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Federal Court of Australia |
Last Updated: 17 May 2000
Zaltni v Minister for Immigration & Multicultural Affairs [2000] FCA 399
MIGRATION - application for protection visa - whether reasons of Refugee Review Tribunal failed to set out Tribunal's "findings on ... material questions of fact" as required by s. 430(1)(c) of Migration Act 1958 (Cth) - actual bias - duty of caution incumbent on appellate court before departing from its own earlier decisions.
Migration Act 1958 (Cth) ss 430(1), 476(1)(a), (f), (g)
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, cited
Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741, cited
Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, cited
Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11, cited
Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182, cited
Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, cited
Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165, cited
Dertli v Minister for Immigration and Multicultural Affairs [1999] FCA 141, cited
Paramananthan v Minister for Immigration and Multicultural Affairs; Minister for Immigration and Multicultural Affairs v Sivarasa (1998) 160 ALR 24, cited
Logenthiran v Minister for Immigration and Multicultural Affairs [1998] FCA 1691, cited
Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681, cited
Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245, cited
Byrne v Australian Airlines Ltd (1994) 47 FCR 300, cited
Qantas Airways Ltd v Cornwall (1998) 84 FCR 483, cited
LARBI BEN MOHAMED DIT HAM ZALTNI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 675 of 1999
EINFELD, LINDGREN AND TAMBERLIN JJ
16 MAY 2000
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
1. the appeal be dismissed
2. the appellant pay the respondent's costs
Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
BETWEEN: |
LARBI BEN MOHAMED DIT HAM ZALTNI Appellant |
AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent |
JUDGE: |
EINFELD, LINDGREN AND TAMBERLIN JJ |
DATE: |
16 MAY 2000 |
PLACE: |
SYDNEY |
THE COURT
Introduction
1 The appellant appeals from a judgment of a Judge of the Court dismissing his application for review of a decision of the Refugee Review Tribunal (RRT). The RRT had decided that it was not satisfied that the appellant and certain members of his family were refugees and it affirmed a decision of a delegate of the respondent (respectively "the Delegate" and "the Minister") to refuse them protection visas.
2 Section 36 of the Migration Act 1958 (Cth) (the Act) makes it a criterion for a protection visa that the applicant for the visa be a non-citizen of 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 (compendiously, the Convention). The Convention 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.
3 Family members of persons who meet the definition may also be entitled to a protection visa provided they are in Australia and are included in the application. The appellant included in his application for a protection visa his wife, Amel Bent Mohamed Zaltni, his son, Zakaria Ben Larbi Zaltni and his daughter, Najia Bent Larbi Zaltni.
4 The appellant's case before the RRT had been that owing to his well-founded fear of being persecuted for reason of political opinion he was outside the country of his nationality, Tunisia, and was unable or unwilling to avail himself of the protection of that country.
Legal background
5 The appellant arrived in Australia with his wife and children on 16 October 1997 and applied for a protection visa on 21 November 1997 by an application bearing the date 19 November 1997. On 16 December 1997 the Delegate refused to grant the application. The appellant applied to the RRT for review of that decision. The RRT conducted hearings on 1 July and 9 September 1998. On 25 February 1999 it affirmed the Delegate's decision. The appellant's application to this Court for review of the RRT's decision was dismissed by the primary judge on 21 June 1999. His various specific claims were found in his application for the protection visa, various documents submitted on his behalf to the RRT and his oral evidence given to the RRT.
6 The appellant relied on four grounds of appeal and was given leave at the hearing to amend his notice of appeal by adding a fifth ground in the circumstances described below. The first four grounds were as follows (we will discuss the fifth later):
(1) the primary judge erred in finding that the RRT had not erred in its interpretation and application of the law by failing to consider and address properly the nature of the appellant's claims in connection with his application for the protection visa (the "error of law" ground is found in s. 476(1)(e) of the Act);
(2) the primary judge erred in failing to find that the RRT had not observed procedural requirements which the Act required it to observe in connection with the making of the decision (the "procedural requirements ground" is found in s. 476(1)(a) of the Act - the appellant relied on s. 430(1)(b), (c) and (d) of the Act as imposing procedural requirements which the RRT did not observe);
(3) the primary judge erred in finding that the RRT's decision was not affected by actual bias (the "actual bias" ground is provided by s. 476(1)(f) of the Act); and
(4) the primary judge erred in failing to find that there was no evidence or other material to justify the making of the decision (the "no evidence" ground is provided by s. 476(1)(g) of the Act and is subject to the condition stipulated in, relevantly, s. 476(4)(b) of the Act).
7 The appellant argued grounds 1 and 2 together. He submitted that the RRT had misconceived the nature of his claimed association with "Al-Nahda", a Tunisian religio-political movement or sect based on Islam. According to his submission, his claimed involvement was religious, not political, but the RRT did not address his claim understood in that way or make any finding in respect of it. The submission was that, on the contrary, the RRT assessed his claims and evidence on the basis that his claimed involvement was political, or at least partly political. This approach led it to find that the appellant was not a creditworthy witness because he was not familiar with certain aspects of the political history, organisation and leadership of Al-Nahda. A finding as to the nature of the appellant's involvement was, according to his submission to us, "logically anterior to any finding as to the level of knowledge that the Tribunal [might] expect of him [yet] no findings were made". The RRT's failure to make the finding referred to was, it was submitted, a failure to observe procedural requirements of s. 430(1)(c) and (d) of the Act that the RRT prepare a written statement that "sets out the reasons for the decision" and "sets out the findings on any material question of fact".
8 The appellant asked for an inference of the existence of actual bias (ground 3) on the basis of the way in which the presiding Member conducted the hearing. The appellant relied on numerous matters which, taken together, he said, showed that she had prejudged the issue for decision and was simply intent on finding grounds to support her view.
9 Ground 4 depended on the RRT's conclusion that the appellant could not have travelled back and forth between Britain and Tunisia if he had been "of continuing interest to the authorities even by paying bribes". According to the appellant's submission, the RRT based this finding on the existence of a particular fact which, he said, did not exist, and so there was "no evidence or other material to justify the making of the decision".
10 On the hearing of the appeal, counsel for the Minister made a submission that had not been foreshadowed previously. This was that s. 430 does not impose procedural requirements "in connection with the making of the decision" for the purposes of s. 476(1)(a) of the Act. In the light of this new submission, the appellant sought and was granted leave to amend his notice of appeal by adding a fifth ground as follows:
To the extent that the Tribunal failed to observe the requirements of section 430(1)(b), (c) and (d) of the Migration Act 1958 the decision of the Tribunal was not authorised by the Act.
This ground of appeal reflects s. 476(1)(c) of the Act.
The appellant's claims and evidence
11 The appellant was born on 25 April 1957 in Tunis. His stepfather, who raised him, owns a number of shops and vehicles for transporting goods and he worked in his stepfather's business for a time. In about 1987 he established his own import/export business and imported a large fishing boat from Europe. He also owns a shop in one of the more expensive parts of Tunis. From about 1980 until 1992, the appellant divided his time between Tunisia and Holland where he "had residency and owned a business".
