Submissions of the Parties
20 The applicant challenges the Tribunal decision on two bases:
1. It failed to comply with the provisions of s 430, by not setting out its findings on material questions of fact, and
2. It wrongly applied the law, as to the meaning of the word "persecution" to the facts that were found.
21 In relation to the failure to make findings on material matters the applicant referred to the following particulars:
(a) No unambiguous finding was made as to whether the Tribunal accepted that the applicant's son was taken into custody by police for a week following his sister's escape to New Zealand.
(b) No findings were made as to the employment difficulties of the applicant's son and whether it was either ethnically or politically motivated.
(c) No finding was made as to whether the Tribunal accepted that the applicant paid a substantial bribe to secure a passport.
(d) No findings were made as to the documents which were submitted by the applicant to the Tribunal, (nor was any attempt made to have them translated for consideration by the Tribunal in making its decision).
(e) No findings were made in relation to the evidence of the applicant stating police accused the whole family of being communists.
22 The respondent argues that the obligation placed on the Tribunal by s 430 is not one which is fulfilled by referring to a list of matters nominated by the applicant as relevant and thus requiring positive findings. This approach, it was submitted, has been disapproved of in a number of decisions made under general administrative law principles citing, particularly, Deane J in Sean Investments Pty Ltd v Mackellar (1981) 8 ALR 363, where he said at 374-5:
"As has been seen, a failure to take a relevant consideration into account in the exercise of a power is, under s 5(1) and (2)(b), a permissible ground for attacking a decision pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977. This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the
decision maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account."
23 Therefore, the respondent submits, in relation to (a) the Tribunal stating that it "was a difficult claim to accept" and then assuming its truth for the sake of argument, was an appropriate treatment of the issue, in that the evidence was taken into account even if no positive finding was made.
24 In relation to (b), the respondent submits again that the evidence was "assumed to be true" as a basis for another conclusion and this was also sufficient to comply with s 430.
25 In relation to (c), (the evidence about payment of a bribe to procure a passport), the respondent said that a detailed discussion of the issue had been recorded in the section of the decision headed "claims and evidence" and this was sufficient to infer that an unfavourable conclusion had been reached by the Tribunal on the issue although no final conclusions were stated.
26 Also, in relation to (d), the respondent said the Tribunal had "left it up to the applicant" to have the material translated and had no obligation to do more than that. Further a witness had described the contents of the documents, in general, to the Tribunal and this was sufficient for the Tribunal to have proper regard to them in making the decision.
27 In relation to (e), the respondent says that the Tribunal referred to the incident in which this was alleged to have occurred and made a finding that the applicant was only involved "coincidentally" in that incident. That being so, there was no requirement to make any finding about that particular matter, because it was, apparently, not material.
28 In these reasons for decision, the Tribunal has dealt with the claims of the applicant and the evidence supporting those claims in a variety of ways. The documentary evidence, for example, was the subject of detailed evidence and questioning at the hearing but was not subsequently translated. It was not positively rejected or even dealt with directly in the reasons for decision. It is difficult to know, in reading the decision, whether this evidence was taken into account. The same conclusion could be reached in relation to the evidence of bribery to secure a passport, the labelling of the applicant and her family as communists and their continued harassment after the applicant had left the country.
29 This applicant's case is that she and her family are of interest to the authorities in Turkey, in a negative sense, and that they have been and continue to be harassed and abused because they are politically active Kurds.
30 The matters about which no findings are made are, in my view, crucial to a determination of whether these matters, if believed, amount to persecution and whether the applicant, if she returned, would continue to be subjected to the same treatment. Findings, one way or the other, would be necessary to support the conclusion reached. The Court accepts that there is no need, as the respondent says, to make findings on every conceivable piece of evidence presented in support of an application. However, there is a statutory obligation to make findings on material questions of fact.
31 The decision maker in this case adopted a method of writing reasons which resulted, in these crucial matters, in no findings being made, or conclusions being reached, positive or negative, as to the material being considered, by setting up "hypothetical" conclusions as to the matters in order to support the ultimate conclusion that the applicant is not a refugee.
32 The decision maker raises "difficulties" with some evidence but does not proceed to a conclusion about it. There is, in fact, very little of the applicant's testimony which is said to be "not accepted". The Tribunal made no adverse finding as to credit, describing the applicant's claims as generally consistent and therefore genuine.
33 The result is a set of reasons which are unclear as to the basis of the findings as to persecution and the "real chance" test. It is true, as the respondent submits, that the principles of law in relation to the issue of persecution are correctly stated in the body of the decision. However, there is nothing in the decision to explain why, having accepted a number of incidents as having actually (or in some cases hypothetically) to have occurred, this could lead to the conclusion that there has been no serious mistreatment or persecution for a Convention reason. It is hard to conceive of a more straightforward case of persecution if, as the Tribunal says, all of the claims are accepted.
