Moges Eshetu v Minister for Immigration & Ethnic Affairs [1997] FCA 19 (31 January 1997)

CATCHWORDS

ADMINISTRATIVE LAW - appeal from Refugee Review Tribunal decision refusing application for refugee status - discussion of grounds of judicial review available - whether s420 of the Migration Act 1958 (Cth) proscribes a procedure for the purposes of s476(1)(a) constituting a ground of review - Tribunal's decision found to be defective but not judicially reviewable.

Administrative Decisions (Judicial Review) Act 1977 (Cth); s5

Migration Act 1958 ; ss420, 476

Migration Reform Act 1992 (Cth)

Minister for Immigration and Multicultural Affairs v Ozmanian (Jenkinson, Sackville and Keifel JJ, unreported, 21 November 1996); referred to.

White v White 53 Arg LR 342; referred to.

Venayagamoorthy Velmurugu v Minister for Immigration and Ethnic Affairs (Olney J, unreported, 23 May 1996); referred to.

Wannakuwattewa v Minister for Immigration and Ethnic Affairs (North J, unreported, 24 June 1996); referred to.

Zakinov v Minister for Immigration and Ethnic Affairs (North J, unreported 26 July 1996); referred to.

Dai v Minister for Immigration and Ethnic Affairs (Black CJ, Davies and Sundberg JJ, unreported, 18 September 1996); discussed and followed.

Singh v Minister for Immigration and Ethnic Affairs (Lockhart J, unreported, 18 October 1996); discussed and followed.

Barzideh v Minister for Immigration and Ethnic Affairs (Hill J, unreported, 21 August 1996); referred to.

Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1990) 169 CLR 379; discussed.

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167; discussed and followed.

MOGES ESHETU v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

HILL J

SYDNEY

31 JANUARY 1997

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No NG 980 of 1995

)

GENERAL DIVISION )

BETWEEN: MOGES ESHETU

Applicant

AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

ROSLYN SMIDT, SITTING AS THE REFUGEE REVIEW TRIBUNAL

Second Respondent

CORAM: HILL J

PLACE: SYDNEY

DATED: 31 JANUARY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No NG 980 of 1995

)

GENERAL DIVISION )

BETWEEN: MOGES ESHETU

Applicant

AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

ROSLYN SMIDT, SITTING AS THE REFUGEE REVIEW TRIBUNAL

Second Respondent

CORAM: HILL J

PLACE: SYDNEY

DATED: 31 JANUARY 1997

REASONS FOR JUDGMENT

The applicant, Mr Moges Eshetu, seeks such judicial review as is available to him under either the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") or s476 of the Migration Act 1958 ("the Act") to review the decision of the Refugee Review Tribunal ("the Tribunal") to refuse his application for refugee status. The Tribunal, the second respondent, appeared and submitted to any order which the Court might make, save as to costs.

So zealously does the Australian Parliament desire to implement its United Nations Treaty obligations to assist refugees, that it has enacted legislation specifically to ensure that it is acceptable for a decision on refugee status to be made by the Tribunal which not merely denies natural justice to an applicant but also is so unreasonable that no reasonable decision-maker could ever make it. At least in this Court, although not in the High Court, the grounds of judicial review are narrowly confined.

THE BACKGROUND TO THE PRESENT APPLICATION

The applicant is a citizen of Ethiopia. He was, at the time of the proceedings before the Tribunal, 22 years of age.

The applicant grew up in Addis Ababa during the pro-communist regime of President Mengistu Haile Mariam. That was a time of considerable repression. In the 1970s, two of the applicant's brothers had been involved in the Ethiopian Peoples' Revolutionary Party, which had opposed the Mengistu government, and had been imprisoned for a time and tortured. As a student in year 11 in secondary school, the applicant likewise became involved in anti-Mengistu politics. In January 1991 he was detained for a week after attempting to lead students from his school on a march through the city.

In May 1991, President Mengistu fled Ethiopia and in the result the power vacuum was filled by the Ethiopian Peoples' Revolutionary Democratic Front (EPRDF), which entered Addis Ababa and took over the country. According to the Tribunal, the applicant said that after the takeover Addis Ababa was dangerous and in the result he did not go out much, although he managed to meet other students and talk to them about politics on occasions. The Tribunal made no finding as to whether this in fact happened.

