FEDERAL COURT OF AUSTRALIA

 

Ragunathan v Minister for Immigration & Multicultural Affairs [2001] FCA 1142

 

 

MIGRATION – review of decision of Refugee Review Tribunal – whether procedures required to be observed by s 476(1)(a) were observed – whether Tribunal failed to sufficiently set out reasons and findings on material questions of fact – whether jurisdictional error – whether Tribunal’s decision not authorised by the Act – whether reviewable error of law made by Tribunal – whether Tribunal failed to properly consider the applicant’s claim – whether Tribunal failed to take relevant matters into consideration – whether Tribunal erred in law by failing to consider consequences if it were wrong on findings of fact

WORDS AND PHRASES – “What if I am wrong”

Migration Act 1958 (Cth)

Attorney-General (NSW) v Quin (1990) 170 CLR - followed

Chhour v Minister for Immigration and Multicultural Affairs [2001] FCA 911 - followed

Craig v South Australia (1995) 184 CLR 103 - cited

Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565 - cited

Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 736 - followed

Li Shi Ping v Minister for Immigration Local Government and Ethnic Affairs (1994) 35 ALD 225 - followed

Minister for Immigration and Multicultural Affairs v Anthonypillai (2000) 106 FCR 426 -followed

Minister for Immigration and Ethnic Affairs v Guo (1997) CLR 559 at 576 - followed

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 - followed

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 -followed

Minister for Immigration and Multicultural Affairs v Singh [2000] 98 FCR 469 - not followed

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 - followed

Re The Minister for Immigration and Multicultural Affairs;  Ex parte Durairajasingham (2000) 168 ALR 407 - cited

Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 – followed

Xu v Minister for Immigration & Multicultural Affairs [1999] FCR 425 - followed

War Pensions Entitlement Appeal Tribunal; Exparte Bott (1933) 50 CLR 228 - cited

MANIVANNAN RAGUNATHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO. V 47 OF 2001

 

JUDGE:          BEAUMONT J:

DATE:            20 AUGUST 2001

PLACE:          SYDNEY (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 47 OF 2001

 

BETWEEN:	MANIVANNAN RAGUNATHAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	20 AUGUST 2001
WHERE MADE:	SYDNEY (HEARD IN MELBOURNE)

 

THE COURT ORDERS THAT:

 

1.         The application be dismissed, with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 47 OF 2001

 

BETWEEN:	MANIVANNAN RAGUNATHAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

 

JUDGE:	BEAUMONT J
DATE:	** AUGUST 2001
PLACE:	SYDNEY (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION...................................................................................................................... 2

THE TRIBUNAL’S REASONS................................................................................................. 2

(a)    The background........................................................................................................... 2

(b)    The applicant’s case..................................................................................................... 2

(c)    Legislative framework.................................................................................................. 5

(d)    Discussion and Findings............................................................................................... 5

(e)    Tribunal’s conclusions................................................................................................ 10

THE GROUNDS RELIED ON IN THE CLAIM FOR JUDICIAL REVIEW........................... 12

Ground 1........................................................................................................................... 12

Ground 2:.......................................................................................................................... 13

Ground 3:.......................................................................................................................... 13

Ground 4:.......................................................................................................................... 13

CONCLUSIONS ON THE APPLICATION FOR JUDICIAL REVIEW................................ 13

Consideration of Ground 1................................................................................................. 14

Consideration of Grounds 2 and 3...................................................................................... 36

Consideration of Ground 4................................................................................................. 36

ORDER.................................................................................................................................... 43

INTRODUCTION

1                     This is an application for an order of judicial review, brought under Part 8 of the Migration Act 1958 (Cth) (“the Act”), seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of the Minister’s delegate refusing to grant the applicant a protection visa.  In order to understand the issues that arise in the claim for judicial review, it will be necessary to explain the Tribunal’s reasons for its decision.

THE TRIBUNAL’S REASONS

2                     In essence, the Tribunal’s reasons were as follows:

(a)               The background

3                     The applicant was a 24-year-old male citizen from Sri Lanka who had arrived in Australia on 20 March 1998 under a visitor’s visa. He had lodged an application for a protection visa on 22 April 1998.  The application had been refused on 1 June 1998 by the Minister’s delegate.  The Tribunal had received a valid application for review of this decision on 10 June 1998.  The applicant had attended a Tribunal hearing on 23 November 2000 and had given oral evidence. He had been accompanied by a registered migration adviser and Mr Gowreharan Ghanabalasingam, who had given oral evidence for the applicant.

(b)               The applicant’s case

·                     The applicant stated that he was a Tamil who was born in the Jaffna area of Sri Lanka. However, his family lived in Colombo.  (The Tribunal noted that the applicant “gave some contradictory evidence about his period of residence in Jaffna”.  At one point he claimed he had lived in Colombo all of his life.)

·                     He claimed to have visited Jaffna during school holidays and that he had made friends with supporters of the Liberation Tigers of Tamil Eelam (LTTE).

·                     He claimed that in 1991, some members of the LTTE arranged for him to collect money from LTTE supporters in Colombo, as he lived in that city and they believed that he would not come under suspicion.

·                     He collected money and delivered it in accordance with the arrangements, but feared detection after the person to whom he had delivered the money, Mr Subramaniam, was arrested and ultimately extra-judicially executed in July 1996.

·                     The applicant claimed that he had been arrested in August 1996, on the information of one of the LTTE donors, detained and tortured for two months.  It was alleged by government security officials that he was a member of the LTTE.  He was released on payment of a bribe in October 1996, subject to making fortnightly reports to the authorities.

·                     Mr Ghanabalasingam told the Tribunal that he was a Tamil suspected of involvement with the LTTE.  He said that he had met the applicant in detention where they shared a cell in a “notorious detention centre in Colombo”.

·                     [Since, as will appear, the foregoing and what followed in the Tribunal’s reasons were emphasised in argument, it is necessary to set out the passages in full.]

·                     The Tribunal said:

“The witness, Mr Ghanabalasingam told the Tribunal he obtained refugee status because he is a Tamil and was suspected of involvement with the LTTE.  He said he lived in Jaffna but had lived in a lodging house in Colombo for four or five months when he was detained.  He does not speak Sinhalese and said he had nobody to help him in Colombo when he was arrested.  He said he met the Applicant in detention.  They largely accorded in their accounts of sharing a cell on the ‘fourth floor’, a notorious detention centre in Colombo, although the applicant stated the witness was detained for two or three weeks while the witness said he was detained for less than a week.  The witness said that the Applicant told him he had been detained because he was suspected as a member of the LTTE.  They each said that was the only time they had met in Sri Lanka and that they only met again by coincidence at a birthday party in Melbourne.”

·                     The Tribunal  went on to say:

“The Tribunal commented that it was difficult to believe that security officials would release a person they believed was involved in financing LTTE terrorism after hearing an eye-witness account that he had received LTTE monies from a donor, who directly identified him.  The Applicant responded that a bribe was paid, he was on reporting conditions and that he did not live in Colombo anymore.  He clarified the last point, stating that he escaped from Colombo after an aborted attempt to escape to Canada, about seven or eight months after his release.  He said he was not harassed during that period as he complied with the requirement that he make periodic police reports.”

·                     After an unsuccessful attempt to escape to Canada via Indonesia, the applicant returned to Sri Lanka. He said he had no trouble leaving or re-entering the country, as he had returned before he was due to make his fortnightly report to the authorities and he was assisted by his agent, who paid bribes to facilitate his exit and re-entry.

·                     After he returned to Sri Lanka, the officer who had initially taken a bribe to release the applicant demanded more money under threat.  His father then sent him to hide with relatives in the village Trincomalee.

(The Tribunal noted that it pointed out to the applicant that in his application he had stated that he resided in Colombo until his departure for Australia, to which the applicant’s adviser interjected that he had completed the form and had inserted the applicant’s parents’ home address in that particular section of the form.)

·                     As the applicant had failed to report to police while he was in hiding in Trincomalee, security officials visited the family home in Colombo and threatened his father. His father persuaded the officials that the applicant had gone to work in the Middle East and that he would produce him as soon as he returned.  Apparently his parents after this moved to a new address in the same suburb in order “to avoid unnecessary inquiries and incidents”.

·                     The applicant’s father then arranged for the issue of Australian visitor visas for himself and the applicant, on the pretext that he (the father) needed medical treatment.  The applicant’s father accompanied the applicant to Australia but left a few weeks later, having applied for a protection visa in the meantime.

