Applicants in V 722 of 2000 v Minister for Immigration & Multicultural Affairs

Submissions of the parties 12 After oral submissions in relation to the review had been presented, the High Court published its reasons for judgment in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 ("Yusuf") and I gave leave to the parties to make supplementary written submissions on the effect, if any, which should be given to Yusuf in the disposition of the present case. The supplementary written submissions on behalf of the applicants were accompanied by an application for leave further to amend their application for review. I shall give that leave. 13 Counsel for the applicant first attacked the Tribunal's finding that the applicants had a right to return to Italy. That finding, it was contended, was made without reference to any evidence capable of supporting it and in disregard of the Tribunal's powers and obligations under s 427(1)(d) of the Act. As a result the Tribunal was said to have misapplied the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees which are hereinafter collectively referred to as "the Convention". The proper application of the Convention was said to require the Tribunal to determine whether the applicants could obtain effective protection in Italy. Its failure to do so was claimed to be an error of law under s 476(1)(e) of the Act and a non-observance of the kind contemplated by s 476(1)(a) of procedures that were required by the Act to be observed in connection with the making of the Tribunal's decision. 14 Section 427(1) of the Act provides; For the purpose of the review of a decision, the Tribunal may: (a) take evidence on oath or affirmation; or (b) adjourn the review from time to time; or (c) subject to sections 438 and 440, give information to the applicant and to the Secretary; or (d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination. 15 Counsel for the respondent submitted that it is well established that s 427(1)(d) of the Act does not impose an obligation on the Tribunal to conduct its own investigations. When the Tribunal is satisfied with the evidence before it it is not required to make further enquiries. In that context reference was made to these observations of Emmett J in Al-Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 443 at [38] - [40]; "It does not sit well for the applicant to assert that the Tribunal denied procedural fairness or denied substantial justice by failing to make an inquiry which the applicant himself through his legal advisers did not think it was appropriate to make. In that regard I was referred, fairly late in the argument, to a decision given today by Whitlam J in Saleh Msayer Saket v The Minister for Immigration and Multicultural Affairs [1999] FCA 301. A contention was put to his Honour that it was a denial of substantial justice for the Tribunal to fail to make inquiries of the Syrian Embassy or Syrian diplomatic representatives. His Honour's observations were (at paragraph 18): "The kind of inquiry which the applicant now says the Tribunal should have made is also quite extraordinary. Section 427(1)(d) of the Act permits the Tribunal to require the Secretary of DIMA to have investigations made. Here DIMA made inquiries of DFAT on 9 September 1998 about residency rights of Kuwaiti Bedoons in Syria. The Executive Government of this country normally conducts relations with foreign countries through DFAT. In this case DFAT chose to seek the requested information from its post in Damascus. The idea that the Tribunal should take it upon itself to bowl up to the door of a foreign diplomatic mission in Australia is preposterous. (A further difficulty with the whole notion may just be the inconvenient fact that Syria does not have an embassy in Australia)." I have no evidence before me one way or the other as to whether or not Jordan has an embassy in Australia, although there was no suggestion that it would have been impossible or inconvenient for the Tribunal to have inquired of some diplomatic legation representing Jordan in Australia. Nevertheless, the comments by Whitlam J appear to me to be somewhat apt in the present context, particularly in circumstances where the applicant's solicitors considered it appropriate to make inquiries of the High Commissioner but did not themselves make any inquiries of the diplomatic representatives of Jordan. In the circumstances, I consider that any ground of review based on failure of the Tribunal to make further inquiries of Jordanian representatives in Australia concerning the position generally in Jordan or of the situation specifically of the applicant is not made out." 16 On the respondent's submission, that passage indicates that it is open to the Tribunal to decline to make further inquiries if it can satisfy itself of the relevant facts by reference to the material before it, particularly where the applicant himself or herself has not undertaken any inquiries of the kind which it is later suggested the Tribunal itself should have made. According to the respondent, his Honour's observations can be paraphrased to apply with equal force to the present case. 17 The applicant, on the other hand, contended that the Tribunal was not in a position to make findings about the effect of Italian law with the level of confidence in their correctness indicated by the passages quoted at [11] above. Because of the chance that its understanding of the applicable Italian law might be incorrect, the Tribunal was not absolved, so it was argued, from considering the consequences for the