Sivaganeshan Kathiresan v Minister for Immigration & Multicultural Affairs [1998] FCA 159 (4 March 1998)

Last Updated: 9 March 1998

FEDERAL COURT OF AUSTRALIA

MIGRATION - Refugee status - review of decision of Refugee Review Tribunal - whether tribunal failed to act according to "substantial justice" - findings on credibility - tribunal disbelieved applicant as to his identity - findings based on non-existent facts - whether baseless findings critical to decision - failure to inform applicant that identity was in issue - appropriate orders - ensuring that matter reheard by differently constituted tribunal.

Migration Act 1958 (Cth) ss 36, 420, 421(2), 422(1)(b), 428, 460(2)(b), 460(3), 476(1)(a), 476(1)(g), 476(4)(b), 481(1)(b)

Acts Interpretation Act 1901 (Cth) s 22(1)(a)

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 followed

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported, Full Court of the Federal Court of Australia, 23 December 1997) followed

Dev Anan Navaratne v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Tamberlin J, 1 August 1997) considered

Thangarajah Thillainadarajah v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Heerey J, 3 December 1997) considered

Thisanathan Thevanathan v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Sundberg J, 24 December 1997) considered

Eric Emiantor v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Merkel J, 3 December 1997) considered

Kopalapillai v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Merkel J, 24 December 1997) considered

Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284 followed

SIVAGANESHAN KATHIRESAN V THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 305 of 1997

GRAY J

MELBOURNE

4 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY general division	VG 305 of 1997

BETWEEN:	SIVAGANESHAN KATHIRESAN Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	GRAY J
DATE OF ORDER:	4 MARCH 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal made on 10 June 1997 that "the tribunal affirms the decision not to grant a protection visa to the applicant" be quashed, with effect from 10 June 1997.

2. The matter to which the decision relates be referred to the member of the tribunal who made the decision for further consideration, subject to the directions that the member:

(a) disqualify himself from further consideration of the matter; and

(b) inform the Principal Member of the tribunal that, for the reason that he has disqualified himself, the member of the tribunal who made the decision is not available for the purpose of the review at the place where the review is being conducted.

3. Liberty is reserved to either party to apply on seven days' notice in writing to the other party.

4. The respondent pay the applicant's costs of the application.

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 GENERAL DIVISION	VG 305 of 1997

BETWEEN:	SIVAGANESHAN KATHIRESAN Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GRAY J
DATE:	4 MARCH 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

This application was made to the Court pursuant to ss 475(1)(b) and 476(1) of the Migration Act 1958 ("the Act"). The applicant seeks judicial review of a decision of the Refugee Review Tribunal ("the tribunal"), which affirmed a decision not to grant a protection visa to the applicant.

The application for a protection visa

The applicant arrived in Australia on 11 March 1997 and was detained by officials of the Department of Immigration and Multicultural Affairs at Melbourne Airport. He made an application pursuant to s 36 of the Act for a protection visa. The criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the convention"). The determining provision of the convention for this purpose is Article 1A(2), which defines a "refugee" as a person who:

"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence .... is unable or, owing to such fear, is unwilling to return to it."

On 24 March 1997, the applicant made a further application for a protection visa, with an attached typed statement dated 23 March 1997. He asserted that he would be arrested and killed if he returned to Sri Lanka because he is a person of the Tamil race, who had been involved with an organisation called the Liberation Tigers of Tamil Eelam ("LTTE"). On 23 April 1997, a delegate of the respondent minister refused the applicant's application for a protection visa.

The decision of the tribunal

On 30 April 1997, the applicant applied to the tribunal for review of this decision. On 27 May 1997, the tribunal conducted a hearing at which the applicant gave evidence and his migration agent made a brief submission. The hearing was listed to begin at 10.00 am on that day. It finished at 1.38 pm on the same day. Between those times, there were two short breaks. As well as the oral evidence of the applicant, the tribunal had access to all of the documents which had been before the delegate of the minister and to a tape-recording of an interview between an officer of the department and the applicant on 1 April 1997. The tribunal also had the benefit of various written submissions made by the applicant's migration agent, including a written submission made on 2 June 1997, after the hearing.