12 The appellant claimed that he feared persecution in Tunisia because of his association with the Al-Nahda party. He said that he was gaoled and tortured as a result of that association in the past and that he feared persecution on the same basis if he should return.
13 The appellant's political and religious views and the nature of his association with the Al-Nahda party were discussed at two hearings of the RRT. He said that while he was raised a Muslim, he had not been deeply committed to the faith until about 1986 or 1987 when he began dressing in traditional Muslim manner and "practically lived" in the Mosque. Although he had no real interest in politics in Tunisia, in late 1987 after the development of his deep involvement in religion, he began to follow political events in Tunisia, deriving most of his information in the Mosque. He listened to speakers and read leaflets about the Al-Nahda movement, formerly the Mouvement de la Tendence Islamique (MTI). At the time of his first involvement with the group he was living in Holland. Although he did not sign any document in order to become a member, he was a member nonetheless. At that time Rachid Ghannouchi was the leader of the group and Abdel Mourou was his deputy. The group wanted Tunisia to have a democratic form of government which followed a form of Islam suitable for modern times. This credo was unacceptable to and opposed by the ruling régime, sometimes violently.
14 The appellant claimed that the group within Al-Nahda to which he belonged met in the Mosque, in private houses and on fishing boats. He stated that he collected money for the movement in Holland and took it to Tunisia for families of Al-Nahda supporters who were in prison. He said that he spoke to people and persuaded them to support the group "here and there, even on trains or boats" and that he tried to convince anyone who would listen to him. He said that these were the only general activities in which he participated and that his main task as a party activist was a religious one, encouraging people to come back to God. He said that Al-Nahda members were everywhere and that they accepted and passed on information to each other about where to go and places to avoid. He said that the group had held many demonstrations in which he had occasionally participated. However, he said that the demonstrations were mainly to protest against secularisation and the breaking up of prayers by the police. He said the demonstrators mostly chanted religious slogans, such as "God is great".
15 The appellant said that in March 1992 he was detained on his arrival in Tunisia from Holland because of his membership of Al-Nahda and accused of using his fishing boat to take Al-Nahda members to Italy illegally. He said that he denied both charges and was never formally charged with smuggling people. However, he said that he was convicted of being a member of Al-Nahda and of causing unrest for which a judge sentenced him to imprisonment for one year. In support of this claim, he produced to the RRT a "Prisoner's Continuous Visitation Card" headed "Republic of Tunisia, Ministry of Justice, Tunis Court of First Instance" and purportedly issued on 15 July 1992. This card recorded that he was detained at the "Benzert Civil Prison" and it granted rights to his relatives to visit him in prison "according to the administrative arrangements in force". The card purportedly allowed him one visit a month from July 1992 to February 1993 (eight visits over eight months) and bore an endorsement to the general effect that the card could be used while case No 797/26793 was being handled at the Court. The appellant was subsequently sentenced to imprisonment on 1 September 1992 as related in the next paragraph. The "Prisoner's Continuous Visitation Card" was purportedly signed by a "Delegate of the Republic" and sealed by the Ministry of Justice of the Republic of Tunisia.
16 According to a document headed "Announcement of a Sentence" headed "Republic of Tunisia, Ministry of Justice, Tunis Court of First Instance in case No. 797/25793", which the appellant also produced to the RRT, he was convicted on 1 September 1992 by the Tunis Court of First Instance on a charge of "[b]eing affiliated with a non-registered party, and causing disturbance against the Tunisian Rule" and sentenced to imprisonment for one year. The "Announcement of a Sentence" document was in the nature of a certificate issued on 15 February 1998 (some four months after the family arrived in Australia) purportedly signed by the District Court Judge of the Tunis Court of First Instance and sealed by the Ministry of Justice of the Republic of Tunisia. Accordingly, it purported to be a document of recent origin but certified as to the imposition of the sentence some five to six years previously. There is no evidence as to the circumstances in which the certificate was procured but on its face it appears to have been issued to, and at the request of, a relative of the appellant. The appellant's adviser forwarded it to the RRT on 11 June 1998, prior to the first hearing before the RRT.
17 The appellant was released from prison in March 1993, a year after he was detained upon his arrival from Holland. After his release he did not attempt to return to Holland because he had "lost his residency due to the fact that he had been absent from the country for more than nine months". In addition, he said that he had lost his business in Holland and had become deeply involved in his business in Tunisia. He also said that after his release from prison, he was no longer so interested in religious matters and was concentrating on developing his business.
18 Some three months after his release, he was detained for a further twenty one days. After this he was required to report and sign in at a police station three times a day until the end of 1993.
19 In March 1994, the appellant married his present wife.
20 In April 1994 the appellant's fishing boat was seized and confiscated because he was still subject to investigation for people-smuggling. He said that this occurred because the authorities were always looking for ways to act against members of Al-Nahda. He provided the RRT with a "Confiscation Report" headed "Republic of Tunisia, Ministry of Justice, Benzert Court of Appeal". This document purported to have been issued at Benzert on 11 April 1994, signed by the "Public Prosecutor of the Court of Appeal" and sealed by the Benzert Court of Appeal. It recorded that orders had been issued by "the Secretariat-General" for the seizure of his boat.
21 According to the appellant, after his release from prison, his shop and home were regularly searched by the authorities, and his wife and family were disturbed by the searches and by his absences when he was taken in for questioning. In answer to a question from the RRT, the appellant said that from the time of his release from prison in 1993 to his departure from Tunisia in 1997 his house was searched three or four times by people who, he said, were looking for pamphlets but found nothing. As well, he said that over that period he was taken to the police station three or four times. He said that from July 1996 he was again required to report and sign in three times daily at the police station, but that over time he was mostly able to avoid this requirement because he became friendly with the sergeant and paid him small bribes to sign on his behalf.
22 The appellant told the RRT that the last time he was detained in Tunisia was when he and his wife were taken to the police station in May 1996. He said that on that occasion his wife was beaten and released after a day, while he was held for two days and asked for names, particularly the names of people coming from Germany, because that was where the Al-Nahda movement was located. He said he was assaulted on this occasion and he showed the presiding Member some marks on his leg which he claimed were caused by that treatment. He said that after his release he had to sign an undertaking not to participate in further Al-Nahda activities. He had to resume signing three times a day at the police station. In support of this last claim, the appellant provided to the RRT a copy of an "Undertaking" headed "Republic of Tunisia, Secretariat-General, Administration of National Security" and dated 29 July 1996 by which he undertook to refrain from gathering with more than two persons on public roads or in public or private places; not to belong to any political party other than the Democratic Constitutional Convention; not to wear the sectarian uniform; and to report to the police station at the markets three times a day at 1 pm, 4 pm and 7 pm. The copy tendered does not apparently bear the appellant's signature (we would expect the original signed by the appellant to be held by the authorities), although it bears a copy of an impression of a seal of the Ministry of the Interior and of, or as part of, the Ministry of National Security.
23 It was after the appellant and his wife were detained for questioning in 1996 that he decided to leave Tunisia. He obtained a Tunisian passport on 19 November 1996 and a United Kingdom visa on 16 December 1996. However, he did not travel to the United Kingdom until 7 April 1997, some five months later. He claimed he paid bribes so that he could leave Tunisia without problems. He stayed in the United Kingdom for three weeks. During that time he applied for a visa to visit Australia. His wife telephoned him and said that the person who had helped him leave Tunisia had advised that he should return immediately. We are not sure why, but he did so, apparently on 30 April. On the same date the appellant's wife obtained a Tunisian passport. On 7 June, the appellant obtained a second United Kingdom visa. On 16 June 1997 he obtained Tunisian passports for his two children. On 2 August he returned to the United Kingdom, apparently to finalise the obtaining of visas for his family to travel to Australia, having again paid bribes to leave Tunisia. On 5 August 1997 in Manchester he was granted an Australian visa. He returned to Tunisia on 11 August 1997. His wife and children obtained United Kingdom visas on 24 September 1997. The family travelled to the United Kingdom on 5 October 1997 and were granted Australian visas on 7 October 1997. As noted earlier, they arrived in Australia nine days later.
24 The appellant provided to the RRT a copy of a "Summons" headed "Republic of Tunisia, Ministry of Interior, General Administration" dated 11 October 1997 (four days after the family had travelled to the United Kingdom) which requested him to attend at the police station on Monday 13 October 1997 at 9 am "regarding a matter that concern[ed] [the appellant]".
25 The appellant also provided to the RRT a letter dated 20 January 1998 from a Mr Memmiche stating (emphasis added):
This is to confirm that I know that the above named Larbi Zaltni is wanted by the Tunisian authorities.I enclose copies of letters concerning my detention in Tunisia last January [January 1997] whilst paying a visit to my family. His name was mentioned to me whilst I was interrogated there and also upon my return to the UK I heard that he was wanted by the Tunisian authorities in the UK as well.
26 At the second hearing before the RRT, Mrs Zaltni also gave evidence. She was questioned by the presiding Member and she generally supported her husband's claims. But the presiding Member drew inferences adverse to the appellant from inconsistencies between his evidence and hers.
27 As is of course appropriate, the RRT explored with the appellant at both hearings events and developments relating to Al-Nahda. Generally the Member's questioning related to the appellant's familiarity with the structure, leadership, practices and beliefs of Al-Nahda.
The RRT's decision and reasoning
28 The RRT formed an adverse impression of the credibility of the appellant and his wife. The presiding Member disbelieved their account that the appellant was wanted by the Tunisian authorities as a known Al-Nahda activist. She referred to answers to questions which she had put to the appellant and stated why she considered them to be inconsistent with his claims. She also referred to inconsistencies between the evidence of the appellant and that of his wife. We need not refer here to the evidentiary shortcomings and inconsistencies in question. It is noteworthy, however, that the RRT found that the appellant had procured Mr Memmiche to fabricate evidence in the writing of his letter dated 20 January 1998. The reason the Member gave for this conclusion was that it was implausible that Mr Memmiche would have been told in January 1997, when in detention in Tunisia, that the appellant was wanted by the authorities in that country since the appellant was living there at that time and therefore the authorities could have detained him at any time if they had wished to do so.
29 The RRT stated that it was "not satisfied that [the appellant] would be at risk of detention or other forms of serious harm if he returned ... now because of his association with Al-Nahda". It found that the appellant had "not been honest in the evidence he had provided" and that his wife "wished to avoid giving detailed evidence on some of the questions [the RRT] asked her because she was not sure of how she should respond". The RRT's Reasons for Decision included the following passage:
Mr Zaltni's knowledge of major events in the al-Nadha party prior to his arrest in 1992 falls well short of what I would have expected of someone who was a committed supporter of the group and closely following events of the period.Mr Zaltni claims that he first became interested in politics while living in Holland in late 1987 or early 1988. He claims that he followed developments relating to the group from this time until his arrest and that he was a committed supporter of the group. However, his account of major developments relating to the group during this period was confused and out of keeping with other information before the Tribunal regarding the period.
The decision of the primary Judge
30 Before the learned primary Judge, the appellant relied on grounds 1 to 4 referred to earlier. In relation to the grounds numbered 1, 2 and 4, his Honour thought that the rejection of the appellant's evidence by the RRT "left no substratum at all" and that the RRT "simply did not accept that he [the appellant] was regarded by the Tunisian authorities as having any relevant connection with Al-Nahda" so that "there could be no legitimate fear of persecution on that account". He thought that the appellant's submissions were "in substance directed to the merits of the decision and [were] precluded by s. 476 as it [had] been construed by the High Court in Eshetu [a reference to Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 162 ALR 577]". His Honour said:
Whilst there is force in some of the criticisms of the decision made on behalf of the applicant, they are criticisms of the merits of the decision. There was ample material before the Tribunal on which it could have made the decision it did, including its observations of the applicant and his wife in evidence. It was for the applicant to satisfy the Tribunal of the statutory criterion and, despite giving and calling evidence, he failed to do so. I can detect no errors of the kind argued in the Tribunal decision, nor any failure to state reasons for decision.
In relation to the ground numbered 3 earlier in these Reasons, the "actual bias" ground, the primary judge said:
The claim [of actual bias] is based solely upon inference from the manner in which the Tribunal went about its task, including the reasons it gave. There is no evidence of actual animus or prejudgment. I have considered all of the matters relied upon in the written and oral submissions on behalf of the applicant to support this claim. The failings of natural justice to which I earlier referred, coupled with some of the Tribunal's reasoning, gave me some concern as to whether the Tribunal had prejudged the issued and had a closed mind in the manner explained and applied in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505.
The conclusion I have come to is that to approach the matter in this way would be to give impermissible weight to my view as to the reasonableness or otherwise of the procedures and reasoning of the Tribunal. There is nothing to indicate that such failings as there might have been in relation to natural justice were the result of any bias against the applicant. They are just as likely to have been the result of the way in which the Tribunal, rightly or wrongly, sees its statutory duty. More importantly, the Tribunal did not simply reject the applicant's case on the basis of the first hearing, as it could have. It afforded him another chance to satisfy it by oral evidence and gave the applicant the later opportunity of dealing with some adverse material. This seems to me to answer the argument that the Tribunal had a mind closed against the applicant.
Reasoning on the appeal
Ground 1 (error of law) and ground 2 (non-observance of procedural requirements)
31 The appellant submitted that the RRT questioned him without first making a finding as to the level of knowledge properly to be expected of him. According to this submission, if the RRT had set about making a finding on this question, it would have appreciated two things: first, that his interest in Al-Nahda was religious and not political; second, that his sources of information in relation to Al-Nahda's leadership, structure and political activity generally were limited to discussions in the Mosque, a reading of leaflets and two magazines, and discussions with the imam in his street in Tunisia. The appellant argued that the following evidence, for example, is important in the context of this submission (the time to which the passage below refers is late 1987 when the appellant, in Holland, ceased running a café and became deeply interested in Islam and activities at the Mosque):
Q132 Was there any other way that the group spread its word, spread its views, its information. Was there anything else that they gave you or that you could get to find out about what they were thinking?A (APPLIC) On that moment you can say I start living, really living in the mosque. I don't know go to cafes no more, I don't - is only mosque. Is five times but I spent more (indistinct) from the fourth pray to the fifth pray I stay in the mosque. I spent hours and hours staying in this place.
Q133 Okay, but was there anything else? For example, things that you can read from the - well, I'll just call it Al Nahda. We'll know what we mean.
A (APPLIC) Yeah.
Q134 Was there anything you could read that they had?
A (APPLIC) Yes, lot of (foreign language).
A (INTPRTR) Leaflets.
Q135 Anything else?
A (APPLIC) That's it, leaflets and we get - in the beginning it was we saw it as Muslims from somewhere else come to us.
Shortly afterwards in his evidence, the appellant also referred to his having later had access at the Mosque to one magazine issued in France and to another magazine issued in Tunisia.
32 Later he said that when he was in Tunisia he also gained information about Al-Nahda from the imam in the street where he lived, but that from the second half of 1988 down to the time of his arrest in March 1992 he spent only a month or two, totalling in all about twelve months, in Tunisia.
33 Later, the presiding Member returned to the issue of the appellant's familiarity with the political aspects of Al-Nahda:
Q360 Well, they were religious and political. I'm not saying there was no religion there. I'm saying that they were a political party ---A (APPLIC) For me is not interest in the ---
Q361 You had no interest in politics.
A (APPLIC) Politics is not my doing, is not my main thing.
Q362 You're [sic - presumably `your'] thing, yeah.
A (APPLIC) My main thing it was help, to be close to God, do something positive to my religion, yes.
Q363 Okay.
34 This passage makes clear that the appellant was claiming to have a mainly religious rather than political interest in Al-Nahda and that the presiding Member understood that that was the claim he was making.
35 The appellant's solicitor took us to material which was before the RRT relating to the Al-Nahda movement and submitted, on the basis of it, that Al-Nahda:
was a political organisation but it had very strong religious and social philosophies and the Tribunal failed to address whether this person [the appellant] could have been attracted to the movement because of the religious and social philosophies as opposed to or rather than the political side of it.
36 In addition to the nature of the appellant's interest in Al-Nahda and of the sources of his information about it, there was another issue which the appellant submitted was a material question of fact which the RRT failed to address in its findings, viz. the post-traumatic stress disorder suffered by his wife. There was before the RRT a report of a clinical psychologist to the effect that the appellant's wife "was severely traumatised by the experience of detention torture [sic - and torture]" and that "her social withdrawal and depressed mood [were] likely related to the cumulative effects of political harassment and constant fear she [was] likely to have experienced". The appellant's solicitor referred to evidence that the wives of activists who have gone into exile from Tunisia were frequently subjected to strict surveillance, often arrested and interrogated, unable to find work, threatened with imprisonment if they received financial help from anyone or if they were found to be in contact with their husbands, unable to obtain a passport and prevented from leaving Tunisia. The appellant's solicitor referred the Court to an Amnesty International Country Report on Tunisia which pointed to, among other things, "the family as an arena for political repression" and the "imprisonment as prisoners of conscience of wives and relatives of imprisoned or exiled opponents".
37 The appellant submitted that by failing to make and record findings in relation to the claims mentioned, the RRT did not observe the requirements of s. 430(1)(b), (c) or (d) of the Act and so did not observe procedural requirements of the Act that fall within s. 476(1)(a) and made an error of law for the purpose of s. 476(1)(e).
38 It seems to us that appeal grounds 1 and 2 pose several difficulties for the appellant. In the first place, prior to the hearing before the RRT, the appellant's claim seems to have been not only that he was perceived by the Tunisian authorities to be a political activist in the Al-Nahda movement but that he actually was one. In his initial application in November 1997 for a protection visa, the appellant
* described himself as "a known activist in the banned political party Al-Nahda";
* stated that he had been gaoled because of his "complicity with Al-Nahda" and because the Tunisian Government believed he had been using his fishing boat to take Al-Nahda members illegally from Tunisia to Italy; and
* stated that he feared he would be arrested and perhaps killed and would be gaoled on account of his having left Tunisia and failed to observe reporting requirements to which he was subject because he was "a supporter and active member of Al-Nahda, a prohibited political party".
39 But putting these matters to one side, what is important is the RRT's factual finding that it was not satisfied that the appellant was an Al-Nahda activist or supporter at all or that he was gaoled because of an association with that group. On any reckoning, it was of the essence of the appellant's case before the RRT that he had been persecuted by the Tunisian authorities because of his association with Al-Nahda and that there was a real chance of his being persecuted by them again on that account if he were to return to Tunisia. Once the RRT rejected the appellant as a witness of truth and concluded that it was not satisfied that he was an Al-Nahda activist or supporter or had been gaoled because of an association with that movement, there remained no ground at all, the Minister submitted, on which the RRT could properly find that the appellant had a well grounded fear of persecution.
40 The RRT gave detailed reasons for rejecting the appellant's evidence. Counsel for the Minister, in his written submissions, summarised them as follows:
* failure to know that Al-Nahda had changed its name in 1989, rather than late 1990 or 1991;* failure to know that the reason for the change in name was in relation to changed rules relating to the legalisation of political parties;
* failure to be aware that the leader of the party, Rachid Ghannouchi, was in prision [sic] in 1987 and 1988;
* claiming that Ghannouchi supported Saudi Arabia in the Gulf War, whereas all independent evidence was to the effect that he had supported Iraq;
* claiming that Ghannouchi had been replaced by La'aridh as leader of al-Nadha, when all independent evidence, except for one 1991 source, stated that Ghannouchi has for the last 10 years been leader.
..........................................................................................................
* The repeated inconsistencies in the evidence of Mr and Mrs Zaltni as to how often the police had come to their home after 1993; first Mr Zaltni said they came frequently, subsequently, he said three or four times, then Mrs Zaltni said around 10 times, then Mr Zaltni said 5 or 6 times, finally he said that they `practically lived' at his house.
* The implausibility of Mr Zaltni's claim that Tunisians living in Britain were at risk of harm from the Tunisian government.
* The implausibility of Mr Zaltni's ability to travel in and out of Tunisia in 1997...
* The Zaltnis' delay in leaving Tunisia, and their choice to come to Australia rather than England.
41 In respect of some of these reasons, the RRT's approach strikes us as somewhat captious. Examples, we suggest, are the appellant's failure to know that the movement had changed its name from "Mouvement de la Tendence Islamique" to Al-Nahda in 1989 rather than late 1990 or 1991 as stated by the appellant; the appellant's understanding that Ghannouchi had been replaced by La'aridh as leader of Al-Nahda (his understanding was, in fact, supported by at least one piece of respectable independent evidence); the supposed discrepancy in the number of police visits to the family home some years before; and (a matter not in counsel's listing above) the appellant's failure, while correctly stating that there were arrests and detentions in 1989 following the elections, to mention that the major crackdown was in late 1990 and 1991. In relation to this last "credibility point", it seems that the RRT overlooked the fact that elsewhere the appellant said in answer to the RRT's suggestion that in 1990 and early 1991 the repression was not "so hard": "Yes, 1991 starts big problems". These matters would, it appears, just as readily be accounted for by the appellant's limited political involvement with Al-Nahda or poor recollection as by any untruthfulness.
42 The appellant sought to overcome the RRT's adverse conclusion as to his credibility by attributing it, at least in part, to the RRT's misapprehension of the nature of his claimed association with Al-Nahda. But we are not persuaded that the RRT misunderstood the essential nature of the appellant's claim. The RRT correctly understood that the appellant claimed that his main interest in Al-Nahda was religious and social rather than political but that he had some interest in Tunisian politics as they related to Al-Nahda. It may be that the presiding Member gave more weight to the appellant's unawareness of political matters than someone else might have done but this does not expose a misapprehension of the true nature of his claim. We view the fact that the appellant's sources of political information were limited in a similar light. Although the RRT does not refer to these matters in the reasoning section of its "Reasons for Decision", we do not think the primary Judge erred in failing to infer that the RRT had overlooked this matter.
43 The problem for the appellant is that the RRT had before it evidence both ways on the issue of how much familiarity with the political, organisational and historical aspects of Al-Nahda it was reasonable to expect the appellant to be familiar with. There can rarely be an error of law if a tribunal of fact which hears the evidence, bases its state of satisfaction as to whether statutory criteria are met on one set of factual conclusions rather than another where both are supported by evidence, especially where the evidence is testimony given by the same person.
44 In relation to the clinical psychologist's report, the RRT did address the evidence which that report provided. The RRT's Reasons for Decision included the following passage:
Finally, I considered the report prepared by the STARRTS psychologist. I accept that Mr Zaltni and other members of his family may be [sic] have experienced some form of trauma and may be under considerable stress. However, findings of fact are a matter for the Tribunal and for the reasons set out above, I am not satisfied that Mr Zaltni's fears relate to his alleged involvement in al-Nadha and there is nothing in this report which causes me to alter this finding.
45 The RRT's acceptance of the psychologist's diagnosis of stress due to trauma means that it must have accepted that at least some of the symptoms of the stress existed. The principal symptoms were, in summary:
Mr Zaltni
* he has experienced severe trauma in a context of repression
* he was agitated as he referred to some of his past experiences
* he appeared to avoid thoughts, images and feelings associated with his past experience and that of his family
* he feels guilty for the situation of family as it was his membership of Al-Nahda that had brought suffering to his family
Mrs Zaltni
* her hair fell out after her detention and torture
* she is very withdrawn
* when asked about her detention, she appeared to manifest great distress and fear
The psychologist's major conclusions were:
(1) The Zaltnis have both been tortured severely in a context of state repression.
(2) They both experience a range of post-traumatic symptoms.
(3) Mrs Zaltni's social withdrawal and depressed mood are likely to be related to the cumulative effects of political harassment and constant fear she is likely to have experienced.
(4) Mr Zaltni is extremely fearful of return to Tunisia. He states that colleagues who worked with him have been killed. In a context of increasing repressive violence by the Tunisian State, he feels he would almost certainly be killed.
(5) His departure from Tunisia was assisted through illegal means which increases his fear of Tunisian authorities. These factors along with his own experience of torture have lead to a sense of fear and apprehension in Mr Zaltni. He stated repeatedly that he will not return to Tunisia alive.
(6) This fear of persecution resulting from torture, Al-Nahda involvement and the political situation in Tunisia, appears genuine.
46 While it is true, as the RRT said, that questions of fact are for it and, it might be added, the RRT is not bound to accept all or any of the evidence given to it, matters requiring expertise cannot be treated by a lay tribunal as entirely at large for it to accept or reject on a whimsical or insubstantial basis. The psychologist's causal conclusions could have been rejected, for example, on the basis that they were based on wrong or incomplete facts or if there was another possible alternative cause which the psychologist failed to consider or rejected without due consideration. The only reasons the RRT gave for rejecting the causal link suggested by the psychologist were "the reasons set out above". That is, having concluded that the appellant's own evidence was not to be accepted, neither was that of the psychologist to the extent that it might tend to suggest otherwise.
47 Our problem with this ground of appeal is that the RRT's finding on this issue is fundamentally irrelevant to the result of the case. The contested question for determination here is not whether the appellant and his family were and are stressed by their experiences in Tunisia and by the fear of return but whether their fears are well founded in that there are objective grounds for believing that they are at risk of persecution if they return. Accordingly, the unsatisfactory treatment of the psychologist's report is in our view untouched by s. 430.
48 It remains to refer to the official documents which the appellant supplied to the RRT which were as follows:
(1) The "Prisoner's Continuous Visitation Card" purportedly issued on 15 July 1992 (see para [15] above);
(2) The "Announcement of a Sentence" purportedly issued on 15 February 1998 relating to the appellant's conviction and sentence on 1 September 1992 for "[b]eing affiliated with a non registered party, and causing disturbance against the Tunisian Rule" (see para [16] above);
(3) The "Confiscation Report" purportedly issued on 11 April 1994 (see para [20] above);
(4) The appellant's signed "undertaking" dated 29 July 1996 to refrain from gathering with more than two persons; not to belong to a political party other than the Democratic Constitutional Convention; not to wear the sectarian uniform; and to report to the police station three times a day (see para [22] above); and
(5) The summons issued on 11 October 1997 requesting the appellant to attend at the police station on 13 October 1997 (see para [24] above).
49 The RRT stated as follows:
I accept that Mr Zaltni may have been jailed for some reason in the past. I also accept that his fishing boat may have been confiscated for some reason. However, I do not accept that it was because of his association with al-Nahda. Only one of the documents provided by Mr Zaltni suggests that he was jailed for a political reason (the Ministry of Justice letter which announces his sentence). Unfortunately, the original of this document is not available for examination as they were in a brief case which was stolen when his home was robbed before the first hearing. However, given the serious problems with his evidence and his demonstrated willingness to obtain false evidence in support of his application such as the letter from Mr Memmenche [sic], I am not satisfied that this letter is a genuine document.
50 The imprisonment from 1992-1993 and the confiscation of the appellant's boat in 1994 were the subject of documents 1, 2 and 3 above. There are many unsatisfactory features of the RRT's treatment of all five documents. While it is true that only document 2 suggested that the appellant had been gaoled for a political reason, document numbered 4 also predicated an involvement of the appellant in political activity.
51 The RRT's treatment of the Memmiche letter is related to its rejection of the Announcement of Sentence document. It was not satisfied that the Announcement of a Sentence document was genuine because the appellant had "demonstrated willingness to obtain false evidence in support of his application such as the letter from Mr Memmenche [sic]". In our opinion this explanation does not provide a sound basis for rejecting the Announcement of Sentence document, for reasons we will explain later.
52 Moreover, as recorded by the presiding Member in the passage set out above, the appellant stated that the original document was not available for examination because it was in a briefcase that was stolen when his house was broken into before the first hearing. The photocopy shows no sign of forgery or fraudulent manufacture and appears, so far as the evidence goes, to be a court document as it claims.
53 However, the question is whether the acceptance or rejection of this document was determinative of any issue in the case. If it was, and the erroneous approach of the document exposed a ground of review provided for in s. 476(1) of the Act, the decision would have to be set aside. The RRT accepted that the appellant may have been gaoled in 1992. Even if the Announcement of a Sentence document established that the appellant was an Al-Nahda activist or supporter and that he was gaoled because of an association with that group, and the RRT was wrong in rejecting the document's genuineness, there was an independent ground relied on by the RRT for its rejection of the appellant's claim to have a well founded fear of persecution at the time of the RRT hearing in 1998. The presiding Member stated:
... even if I accepted [the appellant's] claims regarding his political involvement at face value (which I do not), he does not claim ever to have been a leading or significant figure in the party and claims to have had minimal involvement with the group since 1993 and no desire to continue his association with them. I do not believe that the Tunisian authorities would have any interest in pursuing such a person to Britain or anywhere else.
54 These findings were certainly open to the RRT on the evidence. Thus, although we find the presiding Member's approach to the appellant's credibility quite unsatisfactory, we do not think that it gives rise to any one of the grounds of review permitted to the Court by s. 476(1) of the Act. In our view, the RRT addressed all material questions of fact raised by the appellant's substantive claims. Moreover, a breach of the rules of natural justice in connection with the making of a decision by the RRT is expressly denied to the Court as a ground of review: see s. 476(2)(a) of the Act.
55 For these reasons, we would not allow the appeal on ground 1 or ground 2. We will refer later to the Minister's late submission that in any event a failure to meet the requirements of s. 430 is not a failure to observe "procedures ... required by [the] Act ... to be observed in connection with the making of the decision" within s. 476(1)(a).
Ground 3 (actual bias)
56 The nature of actual bias is well established and is simply that the decision-maker is so committed to reaching a certain decision as to be incapable of being persuaded not to do so: for recent cases on s. 476(1)(f), see Sun v Minister for Immigration & Ethnic Affairs (unreported, NG 346 of 1996, Lindgren J, 6 May 1997) at 95-99 and on appeal at (1997) 81 FCR 71 (FC) at 122-123 per Wilcox J, at 126-127 per Burchett J, at 134-137 per North J; Jia Le Geng v Minister for Immigration and Multicultural Affairs [1999] FCA 951 (FC) at [40] per Spender J, at [104]-[109] per Cooper J, at [145]-[161] per R D Nicholson J; Asif v Minister for Immigration and Multicultural Affairs [1999] FCA 1487 (Mansfield J) at [7]-[12].
57 The appellant submitted that it should be inferred from the way in which the presiding Member conducted herself that she was not open to persuasion. The appellant relied firstly on what he characterised as a fixed commitment on the part of the presiding Member to the view that he was to be judged against a claim of having been a political activist. In addition, the appellant referred to the following particular matters:
a) The Tribunal ignored the fact that the appellant's evidence as to his religious beliefs ... is consistent with the ideology of Al Nadha ... .b) The Tribunal held the appellant to his statement that he was a `known activist' without considering that the context of this statement was an explanation for the confiscation of his boat. Obviously, after spending a year in prison he would have been a known activist, but this says nothing of the state of knowledge of the Tunisian authorities prior to 1992, or the level of his activities, or his profile.
c) As previously stated, the Tribunal assumed a certain level of knowledge on the part of the appellant, without considering his claims in the context of the sources of his knowledge.
d) The Tribunal ... appears to accept the veracity of copies of documents submitted by Mr Zaltni to the effect that he had been imprisoned ... . However, the Tribunal rejected the document that gives a reason for the imprisonment ... . The Tribunal also ignores what are submitted to be obvious implications as to the document ... . It is submitted that the Tribunal used these documents selectively to make adverse findings as to the appellant's credibility, and did so without making enquiries as to the veracity of these documents.
e) The Tribunal found that Mr Memmiche had conspired with Mr Zaltni to manufacture false evidence ... . Mr Zaltni supplied the Tribunal with Mr Memmiche's telephone number ..., but the Tribunal made no enquiry of Mr Memmiche in regard to this or anything else. For the Tribunal to impugn Mr Memmiche's credibility in the way that it did without making enquiries was, it is submitted, strongly indicative of having a closed mind to an important aspect of the case. That the Tribunal then used its findings as to what it called Mr Zaltni's `demonstrated willingness to obtain false evidence' ... to reject documentation supplied by Mr Zaltni regarding the reason for his imprisonment is a further indication that the Tribunal's mind was closed to persuasion.
f) The Tribunal failed to put to the applicant its doubts about the veracity of Mr Memmiche's letter, therefore precluding the applicant from obtaining further evidence to support his case.
g) The Tribunal used evidence selectively, ignoring that which supported the appellant, in concluding that he would not have been able to leave and enter Tunisia, even by bribery, without `experiencing any problem' if he were of interest to the authorities. To support this conclusion the Tribunal cites inter alia an advice to the Tribunal from Helena Gill of the University of Westminster ... that it would be extremely difficult for such a person to travel. The Tribunal did not cite the qualification to Ms Gill's advice - `However bribery is `always a possibility''. The Tribunal also withheld this information from Mr Zaltni.
h) The Tribunal dismissed a claim that the Tunisian authorities would be interested in Mr Zaltni, partly on the basis that he had not claimed to be a significant figure in Al Nadha, and had only claimed minimal involvement after 1993 ... . This was despite evidence in advice given to the Tribunal that `anyone with the flimsiest association with Al Nadha is at risk ...'.
i) The Tribunal had before it information that the families of Al Nadha suspects were victimised by the authorities ..., and also that Mrs Zaltni and her children were suffering from post traumatic stress disorder ... . However, the Tribunal failed to ask what I submit is the obvious question of the source of the trauma of Mrs Zaltni and her children.
j) The Tribunal had before it a psychological report which stated inter alia that it is clear that Mrs Zaltni did not wish to `think about or disclose details relating to [her traumatic] experiences ...'. Yet at hearing the Tribunal criticised Mrs Zaltni's lack of memory and pressed her to recall the number of times the police had come to her house ... . Having obtained a number, she contrasted it with an answer given by the husband ..., to find adversely as to credit.
58 In reply, the Minister submitted that the evidence disclosed no basis for a finding that the presiding Member was biased, whether consciously or not. In particular, the Minister referred to the facts that she questioned the appellant on two occasions; went to considerable efforts to obtain independent evidence relating to conditions in Tunisia; and stated that she had considered the evidence as a whole and explicitly dealt with all the appellant's substantive claims.
59 The primary Judge was concerned, in our view justifiably, about the Member's failure to put some matters to the appellant but ultimately we think that his Honour did not err in concluding that the matters relied on by the appellant could not support a conclusion that her mind was closed. A finding of actual bias should not be made lightly and cogent evidence is required; cf R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 at 116 per Dixon CJ, Williams, Webb and Fullagar JJ; Sun (FC) at 123; Jia Le Geng at [104] per Cooper J and cases there cited. On the other hand, too high an evidentiary requirement might make impossible the presentation and proof of a justifiable case. We think the present case to be borderline but on balance do not think that the matters relied on by the appellant go far enough to establish that the Member was not open to persuasion.
60 We now comment more specifically on the RRT's treatment of Mr Memmiche's letter. Like the primary Judge, we are troubled that the appellant was not given the opportunity to address the presiding Member's far-reaching view that he and Mr Memmiche had been parties to the presentation of false evidence to the RRT. It will be recalled that Mr Memmiche's letter asserted that as at its date (20 January 1998) the appellant was "wanted" by the Tunisian authorities. The RRT accepted that Mr Memmiche was detained for questioning when he visited Tunisia in January 1997. In context, the final sentence in his letter was an assertion that the appellant's name was "mentioned" to him while he was being interrogated in the course of one or both of two six hour detentions on 18 and 23 January 1997 at the Tunisian Ministry of the Interior, and that upon his return to the United Kingdom (still in January 1997) he heard that the appellant was wanted by the Tunisian authorities in the United Kingdom as well, that is, as well as in Tunisia.
61 The appellant's solicitor suggested other constructions of the letter but we think that it was certainly open to the RRT to construe the letter in the way just described. Nonetheless, because the RRT was to treat the question of any interest which the authorities might have had in the appellant in January 1997 as being of great significance for his claims, it would have been desirable for the RRT to make further inquiry before reaching the conclusion it did.
62 The attribution to the Tunisian authorities of the type of competence and efficiency required for a conclusion that Mr Memmiche could not have been told that they wanted the appellant because the appellant was then in the country seems unlikely to have been warranted. But even if there was justification for the RRT's approach, to go further and infer that both the appellant and Mr Memmiche were guilty of a fraudulent act is a startling and, we think, unacceptable leap. The RRT seems to have thought it sinister that the appellant had "obtained" the letter from Mr Memmiche. We do not agree. Any litigant or person in the appellant's position, upon learning that a person has helpful information, would approach that person to seek written confirmation. It may be that if the RRT had telephoned him he may have been able to elaborate upon what he was actually told by the authorities in January 1997 about the appellant. Such an inquiry may have shown, for example, that Mr Memmiche had innocently erred in inferring that the authorities "wanted" the appellant, and that their interest in him was something more or something less urgent and insistent.
63 In our view these deficiencies of approach were significant, but on a consideration of the whole case we do not think that the matters relied on by the appellant, either individually or taken together, establish that the presiding Member prejudged the appellant's application, that is, that her decision was induced or affected by actual bias. At the end of the day, the appellant and his family were, on their case, mistreated by the Tunisian authorities up to 1996, and their house searched up to 1997, apparently due to his connection with Al-Nahda. Similar, even worse, treatment was meted out to many other Al-Nahda members, many of whom seem to have been imprisoned for lengthy periods for this association. The appellant's only imprisonment was from March 1992 to March 1993. During this period of mistreatment from 1992 to their departure from Tunisia in October 1997, the appellant was able to carry on his business in Tunis with relatively little interference that was not of general application, obtain Tunisian passports for all members of his family, and make at least two trips to the United Kingdom, albeit with permission secured by bribes, a mechanism apparently not unknown in Tunisia. These circumstances permitted the RRT to reach its conclusion that upon their return, the appellant and his family do not face a serious risk of harsh persecution.
Ground 4 (no evidence)
64 The appellant spent little time on this ground at the hearing of the appeal. The ground turns on the following passage from the RRT's Reasons for Decision:
I do not believe that Mr Zaltni would have been able to travel to and from Tunisia twice in 1997 before finally leaving the country with his family without experiencing any problems if he had been of continuing interest to the authorities, even by paying bribes.
65 The RRT relied on a response from Helena Scott, School of Languages, University of Westminster, to the following question which the RRT had addressed to her:
In your opinion would it be possible for an individual who had previously been jailed for involvement in Al Nahdah, had been denied a passport through normal legal channels and was still under surveillance to obtain a legal passport which contained his full correct name, date of birth and profession by bribery and to use it to travel to and from Tunisia on regular commercial flights several times in recent years without experiencing difficulties?
Ms Scott's response was to convey the views of Hélène Gill, French lecturer specialising in Tunisia, as follows:
This would be difficult but not impossible. There have been two recent cases of people travelling with such ID, but extensive travelling would be very difficult. Tunisian authorities are very thorough and those two were caught (they had fake passports). However, bribery is `always a possibility'.
66 The appellant's submission is simply that the words "bribery is `always a possibility'" undermine the basis for the RRT's belief but, as counsel for the Minister pointed out, Ms Gill's view, as related by Ms Scott, was that even if bribes were paid, the appellant would not have been able to enter and leave Tunisia twice in 1997 without any problems. Indeed Ms Gill's view was that
anyone with the flimsiest association with Al-Nahda is at risk, even relatives or vague acquaintances of members/supporters. Withdrawal of passport is very common. Any supporters would be likely to be subject at least to incessant surveillance and intimidation. (original emphasis)
67 An Amnesty International Report dated June 1997 which was extracted in the RRT's Reasons for Decision stated that wives of activists who had gone into exile were "unable to obtain a passport and prevented from leaving the country". The activist himself must surely have been treated no more favourably.
68 We think, therefore, that ground 4 is not made out. Even if there were no evidence or other material to support the RRT's conclusion that the appellant could not have travelled back and forth between Britain and Tunisia if he had been "of continuing interest to the authorities even by paying bribes", we do not think that conclusion such an essential link in the RRT's chain of reasoning (cf Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221) as to invalidate its ultimate conclusion.
Ground 5
69 The Minister submitted that the preparation of a written statement satisfying s. 430(1) is not one of the "procedures ... required by the Act ... to be observed in connection with the making of the decision" for the purposes of s. 476(1)(a). Subject to what we say in the next paragraph, so far as we are aware, this was the first time the Minister has made this submission in any application under s. 476 for review of a decision of the RRT. Even in the present case the submission was made very late.
70 Counsel for the Minister informed us that a similar submission was made in another case during the same Full Court sittings in which this judgment was reserved, namely, Hui Zhong Xu v Minister for Immigration and Multicultural Affairs heard on 11 November 1999 by Whitlam, RD Nicholson and Gyles JJ (see below). Since the hearing of the present matter, judgment has been given in that case on 17 December 1999: [1999] FCA 1741.
71 In many cases, both at first instance and on appeal, it has not been put in issue by the Minister, and has been assumed by the Court, firstly, that a particular factual claim made by an applicant can raise a "material question of fact" for the purpose of s. 430 (or its predecessor, s. 166E, as in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 413-416) and secondly, that s. 430 imposes procedural requirements, non-observance of which will provide the ground of review described in s. 476(1)(a). Examples are Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 at 19; Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 (FC) at [37]; Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 (FC) at [22]-[24] per Wilcox and Madgwick JJ, at [51] per Hill J; Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165; (1999) 84 FCR 274 (FC) at 285 per Burchett and Lee JJ, at 289-290 per Moore J; Dertli v Minister for Immigration and Multicultural Affairs [1999] FCA 141 at [39], [41]; Paramanathan v Minister for Immigration and Multicultural Affairs and Minister for Immigration and Multicultural Affairs v Sivarasa (1998) 160 ALR 24 (FCA/FC) at 31 per Wilcox J, at 37 per Lindgren J, at 63 per Merkel J; Logenthiran v Minister for Immigration and Multicultural Affairs [1998] FCA 1691 (FC); Kandiah v Minister for Immigration and Multicultural Affairs [1998] FCA 1145 (Finn J); De Silva v Minister for Immigration and Multicultural Affairs [1999] FCA 1074 (Sackville J) at [46]; Rajamannikkam v Minister for Immigration and Multicultural Affairs [1999] FCA 1411 (Einfeld J) at [12]-[15]. Before us, the first proposition was not challenged.
72 In some of these cases the Court referred to the way in which the terms of s. 430 may be attracted where the RRT has failed to address factual questions raised by the applicant's claims, but the Minister did not make the fundamental submission, either that s. 430(1) does not impose procedural requirements in connection with the making of the RRT's decision for the purposes of s. 476(1)(a), or that particular factual allegations made by the applicant, provided they are of sufficient level of importance (described variously in the cases) can not raise "material questions of fact" for the purposes of s. 430(1)(c). Indeed, in the present case, although the appellant as applicant before the primary Judge relied on what he contended was a non-observance by the RRT of the requirements of s. 430 as constituting the ground of review provided for in s. 476(1)(a), the Minister did not put to his Honour the submissions he now puts to us, and, as happened in the many cases referred to earlier, his Honour dealt with the matter on the basis of the issues advanced by the parties for decision.
73 It is regrettable that in our fundamentally adversarial system, the Minister, through his legal advisers, should have failed so many times in the past to raise such crucial issues with the consequence that they have not had to be addressed directly until so recently.
74 In Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 decided on 2 December 1999, that is, after the hearing of the present appeal, Heerey, Merkel and Goldberg JJ were called upon to consider these issues. Their Honours first referred to the well known line of authority to the effect that a Full Court should not depart from an earlier Full Court decision unless compelled to the conclusion that the earlier one is wrong. Nonetheless, they addressed the Minister's submissions on their merits. They rejected his submission that s. 476(1)(a)'s notion of procedures "in connection with the making of the decision" refers only to procedures required to be observed leading up to the reaching of the decision. They held that s. 430 requires the observance of "procedures" and that the expression "in connection with" in s. 476(1)(a) is neutral as to time and ample to encompass the steps, so closely intertwined with the reaching of the decision, which s. 430(1) mandates. In relation to the Minister's other submission, their Honours thought that s. 430(1)(a)'s requirement that the RRT set out its findings on any "material question of fact" required more than a statement of findings expressed in terms of the statutory (here Convention) criteria. They said (at [35]):
When assessing the relative centrality of issues raised - and hence their materiality - a specific instance of alleged maltreatment alleged, and upon which the asylum-seeker's fear of persecution for a Convention reason was said, in part, to be based, would usually constitute a material question of fact. Very often the success or otherwise of a claim will turn on the credibility the RRT attaches to the asylum-seeker's account of such incidents.
75 As noted earlier, on 17 December 1999 Whitlam, R D Nicholson and Gyles JJ gave judgment in Xu. All three members of the Court were in agreement that the appeal should be dismissed. In a joint judgment Whitlam and Gyles JJ accepted the Minister's submissions on the two questions mentioned earlier and decided not to follow Yusuf. R D Nicholson J did not join in their reasons in so far as their Honours held that a failure to comply with s. 430 did not give rise to the ground of review provided in s. 476(1)(a) of the Act. His Honour declined to do so on the basis that caution should be exercised before a division in the course of authority is opened up, particularly where, as in the case before their Honours, the question raised was not necessary for the determination of the appeal.
76 Whitlam and Gyles JJ did not say that the joint judgment in Yusuf was "plainly wrong" or that they were "compelled to the conclusion" that it was wrong and we are not of that mind either, although no doubt a more expansive discussion of the issues than took place in the joint judgment in Yusuf (or, for that matter, in the joint judgment of Whitlam and Gyles JJ in Xu) is possible.
77 We would not undertake yet a further discussion of the merits of the competing arguments but would, not being compelled to do otherwise by the High Court, follow Yusuf: cf Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 at 268-269 per Dawson, Toohey and McHugh JJ; Bradley v Armstrong (1981) 39 ALR 118 (FCA/FC) at 119 per Fox J, at 123 per Connor J; Magman International Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 1 (FC) at 20 per Hill J; Byrne v Australian Airlines Ltd (1994) 47 FCR 300 (FC) at 304 per Black CJ; Minister for Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95 (FC) at 104; Qantas Airways Ltd v Cornwall (1999) 84 FCR 483 (FC) at 489-490; Transurban City Link Ltd v Allan [1999] FCA 1723 (FC) at [26]-[31] (and see Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492; AAA v Minister for Immigration and Multicultural Affairs [1999] FCA 1699 (FC) at [2]-[6] per Einfeld J and Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60 (Burchett J) at [15]-[17]; but see Minister for Immigration and Multicultural Affairs v Zheng [2000] FCA 50 (FC) at [46] per Whitlam J).
78 The volume of applications to the Court for review of decisions of the RRT is so great that Yusuf or Xu has now been referred to in no less than twenty one cases in the Court. Furthermore, the issues raised by s. 430 are under consideration by a five-Judge Bench in Minister for Immigration and Multicultural Affairs v Singh heard on 28 February 2000 (judgment reserved) and on 11 February 2000 the High Court granted the Minister special leave to appeal in Yusuf.
Conclusion
79 As will be clear from our reasons above, we have found much deserving of criticism in the presiding Member's reasoning. Nonetheless, we are unable to conclude that the learned primary judge erred in not interfering with the RRT's ultimate finding that the appellant did not have a well founded fear of persecution on a Convention ground.
80 The appeal will be dismissed with costs.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. |
Associate:
Dated: 16 May 2000
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Solicitor for the Appellant: |
Mr L J Karp of McDonells Solicitors |
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Counsel for the Respondent: |
Mr M J Leeming |
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Solicitor for the Respondent: |
The Australian Government Solicitor |
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Date of Hearing: |
15 November 1999 |
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Written submissions completed: |
16 November 1999 |
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Date of Judgment: |
16 May 2000 |
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