Inderjit Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 73 (16 February 2001)

Last Updated: 16 February 2001

FEDERAL COURT OF AUSTRALIA

Inderjit Singh v Minister for Immigration and Multicultural Affairs

[2001] FCA 73

MIGRATION - Refugee Review Tribunal - material received after decision signed but before it is handed down - whether Tribunal functus officio - whether Tribunal has power to ignore relevant material before its decision is handed down - whether reviewable error

Migration Act 1958 (Cth) ss 414, 425, 430, 430A, 430B and 476(1)

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 - cited

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 - applied

Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 - applied

Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 - applied

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 - cited

Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 - cited

Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 460 - cited

Minister for Immigration and Multicultural Affairs v Bhardwaj (2000) 79 FCR 251 - cited

Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533 - considered

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 - cited

Re Refugee Review Tribunal Ex parte Aala [2000] HCA 57; (2000) 176 ALR 219 - cited

INDERJIT SINGH v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 336 OF 2000

JUDGE: MERKEL J

DATE: 16 FEBRUARY 2001

PLACE: MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 336 OF 2000

BETWEEN:	INDERJIT SINGH APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	16 FEBRUARY 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal handed down on 14 April 2000 be set aside.

2. The matter be remitted to a differently constituted Refugee Review Tribunal to be determined in accordance with law.

3. The respondent pay the applicant's taxed costs of and incidental to the application and the taxed costs of counsel who appeared at the hearing for the applicant pursuant to Order 80 of the Federal Court Rules.

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	VG 336 OF 2000

BETWEEN:	INDERJIT SINGH APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE:	16 FEBRUARY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1 The present matter has had a troubled history. The applicant, a citizen of India who arrived in Australia on 6 April 1996, applied for a protection visa on the ground that he is a political refugee. He claims to have a well founded fear of being persecuted for reasons of political opinion if he is returned to India.

2 The application was refused by a delegate of the Minister on 13 March 1997. The applicant applied for review of that decision by the Refugee Review Tribunal ("the RRT") which affirmed the delegate's decision. The applicant sought, and successfully obtained, judicial review of the RRT's decision, which was set aside by an order of the Court on 29 October 1998. A differently constituted RRT reheard the matter and again affirmed the delegate's decision on 8 April 1999. The applicant sought, and again successfully obtained, judicial review of that decision, which was set aside by a consent order of the Court on 28 October 1999.

3 On 21 March 2000 a differently constituted RRT reheard the applicant's application to review the decision of the delegate of the Minister. On 14 April 2000 the RRT handed down its decision which again affirmed the decision of the delegate of the Minister to refuse the applicant's application for a protection visa. The applicant has applied to the Court for judicial review of that decision under Pt 8 of the Migration Act 1958 (Cth) ("the Act").

The applicant's claims

4 On the basis of the material before the RRT the applicant's claims appear to be as follows. He fears political persecution as a result of the authorities in India imputing to him an association with a militant Sikh separatist group known as Babar Khalsa. In 1988 a high profile member of Barbar Khalsa and other persons affiliated with it, all of whom were colleagues of the applicant, stayed at his home in the Punjab. As a result of his association with these colleagues the police detained the applicant for eight days and tortured him as a suspected terrorist. The applicant was released after his father paid a substantial bribe. About a month later the police again searched for the applicant at his home. The applicant decided that it was necessary to leave the Punjab and stay with relatives in another state, Himachal Pradesh. While in Himachal Pradesh the applicant studied by correspondence with the University in Bihar. The police continued to search for the applicant at his family home in the Punjab.

5 After the Chief Minister of the Punjab, Beant Singh, was assassinated in August 1995 the police again searched for the applicant at his family home in the Punjab, claiming that he was associated with members of Barbar Khalsa who had perpetrated the assassination. After being tortured his father informed the police of the applicant's whereabouts, after which the police came to his home in Himachal Pradesh . The police were not able to apprehend the applicant because he was working in the fields. The applicant's relatives informed the police that he did not live there. The applicant then left his home in Himachal Pradesh and was "on the run" at various locations until his father was able to arrange for a student visa which permitted the applicant to study in Australia.

