuse a protection visa under s 65.  If there is error of law in a finding on the existence of a jurisdictional fact, the resultant decision under s 65 would be without jurisdiction (s 476(1)(b)) or would not be authorised by the Migration Act (s 476(1)(c)) or would involve an error of law (s 476(1)(e)).

32                  Section 476(2)(a) would not prevent the decision being set aside.  The obligation to act logically may be an aspect of the rules of natural justice (Mahon v Air New Zealand [1984] 1 AC 808 at 820), which are rules of the common law:  Annetts v McCann (1990) 170 CLR 596.  Here, the imposition of an obligation to act logically is implicit in the conferral of the power and is not derived from an obligation to accord procedural fairness.

33                  Section 476(2)(b) would not take a case of flawed logic outside s 476(1).  Section 476(2)(b) is concerned solely with Wednesbury unreasonableness.  The paragraph is a paraphrase of Lord Greene’s statement of the relevant principle.  Moreover, it is concerned only with discretionary decisions, and decisions made by the tribunal are not of that character.  In any event, I would not construe the paragraph as having application to an implicit statutory limitation on the power of the tribunal. 

34                  I now turn to consider whether the decision of the tribunal in this case is relevantly flawed and should be set aside. 

35                  The appellant, Mr Gamaethige, was born in and lived in Sri Lanka, a country in which a bloody civil war has been waged between indigenous Tamils, who are mainly Hindu, and Sinhalese who, for the most part, are Buddhist.  Since 1977, the civil war has cost over 50,000 lives according to official counts, but the true figure is probably higher.  The Tamils seek the establishment of an independent state in the eastern and northern provinces of the island.  Initially the Tamil Tigers (as the Tamils fighting for a separate state are known) engaged in sporadic hostilities.  But since 1983, the violence has escalated significantly. This has caused a refugee problem, and has resulted in human rights abuses, including disappearances through government abduction and persecution of citizens at the hands of the State.

36                  Mr Gamaethige, a Sinhalese, claims to be a victim of this persecution because of his association with two young Tamils.  This is the case he put to the tribunal.  Mr Gamaethige met two Tamils when he began working at the Ceylon Inn Hotel in Colombo and on 1 August 1994 took up a course in cookery.  The Tamils, known to him only by their first names Babu and Ravi, were also enrolled as students in the course.  In mid-August, Babu and Ravi came to live at Mr Gamaethige’s house, with the consent of Mr Gamaethige’s parents.  On 30 August the police came to the house and took Mr Gamaethige, Babu and Ravi into custody, it being suspected that they were involved with the Tamil Tigers.  After a short period of detention at police headquarters, Mr Gamaethige was taken to an army barracks where he was held for approximately three months.  During his detention, Mr Gamaethige was assaulted so badly that some of his teeth were knocked out, and he was unable to walk.  Mr Gamaethige was released after assurances by a Buddhist monk and his father that he would report regularly to a local police station.  Mr Gamaethige fled from Sri Lanka in March 1995.  Thereafter he has lost contact with his family, and for that reason believes they may have been killed.

37                  If this evidence were to be accepted, Mr Gamaethige would have a strong claim for refugee status.  In the proceeding before the tribunal, Mr Gamaethige did not rely merely on his own testimony.  He called evidence which corroborated his account in significant respects.  First, he tendered a report from a dentist in Sri Lanka who had treated Mr Gamaethige on 10 December 1994, a few days after he said he had been released from detention.  The report was obtained by Mr Gamaethige’s solicitor in 1999.  The relevant parts of the report read:

“The above named patient was present to me with fracture of 321/123 and mobile posteriors.#  mandible maxilla ? Bleeding from nose and smell of a chemical was observed.

He was restless and noted psychological depression.  Post traumatic stress disorder?  He had wounded and swollen hands reddish eyes and swelling in lips.

O.P.G. revealed no # of mandible and maxilla.  Extraction of fractured and loosened 321/123 was performed, and treated with antibiotics and left him on liquid diet.  Advised complete rest.

Injuries of this nature could be a result of an assault … .”

38                  Mr Gamaethige also tendered a report from a medical practitioner in Australia.  The report recorded that Mr Gamaethige had surgery for a right inguinal hernia in April 1999.  The report states that “hernias are not a common occurrence at [Mr Gamaethige’s] age”.  It then goes on: 

“It is very possible that trauma to the region would have made the abdominal wall weak.  It appears that Mr Gamaethige has been hit by the security forces with rifle butts etc.  Considering that Mr Gamaethige is otherwise healthy, severe physical trauma such as that suffered by Mr Gamaethige could be the source of his abdominal wall weakness, leading to the development of a right inguinal hernia.  I find it hard to attribute it to any cause other than severe trauma, that could have led to the abdominal wall weakness.”

39                  I pause to mention that during the course of the hearing the tribunal member commented on this injury.  She inquired whether Mr Gamaethige had suffered the injury at work.  She said that she would make her own inquiries of Mr Gamethige’s employer to determine whether that might be so.  No mention of this is made in the reasons.  This omission suggests that an inquiry had been made and the information elicited did not contradict Mr Gamaethige’s claim.