On 1 October 1991 the applicant commenced studies at the university in Addis Ababa and was elected soon thereafter as one of 11 members of the student council at the university. Although the Tribunal's reasons say there were 11 members, the applicant's evidence was that there were 12, although one of the members was, he said, "disappeared". Nothing, however, turns upon this.

The student council met approximately once a week and discussed political matters. One of the concerns of the council and of the applicant arose from the desire to have a greater equitable division of power among the approximately seventy, sometimes antagonistic, ethnic groups which existed in Ethiopia. During the Mengistu period, power had been centred in the Amharas, of whom the applicant was one. After the takeover by the EPRDF, the government was a coalition of ethnic groups excluding the Amharas and dominated, it would seem, largely by the Tigrayans.

Central to the applicant's case that he had a well-founded fear of persecution for a Convention reason so as to justify the grant to him of refugee status, were the events that he said took place on or around 5 December 1991. According to his evidence, a decision was reached by the student council to organise a march to the United States Embassy on that day to convince the United States government that the transitional government was not representative of all Ethiopians and should be replaced. Posters were put up around the university to advertise the march. The day before the march, however, uniformed officers from the EPRDF army arrested the applicant and twenty-four or so others, including all of the members of the student council. They were taken to Maikelawi Prison where they were held for three days, given no food and badly beaten. After this, according to the applicant, they were released and told that if they participated in any further anti-government activities they would be executed immediately. The applicant said that he was unable to walk for a week because of injuries to his feet.

After being released from custody, the applicant returned to class for a few days. Approximately four days after his return, some members of the student council came to his home and told him that four members of that council had been arrested again and warned him that it was not safe to remain in Ethiopia. The applicant said that he had not heard of or from the student council members since that time.

Shortly after this time (in fact on 9 June 1992) the applicant left Ethiopia. He paid what amounted to a bribe to obtain a passport "through unofficial channels" (to quote the Tribunal) and went to Israel where his sister was working for a United Nations organisation. He did not seek refugee status in that country and came to Australia arriving on 8 September 1993.

The applicant said that since leaving Ethiopia he had learnt that many of the people who were arrested with him in 1991 had since been killed or had vanished. He said that twenty-five people, including a number of his colleagues, had been killed in a demonstration on 4 January 1993. That knowledge was indirect, stemming as it did from reports which he said his sister had received in Israel and passed on to him. The 1993 demonstration, according to a report of Amnesty International of 5 January 1993, was a protest at the United Nations involvement as observers in an independence referendum in Eritrea due to be held in April 1993. The students had planned the march from the university to the United Nations centre in Addis Ababa to deliver a petition to the United Nations Secretary-General, Butros Butros Gahli, who at that time was visiting Addis Ababa. The demonstrators were particularly opposed to the proposed independence of Eritrea. It would seem that some one thousand students were involved. They had been refused a permit to demonstrate and the authorities had declared the demonstration illegal. The demonstration was interrupted by security forces who opened fire. I shall return later to the significance of this demonstration.

According to the Reasons for Decision of the Tribunal, the Tribunal member advised the applicant that she "had great difficulty accepting that he had been arrested in the circumstances claimed", that is to say, around December 1991. The Reasons continue:

"I pointed out that there was no mention of such an incident in any of the sources I had consulted and, while I acknowledged that not all detentions of opponents of the government during this period would have been recorded, I found it most unlikely that an event such as that described by Mr Eshetu, involving as it did the arrest and torture of the entire student council, would not have been reported by those involved or have been mentioned in at least some of the sources consulted. Mr Eshetu maintained that the incident had indeed occurred."

A reference to the transcript does not suggest that the Tribunal member in fact advised the applicant that she had great difficulty accepting his story. Nevertheless, it is certainly true that it is apparent that the Tribunal member was suspicious that the event had not taken place. It would not seem that her suspicion was in any way enlivened by her view that the applicant was lying, or if it were she made no attempt to make this clear to the applicant. At one stage in the transcript she said of him:

"Yes well, I mean, nobody doubts that you are a fine person but it is not ultimately relevant to the decision ..."

The reference to relevancy of the decision is a reference to the health of the applicant's son, rather than his character. There was no reason for the applicant to believe that the Tribunal thought he was lying.

The sources consulted by the Tribunal are not directly referred to in the passage from the Reasons to which I have just referred. However, it is clear that the Tribunal had consulted reports from Amnesty International, the Ethiopian Human Rights Council ("EHRC"), the United States State Department, and had before it some newspaper material, although not newspapers published in Ethiopia.