·                     The applicant claimed that he was helped to escape Sri Lanka by a Muslim agent who had been paid to protect the applicant between Trincomalee and the airport, and had obtained protection through a government Minister.  The agent helped him through immigration controls at the airport and the applicant was able to leave using his own passport.

·                     The applicant stated that his father now lives in India, where he can obtain adequate medical treatment.  His mother still lives in Colombo with his brother.  The applicant told the Tribunal that his brother is paralysed as a consequence of beatings by police who hurt him because of the applicant’s LTTE connections.  (The Tribunal noted that he said he did not mention it prior to the hearing because he did not like to talk about it.)

·                     The applicant fears that he will be arrested detained and killed by the Sri Lankan authorities because he assisted the LTTE, and breached his reporting conditions.  He stated that police can check his records and discover he was detained in relation to the LTTE, even though he was released after payment of a bribe.

·                     He claimed he would be persecuted for making a claim for asylum. The applicant relied upon a wide range of materials that advert to human rights abuses directed at Tamils in Sri Lanka.

(In this section of its reasons, the Tribunal said:

“The Tribunal related to the Applicant its observations that available information suggests Tamils who might be at more risk than other Tamils in Colombo are young Tamils, newly arrived from the war zone, without any history or contracts in Colombo who could vouch for them, and unable to speak Sinhalese to communicate with security officials or otherwise explain their reasons for being in Colombo.  It pointed out that the witness appeared to fit such a profile.  It was common ground that such a profile does not exclude the possibility that other Tamils might face a real chance of persecution and it was submitted that, in the Applicant’s case, such evidence should be given less weight as there is a known history of a connection with the LTTE.  Even the fact that the Applicant is able to speak some Sinhalese would go against him, it was argued, as his Sinhalese would immediately disclose a Tamil accent and raise suspicions against him.”)

 

(c)                Legislative framework

4                     The Tribunal considered the meaning and relevant operation of the Convention by reference to the decided cases.  [I return to this explanation below.]

(d)               Discussion and Findings

·                     The Tribunal accepted that the applicant is a national of Sri Lanka who is outside his country of nationality;  and that he is a Tamil, who was born in Jaffna, but usually lived in Colombo, having gone there soon after he was born.

·                     The Tribunal found it very difficult to believe that members of the LTTE would approach the applicant while he was holidays in Jaffna and ask him to collect money from various financial backers and then hand it over to some sort of LTTE financial co-ordinator in Colombo.  Giving such responsibility and information to a non-member appeared to be an unwarranted risk of exposure of LTTE links and membership.

·                     The Tribunal did not believe that the authorities would release the applicant if, as he claims, he had been directly identified as an LTTE collector by an LTTE donor.  Although some security officials in Colombo might be corrupt, having searched out an LTTE financial network, it was implausible that they would release a person who had directly contributed to the war which had seen tens of thousands of security officers killed, along with tens of thousands of innocent civilians. 

·                     Given the direct evidence which the applicant claims to be in possession of the police, it was highly unlikely that he would not at least have been charged with some offences. Yet there was no evidence of the laying of any charge in the eighteen months the applicant remained in Sri Lanka after he says he was released.

·                     The Tribunal did not accept that the applicant was connected with the LTTE.  He held a passport that was issued in 1994, but did not use it to leave Sri Lanka for 7 months, while at the same time he claimed he lived in Colombo in fear of persecution.  He could easily have fled to India, for example.

·                     His return to Sri Lanka after failing to escape to Canada via Jakarta suggested that he was not in fear of persecution.  If he was truly in fear of persecution, he could have sought protection from United Nation officials in Indonesia, or at least waited there until new arrangements to move on were made.

·                     His continued residence in Sri Lanka likewise suggested that he was not in fear of persecution.

·                     His claim that he was in hiding is at odds with the dates of residence in Colombo specified in his application form.  The Tribunal was unconvinced by the explanation that the adviser, a legal practitioner in Sri Lanka and a registered migration agent in Australia, would specify the parents’ residence in response to a question that asks where the applicant lived.

·                     The Tribunal did not accept the applicant was in hiding in Trincomalee, although it accepted that he may have been visiting relatives there.

·                     The Tribunal noted that the applicant had a passport issued in his own name which clearly identified him. The fact that he left the country, re-entered and left again, all without hindrance, is evidence that the authorities had no adverse interest in him.  The Tribunal took account of information, in Country Information Reports, that the issue of passports and exit procedures are subject to security vetting.  Even if one accepts that officials act corruptly in some circumstances, the Tribunal did not accept that an LTTE operative, in breach of periodic reporting conditions, would be able to pass through security checking, without attracting the authorities’ adverse attention;  particularly if, as claimed, security officials had been seeking him at home and “had threatened his father to produce him”.

·                     It was notable that the applicant’s father was also able to leave without hindrance, despite the alleged threats of the police.

·                     Further evidence of the ease of departure for the applicant is found in the application form, which states the applicant left the country legally, notwithstanding that he used an agent.  The Tribunal was satisfied that the agent merely expedited his efforts to reach Australia and did not pay bribes to facilitate departures and re-entry.

·                     The Tribunal did not accept the claim, made by the applicant, that his brother suffered permanent injury as a consequence of the applicant’s activities. The Tribunal believed that this was “a recent invention to falsely bolster [his] refugee claims”.  While the Tribunal accepted that the applicant’s brother had permanent injury, the Tribunal did not believe it was as a consequence of the events described by the applicant.

·                     The Tribunal was satisfied that the authorities had no interest in the applicant when he left Sri Lanka, and that no new information raised their interest after he left.

 

(Since what followed next in the Tribunal’s reasons was emphasised in argument, it will be necessary to set it out verbatim.  The Tribunal said:

“The Applicant and his witness generally gave similar accounts of their experience on the ‘fourth floor’ in 1996.  It is a remarkable coincidence that they met in 1996 at that location and then once again, at a birthday party in Melbourne, several years later.  The Tribunal had the impression that the witness was relating a true experience and the Applicant had learned details from him.  However, there is insufficient evidence to find that the Applicant was not imprisoned and mistreated for some time in 1996.  Nevertheless, he was released and resumed living at his usual address and was able to leave the country twice and return once without difficulties.  The Tribunal does not accept that the applicant was detained for the reasons he described, but it concludes that he was detained for a period and then released.  It does not accept he was put on reporting conditions as that is at odds with his final departure and concludes that his matter was finalised at the time he was released.  When he finally left the country some eighteen months later, the Tribunal is satisfied that he was of no adverse interest to the Sri Lankan authorities.”

·                     The Tribunal concluded:

“In all of the circumstances, the Tribunal is satisfied the Applicant has contrived his story about collecting money for the LTTE and does not accept he is suspected of assisting or belonging to that group for the reasons he described.  It finds that there is not a real chance he will be persecuted for those reasons.”  

 

·                     The Tribunal noted that the applicant also claimed that, apart from his personal connection with the LTTE, Tamils in general are mistreated because they are suspected of LTTE links, particularly if they are young and were born in Jaffna (as he was).  The Tribunal then considered independent country information from the Department of Foreign Affairs and Trade and from the United Kingdom Home Office’s Country Information and Policy Unit, Immigration and Nationality Directorate, indicating the following:

 

q                   The Tamil population of Colombo (400,000 – 500,000) is almost half of that city’s population.

 

q                   Given that the LTTE is a Tamil force, it is not surprising that Tamils may constitute the majority of people subject to security procedures.

 

q                   “Large-scale cordon and search operations have generally followed major security incidents in Colombo ….  Reliable observers estimate that around 95 per cent of people arrested are released within twenty-four hours.  Of the five per cent who remain in detention, some may be released within days and others may be held for a much longer period of time.

…

At checkpoints in the north and parts of the east of Sri Lanka, people of all ethnicities are checked routinely and will be taken into custody if the security forces or the police consider they have reason to suspect them.  However, human rights groups inform us that most arrests in the north and east are made during cordon and search operations on the basis of information provided by informants.  Arrests at checkpoints are less common than in Colombo.

Tamils are targeted at checkpoints because the present insurgency is Tamil-based.”