40                  Finally Mr Gamaethige produced an independent witness, Mr Kadigamuwa.  He gave oral evidence from Melbourne via video link, because the tribunal would not adjourn the hearing to enable Mr Kadigamuwa to attend in Sydney and give direct evidence to the tribunal.  The evidence of Mr Kadigamuwa was to the following effect.  In 1994 he was a flight engineer with the Sri Lankan Air Force stationed at a base near Fort Army Headquarters.  He was approached by a Buddhist priest from a temple near the base and was asked to help secure the release of Mr Gamaethige who was being detained at an army base.  The priest told Mr Kadigamuwa that Mr Gamaethige had been arrested for helping Tamils.  Mr Kadigamuwa went to his commanding officer and together they ascertained that Mr Gamaethige was being held at Fort Army Headquarters.  They were able to secure his release.  Mr Kadigamuwa saw Mr Gamaethige at the time of his release, but did not speak with him.  Mr Kadigamuwa observed that Mr Gamaethige had been beaten, that his face was swollen and cut, and that he had many teeth missing.  Mr Kadigamuwa said that Mr Gamaethige could not walk properly. According to Mr Kadigamuwa he has never spoken with Mr Gamaethige.  Mr Kadigamuwa became involved in the proceeding because he was in Melbourne, studying to be a pilot, and a person who knew Mr Gamaethige mentioned that Mr Gamaethige was making application for a protection visa. 

41                  The tribunal was not satisfied that Mr Gamaethige was a Convention refugee.  It rejected his account of events in Sri Lanka because his claims “were exaggerated, far-fetched and implausible and therefore lacking in credibility.”  In explanation, the tribunal said that Mr Gamaethige’s evidence was “far-fetched”, “inconsistent with the independent evidence” and that there were some “notable inconsistencies in [Mr Gamaethige’s] own evidence”, all of which suggested that Mr Gamaethige had fabricated his claims.

42                  I will leave to one side for the moment the assertion that Mr Gamaethige’s evidence was “far-fetched” and concentrate attention on the remaining two grounds for rejecting his evidence.  First, I will deal with what the tribunal described as the independent evidence which “directly contradicted” Mr Gamaethige’s central claim that he was persecuted because he provided accommodation to two Tamil youths.  The evidence to which the tribunal was referring, is answers by the Country Information Service of the Department of Foreign Affairs and Trade (DFAT) to questions submitted to it by the tribunal.  The questions and answers are set out below:

“Q       Is it plausible that a householder would rent out a room to a young Tamil from the north or the east?

A         It is plausible that a householder would rent out a room to a young Tamil from the north and the east, and in fact there is a lucrative market in doing so.  There are a number of ‘real estate agents’ who find accommodation in Colombo for Tamils from the north and east, at rents which are often higher than the market rate.

Q         If they did, would the security forces torture the householder for information on the boarder and LTTE?

A         Security forces would not torture the householder for information on the boarder and the LTTE.  Householders are obliged to register boarders with the local police station and do so on a regular basis.

Q         Is it plausible for the police to automatically impute such a householder with an LTTE profile, particularly if they were Sinhalese?

A         It is utterly implausible for the police to automatically impute such a householder with an LTTE profile, particularly if they were Sinhalese.

Q         Apart from a Sinhalese collaborating with the LTTE for illegal financial gain, is it plausible that a Sinhalese would support the LTTE?

A         Apart from a Sinhalese collaborating with the LTTE for illegal financial gain, it is utterly implausible that a Sinhalese would support the LTTE.”

Some time later, the Country Information Service provided further information:

“DFAT acknowledges that whilst there are people of all communities who benefit financially from the war in Sri Lanka, and this would include through payments made by the LTTE, it is not credible that a Sinhalese would ‘sympathise’ with the LTTE.  DFAT advises that whilst there could be Sinhalese intellectuals who believe, theoretically, in the right of the Tamil population to self-determination, and possibly even to a separate Tamil state, it is not credible that a Sinhalese would ‘sympathise’ with or support the methods/activities of the LTTE.”

43                  It is difficult to understand why the tribunal came to the conclusion that this “evidence” directly contradicted that given by Mr Gamaethige.  A fair reading of the “evidence” shows that it has either no bearing, or only a marginal bearing, on Mr Gamaethige’s claim.  The questions are designed to illicit information about the possible effect of a “householder” renting a room to a young Tamil.  Mr Gamaethige, Babu and Ravi did not merely stand in relation of landlord to tenants.  Although Babu and Ravi paid rent for their room, it is likely that the rent was paid to Mr Gamaethige’s parents.  Further, Babu and Ravi were friends of Mr Gamaethige; as he put it, they were “very close friends”.  The Country Information Service was not asked to provide information about how the authorities would regard a Sinhalese who was a close friend of Tamil youths.  The statement that “it is utterly implausible for the police to automatically impute … a householder with LTTE profile, particularly if they were Sinhalese,” must be understood in the context of the question to which this statement is in answer – that question enquires after the position of a Sinhalese whose only association with Tamils is as landlord.