The EHRC was a body only actually formed in October 1991. It issued its first press release or report on 12 December of that year. That press release, which was before the Tribunal but which is not discussed directly in the Tribunal's Reasons, indicated that even before the announcement was made that the EHRC had been established it received a "continuous flow of complaints from many parts of the country" of human rights violations. On the face of that report, however, it is clear that it covered only the period to 27 November 1991 and not the period in which the events narrated by the applicant occurred. The EHRC's second report, curiously, says it covers complaints received since 12 December 1992, thus leaving on its face some hiatus. But whether or not this is so, both reports speak of unlawfully detained persons, reported loss of human life and property damage due to ethnic and religious conflicts in some areas, and what the second report refers to as "disturbing incidents".

It is interesting to contrast what the report of February 1992 (the second report) says with some comments made by the Tribunal, to which I will later refer. In the second report, under the heading "Disturbing Incidents", the EHRC reports:

"The most serious new development on the negative side of human rights in Addis Ababa has been an increasing number of persons who are shot and left on the streets for some time. This is a total disrespect for human life. The victims are often allegedly thieves or robbers who never have the benefit of due process of law ... It is known that there is at least one case of killing which had nothing to do with stealing ..."

The report details cases of killings, torture and detention, as well as ethnic conflict.

After the hearing had been adjourned and the solicitor for the applicant had made some submissions, the Tribunal conducted some research. As its Reasons for Decision indicate, it contacted the EHRC to ask if they were aware of the December 1991 incident. Among the questions asked was whether the EHRC had any information about the detention of students in the second half of 1991 and whether the EHRC, if not aware of the detentions, believed it was possible that 11 or 12 members of the students council could have been detained and tortured without the EHRC knowing. The EHRC was also asked to comment on what might happen should the applicant return to Ethiopia.

These questions were responded to by a Mr Wolfemariam who said that the EHRC was aware that the students were planning a march in early December 1991, but was not aware of the detention incident. He said that it was possible that members of the student council were detained in December without the knowledge of the EHRC. He further said that it was difficult to answer what treatment the applicant might expect if his story was accepted and he were to be returned to Ethiopia. He said that there had been animosity between the government and the student council and that this had been reflected in the mass media. He also said that members of the student council had been killed and it was unlikely that a member of the 1991 student council would be greeted by the government in a friendly manner.

The Tribunal also made inquiries of Community Aid Abroad, an Australian charitable organisation operating in Africa. It responded that none of its sources had any recollection of an incident around December 1991.

When the applicant's solicitors were advised of the response from Community Aid Abroad and, at least, a part of the response from the EHRC, they contacted Amnesty International which then wrote to the Tribunal. Amnesty International expressed "serious concerns about the accuracy of the information provided by the CAA", as well as the fact that that organisation had been asked in the first place. It also expressed concern that the Tribunal might take the absence of information about the incident as an indication that it did not occur. A concern which, as will shortly be seen, was well justified.

Although nothing turns upon it, the Tribunal appears to have been greatly incensed by the fact that the applicant's solicitor approached Amnesty International and Community Aid Abroad directly in response to the information provided.

The Tribunal invited the applicant to a second hearing to discuss the lack of any report of the 1991 arrests. Of this proceeding the Tribunal said:

"Mr Eshetu said that when the EPRLF took over in Ethiopia there was a great confusion and people were concentrating on what happened to the high official [sic] of the former regime who were detained at the time and were not generally aware of what was happening to people such as him so it was easy for incidents such as his detention to go unnoticed. Mr Eshetu also said that he had seen large numbers of people shot dead in Addis Ababa. The authorities claimed that these people were looters, but he does not believe this is true. He said that in comparison his treatment was mild and therefore was not surprising that his case was not reported."

The Tribunal considered material discussing the situation in Ethiopia from 1991 through to 1995 and continued:

"From the evidence before the Tribunal, it is clear that widespread crime and ethnic violence continued in Ethiopia following the EPRDF takeover in 1991 and that many people were detained for prolonged periods without being charged, including come [sic] members of some groups opposed to the EPRDF. However, the evidence does not suggest that those who criticised or demonstrated peacefully against the government in Addis Ababa were generally at risk of detention or serious harm. On the contrary, the evidence suggests that individuals and groups were able to speak out against the government and many demonstrations were held without the participants experiencing serious problems. Of course, this does not mean that the possibility that some people were detained for planning or involvement in peaceful anti-government demonstrations can be completely discounted and I would not have rejected Mr Eshetu's claims regarding his alleged detention in December 1991 merely because it appeared to be an uncommon occurrence at the time. However, after considering the evidence before the Tribunal on the period in question, I do not accept his claim that such occurrences were common or that the EPRDF suppressed all opposition to its rule during the period he remained in Ethiopia.

Involvement with the Student Council and detention

I do not accept that Mr Eshetu and another 25 students, including all but one of the members of the Student Council from the University of Addis Ababa, were detained and tortured for three days for planning a demonstration in December 1991.

None of the reports before the Tribunal published by those monitoring the human rights situation in Ethiopia at the time mention this particular incident in which Mr Eshetu claims to have been involved, nor were those contacted by the Tribunal regarding the claim aware of the alleged arrests. Searches of Reuters and Nexis data bases, which hold media reports from a number of international newspapers and magazines, conducted by the Department, revealed no mention of these arrests.

While I acknowledge that not all detentions or other human rights abuses will be mentioned in human rights reports or other published materials, for the reasons set out below, I consider that the detention and torture of 25 students, including all but one of the members of the Student Council in Addis Ababa in December 1991 would have been known to at least some of those monitoring the human rights situation and would have been reported in publications produced by these organisations."

After noting some references in United States State Department Human Rights Reports and that university students in general and the student council in particular were regarded as an important political group in Ethiopia (clearly students were an elite group), the Tribunal said:

"As discussed above, the detention and torture of 25 students for planning a demonstration during this period would have been an unusual occurrence.

In these circumstances, I find the claim that 25 students, including all but one member of the Student Council, were arrested in their classrooms and detained and tortured for three days without anyone making the incident public or reporting it to the human rights organisations monitoring the situation in Ethiopia at this time to be implausible."

The Tribunal also did not accept that a large number of the applicant's friends and colleagues, despite the comments which might be thought to have lent some support in the answers of Mr Wolfemariam, had been detained, "disappeared" or killed. In so doing, the Tribunal did not reject any evidence of the applicant for his knowledge or views on this matter depended very much on third hand accounts. Having regard to the EHRC response, to which I have made reference earlier, the rejection of the idea that student leaders had been killed was clearly beyond the weight of the evidence and was unreasonable. But such impediments to the Tribunal's decision-making process are matters Parliament has directed me to ignore.

In particular, the Tribunal concerned itself with the January 1993 demonstration. Initially, it is clear, that reports differed as to the death and injury toll arising from this demonstration. The EHRC spoke of "brutal violence". Amnesty International, in an early report, had spoken of reports that Ethiopian security forces had apparently shot dead seven students and wounded over one hundred others, two of whom were said to have subsequently died in hospital. A United States State Department report of 1994 spoke of one death confirmed but a belief that other deaths may have occurred. An official inquiry into the incident took place, and according to a report of Amnesty International published in April 1995, that report concluded that one student only was killed and thirteen injured. Amnesty International expressed concern at whether sufficient attention had been paid to protecting witnesses from reprisals in this investigation.

In light of this material, the Tribunal indicated, as I have already said, that it did not accept that a large number of the applicant's friends and colleagues from university had been detained, "disappeared" or killed after his departure from Ethiopia. The Tribunal pointed to the fact that the applicant had been "unable to provide any specific information on the fate of these people". The learned Tribunal member said that it was "now generally agreed that only one person, a first year student, was killed during this demonstration". Whether there was such general agreement no doubt depended on whether the result of the official investigation was accepted.

Ultimately the Tribunal concluded that the applicant feared returning Ethiopia, but found that his fear of persecution was not well founded. In consequence, it affirmed the decision before it not to grant him a protection visa.

It is agreed by the parties before me that a successful challenge to the Tribunal's conclusion that the December 1991 incident did not occur would lead to the conclusion that the matter would have to be remitted to the Tribunal for further consideration. It is also implicit in the submissions on behalf of the applicant that it is conceded that the only matter in contention before me concerns the December 1991 incident.

There is little doubt that the real complaint against the Tribunal's decision is that the Tribunal did not believe the applicant's narration of the events of December 1991. However, the question whether or not the Tribunal believed the applicant, or for that matter whether the applicant was then detained, is a matter for the Tribunal and not for the Court. There is a clear distinction which must, at all times, be observed between a merits review aimed at reaching the right or preferable decision on the merits and judicial review which broadly, and subject to statutory abrogation, is concerned with legal error: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 70 ALJR 568.