(Department of Foreign Affairs & Trade Country Information Report No  67/99 of 5 March 1999 “CIR 67/99”)

q                   Newly arrived Tamils from the North and Northeast may be at risk, particularly if they are young and male and cannot give good reason for their present in Colombo.  Relevantly, CIR 67/99 (above) notes that:

“People are stopped randomly at checkpoints in Colombo and asked to show their national identity cards (NIC).  Those with Tamil names are questioned.  If their NIC identifies Colombo as their place of birth, they will almost always be allowed to move on, unless it is considered that there is some reason to suspect them.”

·                     However, even if the Tribunal was disposed to believe the applicant, his evidence does not disclose a history of harassment because he is Tamil.  Rather, it relates to one incident of harassment related to assisting the LTTE.  On the other hand, the evidence of the witness supports the view that some Tamils are more at risk than other people.

·                     The Tribunal was satisfied that Tamils are not harassed for reason of their race per se, although young, newly arrived Tamils from the North and Northeast, particularly males from LTTE controlled areas such as the witness in this case, may be at risk of harassment, because they are suspected of affiliation with the LTTE, cannot communicate in Sinhalese or explain the reasons for their presence in Colombo, have no history of connections with that city and have nobody to vouch for them. Those conclusions do not exclude the possibility that other Tamils may be stopped, interrogated and, in some cases, detained and mistreated, if the particular person is suspected of having connections with the LTTE.

(e)               Tribunal’s conclusions

·                     The applicant did not encounter persecution by reason of being Tamil in Jaffna, Trincomalee or Colombo.  In the capital city, he resided with his middle-class parents and their residence was registered with security authorities.  That residence is also displayed on his National Identity Card (“NIC”), the major form of identification in Sri Lanka.  The applicant told the Tribunal that he speaks some Sinhalese and understands it fluently, although this is not mentioned on his application form.  The Tribunal does not accept that it is worse to speak some Sinhalese, as that would expose a Tamil accent.  The benefit of speaking Sinhalese is the capacity to speak to Sinhalese-speaking officials at checkpoints, or police stations, and explain the reason for being in Colombo.  The applicant has a history of residence in Colombo, and a network of relatives and friends who are able to vouch for him if necessary.  The applicant’s NIC states he was born in Jaffna, but records Colombo as his residential address.  In the high-security conditions in Colombo, the Tribunal had no doubt that he had presented his NIC on numerous occasions and his evidence disclosed that he had done so without it raising difficulties for him.  He also speaks some Sinhalese for the purpose of communicating with security officials.

·                     The government security forces do maintain strict security processes in Colombo, and they are intensified when there are terrorist attacks, or when such attacks are anticipated.  It is apparent that a small proportion of the Tamil population of Colombo encounters undue harm.  The security measures affect all citizens, particularly Tamils, but they are directed at LTTE “suspects”, and largely occur in predominantly Tamil areas with lodging houses where such “suspects” tend to congregate.

·                     The applicant is young, but he is not a newly arrived person from the war-zone;  he is able to communicate in Sinhalese and explain his reasons for being in Colombo, and he has a history of residence and a support network to vouch for him in that city.  His mother and brother continue to reside in Colombo, and he would not need to stay in a lodging house.  Further, he can resume residence in an area where he is known to local security officers through his previous registration.

·                     Mistreatment is not confined to Tamils who fit the “profile” discussed above.  However, the Tribunal did not accept that the applicant had any history of connection with the LTTE, and was satisfied that even perfunctory questioning on his return will satisfy the authorities that he has no LTTE connections.  The chances that he might be persecuted on suspicion of LTTE affiliation are no more than remote. Likewise, the likelihood that he faces persecution on account of his Tamil race is remote.

·                     Whilst the applicant claimed that he faced persecution because he had made an asylum claim, he had previously gone to Jakarta and returned without difficulty;  and on this trip to Australia, he left Sri Lanka legally with a valid passport and a valid Australian passport.  His passport has expired, but there is no reason he cannot renew it with Sri Lankan authorities in Australia.  The information he provided in regard to returning asylum-seekers is that they were displaced from the war zone and deported by third countries and mostly lack proper travel and identification documentation.  The applicant has appropriate documentation, left the country legally, is not a displaced person and can choose to return to Sri Lanka voluntarily.  Further, his application for a protection visa is confidential and need not be disclosed.  The Tribunal concluded that he does not face a real chance of persecution because he has sought asylum in Australia.

·                     Although the Tribunal accepted that the applicant is a national of Sri Lanka and outside his country of nationality, it was not satisfied that there was a real chance he might be persecuted in the reasonably foreseeable future should he return to Sri Lanka.  Even if he were to be stopped for security checks, there was not a real chance he would be detained for any extended period during which he could encounter serious mistreatment.

·                     The Tribunal found that the applicant does not face a real chance of persecution in Sri Lanka for reasons of his Tamil race or his political opinions as they relate to alleged LTTE connections and seeking asylum.

·                     The Tribunal was not satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention and Protocol and therefore concluded that he does not meet the criterion for the purposes of granting a protection visa.

·                     Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. 

THE GROUNDS RELIED ON IN THE CLAIM FOR JUDICIAL REVIEW

5                     Four grounds are relied upon by the applicant as follows:

Ground 1

6                     That within the meaning of s 476(1)(a) of the Act, the procedures required by the Act to be observed by the Tribunal in connection with the making of its decision were not observed;  that is to say, although s 430 of the Act required the Tribunal to set out, in writing, its reasons and its findings on material questions of fact, and to refer to the evidence on which those findings were based, the Tribunal failed to do so properly, or at all.

7                     The Tribunal said, at p 3 of its reasons (as has been noted):

“The witness … said he met the applicant in detention.  They largely accorded in their accounts of sharing a cell on the ‘fourth floor’, a notorious detention centre in Colombo …  The witness said that the applicant told him he had been detained because he was suspected as a member of the LTTE”.

8                     However, in its “Discussion and Findings”, the Tribunal later said (at p 10):

“The Tribunal had the impression that the witness was relating a true experience (about detention by the authorities in 1996) and that the applicant had learned details from him.  However, there is insufficient evidence to find that the applicant was not imprisoned and mistreated for some time in 1996 …  The Tribunal does not accept that the applicant was detained for the reasons he described ….”

9                     The applicant contends that the Tribunal did not explain how, on the one hand, it accepted  the witness as a witness of the truth, but, on the other, did not accept the evidence of the witness, relevant to the motive for the applicant’s detention, that is, because he “was suspected as a member of the LTTE”.  The motivation for the detention “was a crucial matter of fact in the case”.

Ground 2:

10                  That, within the meaning of s 476(1)(b) of the Act, the Tribunal did not have jurisdiction to make the decision, by reason of the matters relied upon to support the other grounds of review.

Ground 3:

11                  That, within the meaning of s 476(1)(c) of the Act, the Tribunal’s decision was not authorised by the Act, by reason of the matters relied upon to support the other grounds of review.

Ground 4:

12                  That, within the meaning of s 476(1)(e) of the Act, the Tribunal’s decision involved an error of law, being an incorrect interpretation of the relevant law, or an incorrect application of the law to the facts found, in the following respects:

(a)                By reason of the matters relied upon in Ground 1, the Tribunal failed properly, or at all, to consider the applicant’s claim, in breach of ss 47 and 65 and Part 7 of the Act;  or

(b)               The Tribunal failed to take relevant matters into account; or

(c)                The Tribunal failed to consider the consequence for its decision if it was wrong in its findings of fact;  or

(d)               The Tribunal’s reasons and decision were illogical.

CONCLUSIONS ON THE APPLICATION FOR JUDICIAL REVIEW

13                  It will be convenient to consider each of the grounds relied upon in turn.

Consideration of Ground 1

(a)               The applicant’s argument

14                  It will be recalled that in this ground the applicant contended that s 476(1)(a) applied here because, he said, there had been a failure to comply with s 430.

15                  In written submissions dated 14 May 2001, counsel for the applicant relied upon the reasoning of the majority of the Full Federal Court in Minister for Immigration and Multicultural Affairs v Singh [2000] 98 FCR 469, contending that the Tribunal had not explained its reasons for rejecting the applicant’s central claim of detention, interrogation and torture over a period of two months in 1996.  It was crucial to the applicant’s claim, the argument ran, that the Tribunal accepted that he had been so seriously ill-treated in 1996.  The issue was therefore a material question of fact within the meaning of s 430(1)(c).  Since it is not possible to understand why the Tribunal rejected this claim (whilst recording its impression that the crucial corroborative witness seemed truthful about the detention of the application, including what the applicant told the witness at the time as the reason for the applicant’s detention), the Tribunal had failed properly to set out its reasons for its decision in relation to this important point, and had failed to refer to evidence for its ultimate finding on the material question of fact whether the applicant was so detained and tortured.