44                  As to the alleged inconsistencies in Mr Gamaethige’s evidence, the tribunal had in mind a number of matters.  First there is a supposed inconsistency concerning where Mr Gamaethige met Babu and Ravi.  At one point Mr Gamaethige had informed the Minister that they met “while [he] was doing his cooking course.”  At another point Mr Gamaethige said that they met at the hotel where he worked.  This evidence is not necessarily inconsistent when it is remembered that the cooking class may have been conducted at the hotel.

45                  The next inconsistency relates to Mr Gamaethige’s claim that Babu and Ravi were his “close friends”, yet he was only able to provide vague information about their background, had never met their parents, and could not describe their physical appearance in detail.  I need say little about this evidence, and the tribunal’s conclusions, save to indicate that some aspects (for example not having met the parents) may easily be explicable. 

46                  The tribunal regarded as inconsistent evidence as to when Mr Gamaethige became aware that Babu and Ravi were Tamils.  The tribunal said that in his written statements Mr Gamaethige was “unequivocal” in making the suggestion that he was aware they were Tamils when they moved into his home.  At the hearing, Mr Gamaethige said that he discovered Babu and Ravi were Tamils after he had been taken to police headquarters.  For the sake of accuracy I note that, in his written statement to the Minister, Mr Gamaethige said that he discovered that Babu and Ravi were from the northern peninsula when he was taken to police headquarters.  More importantly, however, Mr Gamaethige’s written statements are open to the interpretation that he was not aware that Babu and Ravi were Tamils when they first met.  He did write that he met “Babu and Ravi two Tamil boys” at the cookery course.  When this statement was made, however, Mr Gamaethige already knew that Babu and Ravi were Tamils and his statement seems not to be directed to the time when this knowledge was acquired. 

47                  The tribunal also said that there was inconsistency between Mr Gamaethige’s statement that his father was a devout Buddhist and the fact that his father allowed “complete strangers to stay at [his] home on [Mr Gamaethige’s] say so.”  The “inconsistency” is not evident to me.

48                  Having dealt with these “inconsistencies” and the “contradictory” independent evidence, the tribunal stated that it was not satisfied that Mr Gamaethige ever had the two Tamil friends, that it was not satisfied that Mr Gamaethige had given them accommodation, and that it was not satisfied that Mr Gamaethige had been arrested for doing so, or was physically mistreated while in detention.

49                  The tribunal then turned to the corroborating evidence.  As regards the letter from the dentist, the tribunal said it would ignore the observations about Mr Gamaethige’s mental condition because the dentist had no training or qualifications to make those comments.  And, “in the light of the dentist’s ambiguous statement about how any injuries … were sustained,” the tribunal could not say that they were sustained for a Convention related reason.”  With regard to the doctor, the tribunal said that he was “relying on the applicant’s assertions as to how the hernia was sustained” and as that evidence was not accepted, the tribunal could not be satisfied that the medical report demonstrated physical mistreatment by the Sri Lankan authorities.

50                  What of the eye witness, Mr Kadigamuwa?  His evidence was to the effect that he had never met Mr Gamaethige, but helped secure his release from the army barracks because he had been requested to do so, and that Mr Gamaethige was suffering severe injuries at the time of his release, consistent with mistreatment.  Did the tribunal believe this witness?  We will never know the answer, because the tribunal said nothing about Mr Kadigamuwa, other than to indicate that because it found that Mr Gamaethige “thoroughly lacks credibility and … has misled the tribunal”, it gave “no weight to this evidence”.

51                  Many of the findings made by the tribunal concerning the “inconsistencies” in Mr Gamaethige’s evidence and the supposedly “inconsistent” independent evidence are plainly erroneous.  If there were a general right of appeal from a decision of the tribunal, these findings would not stand and its decision would be set aside.  But there is no right of appeal.  There is only judicial review on limited grounds, and the erroneous findings are not impeachable on any of the available grounds. 

52                  I said I would return to the tribunal’s statement that Mr Gamaethige’s evidence was “far-fetched”.  I do not take the tribunal to be saying that it is “far-fetched” that citizens of Sri Lanka are not persecuted at the hands of the State.  It is clear that sometimes they are.  If the tribunal was of a different opinion it might be shutting its eyes to the realities of the world and hence its decision would be affected by bias.  Properly understood, the tribunal is merely emphasising its lack of satisfaction with the evidence given by Mr Gamaethige for the reasons it has given.

53                  Although the erroneous findings by the tribunal are not reviewable under s 476(1), the manner in which the tribunal dealt with the corroborative evidence stands on a different footing.  As the trial judge (Branson J) said:

“[I]t seems plain … from the tribunal’s reasons that the tribunal did not seek to make an assessment of the applicant’s credibility having regard to all of the evidence and other material before it.  Rather, the tribunal made an adverse assessment of the applicant’s credibility and then turned to consider the evidence of Mr Kadigamuwa and the medical and dental reports concerning the applicant.”