THE GROUNDS OF JUDICIAL REVIEW PLEADED

The ADJR Act gave to the Federal Court of Australia exclusive jurisdiction to review decisions of an administrative kind made under Commonwealth enactments, except as otherwise by that Act excluded. It set out, largely by way of codification of the common law, the grounds upon which this Court might review Commonwealth administrative decision-making. Those grounds include a ground of review on the basis that natural justice was not afforded, a ground that there was a failure to take into account relevant matters or there was account taken of irrelevant matters, a ground that the decision was, in the administrative law sense, unreasonable, and a ground that there was no evidence or other material to justify the making of the decision: see respectively, ss5(1)(a), 5(2)(b) and 5(2)(a), 5(2)(g) and 5(1)(h).

That jurisdiction, in relation to decisions of the Tribunal, was, however, removed by s485 of the Act inserted by the Migration Reform Act 1992 . The history and changes relevant to the present case are set out in the judgment of Sackville J (at 32 ff) in Minister for Immigration and Multicultural Affairs v Ozmanian (Full Court, unreported, 21 November 1996), a judgment with which Jenkinson and Kiefel JJ agreed, and see the judgment of Lehane J in Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693 referred to and approved in the judgment of the Full Court in Ozmanian.

For relevant purposes therefore, the jurisdiction of the Court in the present reference is confined to that conferred by the Act, the grounds for which are those contained in s476. That section provides as follows:

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

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

(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;

(f) that the decision was induced or affected by fraud or by actual bias;

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

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

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

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

(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b) an exercise of a personal discretionary power at the direction or behest of another person; and

(c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as 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; or

(f) an exercise of a discretionary power in bad faith; or

(g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).

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

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

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

The applicant places his primary case upon what is said to be a failure to observe procedures required to be observed by the Act. Particulars pleaded are as follows:

"(a) The second respondent failed to consider material matters, namely, the submissions of Amnesty International in relation to:

(i) the relevance of the Community Aid Abroad officer's opinions as to matters concerning the applicant's application;

(ii) the relevance of the statement by an officer of Community Aid Abroad that its sources did not recollect an incident deposed to by the applicant;

(iii) the reliability of the material in the letter from Community Aid Abroad dated 7.6.95; and

(iv) appropriate procedures fo fact finding in relation to refugee status claims.

(b) The second respondent erred in relying upon material which was not logically probative, namely, the statements of an officer of Community Aid Abroad contained in a letter dated 7.6.95.

(c) The second respondent erred in failing to assess the credibility of the applicant.

(d) The second respondent erred in failing to assess the credibility of the applicant's evidence.

(e) The second respondent erred when she rejected the applicant's assertions in relation to past persecutory acts only on the basis that she could not find confirmation of these facts in material available to her and without assessing the credibility of the applicant."

It is also pleaded that the Tribunal erred in law in incorrectly interpreting and applying the Convention and that it failed properly to apply the law to the facts when dismissing the applicant's case. In each case what is relied upon is the making of a decision by the Tribunal contrary to the applicant's evidence, without any determination by the Tribunal of the applicant's credibility.

The procedures which it is said that the Tribunal did not observe are claimed to be those contained in s420 of the Act which is in the following terms:

"Refugee Review Tribunal's way of operating

420. (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case."

It is said that the Tribunal did not carry out a fair review and particularly did not act according to substantial justice and the merits of the case as it was required by s420 to do. The three matters essentially relied upon are that:

1. the Tribunal proceeded upon the basis that what was said by an applicant should not be accepted unless corroborated;

2. an applicant's evidence was to be ignored even though no finding of credit was made (or put another way, that in the present case no finding of credit was made yet the applicant's evidence was rejected); and

3. the Tribunal proceeded on the basis that it should reject evidence of an applicant unless some objective record was to be found in reports before it, even if logic would have it that it was quite likely that no record would appear in those materials.

Counsel for the applicant emphasised that she was not seeking from the Court a merits review or seeking to go outside the grounds of judicial review contained in the Act.

THE RELATIONSHIP BETWEEN SECTION 420 AND SECTION 476(1)(a)

Section 476(1)(a) has its origin in s5(1)(b) of the ADJR Act which speaks, however, of procedures required by law to be observed rather than procedures required by specific legislation to be observed. The emphasis in s476(1)(a) on the Act and the Regulations made under that Act makes it clear that the relevant procedures are those to be found detailed in the interstices of the Act and Regulations, rather than in the general law.

As already noted s475, and indeed the whole of Division 2 of Part 8 of the Act, has its origin in the Migration Reform Act 1992 . As the Explanatory Memorandum accompanying the Bill for that Act makes clear, the ground of review, now s.476(1)(a), was "complementary" to the provision now renumbered s476(2)(a) that there could be no basis for judicial review on the grounds of breach of the rules of natural justice. The Explanatory Memorandum says:

"... The Scheme of decision-making under the amendments made in this Bill will set out with greater certainty the procedural requirements to be followed to ensure that applicants are provided with the protection necessary to receive a fair consideration when decisions are made affecting their rights to enter or remain in Australia. The procedural requirements under the existing regime have been governed by the common law rules of natural justice and these rules have not provided the certainty needed for effective administration of the migration program. Accordingly, these common law rules will be replaced by a codified set of procedures which will afford the same level or protection or [sic] protection to individuals but will have the additional advantage of greater certainty in the decision-making process. For example, at common law prior notice of an adverse decision is required. Under the procedures established in this Bill, new section 26Y requires the Minister to give the applicant information, if that information would be the reason or part of the reason for refusing the application for a visa. The Minister is to invite the applicant to comment on it and under new section 26ZE, the Minister is not to refuse an application until the applicant has responded, has indicated that he or she will not be responding or the time for responding has passed. The Bill provides for an application for review of a decision where procedures such as these are not observed." (Emphasis added)

The references to ss26Y and 26ZE are references to the now ss 57 and 58 respectively as renumbered.

The passage above quoted would fairly lead to the conclusion that the Parliamentary intention was not merely to limit the grounds upon which review of Tribunal decisions was available, inter alia, by excluding as a ground natural justice, but also by inserting s476(1)(a) to entrench the procedures which the 1992 Bill enunciated.

It may be noted that s420 was one of the sections brought into the Act in the 1992 amendments. The Explanatory Memorandum referring to the section which ultimately was renumbered as s420 (s166C) says:

"This section provides that the RRT shall have as its objective the providing of a mechanism of review that is fair, just, economical, informal and quick. The RRT in reviewing a decision is not bound by technicalities, legal forms or rules of evidence and shall act according to substantial justice and the merits of the case.

'Substantial justice' is used to emphasised that it is the issues raised by the case, rather than the process of deciding it, which should guide the RRT in making its decisions. It is intended that the RRT will operate in an informal non-adversarial way that will facilitate applicants putting their own case in their own words."

Sections like s420 are to be found in other legislation, cf s109 of the Native Title Act 1993 and s33(1) of the Administrative Appeals Tribunal Act 1975 .

It is submitted on behalf of the Minister that s420 does not prescribe a form of procedure at all, or that if it does it was never intended to be a form of procedure breach of which would entitle an applicant to judicial review under s476(1) of the Act. Alternatively, it is submitted that if s420 does prescribe a form of procedure, it does so in terms so vague and general that they could scarcely be not observed and certainly were observed in the present case.

Section 476(1)(a), in referring to procedure, has in mind the well known distinction between substance and procedure. The procedure referred to must be that which regulates the conduct of the Tribunal in respect of the review which the Tribunal is to undertake in contradistinction to the substantive law which it is obliged to apply: cf White v White (1947) 53 Arg LR 342; Poyser v Minors [1881-5] All ER 1173. To adopt the meaning of the word "procedure" in the Macquarie Dictionary, it is "the act or manner of proceeding" in the process of review.

The question of the relationship between s476(1) and s420 has been the subject of some discussion in recent cases. Olney J in Venayagamoorthy Velmurugu v Minister for Immigration and Ethnic Affairs (unreported, 23 May 1996) (at 6) suggested that s420(2)(b) did little more than require the Tribunal to proceed fairly. However, his Honour gave little consideration to the relationship between s476(1) and s420 because the applicant really sought a review on the merits rather than judicial review.

North J in Wannakuwattewa v Minister for Immigration and Ethnic Affairs (unreported, 24 June 1996) and subsequently in Zakinov v Minister for Immigration and Ethnic Affairs (unreported, 26 July 1996) likewise found it unnecessary to decide whether s420 established procedures for the purposes of s476(1)(a) because, even assuming that it did, his Honour held that no error appeared, or that what was really sought was a merits review.

A Full Court of this Court (Black CJ, Davies and Sundberg JJ in Dai v Minister for Immigration and Ethnic Affairs (unreported, 18 September 1996) considered, inter alia, an argument whether the 1992 legislation had ousted the jurisdiction of the Courts. In saying that this was not the case, Davies J, after setting out the terms of s420, said (at 17):

"It is plain from such provisions that, not only does the Migration Act provide for review on the merits by the Refugee Review Tribunal, but it intends that the 'mechanism of review' will be fair. Although s420(1) specifies only an objective, the Migration Act intends that the procedures adopted by the Refugee Review Tribunal will be 'fair' and 'just'. If this has not occurred in the present case, the applicant will be entitled to seek relief under s476(1) of the Migration Act on the ground that the procedures required by the Migration Act to be observed in connection with the making of the decision have not been observed."

His Honour's comments are, of course, but dicta.

The Full Court of this Court in Ozmanian in the judgment of Sackville J (at 59) did no more than comment that there may be a question of the relationship between s420 and s476(1)(a), referring to Dai and Velmurugu.

The issue was raised more squarely before Lockhart J in Singh v Minister for Immigration and Ethnic Affairs (unreported, 18 October 1996). In that case the applicant claimed that the decision, the subject of judicial review, was void for actual bias, a ground of review under s476(1)(f). An alternative way the case was put relied upon s476(1)(f) in conjunction with s420(2)(b). His Honour held that the case of actual bias was not established and then turned to consider the ground raised under s476(1)(a). After referring to the earlier decisions mentioned above and commenting that, in the present case, a review on the merits had not been sought, his Honour said (at 51-2):

"Section 420 is mandatory in its requirement that the Tribunal in reviewing a decision must act according to substantial justice and the merits of the case (sub-s.(2)); and in directing the Tribunal, in carrying out its functions under the Act, to pursue the objective of providing a review mechanism that is fair, just, economic, informal and quick (s.420(1)).

His Honour, however, then expressed the view that it had not been established that the Tribunal had failed to act according to substantial justice or fairly and thus dismissed the application adding:

"If I had been of the contrary view, and found that the Tribunal had acted so unfairly as to deny substantial justice to the applicant, that would in my view be a failure to observe procedures required by the Act for the purposes of s.476(1)(a), the procedure being to act according to substantial justice in reviewing a decision."

As a matter of construction, I see no reason to depart from the view expressed by both Lockhart and Davies JJ that s420 specifies at least one of the procedural requirements to which s476(1)(a) refers. But having said that, it is necessary to observe that the procedural specification in s420 is somewhat vague. It imports no more than that the review mechanism is to be fair and just. The reference to the merits of the case in s420(2) can not be read in isolation. The section could never be construed as creating a form of merit review. The reference to "merits" has to be read in conjunction with the words "substantial justice", so that the prescription is that the Tribunal is to proceed with a review on the merits acting fairly and justly.

The references, however, to fairness and justice in s420 must be read subject to the provisions of s476(2) so that, if the injustice would involve a breach of the rules of natural justice, then judicial review will be precluded, notwithstanding the terms of s420. This so narrows the ambit of s420 as to leave little scope for its operation, but that is not to say s420 has no role at all.

I acknowledge that the interpretation which I have adopted following the views of Lockhart and Davies JJ, presents a criterion of considerable vagueness and stands somewhat in contrast to the Explanatory Memorandum comment that the aim of the 1992 amendments was certainty. Nevertheless, the language of Parliament in legislation can not be ignored so as to produce a good fit with the language of the Explanatory Memorandum.

It is necessary then to turn to the question whether the present is a case which falls within s476(1)(a) as involving a breach of the Tribunal's obligation to be fair or just.

WHETHER THE TRIBUNAL IMPLICITLY REQUIRED CORROBORATION

I can not emphasise too strongly that the Tribunal must not approach its task of merits review on the basis that it will not accept what an applicant for refugee status says, unless there is some independent corroboration. To do so would involve a gross error of law. It would entitle an applicant, in my view, to have the Tribunal's decision set aside on the grounds either of s476(1)(a) or perhaps s476(1)(e).

Counsel for the applicant referred me to a passage from the Handbook on Procedures and Criteria for Determining Refugee Status 1979, issued by the office of the United Nations High Commissioner for Refugees in the following terms, under the heading "Establishing the facts":

"203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements ... It is therefore frequently necessary to give the applicant the benefit of the doubt.

204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts."

I have referred elsewhere in Barzideh v Minister for Immigration and Ethnic Affairs (unreported, 21 August 1996) to the dangers of accepting the Handbook as an aid to interpretation. Even more so must there be a danger of making reference to the Handbook on matters of procedure.

However, the passage cited is referred to in the judgment of McHugh J in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1990) 169 CLR 379 at 425 without any disapproval. In my view this, with respect, is not because the passage is to be found in the Handbook, but because it reflects the correct approach to adjudication of a claim to refugee status.

The difficulty for the applicant is to demonstrate that the Tribunal approached its task by requiring corroboration such that its decision was infected with error. It is not to be assumed that the Tribunal did so. Certainly there can be no complaint that the Tribunal set out to make inquiries which might confirm or negate the evidence of the applicant. It may be inferred from the course which the Tribunal took that it regarded the evidence of the applicant with some suspicion and thus went about seeking to ascertain as best it could the truth of the matter. Although I have a strong suspicion that the Tribunal approached its task as one requiring corroboration, I am unable to conclude that it necessarily did so or even that it more probably than not did so.

THE ABSENCE OF A FINDING OF CREDIT

It is true that there is nowhere to be found in the Tribunal's Reasons a finding as to the applicant's credit. For the applicant it is said that absent a finding as to credit it would not be open to the Tribunal to disbelieve the applicant. For the respondent it is submitted that a finding contrary to the applicant's credit is to be inferred.

There is no doubt that it would be desirable, where the Tribunal does not believe a witness and prefers to find to the contrary of the evidence of that witness, that it make a finding as to the witness's credit. But a failure to enunciate such a finding does not, in my view, involve an error of law vitiating a decision.

It may be recalled that in Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 the trial judge had made findings contrary to the evidence of a witness, but had made no reference to that evidence. It was held, nevertheless, that an appellate court was bound to accept the trial judge's findings if credibility could have played a part. McHugh J (at 179), with whose judgment the Chief Justice, Deane, Dawson and Gaudron JJ all agreed, said:

"... when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked. It does not follow that, because her Honour made no express reference to demeanour or credibility of either Professor Ferguson or Mrs. Archer, demeanour or credibility played no part in her findings on the supervision issue." (Emphasis added)

Likewise, it does not follow that because the Tribunal made no express reference to the applicant's credibility, the Tribunal's view of the applicant's credibility played no part in its finding with respect to the December 1991 incident.

THE LOGIC OF THE TRIBUNAL'S CONCLUSION

There is little doubt that the Tribunal was greatly, perhaps almost exclusively, influenced in its conclusion by the view it took of the significance of the fact that the reports before it did not refer to the December 1991 incident.

It will be apparent from the passages quoted earlier from the Tribunal's Reasons, that the Tribunal took the view that had the December 1991 incident occurred, it would necessarily have come to the notice of at least some of those monitoring human rights in Ethiopia. The Tribunal was aware of the fact that the student body was the elite of the country and had considerable political influence. It discounted what the applicant said about the situation in Addis Ababa at the time and wholly ignored the view of the EHRC representative that it was quite possible that the event would not have come to the notice of that organisation.

The Tribunal's conclusion totally lacks logic. The Tribunal's decision as reached was so unreasonable that no reasonable Tribunal could reach it. But sadly, that is not a ground of review. It can not be said that the Tribunal did not undertake a review to ascertain the merits, albeit that the review was flawed in the manner I have suggested.

I am of the view that howsoever the applicant's case is put, there is not made out a case for setting aside the Tribunal's decision on any of the grounds in s476. In consequence, the application must be dismissed and the applicant pay the respondent's costs of it.

I certify that this and the

preceding thirty-two (32) pages

are a true copy of the Reasons

for Judgment herein of his Honour

Justice Hill.

Associate:

Date: 31 January 1997

Counsel and Solicitors E Wilkins instructed by

for Applicant: Kessels and Associates

Counsel and Solicitors R Beech-Jones instructed by the

for Respondent: Australian Government Solicitor

Date of Hearing: 22 November 1996

Date Judgment Delivered: 31 January 1997