16                  The passages, from the Tribunal’s reasons at pages 3 and 10 (quoted verbatim above) from the Tribunal’s reasons, fail to disclose any reasons for its conclusion that the applicant’s central claims relating to detention were contrived.  The Tribunal mentioned its impression that the applicant had learned details from the witness who “was relating a true experience”.  Yet, the argument went, the Tribunal then proceeded to state that there was “insufficient evidence” to find that the applicant was not imprisoned and mistreated for some time in 1996.  It is said that this is “a very strange statement”, given that the Tribunal next expressed its conclusion that it “does not accept that the applicant was detained for the reasons he described but it concludes that he was detained for a period and then released”

17                  It is contended for the applicant that the Tribunal “has really done little more than say that it has rejected the applicant’s claims”;  and that there is nothing in the Tribunal’s reasons which clearly explains its rejection of the applicant’s claim to have been detained and tortured in 1996; this is contrary to its obligation under s 430, as explained in Singh, to expose its reasoning;  so that we are left not knowing the reason why the Tribunal rejected this crucial part of the claim.

18                  After this submission was prepared (that is, on 14 May 2001) and before the hearing of the present application, the High Court considered Singh in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 (on 31 May 2001).  The parties were granted leave to file supplementary submissions accordingly.

19                  On behalf of the applicant it is now submitted that the reasoning of the majority (McHugh, Gummow and Hayne JJ) holds, as binding authority, that a failure by the Tribunal to make findings does not constitute a failure to comply with s 430, although it may disclose some other error, particularly an error of law, for instance a failure to take into account a relevant matter;  or it may disclose that the Tribunal acted without jurisdiction or authority within the meaning of s 476(1)(e)(and (c)).

20                  It is further submitted on behalf of the applicant that although the majority of the High Court in Yusuf may have expressed doubts about it, the majority did not actually determine whether a failure to comply with s 430 [for instance by a failure to refer to the evidence or other material on which the decision was based (s 430(1)(d))] was a failure to observe procedures required by the Act to be observed in connection with the making of the decision within the meaning of s 476(1)(a).  However, both Gaudron and Kirby JJ (Callinan J contra) the applicant submits, were definite that s 430 did prescribe procedures required in connection with the making of a decision.

21                  It is then submitted for the applicant that, in the light of Yusuf, the earlier decision of the Full Federal Court in Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 must not be followed, in so far as Anthonypillai decided that a failure to take into account relevant matters is not a reviewable error under Part 8 of the Act.

22                  The applicant then argues that his original argument, based on the majority in Singh, is still available, notwithstanding the High Court’s subsequent decision in Yusuf.  Accordingly, the applicant now repeats his earlier submission that the Tribunal was in breach of s 430(1)(b) or (d), in essence because although the Tribunal, by referring to the issue of detention, had indicated that it regarded this as a material question of fact, it failed to satisfy the requirements of s 430(1)(b) and (d) in this regard.

23                  By a further supplementary submission dated 4 July 2001, the applicant formally submits that the Tribunal proceeded “illogically” in dealing with the applicant’s claim to have been detained in the “Fourth Floor” prison, and that is itself a ground for judicial review.  However, the submission is formal only, because the applicant accepts, properly, that unless and until the High Court decides otherwise, I should follow the decision to the contrary of the Full Federal Court in Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565.

(b)               The legislation

24                  Before turning to the authorities relied upon in the applicant’s argument, it is necessary to recall the text of the relevant statutory provisions, as follows.

25                  By s 430(1), it is provided:

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

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

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

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

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

26                  By s 475(1), a decision of the Tribunal is included as a “judicially-reviewable decision”.

27                  By s 476(1) it is relevantly provided that an application may be made for judicial review on one or more of the following grounds:

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

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

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

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

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

28                  Section 476(3)(d) and (e) provide:

“The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as … not … including a reference to:

…

(d)        taking an irrelevant consideration into account in the exercise of a power;  or

(e)                failing to take a relevant consideration into account in the exercise of a power ….”

(c)                The cases

29                  It is necessary also to refer at this stage to the relevant reasoning in Singh, in Anthonypillai and in Yusuf.

(i)                 Singh

30                  In Singh, the primary Judge had held (see 98 FCR 469 at [8]) that the Tribunal’s decision should be set aside because the Tribunal had not complied with s 430 and this failure enlivened s 476(1)(a).  His Honour held that the Tribunal had failed to comply with s 430 because it did “not” explain why it … rejected apparently probative material relevant to a material issue even though there may be sufficient or even an abundance of material the other way to support the conclusion on that issue that the Tribunal, in fact, reached.

31                  On appeal to the Full Federal Court, Black CJ, Sundberg, Katz and Hely JJ said (at [12] – [15]):

“Whilst the statement by the primary judge referred to in par 8 was in accordance with the preponderance of authority in this Court, decisions to a different effect have since been made.  The view that s 430 does not require the RRT to give reasons for rejecting evidence inconsistent with findings of material facts now enjoys the support, in addition to the majority in Ahmed, of decisions of Full Courts in Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940, Sivaram v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 379, Xu v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 425 and Doss v Minister for Immigration & Multicultural Affairs [1999] FCA 1780.  That view of s 430(1)(c) and (d) was endorsed by McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407although his Honour also said that the obligation to set out “the reasons for the decision” (s 430(1)(b)) will often require the RRT to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings.

In December 1999 differently constituted Full Courts handed down decisions in Minister for Immigration & Multicultural Affairs v Yusuf (1999) 95 FCR 506 and Xu v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 425.  Yusuf decided that a failure to comply with s 430(1) enlivens the operation of s 476(1)(a).  The majority in Xu (Whitlam and Gyles JJ) decided to the contrary.  In Xu R D Nicholson J declined to join in the majority decision in this respect as, in his Honour’s view, it was both unnecessary for the resolution of the appeal to decide the point and involved issues which would benefit from more thorough argument.

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

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

32                  In considering the relationship between s 430(1) and s 476(1)(a), their Honours said (at [21] – [23]):

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

Durairajasingham decides that compliance with s 430 does not go to the jurisdiction of the RRT, as s 430 presupposes that a decision has already been made.  However, that is not determinative of the issue of construction of s 476(1)(a), since Abebe v Commonwealth (1999) 197 CLR 510 at 522 [21] recognises that, whilst in important respects the jurisdiction of the Federal Court to review decisions under the Act has been severely truncated, in other respects (and footnote 4 refers to s 476(1)(a) as an example) the jurisdiction of the Federal Court is arguably wider than that of the High Court under s 75(v) of the Constitution of the Commonwealth.  Section 476(1)(b) suggests that s 476(1)(a) is not confined to matters which go to jurisdiction.

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

33                  Their Honours next addressed the question whether the written statement for which s 430(1) provides is a “procedure” which the Act requires to be observed, within the meaning of s 476(1)(a), and said (at [43]):

“… we consider that the preparation of a statement of reasons is a procedure, and is one the Act requires to be observed in connection with the making of a decision by the RRT not to grant a protection visa.  If there is a failure to prepare any statement at all, then s 476(1)(a) is enlivened.  In principle the same result should follow if a statement purporting to be in conformity with s 430 is prepared, which does not satisfy the requirements of the section.  If the statement is said not to comply with s 430(1) because it fails to set out findings on a question of fact which a court holds to be material (but which the RRT did not), then the decision could be set aside under s 476(1)(a) for want of procedural compliance.”

34                  Their Honours, in addressing the content of s 430 said (at [44] – [49]):

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

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

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

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

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

35                  However, in allowing the appeal, the majority said (at [62]):

“We consider that on a fair reading of its lengthy and detailed reasons the RRT did explain why it reached the decision it did.  The applicants and their advisers would, as a practical matter, not be significantly better informed as to why their applications had been rejected if the RRT had expressly, rather than implicitly, stated that it did not accept that part of the material relied upon because, insofar as it was relevant, it was against the weight of all the material before it.  Having said this, we should emphasise that the adequacy of reasons for decision – a matter of great importance in administrative law – must depend upon the circumstances of each case, but that fundamentally the reasons need to reveal to the parties why the decision went the way it did.  We consider that in the particular circumstances of the present case that obligation was fulfilled.”.”

36                  Kiefel J, the other member of the Full Court in Singh, also proposed that the appeal should be allowed, but for different reasons.

37                  In addressing the question of what s 430 requires, her Honour referred to the earlier line of cases and observed (at [92] – [93]):

“Although [in the earlier line of cases] it was explained, from time to time, that the Court was saying no more than that the reasons were deficient because of the omission, the inescapable conclusion was that they were holding the Tribunal to have been obliged to take a matter into account in its reasoning process, as the majority in Xu points out.  This would not appear to conform with a statutory regime where judicial review on the ground of failure to take into account a consideration relevant in the administrative law sense is excluded (s 476(3)(e)) and no review of the facts otherwise to be taken into account is permissible.

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

38                  At [ 98] – [100] her Honour observes:

“[T]here is nothing in the process provided by the Act which would suggest that s 430 should have engrafted upon it a requirement that the Tribunal, in stating its decision, must deal with all matters which might be adjudged important to the applicant’s case, even if the rejection to be inferred is of facts inconsistent with those found, as Addo holds.  It will, however, be obliged to deal with its rejection of evidence where that amounts to one of its reasons:  Re Minister for Immigration and Multicultural Affairs;  Ex parte Durairajasingham (2000) 168 ALR 407 at 422-3, where McHugh J referred with approval to that aspect of Addo.

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

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

39                  Turning next to the question of the relationship, if any, between s 476(1)(a) and s 430, Kiefel J said (at [101]):

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

40                  Her Honour went on to say (at [106]):

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

(ii)              Anthonypillai

41                  In Anthonypillai, the primary Judge had granted judicial review because the Tribunal had failed to give an application for a protection visa “proper, genuine and realistic consideration”.  On the Minister’s appeal to the Full Court, the appeal was allowed by Heerey, Goldberg and Weinberg JJ.

42                  Their Honours said (at [65] – [66]):

“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.”

43                  Turning to the question whether reviewable error was otherwise disclosed, their Honours said (at [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.”

44                  Their Honours then cited the observations of Rich, Dixon and McTiernan JJ in R v War Pensions Entitlement Appeal Tribunal;  Ex parte Bott (1933) 50 CLR 228 (at 242 – 243) that –

“‘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)”

45                  Their Honours went on to say (at [77] – [78]):

“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.

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.”

(iii)            Yusuf

46                  In Yusuf, the primary Judge had held that the Tribunal had failed to make a finding on a material question of fact in breach of s 430 and that this gave rise to a judicially reviewable error within s 476(1)(a).  An appeal by the Minister to the Full Federal Court was dismissed.  On the Minister’s appeal to the High Court, the appeal was allowed (Kirby J dissenting).

47                  The majority, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed), said (at [67] – [68]):

“Section 430(1) of the Act obliged the Tribunal to prepare a written statement that does four things:

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

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

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

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

As was rightly observed in the joint judgment in Singh, this section calls for a recording of matters that are matters of fact.  In particular, s 430(1)(c) requires the Tribunal to set out the findings of fact which it made.  But does it require more?  Does it oblige the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make?

Section 430 does not expressly impose such an obligation.  In its terms, it requires no more than that the tribunal set out the findings which it did make.  Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word ‘material’ in s 430(1)(c).  It was said that ‘material’ in the expression ‘material questions of fact’ must mean ‘objectively material’.  Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make.  But it is not right to read ‘material’ as providing an objecting or external standard of materiality.  A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker.  All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.”

 

48                  Speaking of s 430, their Honours said (at [69]):

The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material.  This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution.  For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal.  It may reveal jurisdictional error.  The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.”

49                  In dealing with an argument advanced for Ms Yusuf that the Tribunal had a “duty” to make findings of fact, their Honours observed (at [74]) that –

“… the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law.  They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.”

50                  Noting that applicants for protection visas often claim that they have been subject to persecution, their Honours said (at [75]):

“If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error.  The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past).  It is not accurate, however, to say that the Tribunal is, therefore, under a duty to make all material findings of fact, if, as seems probable, that formulation of the duty is intended to extend the ambit of judicial review beyond accepted and well-established limits.  If it is not intended to have that effect, it is not useful to formulate the duty in that way, Rather the relevant inquiry remains whether the Tribunal has made an error of law, has failed to take account of relevant considerations, or has taken account of irrelevant considerations.”

51                  Their Honours, noting that the primary Judge had granted judicial review because the Tribunal had failed to make findings and that this had breached s 430(1) and enlivened s 476(1)(a) accordingly, said (at [77]):

“… It is implicit in what has already been said about s 430 that a complaint that the Tribunal has not made a finding of fact on a material question cannot support review on this ground.  An alleged failure to make a finding of fact on a material question is not a failure to observe a ‘procedure … required’ by the Act.  If it is an error, it is an error of substance.  Moreover, it may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question, as the setting out of the decision and reasons assumes that the decision has already been made.  It is, however, enough to say that the conclusion that, so far as now relevant, s 430 requires only the recording of what was found and does not impose any duty to make findings, means that an asserted failure to make findings is not a breach of s 430.  Accordingly, s 476(1)(a) is inapplicable.”

52                  However, their Honours went on to say (at [78]):

“That is not to say that the Federal Court has no jurisdiction to deal with cases in which it is alleged that the Tribunal failed to make some relevant finding of fact.  For the reasons stated earlier, a complaint of that kind will often amount to a complaint of error of law or of failure to take account of relevant considerations.  It is necessary, therefore, to consider some further aspects of s476, especially subss (1)(b), (c) and (e) and s 476(3)(d) and (e).  Counsel for Ms Yusuf, in the alternative to para (a) upon which the Full Court had based its decision, relied upon one or more of paras (b), (c) and (e) of s476(1).”

53                  Their Honours then said (at [80]):

“… Section 476(3) limits the construction of the reference in s 476(1)(d) to improper exercise of power by excluding questions of relevant and irrelevant considerations from the ambit of that ground.  That qualification does not apply, however, to the other paragraphs of s 476(1) and it casts no light on how those paragraphs should be understood.”

54                  Noting (at [82]) that “[n]othing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law”, their Honours said (at [83] – [85]):

“No doubt full weight must be given to s 476(3) and the limitations which it prescribes in the construction of improper exercise of power in par (d) of s 476(1).  Equally, however, it is important to recognise that these limitations, unlike those prescribed by s 476(2), are limitations on only one of the grounds specified in s 476(1).  All this being so, there is no reason to give either par (b) or par (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs.  In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it ‘exceeds its authority or powers’.  If that is so, the person who purported to make the decision "did not have jurisdiction" to make the decision he or she made, and the decision "was not authorised" by the Act.

Moreover, in such a case, the decision may well, within the meaning of par (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.  That it cannot be said to be an improper exercise of power (as that expression is to be understood in s 476(1)(d), read in light of s 476(3)) is not to the point.  No doubt it must be recognised that the ground stated in par (e) is not described simply as making an error of law.  The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.  That qualification emphasises that factual error by the Tribunal will not found review.  Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals.  That having been said, the addition of the qualification to par (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language.  If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found.  If that is so, the ground in s 476(1)(e) is made out.

Paragraphs (b), (c) and (e) would thus each be engaged in such a case and the Federal Court would have jurisdiction under Pt 8 of the Act to review the Tribunal's decision.  This Court would also have original jurisdiction in the matter and could grant relief under s 75(v).

55                  In allowing the Minister’s appeal, their Honours held (at [91] – [92]) that it had not been demonstrated that the Tribunal made some error of law nor shown that it failed to take into account a relevant matter or asked itself the wrong question.  Their Honours found that the highest point of Ms Yusuf’s contention was that the Tribunal may have made an error of fact, and this did not establish any of the grounds for judicial review.

(d)        The Minister’s response to the applicant’s argument in support of his Ground 1

56                  In the Minister’s original submission (dated 28 May 2001 – that is, before the High Court’s decision in Yusuf), the following was submitted:

(1)        The applicant’s claim for judicial review should be viewed in the context of the following factual findings by the Tribunal:

·                     The Tribunal had rejected the applicant’s claim to have been a collector of funds for the LTTE, but did accept his claim to have been detained by the authorities in 1996.  The Tribunal did not accept that the applicant was detained because he had collected funds for the LTTE.

·                     The Tribunal had noted that the applicant remained in Sri Lanka for seven months after his release from prison, notwithstanding that he had a valid passport;  that, after the seven months had elapsed, the applicant had a short stay in Jakarta, but returned to Sri Lanka, rather than seeking refuge elsewhere;  that the applicant remained in Sri Lanka for a further ten months after his return from Jakarta;  and that the Applicant used a passport in his own name to leave and re-enter Sri Lanka, notwithstanding a security vetting at Sri Lanka’s borders.

·                     The Tribunal had found that the applicant’s evidence was contrived, and that the authorities did not suspect him of assisting the LTTE;  and that there was not a real chance of persecution of the applicant because of a perceived association with the LTTE, or because of his Tamil ethnicity.

(2)               The applicant contends that the Tribunal erred by not explaining its reasons for rejecting the applicant’s central claim to have been detained, interrogated and tortured over a period of two months in 1996;  thus, he claims, s 430(1) was not complied with.  But, the Minister contends, a failure to comply with s 430(1) does not give rise to reviewable error for the purposes of s 476(1)(a).  (It will be recalled that this submission was made after Singh, but before the High Court decided Yusuf.  Accordingly, at that stage, the submission was formal only and not then elaborated.)

(3)               But, in any event, the Tribunal did not reject the applicant’s claim that he was detained and mistreated.  Indeed, the Tribunal expressly found that the applicant “was detained for a period and then released”, and stated that “there is insufficient evidence to find that the applicant was not imprisoned and mistreated for some time in 1996”.  Nevertheless, the Tribunal did reject the applicant’s claim that the reason for his detention was that he had been identified as a collector of funds for the LTTE.  The Tribunal said that it did “not accept that the Applicant was detained for the reasons he described”.  The Tribunal provided a number of reasons for rejecting that claim, including the following:

(a)                It was very difficult to believe the applicant’s claim that the LTTE approached the applicant while he was on holiday and asked him to collect money from financial backers and hand it over to a financial co-ordinator in Colombo;  giving such responsibility and information to a non-member (such as the applicant) appeared to be an unwarranted risk of exposure of LTTE links and membership.

 

(b)               It was not plausible that the authorities would have released the applicant from prison if, as he claimed, he had been directly identified by an LTTE donor as a collector of funds for the LTTE, especially in view of the fact that such persons had directly contributed to a war that had resulted in the deaths of tens of thousands of security officers and innocent civilians.

 

(c)                The applicant was not connected to the LTTE.

 

(d)               The applicant held a passport issued in 1994, but did not use it to leave Sri Lanka for seven months after his release from detention in 1996, when he claimed to have lived in fear of persecution.

 

(e)                After that seven months had elapsed, the applicant used that passport to go to Jakarta but soon returned to Sri Lanka rather than making alternative arrangements, which suggested to the Tribunal that he was not in fear of persecution.

 

(f)                 The fact that the applicant continued to reside in Colombo “for so many months (ie. ten) after his return from Jakarta” indicated that he was not in fear of persecution.

 

(g)                The applicant’s claim that he was in hiding during that period was at odds with the residential addresses that he disclosed in his application for a protection visa, and his explanation of this incongruity was unconvincing.

 

(h)                The applicant had a passport issued in his own name;  the fact that he used it after his period of detention to leave Sri Lanka twice and re-enter Sri Lanka once, was evidence that the authorities had no adverse interest in him, particularly in view of the security checks at borders;  and

 

(i)                  The applicant left Sri Lanka legally.

 

(4)               This explication satisfied any obligation upon the Tribunal to provide reasons for concluding that it did not accept that the applicant was detained for the reasons he described.

 

(5)               To the extent that the applicant seeks to challenge the Tribunal’s findings of implausibility, the following observations of McHugh J in Re The Minister for Immigration and Multicultural Affairs;  Ex parte Durairajasingham (2000) 168 ALR 407 (at [67]) are noted:

“In addition, the prosecutor alleges that the tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were ‘utterly implausible’.  However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence.  If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.  The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.  In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”.  The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”

(6)               Paragraph 29 of the applicant’s contentions (see above) misstates the Tribunal’s impressions of the witness called by the applicant.  The applicant says that the Tribunal “records its impression that the crucial corroborative witness seemed truthful about the detention of the applicant, including what the applicant told the witness at the time as the reason for the detention of the applicant”.  In fact, the Tribunal stated that it “had the impression that the witness was relating a true experience and that the applicant had learned details from him”.  In other words, the Tribunal had the impression that the witness recounted events that he had truly experienced in the notorious “fourth floor” prison.  This is not the same as saying that everything the witness said about the detention of the applicant was true.

 

(7)               More particularly, the Tribunal did not say that the witness truthfully stated that the applicant had told the witness, while he was in prison, that the applicant was imprisoned because he was suspected of being a member of the LTTE.  Even if the applicant had told the witness that he was imprisoned because he was suspected of being a member of the LTTE, it would not necessarily establish that he was so suspected.  In any event, the claim made before the Tribunal was not that the applicant was imprisoned for being a suspected member, as such, of the LTTE.  The claim made to the Tribunal was that the applicant was imprisoned because he was identified by an LTTE donor as being a person who collected funds for the LTTE.  Based on the factors (a) to (i) mentioned above, the Tribunal did not accept the claim that the applicant collected funds for the LTTE and it did not accept that the applicant was suspected of belonging to the LTTE.

(8)               In par 30 of the applicant’s contentions, it is said that “The passages quoted disclose no reason for the Tribunal’s conclusion that the applicant’s central claims relating to detention are contrived”.  However, other passages in the Tribunal’s reasons do disclose reasons for the finding that the applicant’s claims are contrived.  Those passages are summarised in (a) to (i) above.

57                  By his supplementary submissions dated 4 July 2001 (that is, after Yusuf), the Minister further contends as follows:

q                   The requirements set out in s 430(1)(b) and (d) are not procedures of the type referred to in s 476(1)(a), that is, “procedures that were required by this Act or the regulations to be observed in connection with the making of the decision” (emphasis added).  As such, the failure to observe the requirements under s 430(1)(b) or (d) does not constitute a ground of review under s 476(1)(a).  The dicta of McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) in Yusuf (at [77]) that –

“Moreover, it may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question” (their Honours’ emphasis) –

supports this proposition.

q                   The requirements in s 430(1)(b) and (d) clearly arise after the decision has been made, and are not procedures in connection with the making of the decision.  Although Gaudron J in Yusuf ultimately decided that s 476(1)(a) did extend to the requirements of s 430, her Honour did acknowledge at [31] that “the making of a decision and the recording of a decision are logically distinct steps”.  The Minister submits that the fact that, in practice, the two steps may “often constitute a single process” (in the words of Gaudron J) does not alter the fact that s 476(1)(a) does not provide a ground of review where the Tribunal fails to observe procedures in the making or recording of a decision.

 

q                   The Minister also notes that Callinan J in Yusuf said at [203] that, in his opinion, the reasoning of Whitlam and Gyles JJ in Xu v Minister for Immigration and Multicultural Affairs [1999] FCR 425 and the reasoning of Keifel J in Singh that s 430 of the Act does not concern the making of a decision, or the decision making process, were correct.

q                   In Xu, Whitlam and Gyles JJ had noted at [19] that a “statement prepared pursuant to s 430(1) is not the decision itself which is made pursuant to s 415, but rather, as the section says, a statement which records and provides reasons for it in a particular form. … [It is] a mechanism by which the parties are informed of the reasons for the decision, rather than dealing with the making of the decision itself”.  After reviewing some of the procedural requirements of the Act, their Honours had said at [25]:

“The legislative intention, therefore, was that s 476(1)(a) would relate to those express procedural requirements which would otherwise be encompassed by the natural justice ground.  The giving of reasons for decision is not part of natural justice in relation to the making of the decision.”

Their Honours concluded at [26] that “the giving of reasons under s 430 is not part of the decision-making process.”

 

q                   Alternatively, the Minister submits that even if, contrary to the above, the requirements in s 430(1)(b) and (d) are thought to be procedures to be observed in connection with the making of the decision, those procedures only require the Tribunal to set out the Tribunal’s actual reasons for its decision, and to refer to the evidence or any other material on which the Tribunal actually based its findings of fact.  This is consistent with the majority judgment in Yusuf at [77] that “s 430 requires only the recording of what was found and does not impose any duty to make findings” (their Honours’ emphasis) and at [68] that “a requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker.  All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.”  (their Honours’ emphasis).