On 10 June 1997, the tribunal made a decision, affirming the decision not to grant a protection visa to the applicant, and published its reasons for decision. It is this decision of the tribunal of which review is sought in this Court.

The applicant's grounds for review

Counsel for the applicant submitted, and counsel for the respondent conceded, that I am bound to act on the view that s 420 of the Act prescribes procedures with which the tribunal is bound to comply and that a failure to comply with those procedures is a ground of review under s 476(1)(a) of the Act. See Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621, followed in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported, Full Court of the Federal Court of Australia, 23 Dec 1997). Section 420 provides as follows:

"(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."

Section 476(1)(a) provides that application may be made for review by the Court of a judicially-reviewable decision on the ground that procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed. Counsel for the applicant based his case on the proposition that the tribunal had failed to observe required procedures by failing to act according to substantial justice and the merits of the case.

The tribunal's finding

The essence of the tribunal's reasoning in relation to the applicant's case is expressed in the following passage in the tribunal's reasons for decision:

"In assessing the Applicant's evidence, the Tribunal is not satisfied that he is the person he claims to be. It accepts that he speaks Tamil, but it does not accept that he lived for any significant period in Batticaloa, that he studied in that area, that he was an active supporter of the LTTE, that he was videotaped in supporting activities, that he was even suspected of being a supporter or that he ever hid in Kokkaddicholai. His knowledge of the geography of Batticaloa may have been gained from a quick study of a map. His scant knowledge of what happened between 1987 and 199y [sic] suggests he may not have been in the country.

The Tribunal is aware of giving refugee applicants the benefit of the doubt where there is contentious evidence. That would be appropriate where the balance of an applicant's evidence is generally credible (see UNHCR Handbook paras. 203 - 204). That is not the case in the present matter. Apart from concluding that the Applicant is Tamil speaking and arrived on a flight from Singapore, the Tribunal does not accept the balance of his evidence, which has been altered, exaggerated, obscured and added to in various submissions. In drawing these conclusions the Tribunal is also aware of the comments of Foster J in Guo Wei Rong v MIEA ((1996) 135 ALR 421), where His Honour stated:

`Questions of the Applicants credibility as a witness are, also, obviously involved in the process. Serious concerns about the creditworthiness of an Applicants testimony can, of course, be fatal to a favourable finding on a balance of probabilities. However, a finding that he or she has failed to establish fact A on the balance of probabilities because, in all the circumstances, including matters of demeanour, the decision-maker is not prepared to accept the Applicant as a credible witness does not, as a matter of logic, necessarily mean that the possibility of the Applicants correctly asserting the existence of fact A has been utterly excluded. Mere doubts or concerns as to the Applicants credibility would not be sufficient to exclude the possibility. For this result, a positive state of disbelief would be required on the part of the decision-maker.'

In this case the Tribunal has a positive state of disbelief in regard to the Applicant's material claims."

The proper approach to findings on credit

Counsel for the respondent pointed out that there is a strong line of authority to the effect that the credit of an applicant is very much a matter for the tribunal. For instance, in Dev Anan Navaratne v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, 1 Aug 1997), at 7, Tamberlin J said:

"The credibility of an applicant is largely a matter of impression. There is no reason, in principle, why the observations of the High Court in Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179, as to the disadvantage of an appellate body in considering credibility findings should not apply in respect of review applications to this Court under s 476 of the Act. The oft-cited remarks of the Court as to the `subtle influence of demeanour' are especially important in migration cases where many of an applicant's assertions must be accepted at face value in the absence of any evidence to the contrary. Inevitably, a great deal must depend on the demeanour as well as the consistency of the evidence of an applicant in testifying as to specific critical facts that are incapable of being independently verified. For these reasons it will often be difficult to persuade this Court on a review application to set aside findings by an administrative decision-maker on credibility questions."

This passage was followed by Heerey J in Thangarajah Thillainadarajah v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, 3 Dec 1997), at 4, and by Sundberg J in Thisanathan Thevanathan v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, 24 Dec 1997), at 5-6. In Eric Emiantor v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, 3 Dec 1997), at 18, Merkel J pointed out that:

"An adverse finding against credibility on a material aspect of their claims does not relieve the RRT from making its findings in respect of each material aspect of their claims. But ultimately the RRT is the arbiter of fact and the credibility of the applicants was an issue for it to determine as a question of fact."

After dealing with the scope for error of law in a fact-finding process relating to a state of satisfaction and with issues peculiar to the case, his Honour said, at 22:

"The approach of the RRT to the credibility issues was open to it on the material, was based on rational grounds and was arrived at after consideration of matters that were logically probative on the issue of credibility. In these circumstances I do not accept the contentions of the applicants that the RRT erred in law in relation to these findings or that the findings were open to challenge on any other reviewable ground."

His Honour subsequently took the same approach in Kopalapillai v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Merkel J, 24 Dec 1997).

I make one comment with respect to this line of authority. In an area in which cross-cultural communications occur, there is danger in giving too much rein to the "subtle influence of demeanour". The work of tribunals operating under the Act is such an area. The dangers of attempting to assess the truthfulness of witnesses by reference to their body language, where different cultural backgrounds are involved, are well-known. They are exacerbated in circumstances in which one of the parties to the communication is a court or tribunal and is likely to be perceived by the witness as having a position of authority. The responses of a witness will often be conditioned by culture in such circumstances. No doubt the tribunal is required to deal with a significant number of cases in which people claiming to be refugees have been subjected to abuse and torture by authorities in the countries from which they have come. Their behaviour towards persons in authority is bound to be influenced by their experiences. The problem is exacerbated even more when evidence is given by way of an interpreter. Judging the demeanour of the witness from the tone of the interpreter's answers is obviously impossible. Judging the demeanour of the witness from the witness's own answers in a foreign language would require a high degree of familiarity with that language and the cultural background of its speakers. It is all too easy for the "subtle influence of demeanour" to become a cloak, which conceals an unintended, but nonetheless decisive, bias; see the remarks of North J in Sun Zhan Qui, at 3 of his Honour's judgment.

In the present case, the tribunal's conclusion about the credit of the applicant was based on a number of findings. Some of those findings were the subject of attack by counsel for the applicant.

The applicant's account of his educational history

One such attack was launched in relation to the applicant's educational history, on which he was examined at length in the oral hearing before the tribunal. The documents before the tribunal included two education certificates, one relating to A levels and the other to O levels. The former bore the printed inscription in the English language "G.C.E.(A.L.) EXAMINATION", beside which had been typed the date "1988 August". The equivalent inscription on the latter was "G.C.E.(O.L.) EXAMINATION", beside which had been typed "1988 December". In essence, the applicant's evidence in the oral hearing was that he passed his O levels in 1983 and took his A level examinations in 1987 and 1988. He had then returned and obtained a credit in English at O level, because it was necessary if he were to get a job in a bank. In its reasons for decision, the tribunal found:

"... he was initially adamant that he did not pursue any further O Level studies and that he completed A Levels in 1988 and then did no further study until he went to the Open University".

An examination of the available transcript of the oral hearing (which is not an official transcript) discloses no evidence to justify this finding. Counsel for the respondent was not able to point to any such evidence. At no stage did the applicant even tell the tribunal that he did not pursue any further O level studies after 1983 or that he did no further study after his A levels until he went to Open University. He certainly was not "adamant" about those issues. He was attempting to explain his educational history in chronological order.

An examination of the transcript reveals that the tribunal obviously had difficulty in understanding why the date of the examination shown on the O level certificate was later than that shown on the A level certificate. At one stage, the tribunal said:

"But you already had A Levels, you know, you don't go back and do O Levels, it's like going back to fourth form."

The applicant gave the explanation that he needed a credit in English to get a job in a bank. The tribunal, misreading the O level certificate, believed that it did not relate to English. This misapprehension was corrected by a written submission after the oral hearing. The tribunal seems to have relied on an assumption that the date shown as the date of examination on the certificate was the date of examination for all subjects shown in the certificate. Not only was this assumption subject to the risk of being baseless, it was inconsistent with the applicant's evidence. The applicant said that he took examinations in A levels in two years, but the A level certificate shows only one date of examination. The presence of one date of examination on the O level certificate provided no reason to disbelieve the applicant's evidence that he had completed a number of subjects at O level in 1983 but had passed O level English after he had completed his A levels.