applicants if they could not return to Italy and resume residence there. In support of this contention reference was made to this passage from the judgment of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 293; "Because the test propounded by this court in Chan involves the necessity of a measure of speculation about what the chances held in store for an applicant, and whether there was a "real chance" that made an established fear of persecution "well founded", an indication that the delegates had put all speculation out of account would certainly show legal error. So would an indication that the evaluation of the "chance" and its "reality" had been made by a test of weighing the probabilities. Two points must be made here. First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court of law conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the minister and even if conducting a secondary determination. It is not an error of law for such a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, so long as, in the end, he or she performs the function of speculation about the "real chance" of persecution required by Chan. Secondly, the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: "What if I am wrong?" [Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 441, per Einfeld J.] Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems "likely" or "entitled to greater weight", the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a "real chance" of persecution." 18 The respondent submitted that the passage just quoted properly understood, does not oblige the Tribunal in every case to ask itself "What if I am wrong?". Furthermore, the Tribunal is not required to express its findings in such a way as to make explicit its degree of conviction that the findings are correct. There is no justification for the Court's imputing to the Tribunal a lack of conviction of such a degree as to necessitate speculation about what might happen if its findings were not made out; see Rajalingam v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 220, at [64]-[65]. In the present case, Counsel for the respondent contended that the Tribunal's reasons indicated that it entertained no real doubt about its conclusion regarding the applicants' right to re-enter and reside in Italy; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575-576 and Pei Lan He v Minister for Immigration and Multicultural Affairs [2001] FCA 446, where I said, at [20]; "[T]he Tribunal, if its reasons indicate a certain degree of diffidence in making a finding as to a material question of fact, is required, as part of its assessment of whether the applicant faces a real chance of persecution in the event of return to his or her country of origin, to consider what might happen if the material fact had been otherwise." 19 The first applicant's right of residence in Italy was said by his Counsel to be contingent upon continuing sponsorship by an employer. The likelihood that such sponsorship was no longer available entailed that the existence of his right of return to that country must be regarded, at the least, as doubtful. It was argued that the Tribunal had failed to take account of the practicalities associated with attempting to re-enter Italy and that once full weight had been given to the obstacles facing a return to that country, the Tribunal should have acknowledged that the existence of a well-founded fear of persecution had to be assessed on the assumption that the applicants would have to return to Sri Lanka, the first and second applicants' country of origin. Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 325 was relied upon as showing that failure to consider such practicalities has been held to be an error of law, particularly when the likely circumstances of an applicant's removal from Australia could expose him or her to a risk of persecution because of repatriation to a country of origin where persecution for a Convention reason had been encountered in the past. 20 On behalf of the respondent it was pointed out that s 36(3) of the Act required the Tribunal to consider whether a non-citizen has: "... taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national." 21 That sub-section was said to erect a narrow test in the application of which the Tribunal must decide whether or not an applicant has a legally enforceable right to enter and reside in the third country; see Applicant C v Minister for Immigration and Multicultural Affairs [2001] FCA 229 at [19]; Taiem v Minister for Immigration & Multicultural Affairs [2001] FCA 611 at [17]; W228 v Minister for Immigration & Multicultural Affairs [2001] FCA 860 at [40]. It was further argued that the need to address questions of practicality will only arise where, upon the evidence, there is a strong suggestion that the applicant may encounter difficulties in travelling to and entering the third country as arose in Al-Toubi v Minister for Immigration and Multicultural Affairs [2001] FCA 268. According to the respondent, that was not this case. 22 In their supplementary written submissions filed pursuant to the leave referred to in [12] above, the applicants referred to Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426, where a Full Court of this Court had to consider whether a failure by the Tribunal to give "proper, genuine and realistic consideration" to an applicant's claim afforded a ground of review under Pt 8 of the Act. The Full Court, after referring to certain preparatory material, said, at 440; "These considerations in our view