6 In 1996 the applicant left India for Australia. He used an Indian passport in his name which his father had obtained for him in 1989 and had renewed in 1994. While the applicant has been in Australia the police have continued to make inquiries in the Punjab in relation to the applicant's perceived association with the colleagues whom the police believed were associated with Barbar Khalsa.

The RRT decision

7 The RRT accepted that it was "plausible" that the applicant was detained, interrogated and mistreated in 1988. However, it did not accept that the Indian authorities imputed an association between the applicant and Barbar Khalsa after his release in 1988. The main reasons the RRT gave for that conclusion were:

* the applicant would not have been released after eight days if the authorities suspected that he was affiliated with Barbar Khalsa even if, as he alleged, a bribe had been paid;

* the authorities were interested in the applicant because they believed he was able to supply information about his colleagues who were suspected of being associated with Barbar Khalsa, but he was released because he was unable to provide any further information;

* the political turmoil that had led to the assassination of the Chief Minister in the Punjab in 1995 has been brought under control and, as a consequence, the widespread and ongoing human rights abuses of Sikhs in the Punjab has largely ceased;

* the present situation is one where the authorities target only those people they suspect of being "militants" or who have "some established history of terrorist associations" and as the applicant does not fall within either category, the chance that he would now, or in the foreseeable future, be of official interest is remote;

* if the applicant remained anxious about returning to the Punjab or to Himachal Pradesh where he had lived and studied for the eight years before he left for Australia, it is reasonable that he relocate to one of the numerous locations in India where there are significant numbers of Sikhs with whom he can share his cultural and religious background as well as utilise his experience and qualifications.

8 The applicant had also based his claim of feared persecution on a fear of police extortion and on the severe speech impediment which he suffered as a result of his torture in 1988. The RRT found that neither of those claims afforded a well-founded basis for his fear of political persecution.

9 In explaining why it had not accepted the applicant's version of events, the RRT observed that: it is not credible that the police would not take further steps to locate the applicant in the village or environs in Himachal Pradesh; the applicant obtained a passport in 1989 but then failed to utilise it to escape persecution; the authorities granted and renewed a passport to the applicant in his name; the applicant did not encounter any difficulty in departing from India. The above factors were considered by the RRT to be inconsistent with the applicant's claim of a perceived association or involvement with Barbar Khalsa or any other militant or terrorist Sikh separatist group.

Grounds of Review

10 The applicant relied upon numerous grounds to challenge the RRT's decision. Essentially the challenge was on the merits, which is not permissible under Pt 8 of the Act. An important aspect of the RRT's decision was its conclusion that, whatever may have been the position in the past, at the date of its decision circumstances in the Punjab had changed. At that date the people that were of interest to the authorities, and therefore were likely to be targeted by them, were persons who were suspected of being militants or who were regarded as having an established history of terrorist association. Although the applicant claimed that his record would bring him within that description, that was a question of fact for the RRT to determine. The RRT, as the arbiter of fact, concluded that that was not the case.

11 Ultimately, the applicant's counsel relied on two specific grounds which related to the merits of the decision and one ground that was more substantial. The first ground was that the RRT misstated the applicant's extortion claim and therefore failed to deal with one of the claims relied upon to establish his entitlement to a protection visa. I do not accept that there was a misstatement of the claim. In any event the claim of police extortion stands, or falls, with the applicant's claim of an imputed political association with Babar Khalsa, as it was only that association that was said to have led to a fear of arrest, detention and extortion by the police. If the claimed association fails then the extortion feared was a fear of a criminal act, rather than a fear of political persecution.

12 The second ground was an alleged failure of the RRT to expressly determine whether the claim of past persecution was a claim in respect of political persecution. The ground is misconceived as it is not necessary for the RRT to make a finding in respect of past events in those terms. It is only required to make findings of fact in respect of the past events relied upon in order to determine whether the claim of political persecution, in the event of the applicant's return to India, is well founded: see Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 574. In that regard I am satisfied that the RRT made the requisite finding of fact in respect of the past events relied upon by the applicant.

Functus officio

13 The final ground relied upon by the applicant is that the RRT wrongfully refused to receive, or to consider, material lodged with it in support of his claims and, as a consequence, failed to conduct its review in accordance with law.

14 The relevant facts may be summarised as follows:

* by letter dated 10 March 2000 the solicitors for the applicant informed the RRT that:

"The Applicant is currently undergoing assessment in respect of his speech impediment by the Victorian Foundation for Survivors of Torture. It will be appreciated by the Tribunal that the Applicant's impediment has made this assessment very difficult and slow. The assessment will of course be made available to the Tribunal. Copy letter from the Foundation is enclosed."

* the enclosed letter of the Foundation to the applicant's solicitors, which was dated 10 March 2000, stated:

"I have been advised that Mr. Singh has an asylum application which will be heard by the Refugee Review Tribunal on March 21. As indicated to you over the telephone I will be preparing a Psychosocial report based on the counselling I have undertaken with Mr Singh. Due to difficulties with his speech and the need to use an interpreter, progress in his counselling and therefore with the preparation of the report is slow. However, I will endeavour to provide a report as soon as possible."

* at the hearing held on 21 March 2001 the RRT accepted that the applicant's speech impediment resulted in "considerable difficulty" in the conduct of the hearing and therefore formulated propositions to which the applicant, through an interpreter, was requested to give an affirmative or a negative answer;

* although the applicant was represented at the hearing by a solicitor no reference was made to the Foundation's report;

* on 28 March 2001 the RRT informed the applicant that it had made a decision which would be handed down on 14 April 2000;

* on 13 April 2000 the solicitors for the applicant facsimiled the Foundation's report to the member of the RRT who conducted the hearing on 21 March 2000;

* the RRT's internal records disclose that the Foundation's report was received by the RRT on 13 April 2000;

* on 14 April 2000 the RRT handed down its decision that the applicant was not entitled to a protection visa;

* by letter dated 14 April 2000 the Deputy Registrar of the RRT informed the applicant's solicitors that the RRT had received the "faxed submission" on 13 April but, as the decision had been made and signed by the RRT member on 27 March 2000 and had been handed down on 14 April 2000, the RRT "no longer had any power to consider [the applicant's] case";

* The internal records of the RRT disclose that the member's decision was "registered" and "[s]ealed" on 28 March but was not notified to the applicant or to the Department until it was handed down on 14 April 2000.

15 Two other RRT documents are relevant. Directions given on 20 January 2000 by the Acting Principal Member under s 420A of the Act provided for the efficient conduct of reviews. The directions provided:

"11. ...the Tribunal will determine the time frame in which further information, including evidence and submissions, is to be lodged. To avoid undue delay, no such information is to be accepted following the conclusion of the hearing without the prior leave of the Presiding Member, who must fix a period in which the information is to be received by the Tribunal. Upon the request of the applicant or adviser the Member may determine such further period, as the Member may consider appropriate in the circumstances. In the absence of a specific period being set, it will be 14 days from the conclusion of the hearing. A Member is not required to take any action in respect of a submission that is received after the expiry of the relevant period.

...

13. A member shall, upon completion of the written reason for decision, sign and date the same and complete the finalisation form. The member shall immediately upon doing so return the file to the registry for further processing in accordance with the Act."

16 The second document is an Administrative Circular of the Acting Principal Member dated 21 February 2000. The Circular, which has no statutory status, was directed to "Tribunal Members and Staff". It stated:

"Once a decision is signed and dated by a Tribunal member, as an administrative decision maker that member is functus officio. This means that the member has no functions left to perform in relation to that decision.

From time to time an applicant or an adviser may send in submissions after the decision has been dated and signed. Once a Tribunal member is functus officio in relation to a decision, that decision cannot be re-opened except under very limited circumstances. The Federal Court has laid down guidelines on circumstances which would justify the re-opening of an administrative decision.

Submissions which are received at the Tribunal in relation to a decision which has been dated and signed by a member are not to be given to the member. Members are not to consider these submissions. Such submissions are to be given straight to the Deputy Registrar."

17 No evidence, other than the letter of the Deputy Registrar of the RRT of 14 April 2000, was filed by the respondent ("the Minister") as to what had occurred in relation to the Foundation's report after its receipt on 13 April 2000. It is clear that the prevailing view within the RRT was that a member of the RRT was functus officio after the member had made and signed the decision. As that had occurred in the present matter on 27 March 2000, I infer that the Presiding Member, believing he was functus officio, ignored the Foundation's report that had been facsimiled to him on 13 April 2000. Accordingly, whether the report should be received and, if so, what weight its contents were to be given were not considered by the member.

18 I do not accept the contention of counsel for the Minister that I ought to infer that, in accordance with the procedures laid down in the Administrative Circular, the Foundation's report was withheld by staff of the RRT from the Presiding Member with the consequence that he was unaware of it. It is evident that the Foundation's report was not a submission; and therefore did not fall with the terms of the Circular. Rather, for the reasons I later set out, the report was material upon which the applicant was seeking to rely in support of his application for a protection visa. Second, as the report was addressed to the Presiding Member, in the absence of evidence to the contrary, I would infer that he received it. Third, evidence as to whether the report was received by the Presiding Member could easily have been adduced by the Minister yet he did not do so. Accordingly, I can more confidently draw the inference of receipt of the report by the Presiding Member as a result of the failure of the Minister to adduce evidence that might contradict or throw doubt on that inference: see Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 308.

19 In any event the relevant fact is that the Foundation's report was ignored by the RRT. It may not matter whether that came about because it was deliberately withheld from the Presiding Member or because he decided to ignore it. In either event the reason for the report being ignored is that the responsible officers of the RRT believed that the RRT was functus officio and therefore had no power to consider the report.

20 The question is therefore whether the Presiding Member of the RRT was correct in his view in that he was functus officio on 13 April 2000 when he received the Foundation's report. In Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211 Gummow J said:

"There was `an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by a statute was exhausted by its first exercise': Halsbury's Law of England (1<sup>st</sup> ed), Vol 27, p 131. However, s 33(1) of the Acts Interpretation Act 1901 (Cth) ... provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed `from time to time as occasion requires'. But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue."

Accordingly, it is necessary to consider the present statutory context.

21 Under s 411(1)(c) of the Act a decision to refuse to grant a protection visa is an RRT reviewable decision. Under s 412 of the Act an applicant for a protection visa may apply to the RRT for review of an RRT reviewable decision. Section 414(1) of the Act provides that the RRT "must review" the RRT reviewable decision. Section 415 provides that in the course of discharging its function of reviewing the decision, the RRT may exercise all of the powers and discretions that are conferred by the Act on the person who made the decision. Section 420(1) of the Act provides that the RRT is to pursue the objective of providing a mechanism of review "that is fair, just, economical, informal and quick". Section 420(2)(b) provides that the RRT "must act according to substantial justice and the merits of the case".

22 Section 420A(1) empowers the Principal Member to give directions "not inconsistent with this Act or the regulations" as to the operations of the RRT and the conduct of reviews by the RRT. Section 420A(3) provides that the RRT should, as far as practicable, comply with such directions, although non compliance does not mean that the RRT's decision on a review is an invalid decision.

23 Section 421 provides that the RRT is to be constituted for the purposes of the review by a single member. Division 4 of Pt 7 of the Act, which provides for the conduct of the review, confers upon the RRT wide discretionary power as to the manner in which it shall conduct the review, including the power in s 427(1)(b) to adjourn the review from time to time. Section 423 provides for an applicant to provide to the Registrar of the RRT certain material that is relevant to the review and s 425 provides for the applicant to be invited to appear before the RRT to give evidence and present argument in relation to the issues arising on the review.

24 Division 5 provides for the manner in which decisions of the RRT are to be made. Section 430(1), relevantly, requires the RRT to prepare a written statement setting out its decision and the reasons for the decision. Section 430A provides that, subject to certain exceptions that are not presently relevant, the RRT must invite the applicant and the Secretary of the Department to be present when the decision is handed down and must give each of those persons the prescribed period of prior written notice of the time and place at which the decision is to be handed down. Section 430B provides for the manner in which the decision is to be handed down. Significantly, s 430B(4) provides that:

"The date of the decision is the date on which the decision is handed down."

25 Under s 476 an application for review of the decision of the RRT by the Court may be made on any of the grounds set out in that section. For present purposes the relevant grounds are that procedures that were required by the Act to be observed in connection with the making of the decision were not observed (s 476(1)(a)), that the person who purported to make the decision did not have jurisdiction to make the decision (s 476(1)(b)), that the decision was not authorised by the Act (s 476(1)(c)) and that the decision involved an incorrect interpretation of the applicable law (s 476(1)(e)). Section 478(1)(b) provides that an application for review by the Court must be lodged with the registry of the Court within 28 days of the applicant being notified of the decision.