The tribunal's finding about the applicant's account of his education was a contributing factor to its finding that "the O Level certificate is a fabricated document". The tribunal then went on to say:

"...given that the A Level certificate is on the same paper, submitted at the same time and apparently issued by the same Commissioner of Examinations, concludes that document to be fraudulent. It finds that they [the two education certificates] were submitted to support claims in relation to his identity."

Elsewhere, the tribunal found the education certificates "to be contrived documents."

The issue of lack of knowledge

One technique used by the tribunal to discredit the applicant was to set a standard of knowledge, which it expected him to have if he were the person he claimed to be, and then to find that he did not come up to that standard. Thus, the tribunal "finds it distinctly odd that he did not even read" the boarding pass which it found that he must have used in Singapore to board the aircraft which brought him to Australia. It further found:

"...while he has a little knowledge of the broad geography of the area, the Applicant's claims about his history in Batticaloa disclose an ignorance of events which very strongly suggests he was not in the area when he states he was. Indeed, it suggests he was not involved in any of the political and military machinations that have arisen through the conflict between Tamil separatists and the government."

Reference was made to the applicant's ignorance of a "massacre" of LTTE members in Kokkaddicholai at the time he said he went there and to the fact that later on he claimed that he did know of "some deaths". It is perhaps legitimate to ask how many deaths constitute a massacre? The applicant's knowledge of towns between Batticaloa and Colombo, on the road which he said he took, and his inability to indicate on a map which road he had taken, other than in vague terms, were the subject of findings by the tribunal.

In this context, in the course of its reasons, the tribunal said:

"He also claimed that prior to his departure he remained indoors in Colombo for ten days without any communication about what was happening outside. The Tribunal finds it odd that he claims to be on the run from the authorities but made no effort to learn what those authorities were doing as he prepared to go through Colombo to the airport, all of which is under high security surveillance. The Sri Lanka Monitors for February and March 1996 indicate 100 people were killed and 1000 injured in a bomb attack in Colombo on 31 January; 25 people were massacred near Trincomalee on February 11, there were continuing confrontations in the Jaffna peninsula and `travel to and from the north was restricted at both ends'; 25 Tamil seaman were killed in an Army attack on 14 February; there was an Army attack on the LTTE on 1 March. Each report refers to increasingly heightened security in Colombo and its approaches. The Applicant displayed no awareness of these events and had made no specific mention of events as significant as the explosion at the Central Bank four weeks before his arrival in Colombo. His lack of interest in the events developing around him, particularly as he claimed to be an active supporter of the LTTE, as well as being on the run from the security forces that had tightened security procedures in Colombo, is an indicator that he was neither an active LTTE supporter nor the subject of pursuit by government forces or their agents and allies."

There is one serious problem about these findings. The events to which the tribunal referred, on the basis of which it disbelieved the applicant's case that he was an active LTTE supporter and the subject of pursuit by government forces or their agents and allies, took place in 1996. It was not until a year later that the applicant claimed to have spent ten days in the house of a distant relative in Colombo, waiting for an opportunity to leave. It is not surprising that the applicant did not claim knowledge of these events as having occurred at or near the time when he was in hiding in Colombo. The tribunal made a mistake as to the year concerned and, on the basis of that mistake, criticised the applicant for having been unaware at the time of events which in fact were not happening at that time. It is also worth noting that, in the course of the hearing, when the tribunal questioned the applicant about his period in Colombo before he left, the events relied on were not put to him. He was asked if he knew that there were some negotiations between the Muslims and the LTTE (a proposition which did not feature in the tribunal's findings). He was asked about whether there was a really big LTTE attack in Trincomalee and another one in Batticaloa. These may or may not have been events to which the tribunal referred in the passage which I have quoted. He was not asked whether he was aware of a bomb attack in Colombo on 31 January in which 100 people were killed and 1000 injured (which I assume to have been the explosion at the Central Bank, which occurred in 1996), or about "increasingly heightened security in Colombo and its approaches". There was no basis on which the tribunal could find that "the applicant displayed no awareness of these events". Nor was it surprising that he "made no specific mention of events as significant as the explosion at the Central Bank", because it did not take place four weeks before his arrival in Colombo, but occurred more than a year before, and he was not asked about it.

The "no evidence or other material" ground

On both the issue of the applicant's account of his education and the issue of his lack of awareness of events while he was in Colombo, the approach of the tribunal to the credibility of the applicant was not open to it on the material, was not based on rational grounds and was not arrived at after consideration of matters that were logically probative on the issue of credibility. The problem is that these findings were only two among a number of findings on the basis of which the tribunal arrived at its overall assessment of the applicant's credibility. The reasoning of the tribunal in respect of some of these other findings is such as to give rise to disquiet about its approach to the applicant's case. I have mentioned the tribunal's propensity to expect the applicant to have certain levels of knowledge and to disbelieve him when he failed to display knowledge up to those levels. The tribunal's dismissal of the applicant's birth certificate and national identity card, which the tribunal found "have the appearance of being genuine", but nevertheless found to have been "also contrived" is not reasoned fully. Counsel for the applicant also complained that the tribunal not only rejected the applicant's evidence that he was arrested and beaten for three days in early 1993, on the ground that it was a recent invention, but also rejected his evidence that he had been detained and seriously mistreated for two weeks in 1988, a matter on which he had made earlier statements. On this issue, the tribunal disbelieved the applicant, having not pursued his statement that his body still bore the marks of his ill-treatment. Despite my disquiet, these matters belong to the area in which the tribunal had jurisdiction with respect to the facts. Even if its findings of fact are wrong on the evidence, they cannot be overturned in this Court. I therefore disregard them.

There were also many other grounds upon which the tribunal relied in finding that the applicant was not a witness of credit. There were inconsistencies in his various statements about some topics, on which the tribunal was perfectly entitled to rely.

The question which arises is whether it is open to this Court to overturn the finding of the tribunal on credit on the basis that the tribunal relied in part on two findings which were not open to it. It cannot be said with any certainty that, had the tribunal not relied on its finding as to the applicant's account of his education or on his suggested lack of knowledge of events during the time he was in Colombo, it would have come to the same conclusion as to his credit. There is much that resembles a house of cards in the tribunal's reasoning; disbelief of one fact is used as a reason to disbelieve another, and so on. The findings as to the applicant's educational history and unawareness of events whilst in Colombo were significant in the context of the tribunal's overall reasoning. It can therefore truly be said that the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist; see s 476(4)(b) of the Act. This is sufficient to make out the ground for review of a decision found in s 476(1)(g) of the Act, namely that there was no evidence or other material to justify the making of the decision.

I am also of the view that to make adverse findings as to credit on the basis of non-existent facts amounts to a failure to act according to substantial justice, within the meaning of s 420(2)(b) of the Act and therefore a failure to observe procedures that were required by the Act to be observed, within the meaning of s 476(1)(a) of the Act.

The tribunal's approach to the identity issue

I am also of the view that there was a failure on the part of the tribunal to act according to substantial justice in another significant respect. I have set out earlier the tribunal's finding as to the applicant's credit. The tribunal did not accept the applicant's evidence as to his identity. The problem is that, at no stage, did the tribunal give to the applicant any indication that the question of his identity was in issue. It did not warn him of the possibility of a finding that he was not even the person whom he claimed to be. The first time the applicant could have been aware of any issue as to his identity was when he received the tribunal's reasons for decision.

This is no slight criticism of the tribunal. It is clear that the question of identity played a major role in the tribunal's thinking. The passage which I have set out above reveals that the tribunal's state of mind as to the applicant's identity was the foundation for its rejection of his entire case. The tribunal did not accept that he was the person he claimed to be and therefore did not accept anything else that he said about himself, or any document that he produced in support of his claim, except to the extent that he spoke Tamil.

If the tribunal had informed the applicant that his identity was in issue, there were a number of possibilities. The applicant might have requested an adjournment, so that he could bring forward further evidence to support that which he had already advanced as to his identity. The applicant might have requested the tribunal to exercise its powers under s 428 of the Act to authorise a person outside Australia to take evidence. I have in mind the fact that the applicant had made several references to an aunt living in Canada, who might have been able to shed light on his identity. It was not unreasonable to expect the tribunal even to propose a telephone call to the aunt, in the course of the oral hearing, if it proposed to make a positive finding that the applicant was someone other than the person he claimed to be. One possibility, open as a matter of logic, is that the applicant might have confessed that the identity he was advancing was false, advanced reasons for adopting a false identity, revealed his true identity and attempted to make a case for entitlement to a protection visa in his true identity. The applicant had no opportunity to do any of these things, or anything else in relation to proving his identity, because he was not made aware until after the event that he ran the risk of an adverse finding in relation to his identity.

Whatever might be the content of the notion of "substantial justice", referred to in s 420(2)(b) of the Act, the failure to inform the applicant that he was at risk of a finding that he was not even the person he claimed to be, and of this finding being the basis for the discrediting of his entire case, must fall squarely within it.

The tribunal's decision must be quashed

On these two grounds, the decision of the tribunal in the present case was fundamentally flawed. It must be quashed, pursuant to the power given to the Court by s 481(1)(a) of the Act. It is appropriate to order that it be quashed as from the date on which it is given, so that it is made clear beyond doubt that the applicant's application to the tribunal has not been dealt with by the tribunal.

Consequential orders

There is a difficulty about what further order should be made. The applicant's application for review of the decision of the delegate of the respondent refusing to grant him a protection visa must be reheard. I note that s 481(1) of the Act does not give the Court general powers to make whatever order it thinks fit in respect of a matter the subject of a judicially-reviewable decision which is flawed. The orders which may be made are those listed in the subsection. Par (b) of the subsection provides that the Court may make:

"An order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit".

The tribunal itself is not a "person". It is established by s 457 of the Act; by s 458, it consists of a number of natural persons, in the capacities of Principal Member, Deputy Principal Member, senior members and other members. The tribunal is not made a body corporate. It does not appear to me that the tribunal is properly described as a "person" within the extended definition of that word contained in s 22(1)(a) of the Acts Interpretation Act 1901 (Cth); it is not a "body politic or corporate".

I note that, in Sun Zhan Qui, the Full Court made an order setting aside a decision of the tribunal and remitting to the tribunal the matter the subject of that decision, with a direction that it be heard by a differently constituted tribunal. The question of the Court's power to make such an order does not appear to have been argued. I have some doubts whether s 481(1)(b) justifies an order in that form. In my view, the "person" to whom the Court can refer the matter is the person who constituted the tribunal which made the decision concerned.

It seems to me to be abundantly clear that a referral of the matter to the tribunal as it was constituted for further consideration would not do justice to the applicant. Although counsel for the applicant did not raise an allegation that the decision was affected by actual bias, within the meaning of s 476(1)(f) of the Act, I have such serious disquiet about the approach which the tribunal took that I would regard it as most inappropriate for the matter to be considered further by the same member.

At the outset of the hearing before the tribunal, the tribunal referred to the fact that the applicant based his case on three grounds, namely race, political opinion and membership of a particular social group. According to the transcript, the tribunal then said:

"If it's all right by you, undertake just to group them all under political opinions, because I think they can all fit in to that. It's a bit of technical submission, but is that all right with you, that I'll just look at them under political opinion."

The applicant's migration agent, who was representing him, responded by saying "as well as race." The tribunal then said "Remaining mindful that being Tamil has got something to do with it." The tribunal's task was to assess the applicant on whatever grounds the applicant put forward. It was no part of the tribunal's function to group the grounds advanced by the applicant or to ignore any of them. In truth, late in its reasons for decision, the tribunal did consider whether the applicant had made out a case that he faced a real chance of persecution merely on account of his race. Why it attempted to confine the grounds at the outset was never explained.

Early in the oral hearing, the tribunal said:

"These hearings are just another opportunity for you to present your claims. You have a series of opportunities, this is just another one. It's not like a trial where everything depends on what you say today, because I've got all the other information to take into account. My guess is that when these hearings finish people leave and think there are a lot of other things I wish I'd said. But, keep in mind I've already had the opportunity of listening to a tape recording of your previous interview and reading your submissions, I'm already aware of the claims you've made up until today. So, I can't force you to relax, but rest in the knowledge that I'm already aware of what you've said up to today, you don't have to be too anxious that you don't cover every single point today."

Notwithstanding this attempt to reassure the applicant, the tribunal relied on his failure to repeat an earlier explanation as a reason for disbelieving him. In its reasons for decision, the tribunal said:

"At the departmental interview he said that his father had obtained the passport in May 1996 but for financial reasons he could not leave and, in any event, he could not obtain permission from the LTTE to leave. At the hearing, he did not mention financial constraints but said he could not obtain LTTE permission. However, he also claimed that he made several trips to his home town and that he obtained permission by claiming his mother was sick and that he had to see her. The Tribunal is incredulous that this reason had not been used during the previous eight or nine months." (emphasis added)

I am also concerned that the early statement of the tribunal which I have quoted might have been construed as an invitation to the applicant to raise new material. There are many examples in the transcript of the oral hearing of the applicant being pressed for an explanation of some inconsistency in his evidence, or between his evidence and his previous statements. Some of the explanations which he gave in response to this pressure were then disbelieved by the tribunal, on the ground that they raised new material. Indeed, it is difficult to see how inconsistencies could be explained without raising new material. The fact that the applicant had done so could not be used in every instance as a means to discredit him.

Although the applicant never made any claim with reference to religion, the tribunal chose to question him about his religion. In the course of some of this questioning, the tribunal said "its not a requirement, I'm just interested." The tribunal also questioned the applicant about what it said was a habit of passing things with his right hand. Presumably this question was designed to elicit information which would lead to a conclusion that the applicant was Muslim. He was never asked directly whether he was Muslim, and so was not given a chance to refute the apparent suspicion of the tribunal that this might have been the case. Despite the disavowal of the relevance of religion, the subject surfaced in the tribunal's reasons for decision. Immediately after the passage which I have quoted as to the applicant's credit, the tribunal said:

"If he is Sri Lankan and Tamil, he has not apprised the Tribunal of whether he is a Muslim, Indian or plantation Tamil, nor does the Tribunal know which part of Sri Lanka he comes from, other than to exclude Batticaloa."

The relevance of the categories of Muslim, Indian or plantation Tamil is not apparent to me. They had nothing to do with anything raised in the course of the tribunal's oral hearing, except possibly the issue of passing things with the right hand.

In its reasons for decision, the tribunal plainly saw the matter before it in adversarial terms. It said:

"For the purposes of this application, Australia has protection obligations to the Applicant if he demonstrates that he is a person who is a refugee ..."(emphasis added)

The tribunal then set out an extract from the convention. After making its adverse finding as to the applicant's credit, the tribunal was plainly of the view that it could reject his application because he had failed to make out a case. In this respect, the tribunal acted appropriately. Despite the fact that it possesses some inquisitorial powers, the tribunal is not obliged to act generally in an inquisitorial way. See Minister for Immigration and Ethnic Affairs v Surjit Singh (1997) 144 ALR 284, at 288-90.

The difficulty is that, in the course of its oral hearing, the tribunal appears to have become the applicant's adversary. An examination of the transcript of that hearing provides many examples of the tribunal actively seeking inconsistencies in the applicant's case and then seizing upon them. This is a difficult issue. The tribunal is in the position of judging an applicant's case in the absence of any contradictory party. The procedure is intended to be adversarial, but there is no adversary. It is obvious that the tribunal must explore inconsistencies in the evidence before it. It must, however, do so in a way which is fair to an applicant, giving each applicant a proper opportunity to explain inconsistencies, if such explanation be possible, and not seeking to create inconsistencies where none exist. The tribunal cannot, as it did in the present case, become an inquisitor within its oral hearing and then revert to reliance on the onus of proof when it comes to the conclusion that it has demolished the applicant's case.

On two occasions in the course of undergoing questioning about his educational history, the applicant indicated that he could provide more evidence if given time. At one point, when he was being questioned about the O level certificate, he said "if you can give me time I can get the subjects from my school." The tribunal responded:

"I'm sure you can get any certificate you need, but I'm sure, you see to me this certificate seems not to be genuine because you don't do O Levels after A Levels."

In the sense that he claimed to have done O level English after his A levels, the applicant's evidence was that he had done O levels after A levels. Later, in questioning about the same subject, the applicant said:

"Just to prove myself that I have taken O Levels, I have produced these, but if you want I get all the certificates."

The tribunal made no response to this offer. This was plainly a situation in which the tribunal ought to have afforded the applicant a further opportunity to obtain and put before it further evidence, before disbelieving him about the genuineness of the documents which he had provided. The tribunal seemed to have taken the view that it would disbelieve whatever document the applicant put before it in relation to his education, on the basis of its own view of the proper order of events.

The transcript of the oral hearing in the tribunal reveals that, in the course of a discussion about how much money the applicant had paid to the agent who arranged for his flights and a false passport to enable him to leave Sri Lanka, the following exchange occurred:

"[The tribunal]: That's five hundred thousand. How much is that in dollars?

[The applicant's migration agent]: Nearly about twelve thousand dollars.

[The tribunal]: Twelve thousand and that gets you from Colombo to Melbourne with a false identification and a story at the end?

[The applicant, through the interpreter]: He'll understand this ...

[The tribunal]: No, I'm going to explain. I understand what agents do is that you get false identity, they get you on the plane, they tell things [sic] like rip up your passport or rip up your boarding certificate, but they also tell you when you get to the end, you tell them this is what happened to you and don't deviate. Whatever they ask you, you keep telling the same story, so I sort of know how they work."

The applicant responded to this, but unfortunately parts of his response were characterised as "indistinct" by the transcriber, so it is difficult to discern how much he said, or the substance of his response. The exchange occurred immediately before the second break in the oral hearing, which was at 1.06 pm. Upon the resumption, the tribunal asked some questions about documents which the applicant had supplied and then proceeded to hear brief submissions from the migration agent. At no stage did the tribunal reveal the source of its alleged knowledge about how agents work. At no stage did it communicate clearly to the applicant whether or not it assumed that his agent fitted the stereotype which the tribunal was postulating. It did not give the applicant a proper opportunity either to refute the knowledge which the tribunal claimed to have, or to give evidence that his case departed from the supposed norm. If the tribunal was to rely on its own knowledge (and its reasons do not indicate clearly whether or not it did), it ought to have done these things.

These matters, and the others to which I have referred earlier, lead me to the conclusion that the applicant could have no confidence that the tribunal would accord him "substantial justice" if it were not to be reconstituted before giving further consideration to his application to review the decision of the respondent's delegate. The problem is how to achieve the result that a different member of the tribunal deals with the matter, within the confines of the orders permitted by s 481(1). The answer may lie in the power given to the Court by par (b) to refer the matter for further consideration, "subject to such directions as the Court thinks fit". An order can be made referring the matter to the person who made the decision, coupled with a direction that that person disqualify himself from further consideration of the matter. By virtue of s 460(2)(b), the Principal Member of the tribunal is responsible for allocating the work of the tribunal among the members in accordance with guidelines under subs (3). Subsection (3) allows the Principal Member to lay down written guidelines for the allocation of the work of the tribunal. I assume that such guidelines exist. By s 421(2) of the Act, the Principal Member is empowered to give a written direction about who is to constitute the tribunal for the purpose of a particular review. Section 422(1)(b) provides that if the member who constitutes the tribunal for the purposes of a particular review for any reason is not available for the purpose of the review at the place where the review is being conducted, the Principal Member must direct another member to constitute the tribunal for the purpose of finishing the review. If, therefore, the member of the tribunal who constituted it in relation to the decision with which I am dealing were to disqualify himself, pursuant to a direction given by the Court, the Principal Member would be bound to direct another member to constitute the tribunal for the purpose of finishing the review.

Orders

For these reasons, the appropriate order is that the decision be quashed with effect from the date on which it was given, the matter to which the decision relates be referred to the member of the tribunal who made the decision for further consideration, subject to directions that that member disqualify himself from further considering the matter and inform the Principal Member of the tribunal that, for this reason, he is not available for the purpose of the review at the place where the review is being conducted. In case any difficulty arises, it is appropriate to reserve liberty to the parties to apply.

Costs should follow the event.

I certify that this and the preceding

nineteen (19) pages are a true copy of the

Reasons for Judgment herein of the

Honourable Justice Gray

Associate:

Dated:

Counsel for the applicant: Mr T Hurley

Solicitors for the applicant: Wisewoulds

Counsel for the respondent: Mr W Mosley

Solicitors for the respondent: Australian Government Solicitor

Date of Hearing: 4 February 1998

Date of Judgment: 4 March 1998