Counsel further submitted that a failure by the RRT to determine an application in accordance with substantial justice and the merits of the case had been held by Davies and Burchett JJ in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 to be an error of law, making the decision vitiated by such a failure reviewable for the purposes of s 476(1)(a) of the Act.
Section 476 of the Act, so far as is relevant, provides:
(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
(b) that the person who purported to make the decision did not have jurisdiction to make the decision;
(c) that the decision was not authorised by this Act or the regulations;
(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;
(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(f) that the decision was induced or affected by fraud or by actual bias;
(g) that there was no evidence or other material to justify the making of the decision.
...
(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.
Counsel for the applicant submitted that it was not open to the RRT upon the evidence before it to conclude the documents on which she relied as establishing that she was on a "wanted list" in Turkey were not authentic. It was argued that the report of the Document Examination Unit was equivocal in its assessment of the authenticity of those documents and that consequently the RRT should have made further enquiries before concluding that they were spurious. The RRT erred, in Counsel's submission, in imputing to the framers of the challenged documents attitudes of mind and administrative practices which may have commended themselves to similar agencies in Australia but were not shown to be shared by the corresponding authorities in Turkey.
Counsel for the respondent noted that the High Court had granted special leave to appeal from the judgment of the Full Court in Eshetu which he invited me not to apply by holding that a failure to accord substantial justice pursuant to s 420 of the Act was necessarily an error of law. He also submitted that there was no general requirement for the RRT to make enquiries (citing Dharam Raj v Minister for Immigration and Ethnic Affairs (Davies J, unreported, 18 July 1996)). Counsel further submitted that, in any event, in addition to the letter from the Document Evaluation Unit, there was other evidence before the RRT which entitled it to make a finding that the arrest warrant and the charge sheet were not authentic. It was submitted that it was then open to the RRT to reject the evidence on which the applicant relied as establishing a well-founded fear of persecution if she were to return to Turkey.
In my view, however, the critical question is whether the RRT made its findings of fact with that degree of certainty which made it unnecessary to ask "What if I am wrong?" the question postulated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 where, at 293 Kirby J observed:
8. 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.
A similar approach seems to have been taken by Drummond J in Tranh Phat Ma v Billings (1996) 142 ALR 158 where his Honour, after referring to Kirby J's exposition of the "What if I am wrong?" test in Wu, observed at 160:
I do not think that Kirby J, in the last part of the passage in his reasons in Wu which I have set out, suggests that the decision-maker must refrain from reaching conclusions on the factual issues before him, but must instead proceed immediately to speculation on whether, on the whole of the material before him which he has not attempted to assess for probative cogency, the particular applicant for refugee status has a well-founded fear of persecution. ... All I think Kirby J was concerned to explain was that, unless the decision-maker can dismiss as unfounded factual assertions made by the applicant, the decision-maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect.
In the present case the RRT's conclusions on the evidence before it were expressed as follows:
The Tribunal notes that the Document Examination Unit could not come to any firm conclusion as to the two documents. However despite this the Tribunal does not accept that the Applicant is wanted for any offences in Turkey. Firstly the Tribunal notes that in relation to the document which sets out in detail the alleged charge that the Applicant faces the Applicant's charge is set out in considerable detail whereas the other co-accused is simply accused of being a militant of the PKK and being involved in other illegal activities. In the Tribunal's view this indicates that the document has been prepared with the Applicant in mind and not the alleged co-accused. Secondly the warrant for arrest refers to the reason for issuing the warrant as being the possibility that the accused may abscond. However it is apparent that at the date that this document was prepared the Applicant was already in Australia. Thirdly the document's claim that the Applicant is charged as being a member of an illegal organisation the PKK. However the Applicant has told the Tribunal that she has never been involved with the PKK. Even bearing in mind that false charges can be laid from time to time in the Tribunal's view the charges bear so little resemblance to the history of the Applicant that in the Tribunal's view the documents have been fabricated for the purpose of furthering a claim for refugee status. Finally the Tribunal does not accept that if such documents were genuine the Applicant's mother would not reveal where she obtained them from. The Tribunal's considers that the Applicant's mother's reluctance to reveal where the documents came confirms that they were created to assist in the Applicant's application for refugee status.
Although it noted that the report from the Document Evaluation Unit was equivocal, the RRT went on to make findings, adverse to the applicant, that the arrest warrant and charge sheet were not authentic. In this regard the RRT seems to have been influenced not only by matters internal to the two documents but also by the alleged unwillingness of the applicant's mother to reveal where the documents came from. However, the internal evidence to which the RRT referred was not, in my view, inconsistent with the authenticity of the arrest warrant and the charge sheet. The absence of any other evidence before the RRT tending to suggest that the applicant was not on a "wanted list" in Turkey therefore makes it difficult to impute to the RRT that it had no real doubt of the correctness of its findings adverse to the applicant. The effect of the absence of such a real doubt has been indicated by this passage from the joint judgment of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 579:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not "differentially at risk for a Convention reason". Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.
...
If, for example, a tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.
In the present case, however, the tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the tribunal was not then bound to consider whether its findings might be wrong.
The understanding which I have of the combined operation of the reasoning of the High Court in Wu and Guo appears to have been shared by Merkel J when he observed in Emiantor v Minister for Immigration and Multicultural Affairs 48 ALD 635 at 650:
The High Court in Guo rejected the approach of Einfeld J. In particular the Court made it clear that the "What if I am wrong?" approach to fact finding:
· is relevant to facts found on the basis that they are "slightly more probable than not";
· is neither rational nor necessary when the RRT has no real doubt that its findings are correct;
· has a varying applicability in cases lying between the two situations stipulated above.
His Honour then went on to examine the findings relied on by Counsel for the Minister as demonstrating "that the RRT appears to have taken the view that the probability of error in its findings was insignificant".
The question, as far as I have so far considered it, is one of interpretation of the reasons of the RRT. In the present case, as I have already noted, the RRT acknowledged that the Document Evaluation Unit "could not come to any firm conclusion" as to the authenticity of the arrest warrant and the charge sheet.
However, in proceeding to indicate that "despite this the Tribunal does not accept that the applicant is wanted for any offences in Turkey" the RRT went on to consider matters internal to the impugned documents themselves or related to their provenance. To the extent that it considered matters extrinsic to the arrest warrant and the charge sheet, the RRT accepted on the basis of the "country evidence" that "there is discrimination against both Kurdish and Alevi people" but regarded the incidents of discriminatory treatment to which the applicant had been subjected as insufficiently serious to give rise to a well-founded fear of persecution should she return to Turkey.
In that context the finding as to the authenticity of the challenged documents was not merely one of a multitude of findings of fact, the rest of which had been made with a high degree of certitude. Rather, it was the single finding on which the RRT's conclusion turned. I do not regard the RRT's reasons, considered as a whole, as indicating that it had no real doubt that its finding on that central question was correct. I am reinforced in this interpretation by the failure of the RRT to make further enquiries about the authenticity of the arrest warrant and the charge sheet from sources in Turkey or otherwise available through the Department of Foreign Affairs and Trade.
It has been held in this Court that as a general rule the RRT is not obliged to make enquiries (see, e.g. Dharam (supra) and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 per Wilcox J.) However, Black CJ observed in Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409 at 413:
Although it is in general not for the decision-maker to make out a case for someone seeking the exercise of a discretion in their favour it has been recognised that there are occasions when the adequate consideration of a relevant matter necessarily involves the making of some inquiry as to the facts: see Waniewska v Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284 per Keely J at 299, citing the observations of Wilcox J in Singh v Minister for Immigration and Ethnic Affairs (unreported, 4 December 1985); Singh (Heer) v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4 per Forster J at 9; Lek v Minister for Immigration, Local Government and Ethnic Affairs (supra) per Wilcox J at 434-436. See also: Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 per Toohey J at 178-179; Akers v Mininster for Immigration and Ethnic Affairs (1988) 20 FCR 363 per Lee J at 373. It should also be noted that a failure by a decision-maker to obtain readily available factual material likely to be of critical importance in relation toa central issue may lead to the conclusion that decision has been unreasonably made: Luu v Renevier (1989) 91 ALR 39 at 50; Tickner v Propho (1993) 40 FCR 183 at 198-199.
Furthermore ss 425(1) and 427(1)(d) of the Act, in empowering the RRT to pursue enquiries, contemplate that there will be circumstances in which an enquiry by the RRT of its own accord is appropriate.
Section 425(1) provides:
Where section 424 does not apply, the Tribunal:
(a) must give the applicant an opportunity to appear before it to give evidence; and
(b) may obtain such other evidence as it considers necessary.
Section 427(1)(d) indicates that:
For the purposes of the review of a decision, the Tribunal may:
...
(d) require the Secretary to arrange for the making of any investigation, or nay 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.
In Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 560 Black CJ, von Doussa, Sundberg and Mansfield JJ concluded:
Accepting for the purposes of argument that s 420(2)(b) requires a procedure to be observed in connection with the making of a decision within s 476(1)(a), the question is whether the obligation to act according to substantial justice requires the Tribunal to make an inquiry of the nature suggested here. The way in which the Tribunal is required to operate and the powers conferred on it suggest that there may be circumstances in which inquiry by the Tribunal will be necessary in order that it discharge its obligation to act according to substantial justice and the merits of the case. In cases where s 424 does not apply (that is, where there is no review "on the papers"), the Tribunal must give an applicant an opportunity to appear before it to give evidence (s 425(1)(a)), and "may obtain such other evidence as it considers necessary" (s 425(1)(b)). An applicant may give the Tribunal written notice that he or she wants it to obtain oral evidence from a person or persons named in the notice (s 426(2)). If the Tribunal is so notified, it must have regard to the applicant's wishes, but it is not required to obtain evidence from any such person (subs (3)). Section 427(1)(d) empowers the Tribunal to require the Secretary to arrange for the making of any investigation it thinks necessary with respect to the review, and to furnish a report of that investigation. These provisions show that the Tribunal's role in cases that come before it for review is not a passive one, although the circumstances in which the Tribunal could be found to be under an obligation to make a particular inquiry will no doubt be rare, as they have been in cases under the ADJR Act.
Had the RRT established, after making enquiries of the kind which I have indicated, that the contents of the arrest warrant and charge sheet differed from what the standard forms of those documents as issued in Turkey usually contained, or that there were other features tending against their authenticity, I would have been more inclined to impute to it a lack of any real doubt about its finding that they were "concocted". However, in the absence of such further enquiries, I am unable to interpret the RRT's reasons as exhibiting that degree of certainty which would have absolved it from asking "What if I am wrong?". Since it is clear that the RRT did not apply that test before concluding that the applicant did not have a well-founded fear of persecution, it was guilty of an error of law and its decision must be set aside.
I should indicate parenthetically that the conclusion to which I have just come has been reached on a view of the effect of the RRT's reasons construed as a whole. It was, therefore, unnecessary for me to consider whether, if the RRT's reasons had unequivocally indicated that it had no doubt that the impugned documents had been fabricated, that conclusion was open to the RRT on the whole of the evidence before it. Such a consideration would have entailed asking whether a view that the Court regards as mistaken that the evidence permitted the attainment of no real doubt, is an error of law. In the circumstances, an answer to that question must await a case which squarely raises it.
The Court has recently been advised by the RRT in the light of the observations of Gray J in Kathiresan v Minister for Immigration and Multicultural Affairs (unreported, 4 March 1998) to which I referred in Rajalingam v Minister for Immigration and Multicultural Affairs (unreported, 14 September 1998) at p 20, that its practice is for a matter remitted to the RRT by the Court to be allocated for hearing by a member other than the member who made the decision which has successfully been reviewed. Accordingly, it is sufficient to order that the decision of the RRT dated 3 December 1996 be set aside and that the matter to which that decision relates be referred to the RRT for further consideration according to law. The respondent must pay the applicant's costs of the application.
I certify that this and the preceding twenty-four (24) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.