26 The primary function of the RRT is to review the decision of the delegate refusing the applicant a protection visa (s 414(1)). The RRT has wide powers and discretions as to the manner in which it conducts that review. Although the decision on the review is to be made prior to it being handed down, the handing down of the decision is not to occur until after written notice is given concerning the time and place at which the decision is to be handed down. However, there is nothing in the statutory scheme that would prevent the RRT from deferring the handing down of its decision until a later date than that notified to the parties if circumstances arose that made that appropriate. Section 430B, which provides for the handing down of the decision, does not contain any requirement that the decision must be handed down on the notified date. Rather, s 430B(4) provides that the date of the decision is the date on which the decision is actually handed down.

27 It is fairly clear that, under the statutory scheme, and in particular s 430B(4), although a decision is to be made and, in the usual course, committed to writing prior to it being handed down, the decision is only intended to be treated as final and operative as from the date on which the decision is handed down, that is, as from the date of the decision. Thus, there is nothing in the statutory scheme that would appear to prevent the RRT from reconsidering, recalling or altering any decision it has made prior to the date on which the decision is handed down.

28 Counsel for the Minister urged the Court to construe the relevant provisions in a manner that gave effect to the statutory objective of ensuring that the mechanism of review be efficient, economical and quick. Counsel submitted that after a hearing has been conducted and a decision made, but not yet handed down, the Act does not entitle an applicant to file further material or to present further submissions. Further, it is said that such a procedure would be conducive to inefficient, uneconomic and delayed decision making. Thus, it is contended that the Court should construe the Act in a manner that resulted in the RRT being functus officio once its decision has been made, notwithstanding that the decision has not been handed down or communicated to the parties. If that argument were accepted, the decision of the RRT in the present case would be deemed to have been made finally and irrevocably on 27 March 2000 and the RRT would have been functus officio when it received the further material upon which the applicant sought to rely on 13 April 2000.

29 There are three fundamental flaws in the Minister's submission. The first is that the construction contended for is not supported by any of the statutory provisions and is inconsistent with s 430B(4).

30 The second flaw is that, although it can be accepted that the statutory scheme does have the objective of providing for an efficient, economical and quick review of decisions, that review is also one which is to be fair and just with the RRT acting according to substantial justice and the merits of the case: see s 420. However, more fundamentally, the statutory function of the RRT is to review the decision to refuse to grant a protection visa. In doing so the RRT, as the repository Australia's international obligations concerning the fundamental human rights of asylum seekers, is exercising its powers of review under the Act for the purpose of arriving at the correct or preferable decision on the date the decision is made, that is, the date when it is handed down.

31 The respondent's submission has a Kafkaesque quality to it in so far as it is suggested that it is more important that the decision of an inquisitorial tribunal, such as the RRT, be efficient, economic and quick than that it be right. There is nothing in the statutory scheme that would countenance an approach that renders the Presiding Member functus officio prior to the decision being handed down or communicated to the applicant or to the Minister or his Department. Indeed common sense and authority is against the Minister's approach of giving primacy to administrative efficiency. Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 ("Sellamuthu") at [23] per Wilcox and Madgwick JJ and Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 424-425 per Brennan J make it fairly clear that the primary duty of an inquisitorial tribunal, such as the RRT, is to arrive at the correct or preferable decision on the material before it.

32 The third flaw in the Minister's submission is that it proceeds on the assumption that the applicant is contending that he has a right to provide the RRT with any submissions and material upon which he wishes to rely after the date of the hearing but prior to the handing down of the decision. Whether there is such a right will depend upon the circumstances of the particular case. For example, in the present case it is relevant that the RRT was informed that the report was to be made available to it and, although no mention of the report was made at the hearing, there was no suggestion that the report would not be relied upon.

33 However, the applicant in the present case is not contending for the existence of any such right. Rather, he claims only that prior to the handing down of its decision the RRT was obliged, but failed, to consider whether it would receive the material that was relevant to the issues it was required to determine. The applicant's complaint was that the RRT, by considering itself functus officio, did not determine whether the material should or should not be received and, if received, whether it should be given any weight. Thus, the error of law relied upon by the applicant is that the RRT elected to ignore the material because it wrongly considered itself functus officio on 13 April 2000, when it received the further material, and not that the RRT had an obligation to receive and accept that material.

34 Thus far, I have considered the statutory scheme without resort to the decisions in which the Court has previously considered when the RRT is functus officio. The cases that have considered that issue concern the Act prior to its amendment as from 1 June 1999 by, inter alia, the inclusion of ss 430A and 430B, and in particular, s 430B(4) which provides that the date of the decision is the date upon which it is handed down. As explained above, s 430B(4) offers compelling support for the view that prior to that date the Presiding Member's power is not spent and any decision made is not final and unrecallable.

35 I accept that the RRT is functus officio upon a valid decision being handed down in accordance with the requirements of the Act: see Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301, Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 cf Minister for Immigration and Multicultural Affairs v Bhardwaj [2000] FCA 789; (2000) 99 FCR 251. However, the present case is concerned with the powers of the RRT during the period between the date on which the Presiding Member has arrived at and signed the decision and the date upon which it is handed down.

36 That issue was considered by a Full Court in Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533 ("Semunigus"). In that case the Court, by a majority, dismissed an appeal by an applicant who claimed that the RRT had wrongfully failed to have regard to submissions or material that had been sent to it after its decision was made but prior to the decision being handed down or disseminated outside of the RRT.

37 Spender J at [12] thought it likely that, had the member wanted to recall his signed decision, he was able to do so at any time prior to a copy of it being sent to the Minister or to the applicant as was then required by s 430(2) of the Act. However his Honour at [20] and [21] said he would dismiss the appeal on the ground that, in the particular circumstances of the case, there was no requirement on the part of the RRT to have regard to the submissions that had been sent to it. Higgins J also agreed that the appeal was to be dismissed. His Honour at [78] considered that once the decision had been published, in the sense of having been delivered to and recorded in the Registry of the RRT, even if it had not yet been sent to the affected parties, it is made and cannot thereafter be recalled. His Honour (at [92]) was of the view that the appeal must be dismissed in any event as the case was not one in which a chance to place relevant material before the RRT had been unreasonably declined. Madgwick J would have allowed the appeal. His Honour at [103] considered that the decision of the RRT had not been finally made until it has been communicated to the applicant or irrevocable steps have been taken to have that done. His Honour observed at [109] that where late material is tendered which might reasonably affect the RRT's view as to what could be the correct or preferable decision, and some excuse for the delay is offered which might be reasonable, it would be proper to interpret the Act as impliedly requiring the RRT to consider whether or not to exercise its powers to receive such material.

38 Thus, the majority view in Semunigus was that, under the Act as it stood prior to its amendment on 1 June 1999, the RRT was probably not functus officio until it had communicated its decision to the applicant. Accordingly, Semunigus does not support the Minister's contention in the present case. In so far as the decision is relevant to the Act in its present form, it supports the view that until the decision is handed down or communicated to the applicant or to the Department or the Minister the RRT is not functus officio and has power to recall the decision.

39 Counsel for the respondent also contended that, even if the RRT were wrong in considering itself functus officio on 13 April 2000 when it received the Foundation's report, no reviewable error can be demonstrated as its failure to consider the material was, at best for the applicant, a breach of the rules of natural justice which is not a reviewable ground by reason of s 476(2)(a): see Semunigus at [21] per Spender J and at [92] per Higgins J cf Madgwick J at [108]-[111]. It was also submitted that relief should be refused in any event as the Foundation's report did not disclose any new material and therefore did not deny the applicant "the possibility of a successful outcome": see Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 147 and Re Refugee Review Tribunal Ex parte Aala [2000] HCA 57; (2000) 176 ALR 219 at [4], [80], [103] and [130-132].

40 In the first instance it is appropriate to consider the relevance of the Foundation's report to the issues before the RRT. The Foundation's report was a psychosocial assessment of the applicant based upon seven counselling sessions, each of which ranged in duration from 60 to 120 minutes. The report states that the counselling was conducted with the assistance of a Punjabi interpreter who was required for approximately 80% of the time and that the counselling was conducted in a manner and at a pace that allowed the applicant to take his time to express himself as best he could. The report, which was prepared by a psychologist engaged by the Foundation, explained how difficult it had been to obtain information from the applicant concerning the torture and persecution which he feared. For example, the report stated that at his first interview the applicant was only able to complete one sentence over the whole interview which lasted for more than one and a half hours. It stated that even that was only possible after the applicant had written a sentence down and shown it to the psychologist. The report states that on other occasions the applicant struggled to get two or three words out.

41 Although the report focused on the psychosocial impact of torture and persecution on the applicant, an aspect of that process involved the psychologist endeavouring to obtain the applicant's historical account of the torture and persecution that he claimed he had suffered. The report contained the applicant's version of the relevant past events upon which he relied to claim that his fear of political persecution was well founded. It appears that the version contained in the report was more precise and detailed than in any of the other material that the applicant had presented to the RRT when it heard the matter on 21 March 2000.

42 As explained above, although the applicant was represented at the hearing, his speech impediment was so significant that he was unable to effectively present his own account of the events upon which he relied his own words. Thus, at the hearing, the RRT put summary propositions to the applicant on the basis of its understanding of his claims. In contrast the Foundation's report contained the applicant's own account of the relevant events which had been extracted from him by a psychologist skilled in that task, and with the assistance of an interpreter, a speech therapist and the applicant's uncle. Thus, the report was plainly capable of being treated as relevant to the issues on which the outcome of the review turned, namely the past events relied upon by the applicant and his credibility.

43 While the report was hearsay, and therefore may not be evidence in the strict sense, the RRT is not bound by the rules of evidence. Thus, it was open to it to consider whether the matters set out in the Foundation's report more accurately and reliably recount the applicant's claims than any other material that had been placed before the RRT. The conclusion at which the RRT would have arrived was a matter for it rather than the Court. It is sufficient, however, for present purposes that I am satisfied that the report contained material that was credible, relevant and logically probative of issues of fact that were required to be determined in the review being conducted by the RRT.

44 For example, the report set out the detail of the torture alleged to have been suffered by the applicant and how that torture led to the applicant's current fears of suffering violence and further torture if he were returned to India. The opinion of the psychologist was that the applicant's account of his torture and persecution is "highly credible" and "totally consistent with the symptoms he has experienced". Although the RRT accepted that detention and mistreatment of the applicant in 1988 was "plausible", the report's specificity provided material to the RRT upon which it could conclude that the torture occurred in the manner, and for the reasons, claimed by the applicant. If the applicant's version of the events were accepted then he may not only have been of interest to the authorities for the information he could give, but also because they believed, as was stated in the report, that he was "a terrorist", "a militant" and had "a gun and a bomb".

45 There is a further aspect of the materiality of the report. Although the RRT may not have made explicit findings against the applicant's credit, it did so implicitly in so far as it rejected his claims of past political persecution. Thus, the report was also capable of being taken into account on the issue of credit.

46 The report was also material to the issue of relocation. The RRT's finding on the reasonableness of relocation was based, in part, upon its conclusion that the applicant was not being sought by reason of a perceived association with Babar Khalsa. As the report was relevant to that issue, the relocation finding was also capable of being affected by the information contained in the report.

47 Accordingly, the failure of the RRT to consider the report was capable of denying to the applicant the possibility of a successful outcome. However, that is not sufficient for the applicant to succeed if the failure amounted to no more than a denial of natural justice as that is not a reviewable ground under Pt 8 of the Act: see s 476(2)(a).

48 Counsel for the applicant contended that the RRT's mistaken view that it was functus officio led it to ignore the Foundation's report and to proceed to make its decision on the review without considering all of the material and evidence presented by the applicant to it. Put another way, it was contended that it is not open to the RRT to ignore relevant material presented to it by an applicant without having a valid or lawful reason for doing so.

49 As explained above, an inquisitorial body, such as the RRT, is under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. In arriving at its decision under the Act the RRT is required to deal with the case raised by the material or evidence before it, which must be taken to mean the evidence and material which it accepts, or does not reject: see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63, Satheeskumar v Minister for Immigration and Multicultural Affairs (1999) FCA 1285 at [15] Sellamuthu at [23]. As was pointed out by the Full Courts at Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [19] and Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469 at [52]:

"The Tribunal is under a duty to review the decision of the delegate on the merits and in doing so must have regard to all of the material and evidence before it..."

50 Plainly, any directions given under s 420A and any instruction of the Principal Member cannot override or be otherwise inconsistent with the duties arising under the Act. In any event the directions given under s 420A do not authorise a Presiding Member to decline to consider whether or not relevant material should be received by the Presiding Member of the RRT in a particular case.

51 The RRT erred in law in considering itself functus officio when it was not. That resulted in the RRT ignoring relevant material presented to it by the applicant without having a valid or lawful reason for doing so. Thus, the RRT concluded its review of the application of the delegate's decision without conducting the review in the manner required by the Act. The situation is analogous to an Administrative Appeals Tribunal, which is also an inquisitorial body, ignoring some of the facts contained in the material relied upon by one of the parties before it in determining a matter: see Repatriation Commission v Owens (1996) 70 ALJR 904. As explained above the reviewable error was a failure to observe procedures required by the Act to be observed (s 476(1)(a)) and was not authorised by the Act (s 476(1)(c)). The decision probably did not involve jurisdictional error (s 476(1)(b)) or an incorrect interpretation of the applicable law under s 476(1)(e) as the error related to procedural rather than substantive law: see Minister for Immigration and Ethnic Affairs v Thiyagarajah [2000] HCA 9; (2000) 199 CLR 343 at [17].

52 The Court has a discretion to refuse relief under s 481(1) if, for example, the error relied upon could not have made a difference to the outcome of the review or if it would be futile to remit the matter back to the RRT: see Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 213-214. However, for the reasons given above I am satisfied that the Foundation's report was capable of affecting the outcome and there is no basis for contending that it would be futile to remit the matter to the RRT.

53 Accordingly, the applicant is entitled to succeed on his application for judicial review and the decision of the RRT is to be set aside with costs. The matter should be remitted to a differently constituted RRT.

54 Before departing from the present matter there are three observations that are appropriate in the unusual circumstances of the present case. The first is that it is a matter of some concern that the Principal Member of the RRT has issued an administrative circular which, in effect, requires that staff of the RRT withhold submissions of a party from the Presiding Member in a particular case without the Member having any opportunity to consider the course that he or she may wish to take in respect of the submissions. The circular is not only based on an incorrect view of the law but also appears not to have been withdrawn when it was clear that the view of the Principal Member was inconsistent with that expressed by all members of the Full Court in Semunigus: see Akand v Minister for Immigration and Ethnic Affairs [2000] FCA 626 at [11]. It is a matter for the Presiding Member in a particular case, rather than the staff or the Principal Member of the RRT, to determine whether submissions and material lodged in respect of the case are to be received.

55 Second, the applicant has a serious speech disability which impeded his ability to present his evidence. While it is understandable that the RRT sought to deal with that difficulty by putting propositions to the applicant, it is apparent from the Foundation's report how inadequate that procedure was, particularly when the applicant's credibility was in issue. In such circumstances it is incumbent upon the RRT to frame its procedures in a manner that ensures that persons with such a disability, or any other disability, are not disadvantaged by reason of their disability. I have difficulty in accepting that that has occurred in the present case.

56 The third observation relates to the circumstances in which the applicant now finds himself. He arrived in Australia in 1996 claiming refugee status and, through no fault of his own, the refugee review processes have been unable to lawfully determine his claim some five years or so later. His application has been the subject of three RRT decisions, each of which will have been set aside by orders of the Court. In the special circumstances of the present case there is a reasonable basis for the Minister to consider the applicant's case on humanitarian grounds, irrespective of whether the applicant is, or is not, able ultimately to make out his claim for refugee status.

57 Finally, I acknowledge the assistance given to the Court by the applicant's counsel, who accepted the pro bono brief under Order 80 of the Federal Court Rules on short notice.

As the applicant has succeeded it is appropriate that a costs order under Order 80 be made in favour of his counsel.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated:

Counsel for the Applicant:	Mr E Heerey
Counsel for the Respondent:	Mr RM Niall
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 February 2001
Date of Judgment:	16 February 2001