34 The respondent characterises the applicant's claim of "error of law" as nothing more than an attempt to have merits review by inviting the court to come to a different conclusion to that arrived at by the Tribunal. As Kirby J said in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 596:
"The matter was one for judgment and assessment. It thus involved the classical problem of fact-finding and decision-making. The speculative consideration of what might occur to the respondents, if once again they were returned to China, was one necessitating conclusions of fact on the part of the tribunal and speculation as to the future resting on those conclusions. So long as the tribunal considered the correct legal questions, no lawful basis could be established for the intervention of the Federal Court simply because that court disagreed with the Tribunal's factual conclusions."
35 However, that, in my view, is the problem with these reasons for decision in respect of many crucial material matters. It is not sufficient, given the positive obligations placed upon it by s 430 for the Tribunal to merely discuss or give an account of relevant issues without coming to stated conclusions supported by evidence. Nor is it sufficient to hear documentary material discussed in evidence and not having it translated when it was made available. A conclusion about this material was required.
36 The result is that the obligation of "judgment and assessment", the foundation stone of reasons has either not been undertaken or communicated, by means of the reasons, to the applicant
37 In Kirushanthan Paramananthan v MIMA (an unreported decision of the Full Court of the Federal Court, 21 December 1998), Wilcox J, discussing the obligation to make findings on material questions of fact, relevantly, said at 3:
"Findings need be stated only in relation to questions that are material to the ultimate decision. I also accept that such findings as the Tribunal does make should not to be construed in an over-critical way, ":with an eye keenly attuned to the perception of error": see Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287, adopted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. On the other hand it is important that a reader be able to discern what conclusions the Tribunal reached about the issues relevant to the ultimate decision. One of the purposes of s 430 is to ensure that unsuccessful applicants for a protection visa are told why their application has failed; if the reason, or one of the reasons, was that the Tribunal rejected a significant factual claim, the Tribunal must say so and indicate the factual material on which the adverse finding was based."
38 The obligation of the Tribunal under s 430 is not, as Merkel J said at 14 of his judgment in the same matter, one of mere form because:
" … compliance with s 430 can reveal whether the "real chance" test has been properly applied and non compliance can disguise a flaw in the reasoning process and, therefore, a ground for judicial review: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366-367 per Deane J."
39 The failure to comply with the procedural obligations imposed by s 430 is sufficient to allow the appeal in this case. However, the additional failure of the Tribunal in not having materials presented to it and referred to in evidence, sent for translation for accurate consideration of their content also, in my view, amounts to a reviewable error.
40 In Kirushanthan Paramananthan v MIMA (above) when discussing the role of the RRT and its obligation, Merkel J said, at 27 of his judgment:
" … the RRT is required to determine whether it is "satisfied" that the applicant is a person to whom Australia has protection obligations under the Convention.
Material and evidence, as well as arguments, may be presented to the RRT but its inquisitorial procedures or enquiries are not limited to or by the materials, evidence, or arguments presented to it. In an appropriate case the RRT may undertake its own enquiries and, in some instances, may be obliged to do so: see Prasad v Minister for Immigration and Ethnic Afairs (1985) 6 FCR 155 at 170 per Wilcox, J, Luu v Renevier (1989) 91 ALR 39 at 49-50 per Davies, Wilcox and Pincus JJ and Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 547-548 per Wilcox J. Similarly, the RRT is not to limit its determination to the "case" articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant. That obligation arises by reason of the nature of the inquisitorial process and is not dependent upon whether the applicant is or is not represented: cf Bouianov v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Branson J, 26 October 1998) at 2 and Saliba v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Sackville J, 5 November 1998) at 16-17. Representation can be relevant to the content of a duty to act according to "substantial justice" or fairly in a particularly case, but cannot affect the fundamental duty of the RRT, acting inquisitorially, to review the decision before it according to the "merits of the case".
In my view the inquisitorial function of the RRT and the combined effect of the provisions to which I have referred, is such that the RRT is required to determine the substantive issues 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."
41 In this case the Tribunal had no interest in a translation of documents presented to it and came to conclusions adverse to the applicant's without reading the documents. This material and all of the evidence of the applicant and her witness was able to be accepted or rejected or given little weight by the Tribunal. It must however be considered and discussed in the reasons for decision and appropriate findings made. Otherwise there could be no confidence in or understanding of why the Tribunal came to the conclusions it did in relation to the ultimate decision as to the real chance of persecution of this applicant.
42 I order that the decision under review be set aside and remitted to the RRT for reconsideration according to law.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor.