Algama v Minister for Immigration and Multicultural Affairs

Federal Court of Australia|2001-07-01|Before: North J

The application that the Tribunal member disqualify herself for apprehended bias

Argument on the Review 98 Again the applicants first relied upon the failure of the Tribunal to observe a procedure required to be observed in connection with the making of the decision, thereby giving rise to a ground of review under s 476(1)(a) of the Act. In relation to this issue the procedure which it was claimed was not observed was the procedure set out in s 430(1) which provides: "(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 99 Paragraph 3.2 of each of the applications encapsulates the argument on this issue as follows: "3.2 Failure to comply with s 430 (a) … (b) The applicant's adviser submitted to the Tribunal during the hearing on 8 February 1999 that the Tribunal member should disqualify herself on two bases: (i) Her employment as the Victorian State Director of the Department of Immigration and Multicultural Affairs (the Department), both at the time of the primary decision of the delegate and at the time of the review; and (ii) Her statement at the commencement of the hearing that she had credibility concerns regarding the applicant's claim. (c) The Tribunal member declined to disqualify herself at that time and proceeded with the hearing. (d) The applicant's adviser, in a letter to the Tribunal dated 14 April 2000 (CB 364-70, in particular at CB 370), repeated the submission that the Tribunal member disqualify herself. (e) In breach of s. 430 the Tribunal failed to set out its reasons for continuing to hear and determine the matter, failed to set out any material findings of fact and failed to refer to any evidence upon which this decision was based." 100 The applicants also contended, for the same reasons, that the failure of the Tribunal member to disqualify herself was reviewable under s 476(1)(d) together with 3(c).

Discussion 101 At the commencement of the hearing on 8 February 1999 the Tribunal member and the solicitor for the applicants had a short discussion about some of the issues which may arise in the course of the hearing. The relevance of the psychologist's report was raised. In that context the Tribunal member observed that the information in the report which provided the basis of the psychologist's opinion would have to be assessed by the Tribunal itself. Such a consideration, the Tribunal member suggested, raised issues of credibility. 102 The same issue again arose just before and after the lunch break. In the course of this discussion the solicitor for the applicants suggested and the Tribunal member accepted that she was the State Director of the Department of Immigration and Multicultural Affairs (the Department) when the delegate's decision was made. The solicitor then suggested that this fact viewed against the background of the member's opening comments concerning the need to test credibility raised questions of bias. The solicitor concluded by saying: "… I was concerned about you being in the Department at the time of the decision, and that it does compromise your decision-making, but that's a matter for you." 103 Then, in a letter dated 14 April 2000 from the applicants' solicitors to the Tribunal, the solicitor wrote: "Further, I repeat the objection made at the hearing in this matter that the Tribunal member in this matter disqualify herself for bias on the basis of her ongoing employment with the Department of Immigration and Multicultural Affairs. It is submitted that the member's apparent refusal to disqualify herself and the subsequent inordinate delays constitute a breach of s 425 of the Migration Act." 104 In the course of argument counsel for the applicants said that the Tribunal member was in fact on secondment from the Department at the time of the making of the decision under review. This fact supported the contention that she should have given reasons why she did not disqualify herself. The fact that she was on secondment was not put to the member as a reason for her to disqualify herself at the hearing, but was only raised afterwards in the letter. 105 The applicants sought to tender transcript of part of another proceeding in the case of Mohamed Haniffa Ahamed Naizer heard by the same Tribunal member on 24 May 1999. In this proceeding another member of the firm of the applicants' solicitors asked the Tribunal member whether she was then on leave from the Department. The Tribunal member said that she was. 106 The issue in this case is not whether the member should have disqualified herself on the ground of apprehended bias. That ground is expressly excluded from the grounds upon which this Court may review decisions of the Tribunal: s 476(2)(a). If the applicants wish to pursue that argument they may only do so in the High Court of Australia: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 107 The narrower issue is whether s 430 required the Tribunal member to explain her reasons for refusing to disqualify herself. 108 Counsel for the applicant submitted that s 430 required the Tribunal to give reasons for procedural decisions as well as for the final decision determining the application. 109 Mr Fairfield, who appeared as counsel for the respondent, contended that the decision referred to in s 430(1) is a "judicially reviewable decision", namely, the decision to affirm the decision of the delegate. 110 In my view, the meaning of the section is clear. Section 430(1) requires the Tribunal to prepare a written statement where it makes "its decision on a review". 111 The language of the section relates to a single decision on the merits of an application. The word "decision" is used in the singular. It does not refer to any number of subsidiary or procedural determinations on the way to a final decision. The same usage is followed in s 430(1)(a) and (b). Further, the reference is to the decision "on a review". That expression refers to the determinative conclusion of the proceeding rather than to any rulings in the process leading to the final result. 112 This reading of the section has support in a number of authorities. In Jayasinghe v Mininster for Immigration and Ethnic Affairs (1997) 76 FCR 301; [1997] FCA 551 Goldberg J considered whether the Tribunal had power to reopen a case after delivering a decision when the Tribunal had received further information after handing down its decision. The determination of the Tribunal not to reopen the case was held not to be a judicially reviewable decision for the purposes of s 476. His Honour said at 308: "Nevertheless the manner in which Pt 8 of the Act came to be included in the Act, and the legislative policy which underlies it, suggests quite strongly that the only decisions of the Tribunal which were to be judicially-reviewable were those decisions which dealt with the determined substantive application by applicants in a final way, and not decisions which were procedural in nature." 113 A determination by a Tribunal or Court to proceed to hear a case following a request to disqualify on the ground of apprehended bias has been held not to constitute a judgment or order for the purpose of statutes governing the right to bring appeals. Thus in The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 249 the majority of the High Court (Barwick CJ, Gibbs, Stephen and Mason JJ) said at 266: "It was submitted on behalf of the husband that the wife's proper remedy was to appeal to the Full Court of the Family Court. As to that submission no more need be said than that an appeal lies only from a 'decree' (s.94(1)), which means a 'decree, judgment or order' (s. 4(1)), and a judge who simply continues to sit after it has been submitted that he is disqualified does not thereby make a 'decree'." 114 In Barton & Anor v Walker & Anor [1979] 2 NSWLR 740 the New South Wales Court of Appeal held that a motion that a judge should have disqualified himself was not cognisable by the Court. The proper challenge in a case of apprehended bias is by way of a ground of appeal against the judgment determining the proceedings. Samuels JA (with whom Reynolds and Glass JJA agreed) referred to the accepted informal process whereby a judge might be asked to disqualify himself or herself. The refusal to step down does not amount to an order for the purpose of the statutory requirement for leave to appeal from an interlocutory order. His Honour observed at 749-50: "Some procedural backing for a motion that a judge should disqualify himself might be derived from the language of Pt. 41, r.11(3)(c) or Pt.34, r. 5(1)(c), or from the directions power in Pt.26, r.4(1)(c) of the Supreme Court Rules, on the footing that what is sought is an order concerning the conduct of proceedings in the Court. It is, however, to my mind, a matter of real difficulty to conceive of an order directed by the judge to the judge forbidding himself to hear the case; at least in the absence of statutory regulation. Moreover, there would appear to be no way of enforcing such an order, since committal or sequestration of property (Pt.42, r.6(2)(a) and (b)) can hardly be regarded as appropriate remedies to be enforced against a judge for disobedience of his own order. It is no answer to this problem to assert that, upon a motion of the kind in contemplation, other ancillary orders of a more regular kind might be sought and made (e.g. for relisting before a registrar) about which the same question of enforcement would not, or might not, arise. The fundamental conceptual difficulty, granted the possibility of the judge changing his mind, remains unresolved. The further difficulty encountered is that of the judge acting as judge in his own cause. How does the judge deal with assertions of fact which he knows to be incorrect? They might not be challenged by the party not moving. How can the judge himself introduce evidence, upon which he might have to rule, if its admissibility is challenged, and which he might ultimately have to evaluate? The problems are compounded when one comes to consider the case of a collegiate court. Suppose a challenge is made to one judge of the three rostered to hear the case. How is the matter to be dealt with? Does that judge hear the 'motion' and make an 'order' which may affect the court's business, something which he would ordinarily have no power to do? Or do his colleagues determine the application, and make an 'order' which binds him, something which they would ordinarily have no power to do? Or is another division of the court to be assembled to decide the matter? In the Supreme Court of the United States, where disqualification for interest is not wholly uncommon, the decision is for the individual justice alone: Disqualification of Judges, John P. Frank (1970) 35 Law and Contemporary Problems 43, at p.46 published by School of Law, Duke University. These considerations, in my view, clearly show that a motion to disqualify a judge of the Supreme Court is not cognizable. The present informal practice is sensible and adequate; the absence of complaint by the profession or by law reformers tend to show that it has not been abused." (See also Roger Caleb Rogerson (1990) 45 A Crim R 253 and Rajski v Wood (1989) 18 NSWLR 512.) 115 The existence of apprehended bias is determined by the Court considering an appeal against the decision which concludes the case in which the apprehended bias is said to exist. That Court does so on the material placed before it, whether the material was before the decision maker or not. Any reasons given by the decision maker for the decision maker continuing to sit are not relevant to the determination. In Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 a majority of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at par 71 in relation to the question whether the test for apprehended bias has been satisfied: "That question will be litigated on appeal from the substantive decision in the matter or in proceedings for prohibition, certiorari or similar relief. Whatever the process which the person alleging reasonable apprehension of bias may adopt, there will, in those proceedings, be a full opportunity to make whatever case for disqualification of the judge the moving party can. Inquiring whether the moving party was denied some opportunity to make submissions on the question of disqualification to the judge in question is irrelevant. The question of disqualification can and will be litigated fully in the appeal or application for prerogative or like relief and no separate question of denial of procedural fairness could arise." 116 These cases show that a refusal to stand down does not involve the making of an order against which an appeal can be taken. The same reasoning is a helpful guide to the meaning of "decision" in the context of s 430. If a refusal to disqualify oneself from hearing a curial proceeding does not give rise to an order or decision which is appellable, it is difficult to see how it could be regarded as a "decision on the review" which could ground a review by this Court under ss 430 and 476 of the Act. 117 There has been no basis demonstrated for the argument that in failing to disqualify herself the Tribunal member engaged in an improper exercise of power by acting in accordance with a rule or policy without regard to the merits of the particular case within the meaning of s 476(1)(d) and (3)(b). In may be accepted that there was evidence that the Tribunal member was the State Director of the Department at the time of the delegate's decision and that she was on secondment from the Department at the time she gave her own decision. However, these facts do not on their own say anything about the basis upon which she exercised the power to decide the applications. Thus, the ground of review under s 476(1)(d) and (3)(b) in relation to this issue is not made out.

The Argument on the Review 118 The applicants again relied upon s 476(1)(a) alleging a failure by the Tribunal to comply with s 430. 119 The applicants' argument on this issue was encapsulated in par 3.3 of each of the applications as follows: "(a) The Tribunal had before it a report from an expert psychologist from the Refugee Mental Health Network, Ms. Maritza Thompson (CB 180-94) which included a diagnosis that the applicant was suffering from Post Traumatic Stress Disorder (PTSD). (b) The report also provided the expert's strong support for the credibility of the applicant's claim, in circumstances where the author of the report had spent many hours with the applicant, over numerous clinical counselling sessions. (c) The Tribunal accepted the diagnosis of the expert however declined to accept the factual foundation for the expert's opinion. The Tribunal said that 'there are a range of matters which cause such conditions' (CB 457). (d) The Tribunal failed to set out its reasons for rejecting the opinion of Ms. Thompson. (e) The Tribunal failed to set out its finding on a material question of fact, namely the strong opinion of the expert witness in support of the credibility of the applicant's claim and the capacity of the expert to form such an opinion. (f) The Tribunal failed to refer to the evidence upon which the critical finding that 'there are a range of matters which cause such conditions' (CB 457) was based." 120 For the same reasons the applicants alleged that the rejection of the psychologist's report was an error of law attracting the ground of review contained in s 476(1)(e). 121 The applicants also relied upon s 476(1)(g) together with 4(a) or (b). They alleged that there was no evidence or other material to justify the finding as to the cause of the PTSD suffered by the applicants that "there are a range of matters which can cause such conditions".

Discussion 122 The psychologist's report recorded what the applicants had said to the psychologist about the mistreatment the applicants experienced. Then the report described the process of assessment of the applicants' psychological conditions by setting out the diagnostic criteria for PTSD and describing the applicants' conditions by reference to the criteria. For instance, one criterion was described as: "1) Recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions." On this criterion Mrs Algama's condition was described thus: "Sabrina constantly smells the man who raped her, she can smell the damp room, different sounds bring reminders of this time." 123 The report concluded that Mrs Algama met the criteria for PTSD. It stated: "In summary Sabrina clearly meets full criteria for severe PTSD and Obsessive Compulsive Behaviour leading to depression. These disorders can be very clearly linked back to her experience in Sri Lanka where she was tortured severely and experienced a number of extreme stresses, including sexual assault." 124 Then a page later, under the heading "Conclusion", the report stated: "I have absolutely no doubt in my mind that Sabrina and Rajitha's case is genuine. They are survivors of torture and continued persecution. They believe that by returning to Sri Lanka their nightmare will continue. Therefore the clinical diagnosis is directly linked to these experiences. Their fears to return are genuine based on real and direct life experiences. Given the situation is unstable in Sri Lanka, the belief that their lives are at risk is also genuine and logical. From a clinical point of view this case is clearly of a Refugee whose lives are at risk and has been at risk in the past. Given their experience and present state the fear of return or ultimate reality of return would have major mental health consequences." 125 As extracted earlier in these reasons at par 47 above, the decision of the Tribunal dealt with the psychologist's report as follows: "I accept that both the applicant [Mrs Algama] and her husband appear highly stressed and that they have had a number of difficulties in their relationship. I accept that both the husband and the wife have been diagnosed with post traumatic stress disorder and other psychological difficulties. However, there are a range of matters which can cause such conditions, and, given that I do not accept that events occurred in Sri Lanka in the way described by the applicants and for the reasons stated by the applicants, I do not accept that their conditions have been caused by these events." 126 The applicants submitted that the Tribunal, in breach of s 430(1)(b), failed to give reasons for rejecting the psychologist's view that the PTSD was linked to real experiences of rape and persecution in Sri Lanka. 127 I do not accept this argument. The Tribunal gave extensive reasons for rejecting the applicants' claims of mistreatment. The reason expressed by the Tribunal for rejecting the psychologist's opinion as to the cause of the PTSD was the rejection of the underlying claims of the applicants. Thereby the Tribunal gave reasons for rejecting the psychologist's opinion. The rejection was bold, and perhaps even startling in light of the symptoms observed by the psychologist. On the other hand, the Tribunal most likely had access to a wider range of factual background than did the psychologist. This ground of review depends on the Tribunal failing to give reasons. The Tribunal did give reasons, and it is not the function of the Court to assess the validity of those reasons. 128 Even if the Tribunal had failed to give reasons for rejecting the opinion of the psychologist that the applicants had suffered persecution, the Tribunal would not have failed to comply with s 430(1)(b). The psychologist's opinion as to the existence of the background facts was simply material inconsistent with the view which the Tribunal formed that the applicants had not suffered persecution. That situation is governed by the opinion of the majority (Black CJ, Sundberg, Katz and Hely JJ) in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469; [2000] FCA 845 where in par 46 it was said: "There is no specific requirement in s 430 for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made. That is the view endorsed by the decisions referred to in [12] above, and in our view it is consistent with the language of the section. The decision of the Full Court in Arudselvan v Minister for Immigration and Multicultural Affairs [1999] FCA 1726 provides another illustration of this approach. There the Court held that the RRT was not obliged to analyse material submitted by the applicant, and to give reasons for not accepting any of it that might be thought to be inconsistent with the conclusions it reached. The endorsed view is subject to the important qualification that if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT's actual reasoning process: see Durairajasingham." 129 The present case did not fall within the qualification because the rejection of the psychologist's opinion was not one of the reasons which induced the Tribunal to come to its decision. The basis for the Tribunal's conclusion was its rejection of the claims that the applicants had been arrested and mistreated. 130 The applicants also relied upon s 430(1)(c) to argue that the Tribunal failed to set out its finding on the validity of the opinion of the psychologist, and that was a material question of fact. Again the Tribunal did explain its reasons for rejecting the opinion of the psychologist as to the linkage between the PTSD and the alleged persecution. The reason was that the investigations conducted by the Tribunal persuaded it that the events alleged did not happen. The decision of the Tribunal clearly disclosed that it found against the linkage expressed by the psychologist. 131 But, in any event, the opinion of the psychologist was not a material fact upon which the case turned. It was not a material fact for the purposes of s 430(1)(c) as described by the majority in Singh in pars 55-57 as follows: "The reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision. Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c), as the process of reasoning adopted by the Tribunal has made that fact a material fact, since the decision is dependent upon it. Conversely an application may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them. As Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690 at 691, in the context of s 43 of the AAT Act: 'Section 43 is not to be construed in a pedantic spirit, but sensibly. If the Tribunal's reasons expose the logic of its decision, and contain findings on matters of fact which are essential to the logic, it will not be easy to demonstrate a failure of compliance with a requirement to include "findings on material questions of fact".' Accordingly if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one. But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with: see Durairajasingham at 416 [65] and 417 [67]. (Re: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham, (2000) 169 ALR 407.) … A fact is material if the decision in the practical circumstances of the particular case turns upon whether the fact exists." 132 The applicants also argued that the Tribunal in breach of s 430(1)(d) failed to refer to any evidence or other material on which the finding was made that PTSD could be caused by a range of other matters. The finding that the PTSD could be caused by factors other than the alleged persecution was not a material fact as explained in the passage from Singh referred to in par 131. It was not a fact upon which, in a practical sense, the case turned. But, in any event, it was not necessary for the Tribunal's reasoning to establish a specific cause for the PTSD. It was sufficient for the Tribunal to be satisfied that the applicants suffered PTSD and the alleged conduct had not occurred but that some other cause, even if unidentified, may have been responsible for the disorders. This final step in the reasoning is no more than the logical consequence of the taking of the first two steps, namely, that the applicants did suffer PTSD, but they did not experience the particular events which they claimed. 133 Then, the applicants argued that there was no evidence to justify the making of the decision in that the decision was based on the existence of a particular fact and that fact did not exist (s 476(1)(g) and (4)(b)). The Tribunal found that the PTSD was not the result of the alleged persecution because the Tribunal found that the conduct alleged did not occur. The Tribunal went on to say that there were a range of matters which could cause such disorders. The applicants contended that there was no evidence of any other cause, and thus the Tribunal's finding was based on a fact which did not exist. As set out in par 132 above, the Tribunal's finding that PTSD could be caused by other facts was not a fact upon which the decision was based. Hence, it is not a finding challengeable under s 476(4)(b). 134 Finally, after the conclusion of the hearing the applicants sought leave to amend their applications to include a new ground by which to impugn the Tribunal's treatment of the psychologist's report. By an amended application and supplementary contentions of fact and law dated 15 December 2000, the applicants submitted that the Tribunal failed to give proper, genuine and realistic consideration to the issues raised in the psychologist's report, and to the evidence of Mrs Algama concerning her rape at the hands of the police. This argument was based on the decision in Anthonypillai v Minister for Immigration Multicultural Affairs [2000] FCA 1368. Since the hearing of the present applications, the decision in Anthonypillai has been reversed on appeal: Minister for Immigration Multicultural Affairs v Anthonypillai [2001] FCA 274. The Full Court (Heerey, Goldberg and Weinberg JJ) said at pars 65-66: "65 In 1992 Parliament made major changes to the system for administrative and judicial review of migration decision-making. In relation to refugee decisions, some grounds of judicial review previously available under the AD(JR) Act or at common law were abolished. Part 8 (as the amendments were subsequently designated) was to be a code but at the same time a specialist independent administrative tribunal was established. Detailed procedures for that tribunal were spelt out in the legislation and compliance with those procedures was to be enforceable by this Court. The "proper, genuine and realistic consideration" formula runs counter to this scheme. It creates a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised. 66 In our view, to say that the Tribunal failed to give 'proper, genuine and realistic consideration' to an application does not make out any available ground for review under Pt 8." 135 Independent of the principles in Anthonypillai, the applicants also contended in their supplementary contentions that the Tribunal's alleged failure to consider the psychologist's report and Mrs Algama's evidence on this issue amounted to a constructive failure of jurisdiction, such that the decision was not authorised under the Act. Such a failure, if made out, would be a reviewable error under s 476(1)(b) and s 476(1)(c) of the Act. 136 Where the Tribunal fails to consider "all of the substantial claims, and information in support of them, put forward by the applicant", it has misinterpreted its duty under the Act to "review" the delegate's decision: Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287, 292; [1999] FCA 247. This error amounts to an "error of law being an error involving an incorrect interpretation of the applicable law" within the meaning of s 476(1)(e). A failure to consider all of the claims of the applicant may also be regarded as a "constructive failure of jurisdiction" because the Tribunal did not consider the "real question which it was its duty to consider" (Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559, 577 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)). As such, the decision is "not authorised by the Act" within the meaning of s 476(1)(c): Sellamuthu, at 293. 137 In Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 28; [1998] FCA 1693 Merkel J (with whom Wilcox and Lindgren JJ concurred in the result) reviewed the statutory scheme creating the Tribunal and the duties imposed by this legislative framework. His Honour concluded at 63: "In my view the inquisitorial function of the RRT and the combined effect of the provisions to which I have referred, are such that the RRT is required to determine the substantive issue raised by the material and evidence before it. That duty, which was recognised by Brennan J in Bushell, is a fundamental incident of the inquisitorial function of an administrative tribunal such as the RRT." [Emphasis in original] 138 After discussing s 420 of the Act, his Honour continued at 64: "Independently of s 420, the RRT must apply itself to the question which the law prescribes. If the RRT misconceives its duty or fails to address the correct legal questions committed to it by not applying itself to all the issues it is required to consider in determining the matter before it, there will have been a purported, but not real, exercise of its functions and jurisdiction. In such circumstances there will have been a constructive failure by the RRT to exercise its jurisdiction: see Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 per Jordan CJ; Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 480 per Barwick CJ and at 483 per Gibbs J; Guo v Minister for Immigration and Ethnic Affairs at 165-66 per Beaumont J; Guo at 578; 581; and Calado at 75." 139 In Anthonypillai, the Full Court revisited the doctrine of "constructive failure of jurisdiction" as follows: "78 …[I]t seems to us that there is some scope, albeit limited, for the argument that the Tribunal may, in a particular case, have failed to 'review' the decision of the Minister. In other words, although we consider the use of the formula 'proper, genuine and realistic consideration' to be an unsuitable method of expressing the circumstances in which that contention can be maintained, we accept that there may be some cases where it can properly be said that the Tribunal has not in truth 'considered' the application for a visa at all. 79 It is often dangerous to seek to elucidate a principle by the use of examples, particularly when they are far removed from the facts before the Court. However, were the Tribunal to misconceive the nature of its statutory obligation, as for example by mistakenly believing that it was engaged in appellate review of the Minister's decision (rather than a rehearing de novo), it would be difficult to avoid the conclusion that it had failed to 'review' the decision, in accordance with the requirements of the Act. Similarly, were the Tribunal to address the wrong question, rather than the question properly before it, there would be a constructive failure to exercise jurisdiction. Again, speaking hypothetically, were the Tribunal merely to pay lip service to its task, as for example by determining an application without reading the material filed before it, it would be difficult to conclude that it had 'considered' the application." 140 The applicants criticism of the Tribunal's reasoning in respect of the psychologist's report and Mrs Algama's evidence concerning her rape is that it did not "adequately" address the evidence. The Tribunal's findings on these issues are set out in pars 41, 42, 47 and 48 of these reasons. Those findings indicate that the Tribunal clearly considered the psychologist's report and indeed accepted the diagnosis that the applicants suffered PTSD, but rejected the psychologist's opinion as to the cause of the PTSD. The Tribunal did not accept "that [Mrs Algama] was ever detained by the police as claimed", and thus implicitly rejected her evidence that she was raped in detention in November 1995. The rejection of the detention claim and associated rape claim flowed from rejection of the underlying claim that the applicants were persecuted because of their close association with Major General Algama which rejection was based on the Tribunal's assessment of the applicants' credibility and the implausibility of their claims in light of the country information before the Tribunal. 141 Unlike Sellamuthu, this is not a case where the country information before the Tribunal significantly supported the applicants' claims such that a rejection of the applicants' claims wholly or primarily due to credibility concerns left substantial questions unanswered: Sellamuthu at 291. 142 Rather, the case presently before the Court may be an example of the kind contemplated by the Full Court in Sellamuthu where it was said: "24 We should emphasise that our conclusions depend on the circumstances of this case. In many other cases the sole substantial basis for judging whether a person falls within the Convention criteria for a "refugee" will be the information as to his/her supposed history and background furnished by an applicant. Upon legally proper rejection of the credibility of an applicant in such a case, there will be no basis for requiring that the RRT do more than forthwith reject the claim for refugee status." 143 The Tribunal in the present case found that "[t]here is no indication in any of [the articles submitted by the applicants] or in any of the literature I have seen that people of the applicants' claimed social standing and Sinhalese or Burgher background are ever treated in the way described by [Mrs Algama]". In the absence of any supporting country information, the Tribunal considered and rejected Mrs Algama's rape claim "upon legally proper rejection" of her and her husband's credibility. This ground of review must fail.

The Argument on the Review 144 Again the applicants first relied upon an alleged breach by the Tribunal of the requirements of s 430. 145 On this issue par 3.4 of the particulars of each of the applications stated: "(a) The significance of Major General Algama to the applicant's case, and the issue of who might be responsible for his death, was at the forefront of the final submissions from the applicant's adviser in her letter dated 14 April 2000 (CB 374-70). (b) The Tribunal had before it evidence (annexed to the submissions at CB 371) that Major General Algama was killed when a grenade was thrown into his vehicle, as he was about to get out to attend a United National Party (UNP) political rally. (c) This piece of evidence was fundamental to the applicant's claim that Major General Algama was personally targeted and that his death was not simply the result of random violence by the Liberation Tigers of Tamil Eelam (LTTE). (d) The Tribunal failed to make any finding as to this key piece of evidence which was capable of supporting in a significant way the claim of the applicant. 146 Relying on the same argument the applicants contended that the Tribunal made an error of law within the meaning of s 476(1)(e).

Discussion 147 In the "Claims and Evidence" section of the decision the Tribunal outlined the evidence concerning General Algama's death, which material was submitted by the applicants and said to support the claim that General Algama was personally targeted by government forces. The Tribunal then referred to a further newspaper article which it had obtained, and it extracted parts of a Reuters report and an internet report from the Sri Lankan Sunday Times. These sources indicated that the LTTE were responsible for the killing of General Algama. 148 In the "Finding and Reasons" section of the decision the Tribunal said: "The applicant [Mrs Algama] subsequently provided information about further enquiries into Major General Agama's [sic] activities in the border regions of the war in September 1999, and the death of Major General Algama in a bomb blast at a UNP rally in December 1999. She and her husband claimed that he was targeted by the killers. In their latest submission of 14 April 2000 the applicant and her husband argued that the evidence was not conclusive that the LTTE authorised the attack that killed the General, and that others may have been involved, such as the security forces. However, this is purely speculative, and is not supported by the evidence, including that presented by the applicants. I accept that Major General Algama was killed in this blast. However, the weight of evidence noted earlier in this decision in newspaper reports is that this blast was orchestrated by the LTTE, which was believed to have organised a similar blast at about the same time, on the same day, at a PA rally where the President was injured and a chief of police killed. I do not accept that there could have been a co-incidence of the order that the LTTE planned one attack on the PA rally and others planned another attack on the UNP rally at about the same time. I accept that the LTTE or killers wished to kill as many senior people at both rallies as possible, but I do not accept that the bombings occurred to target Major General Algama in particular by the government or by any state authority, or by the LTTE." 149 A similar passage is found in the decision concerning Mr Algama. 150 Amongst the material submitted to the Tribunal was a newspaper photograph of the funeral of Major General Algama. In a six line caption there appeared the following sentence: "He [Major General Algama] was instantly killed when a grenade was lobbed into his vehicle when he was just about to get in after the UNP rally held at Ja-Ela on December 18." 151 The applicants argued that this evidence concerned a material question of fact. They argued that the Tribunal, in breach of s 430(1)(c), failed to make a finding on this evidence. There is no merit in this argument. First, the question whether the grenade was lobbed into Major General Algama's car or not said nothing about whether he was targeted by the government forces or was killed by the LTTE. Second, if the question to which this evidence was said to relate was whether Major General Algama was personally targeted by government forces or was killed by the LTTE, then the Tribunal did make findings on the question. It found that the weight of evidence was that the LTTE orchestrated the killing. And finally, it is doubtful that the cause of death of Major General Algama was a material question of fact at all. Once the Tribunal had found that the claimed closeness of the relationship between Major General Algama and the applicants did not exist, there was no practical significance in the question of how Major General Algama died to the resolution of the case by the Tribunal. 152 For the same reasons, the Tribunal made no error of law within s 476(1)(e) in dealing with this issue.

The way in which the Tribunal dealt with the various letters submitted on behalf of the applicantS

The Argument on the Review 153 In reliance on s 476(1)(e) the applicants submitted that the Tribunal had erred in law on this issue. 154 The applicants' contentions were summarised in par 5.2 of each of the applications as follows: "(a) The Tribunal had before it a number of letters from persons in Sri Lanka, in particular: (i) Shoba Samaratunga [sic], Attorney, dated 1 June 1997(CB 198) (ii) John Amaratunga, MP, dated 23 May 1996 (CB 209) (iii) John Amaratunga, MP, dated 17 October 1999 (CB 331) (iv) Sarath Kongahage, MP, undated (CB 210) (v) Dr. Palitha Kumarasinghe, dated 22 November 1995 (CB 70) (vi) Dr. Palitha Kumarasinghe, dated 7 June 1997 (CB 197) (b) With the consent of the applicant [Mrs Algama], the Tribunal made enquiries through the High Commission in Colombo, directed to Mr. Amaratunga and Mr. Kongahage. (c) The Tribunal erred in that it failed to make any similar enquiry of Shoba Samaratunga [sic]. This letter referred to a critical element of the applicant's claim, namely her detention in November 1995. The Tribunal failed to give proper, genuine or realistic consideration to issues raised in the letter and its capacity to support the applicant's claim. (d) The Tribunal erred in that it failed to make any similar enquiry of Dr. Palitha Kumarasinghe. The second letter, dealing with a consultation on 22 November 1995, referred to a critical element of the applicant's claim, namely that she had been raped. The Tribunal failed to give proper, genuine or realistic consideration to issues raised in the letter and its capacity to support the applicant's claim. (e) The Tribunal erred in not making a further enquiry of the diplomatic post upon receipt of the second letter from Mr. Amaratunga (dated 17 October 1999) which took issue with the response from the post dated 2 August 1999 (CB 309-10). The Tribunal turned its mind to the possibility of further enquiry (CB 415) but declined to take the matter further. In so doing the Tribunal failed to give proper, genuine or realistic consideration to the issues raised in the letters, and their capacity to support the applicant's claim. (f) The Tribunal erred in rejecting letters provided by the applicant, referred to in paragraph (a) above, on an impermissible basis, namely that the letters were provided for the purpose of obtaining refugee status and/or solely to assist the applicants in their claims (CB 416). It misdirected itself as to the proper basis for the rejection of evidence which was otherwise logically probative. In the absence of a finding that the letters were fabricated, the Tribunal was obliged to have regard to them, notwithstanding the fact that they may have been supplied to assist the applicant. The Tribunal failed to give proper, genuine or realistic consideration to issues raised in the letters, and their capacity to support the applicant's claim."

Discussion 155 The consideration by the Tribunal of the letters from the two members of Parliament, Mr Amaratunga and Mr Konagahage, from the applicants' attorney friend, Shoba Samaratunge and from Mrs Algama's gynaecologist, Dr Palitha Kumarasinghe, is set out earlier in these reasons at pars 45-46. 156 The applicants' submission on this issue involved two arguments. First, it was contended that in failing to make further inquiries in relation to the letters from the two members of Parliament and to make any inquiries in relation to the letters from the attorney friend and the gynaecologist, the Tribunal failed to give proper, genuine and realistic consideration to the issues raised in the letters, and thereby the Tribunal erred in law. It was rightly accepted that the failure to make any or any further inquiries is not in itself a reviewable error. This is because s 427 of the Act gives the Tribunal a discretion whether to make inquiries or not: Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470 (Ryan J); Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 (French J). 157 Thus, the applicants based their argument on the decision in Anthonypillai. As explained in par 134 of these reasons,since the hearing of the present applications by the Court, the decision in Anthonypillai has been reversed on appeal. As a result, the argument relied upon by the applicants is not sustainable. In the light of the decision of the Full Court it is not necessary to consider whether the circumstances of this case amounted to a failure by the Tribunal to give proper, genuine and realistic consideration to the issues in the case by reason of the treatment of the letters from the members of Parliament, the attorney and the gynaecologist. Suffice it to say that this case is quite different to Anthonypillai, and I would not have held that the Tribunal had failed in the way alleged. It went to considerable efforts to investigate the letters from the members of Parliament and set out comprehensively its reasons for placing no weight on the letters. 158 The second argument was also based on an alleged error of law arising from the failure to give proper, genuine and realistic consideration to the letters. In this instance the failure was said to arise from dismissing the worth of the letters on the basis that they were provided solely to assist the applicants. As formulated, the argument must fail following the Full Court decision in Anthonypillai. The rejection of the letters followed an assessment of their worth in the light of all the evidence. The challenge to the Tribunal's approach to the letters amounts, in essence, to a challenge to its finding on the merits of the evidence. Such a challenge is not a proper subject for a review under s 476(1).

The failure of the Tribunal to apply the "what if I am wrong" test

The Argument on the Review 159 Again the applicants relied on s 476(1)(e) of the Act in relation to this issue. 160 The applicants' contention was summarised in par 5.3 of the particulars of Mrs Algama's application as follows: "(a) The Tribunal erred in that it failed to consider that its findings (at CB 407, 410, 412 that the applicant had not been harassed, arrested in August 1994 nor arrested in November 1995 and raped whilst in custody) might be wrong. (b) These findings were based upon country information which was itself equivocal. The DFAT advice relied upon by the Tribunal, dated March 1999 (CB 408), expressed itself in terms of unlikelihood and improbability. It did not permit a finding with any degree of confidence or conviction." 161 Paragraph 5.3(a) of Mr Algama's application states: "The Tribunal erred in that it failed to consider that its findings (at CB 452, that the applicant and his wife had not been arrested in August 1994) might be wrong."

Discussion 162 This submission accepted that if the Tribunal had no real doubt about its conclusions that the applicants had not been arrested in August 1994 or that Mrs Algama was not arrested and raped in November 1995, it was not required to consider the case on the basis that it might have been wrong in its conclusions. Such an approach accords with authority. In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 794, Sackville J said at pars 60 and 67: "60 It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a "real substantial basis" for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring. … 67 In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had 'no real doubt' (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A 'fair reading' of the reasons incorporates the principle that the RRT's reasons should receive a 'beneficial construction' and should not be 'construed minutely and finely with an eye keenly attuned to the perception of error': Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FC), at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution." 163 The applicants accepted that the Tribunal expressed itself with conviction and with no doubt about these conclusions. 164 The error of law within s 476(1)(e) was said to be that there was no basis for the Tribunal to be so confident of its conclusions having regard to the nature of the evidence upon which it relied. As a result the Tribunal was obliged, and failed, to ask "what if I am wrong". 165 This ground was argued but fleetingly. It is without substance. It amounts to a challenge to the Tribunal's assessment of the totality of the evidence on these issues. Even if there was truth in the contention that the Tribunal had no reason for confidence about its findings, no error of law would have been demonstrated. Rather, at the best for the applicants, the Tribunal would have been shown to have erred in its assessment of the weight of the evidence. Such an error does not provide a ground of review under s 476(1)(e).

conclusion 166 For the reasons expressed above each application is dismissed with costs. I certify that the preceding one hundred and sixty-six (166) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Solicitor for the Applicant: Erskine Rodan and Associates

Counsel for the Respondent: Mr C G Fairfield

Solicitor for the Respondent: Australian Government Solicitor

Date of last written submissions: 27 February 2001

Migration Act 1958(Cth)ss 476(1)(a),(d),(e), (g), 3(b), 4(b), 424, 424A-C, 425, 430(1).

Acts Interpretation Act 1901(Cth)ss 8(c), 15AB, 33(1).

Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 476

CITIZENSHIP AND MIGRATION - review of Tribunal decision affirming decision to refuse a protection visa - post-hearing information and developments - whether Tribunal obliged to invite applicants to present evidence and arguments in respect of post-hearing developments - whether applicants entitled to a "genuine opportunity" to address issues in relation to the review - whether former s 425(1)(a) applies. CITIZENSHIP AND MIGRATION - apprehended bias - whether refusal to disqualify oneself is a "decision on the review" - whether Tribunal member required to give reasons for refusal to disqualify herself - whether improper exercise of power. CITIZENSHIP AND MIGRATION - whether Tribunal failed to set out finding on a material question of fact - whether Tribunal failed to set out its reasons for rejecting expert opinion - whether decision based on a fact that did not exist - whether no evidence or other material to justify finding - whether Tribunal failed to give proper, genuine and realistic consideration to the expert opinion - whether constructive failure of jurisdiction. CITIZENSHIP AND MIGRATION - whether Tribunal applied "What if I am wrong" test. Migration Act 1958 (Cth) ss 476(1)(a),(d),(e), (g), 3(b), 4(b), 424, 424A-C, 425, 430(1). Acts Interpretation Act 1901 (Cth) ss 8(c), 15AB, 33(1). Migration Legislation Amendment Act (No. 1) 1999 (Cth), sch 3, s 20. Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315; [1999] FCA 946, discussed. Muntaser Ibrahim Yousef Sheik Mohammed v Minister for Immigration and Ethnic Affairs [2000] FCA 264, discussed. De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364; [2000] FCA 765, discussed. Minister for Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275, applied. Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472, applied. Yao v Minister for Immigration and Multicultural Affairs (1996) 69 FCR 583, applied. Re: Refugee Review Tribunal; Ex parte Aala [2000] HCA 57, cited. Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301; [1997] FCA 551, applied. Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368, not followed. Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274, applied. Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287; [1999] FCA 247, applied Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559, applied. Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 28; [1998] FCA 1693, discussed. Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469; [200] FCA 845, applied. Rajeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470, discussed. Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277, discussed. Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 794, applied. SABRINA TAMARIS ALGAMA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 400 of 2000

At a glance

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Judgment (18 paragraphs)

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Legislation Cited (2)

Cases Cited (34)