(e)               Conclusion on Ground 1

58                  In my opinion, the relationship (if any) between s 430(1) and s 476(1)(a) has now been authoritatively settled for present purposes by the decision of the majority of the High court in Yusuf (McHugh, Gummow and Hayne JJ) (with whom Gleeson CJ agreed).  Relevantly, the present state of authority has been, in my view, correctly explained by Weinberg J in Chhour v Minister for Immigration and Multicultural Affairs [2001] FCA 911 as follows:

“… [I]n …Yusuf …[t]he Court allowed the Minister’s appeal and overruled the decision in Singh.  The majority held that s 430(1)(c) of the Act (which requires the RRT when it makes its decision on a review to prepare a written statement that “sets out the findings on any material questions of fact”) requires the RRT to set out only such findings as it has made, and not findings on what the Court might regard as objectively determined material questions of fact.  In addition, the majority held that a determination that the RRT had not made a finding of fact on a material question would not amount to a failure to observe a procedure required by the Act for the purposes of s 476(1)(a). 

…

I note, however, that the majority in Yusuf recognised that a failure on the part of the RRT to make a finding on a material issue might fall within ss 476(1)(b), (c) or (e) of the Act.  See Yusuf at [22] per McHugh, Gummow and Hayne JJ.  See also Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832 per Moore, Tamberlin, and Goldberg JJ at par [21]; Minister for Immigration and Multicultural Affairs v “X” [2001] FCA 858 per Black CJ, Lee and Merkel JJ at [18].

The effect of Yusuf is that if the RRT has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material, it may be said to have exceeded its authority or powers, or to have erred in law.  However, there is nothing in Yusuf to suggest that the existing scope of judicial review for jurisdictional error has been enlarged:  Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 736 at [15].  It must be remembered that a consideration is not “relevant” for this purpose unless the decision-maker is bound to take it into account:  Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 29 at 39-42.”

59                  I respectfully agree with all of these observations.

60                  Weinberg J has since again reviewed the same authorities in Applicant R V v Minister for Immigration & Multicultural Affairs [2001] FCA 1034 at [46] to [55] and Awan v Minister for Immigration & Multicultural Affairs [2001] FCA 1036 at [44] to [50] and confirmed his previous view.  I agree with all of those observations also.

61                  I further agree with all of the Minister’s submissions made in response to the applicant’s attempt to rely upon s 430(1) in combination with s 476(1)(a), including the Minister’s alternative contention (made on the assumption that s 476(1)(a) could pick up a breach of s 430(1)).

62                  Clearly, the factual circumstances surrounding the applicant’s claim for protection were multiple and complex.  Necessarily, the Tribunal’s reasons must be read as a whole.  When so read, what is revealed is a consideration by the Tribunal of a whole range of factors, some of which may have tended to support the claim, some of which were equivocal and some of which tended to undermine the claim.  The issues for the Tribunal were of necessity, essentially factual, calling for an exercise in judgment in evaluating the relative weight to be attributed to each feature of the case.  Given these complexities, and the range of considerations arising in a dynamic situation of this kind, I am not satisfied that failure of the Tribunal to observe the dictates of s 430, as explained in Yusuf, has been demonstrated.  In essence, the Tribunal rejected the claim for the reasons it gave, which reasons were sufficient to persuade it to arrive at its conclusion.

63                  In my view, it is no answer to the reasoning in Yusuf, for the applicant to argue, as he did, that because the Tribunal was satisfied that the applicant was detained, it was “puzzling” that the Tribunal should go on to reject the claim for protection;  and that this showed that the reasons given were not “intelligible” and to this extent, that there had been a constructive failure to give any reasons at all, contrary to s 430(1)(b).  In my opinion, such an argument, both in form and substance, is contradicted by the observations of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 – 36, cited by the majority in Yusuf  at [73]which warns that:

“[T]he merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power ….”

64                  Obviously, there was no actual failure to give reasons here; nor can I accept that the Tribunal’s efforts may fairly be described as a “constructive” failure to give reasons.  There was certainly no failure, constructive or otherwise, to exercise the Tribunal’s authority.  Reasons were given.  The real complaint seems to be that the Tribunal got the facts wrong.  But, even if this complaint had substance (something not within this Court’s jurisdiction), this does not have anything to do with either s 430(1) or s 476(1)(a).

65                  In any event, there was nothing impossible or irrational in concluding, as the Tribunal did, that the applicant had been imprisoned (although not because he was an LTTE fund-raiser, or otherwise suspected of being a member of the LTTE).

66                  Ground 1 cannot, in my view, be sustained.

Consideration of Grounds 2 and 3

67                  The applicant’s contention in Ground 2 of a lack of jurisdiction is not free-standing, and depends upon the matters relied on in one or other of the Grounds 1 or 4 being made out.  Effectively then, this complaint now falls to be considered under Ground 4.

68                  Ground 3 (a contention of lack of authority) stands in the same position.

Consideration of Ground 4

69                  It will be convenient to consider the separate particulars of this Ground in turn.

(a)               Did the Tribunal, by virtue of the matters relied upon in Ground 1, fail properly or at all to consider the applicant’s claim, in breach of ss 47 and 65 and Part 7?

(i)                 The legislation relied on by the applicant

70                  Section 47(1) requires the Minister “to consider a valid application for a visa”.  Section 47(2) ensures that this is a continuing requirement.

71                  Section 65 deals with the Minister’s decision to grant, or to refuse to grant, a visa.  Section 65(1) provides that if the Minister is satisfied about certain specified matters, the Minister is to grant a visa;  and if not so satisfied, is to refuse to grant the visa.

72                  Part 7 deals with review of protection visa decisions by the Tribunal.

(ii)              The applicant’s argument

73                  On this branch of his argument, the applicant argues that the Tribunal erred in law by its failure “properly, or at all, to consider” the application, demonstrated (the argument runs) by the manner in which the Tribunal dealt with the matters as set out in the particulars to Ground 1 of the amended application (i.e. the claim of detention crucial to the claim and to the decision of the Tribunal).  Referring to the decision of the Full Court in Anthonypillai, it is argued that the Tribunal has so far failed in its task, that it cannot be said properly to have discharged its obligation “to consider” the application for review before it, nor “to have regard to all the information in the application” pursuant to ss 47, 54, 55, 65 and Part 7 of the Act.

74                  Section 412 of the Act provides for an application for review to the Tribunal.  Section 414(1) provides that if a valid application is made, the Tribunal “must review the decision”.  Section 415 of the Act provides that the Tribunal “may … exercise all the powers and discretions that are conferred by this Act on the person who makes the decision”.  This must refer back to the provisions of ss 54 and 55, which impose on the Minister the obligation “in deciding whether to grant or refuse to grant a visa, to have regard to all of the information in the application”.  Section 55(1) provides that an applicant “may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision”.  Section 65 provides, as has been noted, that “after considering a valid application for a visa, the Minister … is to grant the visa;  or … is to refuse to grant the visa.”

75                  The combined effect of these provisions, the argument runs, is that the Tribunal has an obligation to consider the application.  It is further said to follow, as the Full Court said in Anthonypillai (at [70] – [72];  [78]), that –

“… the Tribunal must ‘consider’ a valid application for a visa ….  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’.

It is precisely that obligation which section 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 ….

…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 ….  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.”

(iii)            Consideration of this branch of the applicant’s argument

76                  I cannot accept that the applicant’s argument can have any application in the circumstances of the present case, at least as a free-standing argument.  Whether a ground of review is available under one or other of the sub-pars of s 476(1) is a separate question, to be considered within that particular, specific context:  see Anthonypillai at [72].  However, in the absence of any actual or constructive failure to exercise the Tribunal’s jurisdiction, there is no overarching common law right to judicial review by this Court, whose jurisdiction here is now strictly confined by statute:  see e.g., Chhour, above.  Obviously, there was no actual failure here;  nor, as will appear, was there any “constructive” failure in my view.

(b)        Did the Tribunal fail to take relevant matters into consideration, demonstrated by the manner in which it dealt with the matters specified in Ground 1?

(i)        The applicant’s argument

77                  It is submitted, prior to Yusuf, that the judgment of the Full Court in Anthonypillai was authority that failure to take relevant matters into account could not be argued as an error of law within s 476(1)(e) of the Act.  But, the argument runs, in Yusuf, five Judges of the High Court stated explicitly that failure to take relevant matters into account is within the scope of s 476(1)(e) of the Act;  to this extent, the applicant should succeed if the Tribunal, in the manner in which it dealt with the issues of detention and dismissal, failed to take relevant considerations into account.  The failure of the Tribunal properly to refer to evidence in support of the propositions set out in the particulars to Ground 1, or to give reasons for them, as discussed above, must be taken as indicating that the Tribunal did not consider whether there was such evidence.  Following Yusuf, it is to be inferred that if the Tribunal did not set out a matter, it did not consider it material.  It follows that if the Tribunal did not refer to evidence, it was because the Tribunal did not have, or did not consider, any evidence for the propositions concerned.  The applicant submits that this is a failure to take relevant considerations into account, in a manner which affects crucially the determination made by the Tribunal;  and that Yusuf is binding authority for the proposition that on review pursuant to Part 8 of the Act, the ordinary forms of error of law, e.g. considering a wrong issue, failing to consider a right issues, etc., may constitute ground for review.

(ii)              The Minister’s argument

78                  The Minister makes the following response:

·                     The applicant’s submission fails to take account of the majority judgment in Yusuf to the extent that it held at [82] (citing Craig v South Australia (1995) 184 CLR 163 at 179) that failing to take relevant matters into account “where the Tribunal’s exercise or purported exercise of power is thereby affected” (emphasis added) is a jurisdictional error.

·                     The High Court in Yusuf did not hold that failing to take account of relevant considerations, with no more, is an error of law.  Rather, the majority held (at [84]) that where the Tribunal has failed to take into account relevant considerations, that failure may “reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found”.  In other words, failure to take relevant considerations into account is not in itself an error under s 476(1)(e), but it may point to such an error.

·                     As a result, applying Yusuf, it is necessary for an applicant relying on failure to take into account a relevant consideration to show that the Tribunal’s exercise of power was affected by the alleged failure; or otherwise, to identify an error consequent upon the alleged failure to take into account a relevant consideration.

·                     It is well established that “[t]he ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he was bound to take into account in making that decision”;  Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 per Mason J at 39.  It is not to be supposed that the High Court in Yusuf intended to overrule Peko-Wallsend without saying so expressly.

·                     Indeed in Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 736 (18 June 2001) Gyles J said at [15]:

“… I think it is clear that the judgment of McHugh, Gummow and Hayne JJ was not intended to widen the existing scope of judicial review for jurisdictional error.  Indeed, their Honours expressly state the contrary.  In particular, I do not consider that their Honours were intending to, or did, redefine what are relevant considerations for the purposes of judicial review of administrative decisions, so as to make every fact or matter alleged by an applicant which a judge considers to be relevant to a decision to be a relevant consideration for those purposes (see particularly pars 71 to 73, 80 and 81).  Indeed, I do not read any of the judgments in Yusuf as having this effect.  None of their Honours say so, and there is every indication to the contrary (see Gaudron J at pars 40 to 42;  Kirby J at par 151;  Callinan J at pars 213 to 215, 219 and 234 to 236).”

·                     It is also to be noted that at [73] of Yusuf, McHugh, Gummow and Hayne JJ said:

“The considerations that are, or are not, relevant to the Tribunal’s task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider.”

·                     More generally, it is to be noted that in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 Deane J, then sitting in the Federal Court, observed (of failure to take relevant matters into account as a ground of review under the Administrative Decisions (Judicial Review) Act 1977) (at 375):

“This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account.  …

In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.  The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.”

·                     It is submitted that the Act does not oblige the Tribunal to consider every piece of evidence put forward.  It is the case that ss 54, 55 and 56 of the Act require the Minister, in making a decision, to have regard to all of the information in the application and any additional relevant material that the applicant gives or the Minister obtains.  Although s 415 of the Act provides that the Tribunal “may” exercise all the powers of the original decision-maker, it does not impose on the Tribunal all of the obligations of the original decision-maker.  Indeed, the obligations on the Tribunal are separately stated in Division 5 of Part 7 of the Act and do not include the obligation to have regard to all of the information in the application and any additional relevant information that the applicant gives.

 

·                     In the refugee context, the Full Federal Court in Li Shi Ping v Minister for Immigration Local Government and Ethnic Affairs (1994) 35 ALD 225 at 226 held that decision-makers were not bound to take into account every piece of evidence that was put forward, but were only bound to consider what might happen to the applicants if they were returned to the country in which they claimed to face persecution.  Here, the Tribunal clearly did turn its mind to that matter.

·                      In any event, for the reasons mentioned in his earlier argument, the Minister submits that the Tribunal did take into account the matters referred to, namely, that the applicant was detained allegedly for the reason that he was an LTTE fund collector.  The Tribunal expressly considered the alleged motivation for the applicant’s detention and rejected it.  The Tribunal said:

“The Tribunal does not accept that the Applicant was detained for the reasons he described …

In all of the circumstances, the Tribunal is satisfied that the Applicant has contrived his story about collecting money for the LTTE and does not accept that he is suspected of assisting or belonging to that group for the reasons he has described.”

(iii)            Consideration of this branch of the applicant’s argument

79                  I cannot accept the applicant’s argument, essentially for the reasons advanced by the Minister.

80                  I would only add two subsequent references.

81                  First, as has been seen, since reserving in this matter, Weinberg J has given judgment in Chhour and Awan agreeing with Gyles J in Khan.  I also agree.

82                  Secondly, the majority in Yusuf explicitly stated (as has been noted) (at [84]):

“… making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which para (e) [of s 476(1)], deals.”

83                  In my opinion, the applicant’s argument here is in substance, if not also in form, no more than an impermissible attempt to challenge the Tribunal’s conclusions on the facts.

(b)               Did the Tribunal err in law by failing to consider the consequence for its decision if it were wrong on its findings of fact?

(i)                 The applicant’s argument

84                  In support of this branch of his argument, the applicant refers to observations made by Sackville J (with whom North J agreed) and by Kenny J in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 239 – 241 and 255 respectively.

85                  Sackville J said (at [67]):

“In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons.  If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.  Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued.  A “fair reading” of the reasons incorporates the principle that the RRT’s reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FC), at 287.  Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.”

Kenny J said (at [140]):

“There is, however, nothing in the judgments of the majority in Guo or Wu Shan Liang to require the RRT to address the specific question “What if I am wrong?” after it has made findings of fact and in the course of determining whether it is satisfied that the applicant has a well-founded fear of persecution.  Indeed, I doubt that Kirby J intended to be understood as requiring that:  see Wu Shan Liang at 293.  In deciding whether it has a relevant satisfaction for grant of a protection visa, the Tribunal is required to bear in mind the totality of the case.  That, as we have seen, includes any relevant uncertainty that it entertains as to whether claimed events in the applicant’s past may ground a fear of persecution for a Convention reason.  In that respect, the Tribunal is required to do no more than to satisfy itself in accordance with commonsense and the ordinary experience of mankind.”

(ii)       The Minister’s response

86                  On behalf of the Minister, it is submitted that it is well established that the question “What if I am wrong?” only needs to be asked where the Tribunal has a real doubt about its findings:  see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 and Rajalingam at 241.  It is submitted that in this case, the Tribunal’s reasons for decision disclose no real doubt about the facts which form the basis of its decision.  The applicant has not pointed to any aspect of the reasons for decision which tend to suggest that the Tribunal had a doubt about its findings.

(ii)              Consideration of this branch of the applicant’s argument

87                  I cannot accept the applicant’s argument, for the reasons submitted by the Minister.

88                  In oral argument, counsel for the applicant sought to develop his argument further by suggesting that the question postulated ought to be asked in any case where the evidence raises a doubt, and here the evidence did raise a possibility that what the witness said (that is, all of what he said) was true.  Further, the argument went, the Tribunal failed to consider whether, although not a fund-raiser, the applicant was suspected to be a member of the LTTE.

89                  I cannot accept this submission either.  Again, the argument attempts, impermissibly, to introduce an objective standard instead of a subjective one.  The relevant question is not whether, in the opinion of the Court (on an objective analysis conducted ex post facto), the Tribunal ought to have had a real doubt about the facts, but whether the Tribunal itself (subjectively) had a real doubt.

ORDER

90                  Accordingly, the application is dismissed, with costs.

I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

 

Associate:

Dated:              20 August 2001

Counsel for the Applicant:	Mr A Krohn
Solicitor for the Applicant:	K P Aravindan
Counsel for the Respondent:	Ms H Riley
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	5 July 2001
Date of Judgment:	20 August 2001