Did the RRT fail to observe procedures required by the Act?
43 The RRT described the applicant's claim that he had been detained for a lengthy period in 1995, and then released on bail, as his "core claim". In my opinion, that is an apt description of the importance of that claim to the applicant's case for refugee status. Without being able to satisfy the RRT of the truth of that central fact, his prospects of meeting the requirements of Art 1A(2) of the Convention were remote.
44 The genuineness, or otherwise, of the summons was of course significant. It was plainly open to the RRT to conclude that the document was fraudulent and contrived. The application for review before this Court does not involve merits review. It matters not in the slightest whether or not, on the basis of the material before the RRT, I would have arrived at the same conclusion in relation to this issue.
45 What is significant, however, is the process of reasoning adopted by the RRT. Even if it were the case that the summons had been forged by, or at the behest of, the applicant, that would not of itself demonstrate that he had not been imprisoned in 1995, as he claimed. A possible hypothesis is that the applicant sought to bolster his claim to refugee status by producing the summons in order to make it seem as though he was still in danger in 1998.
46 A critical question, it seems to me, was whether or not the applicant's political activities had led to his being detained, and physically abused, in the manner which he had described. The RRT was satisfied that this entire incident had been fabricated. The issue before the Court is whether, in arriving at that conclusion, the RRT failed to comply with the requirements of s 476(1)(a), or s 476(1)(e), of the Act.
47 I have given careful consideration to what the transcript of the proceedings before the RRT reveals regarding this matter. Regrettably, the issue of the applicant's claim to have been imprisoned seems to me to have been dealt with in a most unsatisfactory way.
48 It is true that the applicant was almost certainly well aware of the fact that the RRT hearing was a rehearing de novo, and that he could not assume that the approach taken by the delegate would also find favour with the RRT. Nevertheless, it is clear that the delegate, who had initially refused the applicant a protection visa, had been prepared to assume that the account of the applicant's 1995 detention was true. By implication the delegate had accepted that the summons relating to the incident which gave rise to that detention was a genuine document.
49 The applicant was put on notice throughout the hearing by the RRT that it entertained serious reservations concerning the genuineness of the summons. He addressed the RRT's concerns in that regard, through submissions by his solicitor.
50 However, the position taken by the RRT concerning the applicant's claim to have been imprisoned in 1995 was by no means clear. The transcript of the hearing before the RRT, and in particular the dialogue which took place between the applicant, his solicitor, and the RRT leaves me uncertain as to what the RRT was intending to convey to the applicant in relation to this issue.
51 It will be recalled that Mr Achamyeleh in his letter dated 17 December 1998 had "certified" that the applicant, after being condemned for having attended a public rally in Jimma and in Addis Ababa, had been imprisoned in 1995. Moreover, Mr Achamyeleh had stated that his organisation, Ahadu, had checked with its head office in Ethiopia to confirm the applicant's claim. It had confirmed his membership of AAPO in Addis Ababa. According to the information Ahadu had obtained, the applicant was "targeted" by the government for his active involvement in AAPO. The only reason for his "persecution" by the Ethiopian government "was his ethnicity and political activity".
52 Mr Achamyeleh's letter dated 17 December 1998 was expressed in terms which were vague and uncertain. One interpretation of that letter, relied upon by the respondent, was that when Mr Achamyeleh certified that the applicant had been imprisoned in 1995 he was merely repeating what the applicant had told him. Another possible interpretation of that letter, however, is that inquiries which had been made of its head office by Ahadu confirmed all of the applicant's claims, including his claim to have been imprisoned in 1995. The fact that the source of this information was not identified, and that it was hearsay, would go to the weight which should be accorded to this information, but would not prevent it from being taken into account.
53 It is clear that the applicant proposed to call Mr Achamyeleh, who was only fifteen minutes away, to give evidence in support of his claim. There is no doubt that he would have given evidence but for the RRT's intervention, asking whether it was necessary for him to be called. Mr Fisher responded by saying that Mr Achamyeleh could give "more detail" about AAPO. He reminded the RRT, as was the case, that the statement dated 17 December 1998 was merely an outline of Mr Achamyeleh's proposed evidence.
54 Mr Fisher indicated that if the RRT was prepared to accept Mr Achamyeleh's statement "on face value" he would not find it necessary to call him. The RRT cavilled at accepting what it described as Mr Achamyeleh's "opinion" as well as "the fact". The RRT made it plain that if Mr Fisher wanted Mr Achamyeleh to come along, he should call him. However, the RRT was prepared to accept the facts in the statement but not the opinions. This was stated by the RRT not once, but twice.
55 After the RRT had offered to deal with Mr Achamyeleh's statement in this way, Mr Fisher discussed the matter with the applicant. Mr Fisher decided that it was unnecessary to have the witness called. He stated that the applicant was happy to proceed on the basis of the information Mr Achamyeleh had already provided.
56 Regrettably, the distinction which the RRT drew between "the facts" and "the opinions" contained in Mr Achamyeleh's letter is far from clear. The language used by the RRT in formulating its position with regard to that letter was, at best, obscure.
57 A possible interpretation of the language of Mr Vrachnas in the dialogue between himself and Mr Fisher concerning Mr Achamyeleh is that Mr Vrachnas was prepared to accept, as a fact, Mr Achamyeleh's certification that the applicant had been imprisoned in 1995, in the circumstances outlined earlier in this judgment. On one interpretation of that dialogue, Mr Vrachnas was prepared to accept that the applicant's claim in this regard had been confirmed by inquiries made of AAPO in Addis Ababa.
58 I do not accept the submission made on behalf of the respondent that when the RRT stated that it would accept the facts set out in Mr Achamyeleh's letter, but not the opinions, it somehow conveyed to the applicant, and to his solicitor, that it would not accept the certification that the applicant had been imprisoned in 1995. I do not see how that "certification" can be described as a matter of "opinion".
59 There were, of course, opinions expressed in the letter. It is likely, in my view, that the applicant would have understood the Member to be saying that he was prepared to deal with the applicant's case upon the footing that he had been imprisoned in 1995, and that he did not need to call additional evidence, or to make further submissions, to substantiate that part of his claim. At the very least, it would have been reasonable for the applicant to have understood the Member's comments in that way.
60 When the RRT ultimately came to give its reasons for decision, it did not accept the applicant's claim to have been imprisoned in 1995. It found this claim to have been fabricated. In effect, the applicant was denied the opportunity to call Mr Achamyeleh to explain the basis upon which he had certified that the applicant had been imprisoned in 1995, and possibly to persuade the RRT of that fact. The applicant was also denied the opportunity to consider giving further evidence himself, calling further evidence, or making further submissions on this issue which, as I have already indicated, the RRT correctly regarded as a "core claim".
61 Counsel for the respondent properly conceded that there would be circumstances, albeit rare, where it might be said that an applicant, having been misled by the RRT, albeit inadvertently, had been denied his entitlement to compliance with procedures required by the Act to be observed in connection with the making of the decision. That concession seems to me not only to be correct, but also to reflect accurately those principles which apply in accordance with the decision of the High Court in Eshetu (supra).
62 Recently, in Minister for Immigration and Multicultural Affairs v Cho (1999) 164 ALR 339, a Full Court of this Court comprising Tamberlin, Sackville and Katz JJ dealt with the operation of s 425 of the Act. The context in which that case arose was a complaint by the applicant that the RRT had disbelieved her on a critical matter without informing her that her claim was seriously doubted, and why. In a joint judgment, Tamberlin and Katz JJ stated at 346-7:
"In considering the extent of the requirements imposed by s 425 it is important to keep in mind that the exercise is essentially one of statutory interpretation. The present case is not one where a question as to the extent of the requirements of the audi alteram partem rule is in issue. Care must be taken not to confuse the question of the interpretation of s 425 according to its language with a question as to whether the full range of natural justice requirements should be injected into s 425 under the guise of giving content to an obligation to afford an "opportunity to give evidence". The exercise for the court in this matter is to give content to the language of s 425 in its statutory context.
It is necessary in so doing, of course, for the RRT to bear in mind that s 420 of the Act requires it to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. As the cases point out, these considerations are to some extent in tension but nevertheless they must be considered by the RRT when it is performing its functions. Section 420(2) frees the RRT from technicalities, legal forms or the rules of evidence, as is appropriate in the case of an administrative tribunal, and it directs the RRT to proceed according to substantial justice and the merits of the case.
On behalf of Ms Cho it is submitted that the effect of s 425 is to require the RRT to afford a "genuine" opportunity to appear before the RRT to give evidence. Such an opportunity, it is said, calls for a questioning by the decision-maker and the disclosure of material and views which the decision-maker may consider to be adverse to the applicant. The authority cited in support of the requirement for a "genuine" opportunity is the High Court decision in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577. In that case the court decided that s 476(2) of the Act made clear the intention of the legislature to exclude, as a ground of review by the Federal Court, a breach of the rules of natural justice, and that, when read in context, s 420 does not provide a foundation on which to overcome the effect of that exclusion. The court also decided that the provisions of s 420 describe objectives to be pursued and do not establish a procedure under the Act of the kind referred to in s 476(1)(a) of the Act.
In Eshetu, four judges of the court, Gleeson CJ and McHugh J (at [49]), Gummow J (at [109]) and Callinan J (at [178]), refer with approval to the observations of Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324; rev (1997) 81 FCR 71; 151 ALR 505, where he said at 59-60:
"There is another argument based on s 476(2)(a) that leads to the same result. The general law notion of natural justice comprises the 'impartial tribunal' requirement (the 'bias rule') and the 'fair hearing requirement' (the 'hearing rule')…. While s 476(2)(a) makes clear that these requirements do not provide the basis of a ground of review, s 476(1)(f) provides that actual bias is such a ground, while s 476(1)(a) and s 425(1)(a), taken together, have the effect that a failure to give a genuine opportunity to appear before the [tribunal] to give evidence, is also such a ground. This suggests that the legislature turned its mind to the twin requirements of natural justice and intended that s 476(1)(f) and s 425(1)(a) should occupy the field that would otherwise be occupied by the rules of natural justice. It will be clear that I do not agree that the expression in s 426(2)(a), 'the rules of natural justice', is to be read down in some way so that it refers to those rules only in so far as they depend on the general law, and does not detract from any generally expressed requirement of the Act which might otherwise be thought to have the effect of mandating observance of those rules [emphasis added]."
We do not consider that there is any special significance in the reference to the word "genuine" which would expand the content of s 425 beyond the ordinary and natural meaning of the language used. According to its terms the section simply requires that an opportunity be given to the applicant to appear and give evidence. Obviously if there is no real opportunity given then the section has not been complied with. This could arise, for example, where relevant evidence is not admitted or misleading statements are made by the decision-maker which discourage an applicant from calling or proceeding with a particular line of evidence. It should also be noted that the above quoted observations of Lindgren J support the proposition that a failure to comply with s 425(1)(a) may amount to a failure to observe a "procedure" within the meaning of s 476(1)(a) of the Act, although the objectives expressed in s 420 do not." (emphasis added)
63 Sackville J, after referring to a number of the authorities which deal with ss 425 and 426 of the Act stated at 355-6:
"These cases illustrate that s 425(1)(a) is primarily directed to the requirement that the RRT ensures that the applicant not only knows of his or her entitlement to give evidence (see s 426(1)(a)), but receives adequate notice of the hearing and is not unfairly impeded by the RRT from taking advantage of the statutory entitlement. Ordinarily, the RRT complies with s 425(1)(a) if the applicant receives timely notification of his or her statutory entitlement and of the hearing at which that entitlement may be exercised. If the applicant does not appear, otherwise than through reasons beyond his or her control and of which the RRT is aware, there will generally be no breach of s 425(1)(a). If the applicant does appear in response to the timely notification, and gives evidence before the RRT, there will likewise generally be no breach of s 425(1)(a).
It does not necessarily follow that the effect of s 425(1)(a) is exhausted once the RRT actually commences to hear the applicant's evidence, adequate notice of the hearing having been given. There may be circumstances - although I think that they are likely to be rare - where the RRT conducts the hearing itself in a manner which denies the applicant the genuine opportunity contemplated by s 425(1)(a). To take a hypothetical example, the RRT, having given the applicant timely notification of the statutory entitlement and the hearing, might inform the applicant at the hearing itself that he or she will not be permitted to give evidence on a particular claim within the applicant's own knowledge. If the RRT were to reject the application on the ground that it had not been satisfied of the particular claim, it would not be difficult to conclude that the applicant had been denied the opportunity contemplated by s 425(1)(a). The applicant, although permitted to appear before the RRT and to give evidence, would have been denied the opportunity to appear and give evidence on an issue the RRT itself considered to be critical to the outcome of the case." (emphasis added)
64 In my opinion the statements made by the Member concerning his willingness to accept "the facts" set out in the letter of 17 December 1998, but not "the opinions" contained therein were reasonably capable of misleading the applicant into assuming that the certification by Mr Achamyeleh of his imprisonment in 1995 had been accepted, and would be acted upon. That belief on the part of the applicant would have discouraged him "from calling or proceeding with a particular line of evidence", as discussed by Tamberlin and Katz JJ in Cho. The position might well be different if all that the applicant had sought to do was to make further oral submissions - Q v Minister for Immigration and Multicultural Affairs [1999] FCA 1202 per Lehane J at par 24. I note that their Honours Tamberlin and Katz JJ in Cho did not confine the scope of s 425(1)(a) to evidence which might be given by the applicant himself. I adopt, with respect, their Honours' reasoning on this point.
65 I note that Sackville J observed that the circumstances in which the RRT conducts a hearing in a manner which denies the applicant the genuine opportunity contemplated by s 425(1)(a) are likely to be "rare". However, the present case seems to me an example of such an instance.
66 Having concluded that the statements made by the RRT to the applicant concerning its proposed method of dealing with Mr Achamyeleh's letter were misleading, albeit inadvertently misleading, and that the applicant was not given a full opportunity, in accordance with s 425(1)(a), to "give evidence" (which includes giving evidence that is "argumentative" - Sook Rye Son v Minister for Immigration and Multicultural Affairs (1999) 161 ALR 612 at 625 per Moore J at par 36) it is not strictly necessary to consider the other limbs of the applicant's argument.
67 I should say, however, that I do not accept the applicant's contention that the RRT was itself required to call Mr Achamyeleh by reason of s 426 of the Act, and by reason of the inquisitorial nature of the proceedings before that body. Had the applicant's case rested upon that ground alone, I would not have allowed this application.
68 I should also deal briefly with the applicant's third limb of the argument directed to s 476(1)(a) of the Act. The applicant relied upon the RRT's failure to record its decision in accordance with the requirements of s 430(1) of the Act.
69 There are many authorities which deal with the proper construction of s 430(1). They are usefully discussed by Finn J in Thiagarajah Kandiah v Minister for Immigration and Multicultural Affairs [1998] FCA 1145. His Honour observed at pages 12-14:
"There is now a considerable body of case law that emphasises variously: (i) the importance to the parties, to the public and to review bodies of adequate reasons for decisions; (ii) the understanding and restraint that courts should demonstrate when reviewing and construing reasons for administrative decisions; and (iii) the content in terms of findings and recitation of evidence that properly and reasonably can be expected of administrative decision makers. Many of the authorities are collected and considered in Muralidharan v Minister for Immigration and Ethnic Affairs, above, at 94-96. I will not repeat here what was said at length there though I would add to it the later admonition of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 at 491 that:
"the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed."
There have been some number of decisions of this court on the burden of the obligation imposed by s 430(1) and by relevantly similar provisions in other statutes, eg the Administrative Appeals Tribunal Act 1975 (Cth), s 43(2B). For present purposes I would merely note the following propositions.
(i) A breach of the obligation is not necessarily shown by pointing to matters which might, with advantage have been the subject of further or more detailed discussion or to possible issues which have not been mentioned: Commissioner of Taxation v Osborne (1990) 26 FCR 63 at 65; the Tribunal member, no less than a judge, is not required to deal expressly with "every consideration which passes through his mind": Steed v Minister for Immigration and Ethnic Affairs, above, at 621; Mifoud v Campbell (1991) 21 NSWLR 725 at 728;
(ii) The Tribunal's reasons should expose the logic of its decision and should contain findings on those matters that are essential to that logic: Dodds v Comcare Australia, above, at 691; where a matter significant to the decision is in issue and material is advanced by a party to support his or her version of it, that party is entitled to know whether it has been accepted or rejected by the Tribunal: "without this knowledge the parties will have but an incomplete idea of the tribunal's process of reasoning and a lessened respect for the tribunal's decision-making process": Copperart Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1993) 30 ALD 377. In the case of an unsuccessful applicant, it is that "incomplete idea" of why the decision went as it did that differentiates the "disturbed" from the "disappointed" applicant (to adapt the description used in Connell v Auckland City Council [1977] 1 NZLR 630 at 634.
In the present case where the applicant has, primarily for reasons of credibility, been disbelieved in his claims to have been detained at Slave Island and then hospitalised, but where he has put what purports to be information from his treating doctor before the Tribunal for the purpose of substantiating his claim to hospitalisation, he was entitled to have a finding made as to whether or not that evidence was accepted or rejected. Absent that finding he was not provided with a determination of a matter that, by his own case, he sought to establish independently of his own evidence. It was open to the Tribunal to reject the evidence attributed to Dr Rajakulendran. But if it did so, it was obliged to make this known to Mr Kandiah; it was obliged to inform him why, notwithstanding this new material he put before the Tribunal, his story still was not accepted. His hospitalisation was a "key element" in his case: cf Muralidharan's case, above, at 96.
It may well be the case that the Tribunal in fact took a view as to the authenticity and/or credibility of the letters in question. If it did so, it was required to disclose that view because of the significance of the letters to Mr Kandiah's case. If it did not have such a view, then it has not made a finding on what in the circumstances was a material question of fact on which it was required to make a finding because of the case put: cf the possibilities considered in Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 402-403.
I am, then, of the view that a breach of the requirements of s 430(1)(c) has been made out. It is clear from Muralidharan's case, above, at 97 that such a breach involves a failure to observe the procedures required by the Act to be observed "in connection with the making of the decision". It need hardly be said that there is no reason to treat s 476(1) of the Act differently for this purpose from s 5(1)(b) of the Administrative Decisions (Judicial Review) Act, 1977 (Cth) that was considered by Sackville J (Beazley J agreeing) in Muralidharan. I should add even without the authoritative view in Muralidharan's case, I am unable to see why a statutory requirement to prepare a statement of reasons for a decision is not a procedure to be observed in connection with its making. It is immaterial in my view whether a prescribed procedure predates or postdates a decision provided it is nonetheless connected to its making as is the case with the s 430(1) requirement."
70 In Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24, Wilcox J observed at 27:
"I accept the submission of counsel for the minister that this section does not impose on the tribunal an obligation to make findings about every factual matter mentioned in an applicant's claim. Paragraph (c) of subs (1) refers to 'findings on any material questions of fact'. 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 be construed in an over-critical way, 'with an eye keenly attuned to the perception of error' … 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." (emphasis added)
71 In Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1126 per Drummond J at pars 16-32 his Honour comprehensively reviewed the authorities dealing with s 430 of the Act. His Honour stated at par 33:
"These authorities show that s 430, in requiring the Tribunal to set out its findings on material matters, is not directed to matters which the Tribunal considers material: it is directed instead, to matters that are objectively material to whether a person is in truth a refugee. They also show that s 430 imposes a more stringent fetter on the Tribunal's freedom of decision-making than does the existence of error of law constituted by a want of evidence to support the decision, as a ground for review. This only exposes an administrative decision to review if there is no evidence to support a critical finding: see Collins v Minister for Immigration (1981) 58 FLR 407 at 410 - 411. These authorities also show that, while it is not permissible to subject the Tribunal's reasons to over meticulous scrutiny for possible error, once an issue favouring an applicant for refugee status is identified as a material one, the Tribunal must explain why it finds against the applicant on that issue, if it is not to breach s 430. In such a case, the Tribunal's decision cannot be supported on appeal because there is material, even an abundance of material, which the Tribunal was entitled to accept and which is sufficient to justify the decision against the applicant."
72 The RRT's reasons for decision in the present case are, if I may say so, extremely comprehensive when dealing with matters of a general nature. They are, however, sparse when dealing with, and rejecting, the "core claim" that the applicant was imprisoned in 1995. In essence, there is simply a bald assertion that the incident had been fabricated.
73 It is possible that the RRT reasoned back from its finding that the summons was a fraudulent and contrived document to a conclusion that the earlier incident to which that document related had not occurred. If that had been the RRT's reasoning, it would have been a matter for debate as to whether or not that reasoning was fallacious. However, the applicant would at least have known why his claim to have been so imprisoned had been rejected. He was entitled to know that much.
74 The RRT did not refer in its reasons for decision to Mr Achamyeleh's statement in his letter dated 17 December 1998 "certifying" that the applicant had been imprisoned. It provided no reasons for rejecting that "certification". There may well have been sound reasons for doing so. That does not, in my view, absolve the RRT from complying with its statutory responsibility, under s 430(1) of the Act, to set out those reasons. The applicant's prior imprisonment in 1995 was, after all, a critical issue. Had it been necessary to do so, I would have allowed this application upon this ground as well.
75 It is unnecessary for me to deal with the question whether the applicant has made good also his contention that there was a breach of s 476(1)(e) of the Act. It cannot be assumed that a breach of s 476(1)(a) will necessarily constitute a breach of s 476(1)(e). It is fair to say that counsel for the applicant in the proceedings before me placed little reliance upon s 476(1)(e) in the course of his submissions.
76 For the reasons set out above, the decision of the RRT must be set aside, and the matter remitted to that body to be dealt with according to law. It is obvious that the RRT should be differently constituted when it reconsiders the applicant's claim. The respondent must pay the costs of this application.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.