Later the trial judge said:

“I have grave reservations about the integrity of the fact finding process engaged in by the tribunal in this case.”

Later again the trial judge said:

“The significant errors made by the tribunal in this case are open to be seen as errors attributable to lack of competence.”

54                  Put another way, the tribunal’s approach to the task of finding facts was flawed.  The tribunal was required to determine whether the facts asserted by Mr Gamaethige were true or probable (note the danger identified by the High Court in Wu Shan Liang v Minister for Immigration and Multicultural Affairs (1996) 185 CLR 259 at 282–283 of stating the requirement in terms of “balance of probabilities”).  It was not required to accept his evidence in that regard because that evidence may have been discredited in various ways.  For example, if the evidence was inherently improbable, or if it was inconsistent with more reliable evidence, or if it was given in a manner which appeared to suggest that Mr Gamaethige should not be believed, the asserted facts could be discounted.  However, in deciding whether or not the asserted facts were true or probable, the tribunal was required to take into account the corroborative evidence because that evidence had a tendency to make it more likely that the asserted facts were true or probable.  This is not to say that the tribunal was required to accept the corroborative evidence as true or probable.  As with the evidence given by Mr Gamaethige, the corroborative evidence may be impeached.  But unless it were impeached, it could not be ignored.  Importantly, in the process of reasoning, the tribunal was not entitled to pay no regard to the corroborative evidence in the course of deciding whether the evidence of Mr Gamaethige was true or probable and then use its conclusion on that evidence (that it was untrue) to impeach the corroborative evidence.  This is what the tribunal did, to some extent in the case of the two medical reports, and completely in the case of Mr Kadigamuwa. 

55                  The trial judge would not set aside the decision of the tribunal.  She said:  “I conclude with some regret that there is no ground upon which this court is able to set aside the decision of the tribunal.”  There is an important difference between the manner in which Mr Gamaethige put his case at trial and how it was argued on appeal.  Before the trial judge Mr Gamaethige did not contend that the decision of the tribunal could be set aside because it was the product of illogical reasoning.  If such an argument had been put, and the trial judge had accepted that this was an available ground of review, it is apparent she would have set aside the decision.  On appeal this is how the argument was put, and I am of opinion that it is an available ground of review and that it has been made out.

56                  Accordingly, I would allow the appeal, set aside the order of the trial judge, and in lieu thereof would order that the decision of the tribunal be set aside, and the matter be remitted to the tribunal for reconsideration according to law.  The appellant should have his costs of the appeal and of the hearing below.

Associate:

Dated:              21 May 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

STONE J:

Introduction

57                  The applicant, Mr Rohan Kapila Gamaethige, is a Singhalese citizen of Sri Lanka who arrived in Australia on 19 March 1995 on a visitor’s visa. He subsequently obtained a temporary resident visa that was extended on two occasions.  On 25 June 1997 he applied for a protection visa. A delegate of the respondent Minister refused the application on 29 July 1997. The Refugee Review Tribunal (“Tribunal”) affirmed the delegate’s decision on 30 September 1999. On 2 August 2000, a judge of this Court dismissed Mr Gamaethige’s application for an order of review of the Tribunal’s decision; Gamaethige v Minister for Immigration & Multicultural Affairs [2000] FCA 1025. The applicant has appealed against that decision.

58                  At the hearing Mr Beech-Jones, counsel for the appellant, was given leave to file an amended notice of appeal and a further amended application for an order of review (“Application”). The amended notice of appeal specified that the trial judge had erred:

1                    in finding that the Tribunal’s decision did not involve an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal;

2                    in finding that the Tribunal’s decision was not induced or affected by actual bias;

3                    in failing to find that the Tribunal did not have jurisdiction to make the decision; and

4                    in failing to find that the Tribunal was not authorised to make the decision.

59                  Counsel for the appellant did not press the first ground of appeal. However, because the third and fourth grounds of appeal were not raised at first instance, counsel sought leave to file the amended notice of appeal. The respondent opposed their inclusion relying on the reasons set out in H v Minister for Immigration & Multicultural Affairs [2000] FCA 1348 at [8]. In that paragraph, Branson and Katz JJ, observing that the past readiness of appeal courts to allow a fresh point to be argued is unlikely to be continued, stated that:

 “It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of the other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration.”

60                  While I do not dissent in any way from those sentiments, I do not believe that in this case the additional points raised by the appellant prejudice either the administration of justice or the respondent’s ability to deal with the appellant’s claims. As Mr Beech-Jones noted in his written submissions on this issue, the proposed amendments involve only a new way of particularising an existing issue and can fairly be determined on the existing evidence. I therefore would give the leave sought.

The appellant’s claims

61                  The appellant claimed that in August 1994 he commenced a cooking course at a hotel school in Colombo where he met two young men whom he knew only as “Ravi” and “Babu”.  The appellant became very friendly with these two young men who he said spoke Singhalese with a Colombo accent. The applicant claimed that this accent is “quite different from the accent of Tamils who come from other parts of Sri Lanka”. The young men were unhappy with their accommodation and the appellant arranged with his father for the two boys to live in a room in the appellant’s family home.  On 30 August 1994, the police took the three young men into custody. The appellant claimed that it was only at this point that he became aware that the two young men were Tamils from the northern peninsula.  The appellant claims that while in detention (30 August to 1 December 1994) he was frequently tortured. He was beaten, many of his teeth were knocked out, he was hung over pots of frying chillies for one to two hours at a time and his testicles and penis were jammed in a drawer.  He claims that the army officers abused him saying that he was a Singhalese who had helped “our enemies”, that is the Liberation Tigers of Tamil Eelam (“LTTE”).

62                  The appellant claims that on 1 December 1994 he was released from custody following assurances given by a Buddhist monk and by his father.  He was ordered to report to the local police station every week and not to go out of the area without informing the police.  On the advice of his parents and with the assistance of a migration agent to whom he paid 300,000 Sri Lankan rupees he applied for and obtained a visitors visa for Australia and arrived in Melbourne on 19 March 1995.

63                  The appellant submitted a letter from Dr Karalasingham dated 28 June 1999 to the Tribunal. The letter stated that the appellant had been treated for an inguinal hernia. This condition, which occurs where there is a weakness in the abdominal wall, was said to be uncommon in a man of the appellant’s age.  The letter noted that the doctor had been told that the appellant had been hit by rifle butts and stated that, “I find it hard to attribute it to any other cause other than severe trauma.”

64                  The appellant also submitted a report from his dentist in Colombo concerning the injury to his teeth. The report which, as Mr Beech-Jones commented, appeared to be a typed version of the doctor’s notes, confirmed the injury and contained the following comment: “He was restless and noted psychological depression. Post traumatic stress disorder? He had wounded and swollen hands reddish eyes and swelling in lips.” [emphasis omitted] The report also commented that, “Injuries of this nature could be the result of an assault”.

65                  The appellant called a witness to give evidence to the Tribunal. The witness gave evidence by telephone from Melbourne on 29 July 1999. He told the Tribunal that he was a flight engineer in the Sri Lankan Air Force for 12 years until April 1995. In the course of his work with the Air Force he got to know some of the officers. Because of these connections, the priests at the temple where he prayed sometimes asked him to assist people in detention. In 1994, he was asked to assist in finding the appellant. With the assistance of his commanding officer, he found the appellant after about two weeks. He went with his commanding officer to the camp where the appellant was held. He saw the appellant’s father and the priest there and also saw the appellant coming out with the guards. The witness told the Tribunal that the appellant couldn’t walk properly, that his face and lips were badly damaged and that he had no teeth. The witness did not speak to the appellant and he did not see him again. He said that in Australia he spoke to the appellant only once, when he was asked to give evidence. The witness’s evidence as to the date of the appellant’s release was consistent with that of the appellant.

66                  The transcript of the interview with the witness shows that the interview, which was by video link between Melbourne and Sydney, was affected by language difficulties.  There were a number of instances where the witness and the Tribunal seemed not to understand each other and Mr Fergus, the solicitor who assisted the appellant at the Tribunal hearing, intervened to rephrase the question. Despite this assistance, some confusion seemed to remain about exactly what the witness understood of the reasons for the appellant’s detention and exactly what happened at the camp when the appellant was released.

67                  The appellant claims that since his arrival in Australia he has lost contact with his family. He claims that a friend told him that two weeks after his escape his family was taken into custody. They never came back and the appellant believes that they have been killed because he had escaped.  He was vague about the time when he was first told this. He also said that he had known this friend for a long time but could not remember the friend’s surname. He claimed that he asked a Sri Lankan acquaintance whom he met in Australia to go to his parents’ home. After returning to Sri Lanka, the acquaintance reported that the appellant’s parents were no longer living at their previous address. A friend of the appellant made a statutory declaration stating that he had initiated enquiries that had confirmed that the appellant’s family did not live at their previous address.

68                  At the hearing, the Tribunal questioned the appellant in detail as to why the police automatically imputed that a Singhalese householder who took in Tamil boarders would be seen to have been supporting the LTTE. This questioning was in the light of evidence from the Department of Foreign Affairs and Trade that “it is utterly implausible for the police to automatically impute such a householder with an LTTE profile, particularly if they were Singhalese".

69                  There were a number of other aspects of the appellant’s story that the Tribunal regarded as inconsistent with or improbable in light of his claims. The Tribunal queried why the appellant had not applied for a protection visa until June 1997, more than two years after he had arrived in Australia. According to the appellant, this was because when he first arrived in this country, he was under the impression that the situation in Sri Lanka would improve and he would be able to go back to his country.  The Tribunal expressed surprise that the appellant could have left Sri Lanka on a legal passport and without hindrance if this “escape” was the cause of his family being taken into custody and killed.  It regarded the fact that the appellant had been able to renew his passport without difficulty as casting further doubt on his story. The Tribunal also expressed surprise at the appellant’s ignorance of Ravi’s and Babu’s background and even of their surnames and at the fact that he was unable to give other than an “ill-defined” physical description of them.