weigh against a conclusion that the "proper, genuine and realistic consideration" formula provides a ground of review, or that so characterising the proceedings or decision of a Tribunal in a given case will establish one or more of the grounds in s 476. Support for this conclusion is provided by an examination of the language in question. To say that consideration is or is not "proper" necessarily assumes some pre-existing standard of propriety against which the consideration under review can be measured. But what is the content of such a standard? It must be something other than the procedures prescribed by the Act or regulations. It would usually be thought not "proper" for the Tribunal to ignore relevant considerations, take into account irrelevant considerations, deny natural justice and come to an extremely unreasonable decision (so unreasonable that no reasonable Tribunal could make it). Yet none of these matters could make the consideration not "proper" within the meaning of the formula because they are expressly excluded as grounds of review under Pt 8. The problem is that the suggested formula is at once too narrow - because little room is left after matters have been expressly dealt with (either by inclusion or exclusion) by the Act - or too broad because it may, by a process of re-characterisation, enable matters to provide a ground for review notwithstanding that they have been excluded by the Act. As to being "genuine", it is not clear whether, to apply the Macquarie Dictionary definitions, the consideration has to be real or authentic (an objective test) or sincere and free from pretence or affectation (a subjective test). If the former, it is not easy to see how the test differs from the statutorily excluded ground of failing to take into account relevant considerations. If the latter, we note that fraud or actual bias are available grounds: s 476(1)(f), but general abuse of power is not: s 476(3)(g). (Bad faith is also excluded: s 476(3)(f) - but in relation to review of exercise of discretionary power.) The Act seems to have covered the field so far as the subjective state of mind of the Tribunal is concerned. "Realistic" is a concept especially likely to lead into the forbidden territory of merits review. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at par 40 Gleeson CJ and McHugh J said: "Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as 'illogical' or 'unreasonable', or even 'so unreasonable that no reasonable person could adopt it'. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence." Their Honours made this remark in the course of discussing a case where one judge of this Court had described the Tribunal's conclusion as "totally lack(ing) logic" while another judge had said a conclusion to the contrary of the Tribunal's would "(border) on perverse". The issue, the conclusion as to which provoked such disparate judicial reaction, was whether an alleged event in Ethiopia - the arrest of 25 student leaders and their being detained and badly beaten over three days - did or did not occur. In concluding that it did not occur, the Tribunal reasoned that, if it had, it would have become known to at least some of the organisations monitoring human rights abuses in Ethiopia and reported in their publications. In the discourse in which lawyers and judges debate questions of fact, "realistic" is often used as a synonym for "reasonable", "rational", "logical" or "commonsense". Whether the non-publication of reports about the alleged detentions and mistreatment logically (or reasonably or realistically) tended to show they had not in fact occurred was a matter on which experienced judges differed. It was a classic example of a factual issue, of the sort which lawyers sometimes refer to as a jury point. But this is precisely the sort of merits review issue that Parliament has entrusted to the Tribunal and not to this Court." 23 Despite that conclusion, Counsel for the applicants pointed out that the Full Court went on, at 442-443, to emphasise that s 65 of the Act obliges the Minister to "consider" a valid application for a visa and a failure to discharge that obligation by reason of any of the grounds set out in s 476(1) will afford a right of review. By way of illustrating what might constitute a failure to consider an application, the Full Court observed, at 444; "… 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." 24 Here it was contended that the Tribunal was required to determine whether the applicants had a right to return to Italy, whether it was practicable for them to do so and whether they were at risk of persecution should they be forced to return to Sri Lanka. The Tribunal's alleged failure to determine those matters which were said to pertain to the applicants' "core" claims was argued to amount to a failure to "consider" the application in the sense illustrated by the Full Court in Anthonypillai. 25 On behalf of the respondent, it was contended that it was clear from the reasoning in Anthonypillai that only extreme lapses by the Tribunal from what is required for the discharge of its statutory functions can sustain a successful application for judicial review. In the present case the Tribunal, it was said, had given close and detailed consideration to the application and had not asked itself a wrong question or merely paid lip service to its task. 26 In the same supplementary written submission, Counsel for the applicants took up what was said by the High Court in Yusuf as emphasising the obligation of the Tribunal to take relevant considerations into account. I take that submission to be founded on this passage from the joint judgment of McHugh, Gummow and Hayne JJ in Yusuf, at 17; "It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material [Repatriation Commission v O'Brien (1985) 155 CLR 422 at 446 per Brennan J; Sullivan v Department of Transport (1978) 20 ALR 323 at 348‑349 per Deane J, 353 per Fisher J; cf Fleming v The Queen (1998) 197 CLR 250 at 262-263 [28]-[29].] This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error [Craig v South Australia (1995) 184 CLR 163 at 179; 131 ALR 595 at 602]. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration [Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24]." 27 In response, Counsel for the respondent has contended that the applicants have not identified any relevant consideration which the Tribunal has failed to take into account. 28 In a related way Counsel for the applicants contended that the Tribunal was under a duty to make further enquiries necessary to determine those matters which pertained to the applicants' "core claims". The mention of Italian Law 40 by the Tribunal was not sufficient for a proper determination of the applicants' claims to have lost the right to return to Italy. In reply, the respondent submitted that once the Tribunal had found that the applicants had a right to enter and reside in Italy, it was not necessary for it to consider the practical difficulties which might have to be overcome in exercising that right. 29 During the hearing the Tribunal did not ask the applicant or his solicitor any questions in relation to Law 40. The applicant contended that the interpretation of Law 40 and its applicability to the circumstances of a particular individual is not in the same category as general country information. It was submitted that Law 40 was information that was specifically applicable to the particular circumstances of the applicants and should accordingly have been put to the applicant for comment, pursuant to s 424A (1) of the Migration Act. That sub-section provides; "(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it." 30 In the same context, Counsel for the applicants submitted that the Tribunal's reasons for its decision were insufficiently detailed to permit the applicants to understand how Law 40 applied to them. The same defect was said to preclude the application to the present case of s 424A(3), which provides; "(3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information." 31 The applicants' attack on the Tribunal's decision concluded with the submission that its cursory examination of Italian law and the uncertainty surrounding the entitlement of the applicants to return to Italy should have led the Tribunal to ask "What if I am wrong?" The posing of that question would, it was argued, have entailed an assessment of whether the applicants would have a well-founded fear of persecution if they were to return to Sri Lanka.

(a) The finding that the applicant had a right to return to Italy 32 The finding set out at [7] that Article 4 of Italian Law 40 permitted the holder of a current permit (including, presumably, a permesso di soggiorno) to enter and reside in Italy upon notifying border control of his or her intention to do so was a finding of fact. It is a trite proposition that the state and effect of the law of a foreign country are questions of fact; see eg Phipson on Evidence, 15th edn p 974. As such, they are susceptible of proof by expert evidence from a witness suitably qualified to express an opinion about the laws of the relevant foreign State: see eg Re Duke of Wellington [1947] Ch 506 at 514. 33 However, it is not necessary for a court or tribunal to resort to expert evidence of that kind in order to make a finding as to the effect of a relevant law of a foreign country. If, for example, the text of a presumably relevant statute of that country or an authoritative statement in a legal text book or other authority appears to suggest with sufficient precision the effect of the law in question, the court or tribunal is entitled, in the absence of contradictory expert evidence, to make a finding accordingly (Evidence Act (Cth) 1995 s 174(1)). 34 In the present case, the Tribunal identified Article 4 of Law No 40 of 6 March 1998 as the source of the applicants' entitlement under Italian law to remain in, or re-enter, Italy. It was not required to go that far because the fact that the first applicant had resided and worked in Italy since 1986 and had been joined there by the second applicant in 1993 raises a presumption that the Italian authorities would not peremptorily preclude them from returning to Italy after travelling to this country on valid Italian passports endorsed with Australian visitors' visas. That presumption is strengthened, if anything, by the fact that the applicants had unexpired Italian temporary residence permits and had pending applications for permanent residence permits. No attempt was made on behalf of the applicants to rebut that presumption, allowing the Tribunal twice to note, in effect, in the passages quoted at [8] and [11] above, that there was no evidence that the Italian authorities would not discharge any protection obligations to which the applicants could have recourse under the Convention. 35 Accordingly, there was no failure by the Tribunal to "consider" in the sense discussed by the Full Court in Anthonypillai the "core" claims of the applicants that they had no right to re-enter Italy or that it was not practicable for them to exercise such a right.

(b) Should the Tribunal have arranged for further investigation of the applicants' right to return to Italy? 36 The short answer to this question is that the Tribunal, either as a result of its own enquiries or from the accumulated experience of the member concerned, was able to identify Art 4 of the Italian Law 40 and to reach a conclusion that it would entitle the applicants to obtain effective protection in Italy. There was therefore no occasion for it to arrange the making of any further investigation pursuant to s 427(1)(d). There was no indication during the course of the hearing that there was any difficulty in identifying the relevant provision of the Italian law or in ascertaining its true effect. 37 The Tribunal made it clear to the first applicant that the applicants' entitlement to continue to reside in Italy was of crucial importance. For instance, at p 22 of the transcript of the hearing of 31 July 2000, the Tribunal Member is recorded as having made this statement to the first applicant; "I'm sure that you've read the decision of the Minister's delegate and I'm sure that your adviser has explained to you why it is that I'm asking you questions about Italy. Are you clear about the fact that I have to ask you these questions because I have to find out whether you had protection in Italy?" 38 Similarly, in the course of the same hearing the Tribunal Member said to the second applicant; "I have a number of questions to ask you which are similar to what I asked your husband. This arises from the fact that because you have been living in Italy for a period of time the law compels me to decide whether you have effective protection in Italy. That means whether you have the right to enter, to return there, which and if you have the right to return there, whether there's any reason to fear persecution in Italy. I have read the information that you gave me about your time before you left Sri Lanka and we can talk about that later if you wish but for the moment I would like to ask you some questions about Italy. Are you clear about that? Okay. Now, you had both children in Italy, did you not?" 39 In relation to the children, the Tribunal Member indicated that whether or not they were Italian citizens was "probably something that could be established outside this hearing." The second applicant replied "We would rather they were citizens of some other country rather than Italy", but acknowledged that she did not know whether the children were Italian citizens. 40 In oral submissions to the Tribunal in support of the application, the applicants' solicitor contended that the delegate of the Minister had made a decision in relation to s 36(2) of the Act without the benefit of any interview with the applicants and without considering the "explanations that the applicants have provided in relation to" that sub-section. The solicitors' submission continued; "… from my own inquiries I believe that the children still continue to be Sri Lankan citizens and do not automatically become Italian citizens simply by birth because both of them did not have any permanent residents' character although they have lived there for long years. That's a matter that the Tribunal needs to put on every file. So they do not get any right including the children to return to Italy simply on that fact. The applicant's response to the tribunal question is that he has no answer to his application for permanent work visa, and assuming that is not granted, and that will not be granted unless he goes back, there is no right for him to enter on the basis of getting a permanent visa application pending in Italy. Although the current visa has gone on for a number of years and with the very same employer, and is varied up to that particular period it chose, but that is temporary and this employer has said, "I don't like to have you back," and therefore the source of that visa is now in jeopardy or questionable (indistinct) is not there for him to confidently return. So the section 36 bar in relation to whether he has a right to return and then a right to reside there temporarily or permanently or whether as a result of his children being born there, are not theirs. In our submission it's not there and it's sceptical. Then there are the worries that they could also seem to have a project on the basis that if you had a right to apply then you automatically have effective protection in that country where it is linked immediately. I don't think that we should treat it that way. My submission will be the Tribunal should treat it differently. The right to apply is not automatically effective protection and an application is quite entitled to submit the reasons why he fears that he may not be in a position to take the (indistinct) they don't complain against Italy as a whole but their fear is that particular group which, by particulars and (indistinct) that were available in Palermo in Italy, LTTE was the dominant group and were dictating to the Tamils all over and they have seen him as a threat to their opinion or dominance and therefore they can harm him. So in the applicant's particular circumstances, although Italy may have afforded some protection, they felt that they were still vulnerable from this group." 41 I take the statement "it's sceptical" in that passage to mean that whether the adult applicants had a right to return to Italy was doubtful - they may have had no more than a right to apply for permission to re-enter that country. To similar effect later in the same submission, the applicants' solicitor contended; "So if what they had experienced in Italy was threat and harm and threat to harm, that element that was needed for them to actually approach and seek protection was lacking in that degree and that little degree happened while they were here, so when they realised that they cannot go back to their jobs they won't have the visa to get back because they don't have anything permanent and independent of that employer - they are not quite sure of that particular reason, and they were afraid that with the information that they had received, so there are all the elements that needed them to make the claim for protection occurred while they were in Australia, and it would be our submissions that there was section 36(2) in the backdrop of all this material did not apply to them." 42 At the conclusion of the same submission, the applicants' solicitor invited the Tribunal to find "on this material that they [the applicants] do not have a right to enter Italy to make an application for protection, that they cannot go back and now make an application …..". 43 The Tribunal was entitled to assume that the current "foreigners' permits of stay" meant what they said, that the applicants were allowed to return to Italy and stay there until at least 11 November 2000. The evidence of the applicants and the submission of their solicitor did not suggest that further investigation was required to elucidate that prima facie position. Rather, the applicants' claim was that the intimation by the first applicant's last Italian employer that "we do not want him to come back to work for us because we are afraid of these people" made it doubtful that the applicants would be allowed to re-enter Italy. However, the Tribunal rejected that intimation as fabricated or contrived at the instigation of the first applicant. In those circumstances any enquiry of some Italian diplomatic or consular official or expert in Italian migration law would have been unlikely to resolve the question which the Tribunal had to determine. The factual circumstances of this case make applicable the observations of four members of a Full Court of this Court (Black CJ, von Doussa, Sundberg and Mansfield JJ) in Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553, where, in considering the facility created by s 427(1)(d) their Honours said, at 561; "In our view the respondent has fallen short of showing that the Tribunal's failure to make inquiries through official channels about the authenticity of the warrants involved a denial of substantial justice. The Tribunal gave reasons for concluding that the letters and the warrants that accompanied them were not authentic, and those were conclusions to which it was entitled to come. The Tribunal was given no information about the provenance of the warrants other than that they were forwarded with letters which it was entitled to conclude were not authentic. Moreover, although the failure to ask the Tribunal to exercise its power to make inquiries could not be decisive, there is nothing to indicate that it was ever suggested to the Tribunal by the respondent or by the migration agent who was assisting him that it should take any steps of its own to authenticate the documents in question." 44 For reasons similar to those which commended themselves to Emmett J in Al-Zafiry v Minister for Immigration and Multicultural Affairs (supra), I consider that the applicants have not made out a ground of review based on the Tribunal's failure to make further enquiries about their entitlement to re-enter Italy.

(c) Was the Tribunal required by s 424A(1) to give the applicants particulars of information as to the existence and effect of Italian Law 40? 45 Sub-section (3) of s 424A which is set out at [30] above provides that s 424A does not apply to information; "(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application;" 46 I infer that Art 4 of Italian Law 40 was a law of general application applicable to a class of persons, the holders of permessi di soggiorni of which the applicants were members. There can be no suggestion that Art 4 applied specifically to the applicants themselves. The information that the applicants held current permessi di soggiorni and the history of their arrival and residence in Italy had been given to the Tribunal by the applicants for the purpose of their application within the meaning of s 424A(3)(b). In these circumstances, s 424A(1) did not apply to the information going to the existence and effect of Art 4 of Italian Law 40.

(d) Did the Tribunal ask itself the wrong question or take into account an irrelevant consideration? 47 Sub-sections 36(3), (4) and (5) of the Act provide; "(3) Australia is taken not to have protectionobligations to a non-citizen who has not taken all possible steps to availhimself or herself of a right to enter and reside in, whether temporarily orpermanently and however that right arose or is expressed, any country apartfrom Australia, including countries of which the non-citizen is a national. (4) However, if the non-citizen has a well-founded fear of being persecuted ina country for reasons of race, religion, nationality, membership of aparticular social group or political opinion, subsection (3) does not apply inrelation to that country. (5) Also, if the non-citizen has a well-founded fear that: (a) a countrywill return the non-citizen to another country; and (b) the non-citizen will be persecuted in that other country for reasons ofrace, religion, nationality, membership of a particular social group orpolitical opinion; subsection (3) does not apply in relation to the first-mentioned country." 48 A necessary first question for the Tribunal to determine was therefore whether the applicants had a right to enter and reside, at least temporarily, in Italy. In my view, the Tribunal correctly posed that question for itself. It then answered it affirmatively in the light of its understanding of Art 4 of Italian Law 40 and the effect of the current permessi di soggiorni. As explained above, those issues were questions of fact which the Tribunal was entitled to resolve in the way it did. If the applicants had wished to contend that they had no right under Italian law of the kind found by the Tribunal they could have invoked the ground of review afforded by s 476(1)(g) of the Act "that there was no evidence or other material to justify the making of the decision." By force of s 476(4), that required demonstration that; "(b) The person who made the decision based the decision on a particular fact and that fact did not exist." 49 As the state of the relevant Italian law was a particular fact, it was open to the applicants to seek to show that the effect attributed to it by the Tribunal was erroneous, or did not exist. However, they made no attempt to make out that ground of review. 50 The second question for the Tribunal was whether the applicants had a well-founded fear of persecution for a Convention reason in Italy. It clearly addressed that question in the passages from its reasons discussed at [8] - [11] above. I can discern nothing in those passages to suggest that the Tribunal, in answering that second question, took into account an irrelevant consideration. 51 The third question raised by s 36(5) was whether the applicants had a well-founded fear that Italy would return them to Sri Lanka where they would be persecuted for a Convention reason. That question did not arise in the present case because there was no suggestion that the Italian authorities, if the applicants had exercised the right to re-enter Italy which the Tribunal imputed to them, would have returned them to Sri Lanka. The applicants' whole case was that they had no current right to return to Italy. That was rejected by the Tribunal for reasons which disclose no error of law.

(e) Should the Tribunal have asked "What if I am wrong?" 52 I do not consider that the Tribunal in answering the first and second questions raised by sub-ss 36(3) and (4) of the Act foreclosed "reasonable speculation" in the way criticised by Kirby J in the passage from Wu Shan Liang quoted at [17] above. There was, in the Tribunal's discussion of the effect of Italian law in light of the current temporary residence permits, no degree of diffidence of the kind which I suggested in Pei Lan He (supra) might require the Tribunal to consider what could happen if the applicants had no right to re-enter Italy, at least temporarily. As Sackville J said, in Minister for Immigration and Multicultural Affairs v Rajalingam (supra), at 240; "In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appearedto have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so. Nor do I think that there is anything in the reasoning of the High Court which permits a court exercising powers of judicial review to "impute" to the RRT (or other administrative decision-maker) a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the RRT should not or could not have relied on those findings to hold that the applicant´s fear of persecution was not well-founded. To take this course on the basis of the court´s own assessment of the evidence before the RRT, is to enter the territory of merits review. It is one thing to find error in a decision-maker´s failure to apply the correct legal test or to comply with statutory obligations (for example, to set out findings on material questions of fact as required by Migration Act, s 430(1)(c)). It is another to decide what factual findings the RRT should or should not have made." (original emphasis) 53 Having regard to the way in which the claims of the applicants were pursued before the Tribunal and the way in which it expressed the relevant findings of fact, I am unable to conclude that the Tribunal should have considered, on the hypothesis that it was wrong about the availability of effective protection in Italy, whether the applicants had a well-founded fear of persecution in Sri Lanka.

Conclusion 54 It will be apparent from the foregoing reasons that each of the applicants' attacks on the Tribunal's decision has failed. The application must therefore be dismissed with costs.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Solicitor for the Applicants: Ravi James & Associates

Solicitor for the Respondent: Blake Dawson Waldron

Written submissions filed: 17 and 26 July 2001.