The Tribunal’s decision

70                  In addition to the appellant’s evidence, the Tribunal also considered independent evidence from a number of sources including the Department of Foreign Affairs and Trade and the United States Department of State.  The evidence about the awareness of ethnicity in Sri Lanka was such as to cast doubt on the appellant’s claim to have been unaware of the ethnic origin of Babu and Ravi. The evidence also indicated that the security forces would not torture a householder to get information on the boarder and the LTTE.

71                  The Tribunal commented on other parts of the appellant’s evidence that it found to be improbable or inconsistent including the issues discussed in paragraphs 68 and 69 of these reasons. Ultimately the Tribunal wholly rejected the appellant’s story. It found that the appellant’s claims:

“were exaggerated, far-fetched and implausible and therefore lacking in credibility. In consideration of the applicant’s lack of credibility, the Tribunal cannot be satisfied that there is any real chance of the applicant being harmed for a Convention reason in Sri Lanka in the foreseeable future.

His claims and evidence were not only far fetched, but also inconsistent with the independent evidence, and some notable inconsistencies in the applicant’s evidence that suggest  the applicant has fabricated these claims”

72                  The Tribunal went on to say that it was not satisfied that the applicant ever had two Tamil friends as he claimed or that he was arrested for giving them accommodation or that he was physically mistreated or imputed with any political opinion.

73                  The Tribunal accepted that the appellant had suffered the injuries attested to by the medical and dental evidence but was not satisfied that they were sustained for a Convention related reason. It commented that Dr Karalasingham was relying on the appellant’s evidence as to how the injury was sustained. The Tribunal said that the dentist’s statement about how the injuries were sustained was ambiguous and that there was nothing to suggest that the dentist had any training or qualification to make findings on the applicant’s psychological state. The Tribunal therefore did not give any weight to the dentist’s comments.

74                  The Tribunal’s wholesale rejection of the applicant’s claim also influenced its assessment of the witness who said he assisted in the appellant’s release from detention. It stated that:

“In light of the Tribunal’s findings above that the applicant thoroughly lacks credibility, and its findings that the applicant has misled the Tribunal in regard to his claims to fear harm by the Sri Lankan authorities, it cannot be satisfied with the corroborating evidence given by the applicants witness [sic], and gives no weight to this evidence.”

75                  The Tribunal did not give any reason for rejecting the evidence of the witness other than its finding on the appellant’s credibility.

Consideration

76                  The Tribunal’s reasons for its decision are unsatisfactory in a number of ways. The most striking deficiency is the way in which the Tribunal approached the evidence that the appellant put before it. This is particularly so in relation to the witness who gave evidence concerning the appellant’s physical state at the date of his release from detention. The Tribunal stated that it gave no weight to this evidence because of its finding on the applicant’s credibility. As the trial judge said, it was theoretically open to the Tribunal to find that the witness told the truth or told a story which was partly or wholly untrue. While one can surmise that the Tribunal did not accept the witness’s evidence, the Tribunal did not make an express finding to this effect or any comment as to whether it thought that the witness had deliberately sought to mislead the Tribunal or had been somehow mistaken in his evidence.

77                  Having considered the Tribunal’s treatment of the appellant’s evidence, the trial judge commented:

“the Tribunal did not seek to make an assessment of the applicant’s credibility having regard to all of the evidence and other material before it. Rather, the Tribunal made an adverse assessment of the applicant's credibility and then turned to consider the evidence of [the witness] and the medical and dental reports concerning the applicant.”

78                  This approach led the trial judge to express “grave reservations about the integrity of the fact-finding process engaged in by the Tribunal in this case”.  It is also a significant element in the appellant’s claim that the Tribunal’s decision was affected by actual bias, which is a ground for review under s 476(1)(f).

Was the Tribunal’s decision affected by actual bias

79                  If the criterion for review were apprehended bias the appellant would be on strong ground but the statutory requirement is actual bias. There is ample authority that this requires not just an appearance of impartiality but that the decision-maker has pre-judged the case so as to be unable or unwilling to decide it impartially. Such an allegation is not to be made lightly. As Burchett J said in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (“Sun”) at 127,

“…a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach. It would be a sad reflection on administrative tribunals, and certainly on courts which exist in the name of justice, if it were to be seen as other than exceptional.”

80                  Not only is it a grave matter but, if the finding of actual bias is made lightly, it threatens one of the foundations of judicial review of administrative action in Australia which is that, short of illegality and subject to political control, the merits of administrative action are for the repository of the relevant power; Attorney-General (N.S.W.) v Quin (1990) 170 CLR 1 at 36 per Brennan J. These sentiments and those of Burchett J were adopted by Sackville J in  Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at [32]. His Honour stated that:

“In my view, it would threaten the principle, as well as do violence to the restrictive language of s 476(1)(f) of the Migration Act, to make the leap too readily from factual error or faulty reasoning (even serious factual error or misconceived reasoning) to a finding of actual bias.”

81                  Sackville J drew attention to the fact that the role of a tribunal involves a variety of fact finding and information gathering functions that are characteristic of an administrative decision-making process and are very different from the role of a court exercising judicial functions. This role may necessarily involve a tribunal in forming tentative conclusions as it goes through the process of fact finding and information gathering. This process does not, in itself, indicate bias. Similarly a conclusion of bias is not inevitable merely because the decision-maker holds preconceptions.  In Vakauta v Kelly (1989) 167 CLR 568 at 576, Dawson J, quoting from Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554, commented:

“… a fair and unprejudiced mind “is not necessarily a mind which has not given thought” to relevant matters or one which, having thought about them, “has not formed any views or inclination of mind upon or with respect” to them.”

82                  His Honour accepted that “remarks indicative of a closed mind upon the question of the credibility” of a witness may give rise to a reasonable apprehension of bias.  However the question of actual bias is much more difficult. In most contexts in which bias arises it is not necessary to distinguish between actual and ostensible bias and therefore there are few helpful authorities on the distinction. The point was discussed at length by North J in Sun who commented:

“Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant … The courts have rarely found actual bias to exist. That is principally because, at common law, a reasonable apprehension of bias suffices to disqualify a judicial officer. Where actual bias exists, reasonable apprehension of bias will also exist and, consequently, courts concerned with supervising the application of the requirements of natural justice have not had to go so far as to find actual bias. Another reason is that actual bias is usually difficult to prove.”

83                  Mr Beech-Jones referred to numerous instances that, he said, indicated bias on the part of the Tribunal. He argued that, as in Sun, while each individual component of the way in which the Tribunal reasoned may have been just open on the evidence, together they formed a pattern of rejection that indicates bias on the part of the Tribunal. In particular Mr Beech-Jones referred to the Tribunal’s statement that it could not be satisfied with and gave no weight to the corroborating evidence of the appellant’s witness. It stated that this was because of its findings “that the applicant thoroughly lacks credibility, and its findings that the applicant has misled the Tribunal in regard to his claims to fear harm by the Sri Lankan authorities”.  It was submitted that this comment indicated that the Tribunal had formed a concluded opinion before considering the evidence of the witness and showed that the Tribunal’s decision was affected by actual bias.

84                  In my opinion, this conclusion is not warranted. While the comment may raise an impression of bias, it is also consistent with the Tribunal forming a strongly negative but preliminary view about the appellant’s credibility and then, having considered the evidence of the witness, concluding that the evidence did not resolve the fundamental problems with the appellant’s credibility. It is worth noting in this regard that the witness’s evidence did not address, and therefore could not resolve, aspects of the appellant’s case that were crucial to the Tribunal’s dissatisfaction. For instance, it did not deal with the Tribunal’s concerns about the issues raised in paragraphs 68 and 69 of these reasons.  Ultimately the Tribunal was left with what it believed were many gaps and inconsistencies in the appellant’s story. While these might not individually lead to rejection of his claims it may be that together, in the Tribunal’s view, they formed a pattern that was fatal to his credibility.  It may also be the case that the Tribunal did not understand the import or significance of some of the evidence and that its discussion of the evidence was inept. Certainly the trial judge was of the opinion that the errors made by the Tribunal were consistent with a lack of competence dealing with the evidence. This creates “a sense of unease as to the willingness of the Tribunal to be persuaded of the truth of the applicant’s story”.  However, this apprehension of bias does not meet the statutory requirement of “actual” bias as set out in s 476(1)(f).

Irrationality as a ground of review

85                  The appellant’s concern regarding the standard of the Tribunal’s decision-making also expressed itself in the claim that Tribunal’s reasoning was irrational, particularly in relation to its treatment of the evidence of the appellant’s witness. Mr Beech-Jones argued that the witness had independently given evidence of the appellant’s detention, his torture and the reasons for it. However, the Tribunal’s rejection of this evidence did not refer to his demeanour, the inherent implausibility of his evidence or any other rational or probative factor affecting his evidence but only to problems of the appellant’s credibility.

86                  In Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, the full Federal Court (Black CJ, von Doussa and Carr JJ) expressed the view that, although a failure of logic in drawing an inference is not the same kind of error as making a simple mistake of fact, such a failure is not an error of law.  The Court also observed, at [25], that “want of logic might in some cases also sound a warning note to put one on inquiry whether there was only a purported, and not a real, exercise of the functions entrusted to the decision-maker”. This is the approach adopted by Mr Beech-Jones in his submission that the irrationality in the Tribunal’s reasoning gave rise to a ground of review

87                  Mr Beech-Jones relied on the comments of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (“Eshetu”) at [128]-[131].  In summary, the argument was that s 65 requires the Minister to grant a visa if the criteria set out in the section have been met and, if not so satisfied, to refuse it. If the Minister’s decision to grant or not to grant a visa is made on the basis of irrational or illogical reasoning then the decision made is not in conformity with the requirements of the Act and there is a jurisdictional error.  Jurisdictional error is a ground of review under s 476(1)(b) and (c). Section 476(1), however, operates subject to s 476(2)(b), which provides that it is not a ground of review under subsection (1) that the decision involved an exercise of power so unreasonable that no reasonable person could have so exercised the power.

88                  Gummow J did not accept that the limitation on judicial review posed by s 476(2)(b) applied in these circumstances commenting at [154] that:

“… where the question is whether the Minister was obliged by s 65 to grant a protection visa upon satisfaction the applicant met the criterion under s 36(2) for a protection visa, ‘Wednesbury unreasonableness’ does not enter the picture. Rather, the question would appear to be whether the Minister did not have jurisdiction to make the decision (s 476(1)(b)), the decision was not authorised by the Act (s 476(1)(c)), the decision involved an error of law (s 476 (1)(e)) or there was no evidence or other material to justify the making of the decision (s 476(1)(g) as amplified by s 476(4)). The exclusion by s 476(2)(b) of ‘Wednesbury unreasonableness’ would not be material.”

89                  Mr Beech-Jones pointed out that that his Honour did not limit his comments to circumstances where a positive opinion was formed under s 65 but applied his test of judicial review to the reasoning of the Tribunal in Eshetu itself which involved the refusal of a protection visa.

90                  Mr Gageler, counsel for the respondent, pointed out that Gummow J’s comments on this point were obiter, were not joined in by other members of the Court and were acknowledged by Gummow J at [129] to be provisional and not based on detailed submissions. However Mr Beech-Jones submitted that this analysis of jurisdictional error was endorsed by the joint judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [34]; footnote 57.  Relevantly, this case concerned s 35(3) of the Development Act 1993 (SA) which provided that in certain circumstances a provisional development plan consent must not be granted without the concurrence of certain authorities. In the text accompanying footnote 57, their Honours made the following comment:

“Had s 35(3) been expressed so as to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs … further questions would have arisen. In particular, the existence of the opinion or satisfaction would be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker (57).”

91                  As well as referring to Eshetu, the footnote refers, without distinction, to a number of other cases including R v Connell; Ex parte Hetton Bellbird Collieries Ltd [No 2] (1944) 69 CLR 407 at 430, 432, Foley v Padley (1984) 154 CLR 349 at 369-377 and Buck v Bavone (1976) 135 CLR 110 at 118-119. These references indicate that the footnote is an endorsement of Gummow J’s analysis of jurisdictional error. However, taken in context, there is no reason to read the footnote as endorsing all aspects of Gummow J’s views in Eshetu. In particular, the reference would need to be a much more specific to be read as endorsing the view that s 476(2)(b) relates only to the review of discretionary powers – that is, only to review on the basis of Wednesbury unreasonableness.

92                  While s 476(2)(b) certainly uses the language of Wednesbury unreasonableness, as a matter of the ordinary principles of statutory construction there is no justification for confining it to those principles. When one considers the provisions of the Act which govern judicial review, it is clear that the legislature intended such review to be limited; see also the explanatory memorandum which accompanied the Migration Reform Bill 1992 (Cth). In this context, it is not appropriate to limit the effect of the restriction imposed by s 476(2) by seeking to graft it onto common law stock. I see no reason to give the words of s 476(2)(b) a meaning other than their conventional meaning or to be unduly technical in their interpretation. In this regard, I agree with the comments of Madgwick J in Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 436 at [30]. His Honour made the point that s 476(2) specifically excludes as a ground of review the question of whether a decision is so unreasonable that no reasonable authority could have made it. His Honour continued:

“It makes no difference that the decision turned upon a power to arrive at a jurisdictional fact. Parliament may, in general, by a suitably framed law, validly exclude from judicial review, other than a constitutionally granted power of judicial review, non-Constitutional “jurisdictional facts” … While privative clauses should be jealously construed, it is clear from the terms of s 476(2)(a) and (b) that judicial review by the Federal Court on the grounds of natural justice or unreasonableness is not available.  A denial of natural justice would ordinarily be a jurisdictional error. It would be strange if the supposed unreasonableness, going to a jurisdictional fact, but not natural justice, was outside the exclusion for review affected by subs (2)”

93                  Mr Beech-Jones also suggested that s 476(2)(b) did not apply to the formation of an opinion under s 65 because the formation of an opinion is not the exercise of a power. I do not accept this argument. Section 476(2)(b) refers to a decision that “involved an exercise of a power” that was unreasonable. The failure to be satisfied that the relevant criteria for the grant of a visa were met is a necessary precondition to the decision not to grant the visa and is therefore “involved” in the decision.

94                  For the reasons set out above, I would dismiss the appeal with costs.

Associate:

Dated:              21 May 2001