Minister for Immigration & Multicultural Affairs v Yusuf

Federal Court of Australia|1999-12-02|Before: Finn J, Goldberg JJ

THE COURT: 1 The respondent is a citizen of Somalia. She arrived in Australia illegally in February 1999 and lodged an application for a protection visa under the Migration Act 1958 (Cth) (the Act) on 12 February. She claimed to fear persecution for reasons of her race and her membership of a particular social group, namely the Abaskul clan. The Minister's delegate refused her application. She lodged an application for review with the Refugee Review Tribunal (RRT) on 9 March. The RRT heard the application on 31 March and on 21 April delivered its decision affirming the delegate's decision. 2 The respondent applied for judicial review of the RRT's decision. On 30 August 1999 Finn J ordered (inter alia) that the RRT's decision be set aside and the matter be remitted to the RRT for further consideration according to law.

Decision of primary judge 3 Relevantly for the purposes of the present appeal, Finn J held that the RRT, in its statement of reasons, had failed to set out a finding on a material question of fact, namely a claim by the respondent that her family home had been attacked by members of the Hawiye clan. Therefore s 430(1) of the Act was not satisfied. The sub-section provides: "(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 4 His Honour treated the contravention of s 430(1) as constituting a failure to comply with s 476(1)(a) of the Act in that there was a failure to observe procedures required by the Act to be observed in connection with the making of the decision. 5 Section 476(1)(a) 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. …" 6 Section 476(2) has the effect of excluding as grounds for review under sub-s (1) breach of the rules of natural justice or Wednesbury unreasonableness. 7 Other parts of s 476 exclude other grounds for judicial review, for example taking irrelevant considerations into account, failing to take relevant considerations into account and bad faith: subs (3)(d)(e) and (f). 8 His Honour said: "4. The Section 430 Statement of Reasons 25. Leave was given to further amend the application to insert this particular ground. At the outset of submissions, counsel for the applicant indicated that the Tribunal in its reasons dealt only with two of the three alleged incidents which gave rise to the applicant's fear of persecution. I have already indicated in passing that the Tribunal did not deal with the alleged attack on the house of the applicant. While that attack in terms refers only to an actual attack on her husband, in giving oral evidence to the Tribunal the applicant appears to have included herself in the object of that attack: 'I've had a lot of problems during my stay there … and my husband and myself were attacked and I was thrown somewhere. I was put on something on my head, and that injure - wounded me here on the forehead, and after we have had to suffer attacks and the family who are protecting us have decided that at this time they are forced to take us out of the place where we were living because we cannot - 'After this incident, we cannot guarantee your safety and we've had disputes along with the other people who were attacking you.' So in that case my husband was taken by an armed man. They took him out of Mogadishu, and so far I don't know whether he's safe or not. I was pregnant at the time the family took my husband out of Mogadishu. I don't know whether he's alive now or not.' 26 It is in my view important to appreciate the significance of this matter. It is the first of the matters relied upon in her initial statement. It relates to the break-up of her own family unit and to the departure of the person under whose protection she would ordinarily be and it occurs at a time relatively close to one of the other two occasions on which a personal attack has been made upon her. It can properly be said, in my view, to be a matter that was central to the events relied upon by the applicant as grounding her fear of persecution. 27 In the circumstances, it was in my view incumbent upon the Tribunal to consider the matter and in its reasons to indicate whether or not it accepted or rejected that event in its setting as being capable of giving rise to a well-founded fear of persecution." 9 The other two incidents referred to by his Honour were (i) an occasion when the respondent went to buy food for her children and members of the Hawiye clan attacked her with a sword and (ii) an occasion near her house when a group of Hawiye women attacked her. 10 Although under the heading "Background and Claims" there is a passing reference to the respondent saying that "her husband ran away with the help of a neighbour", in its "Discussion of Evidence and Findings" the RRT consistently refers to only two attacks. For example: "The Tribunal accepts that the applicant has twice been attacked since the outbreak in 1991 of the civil war in Somalia .." "… bearing in mind that on the two isolated occasions the applicant encountered problems, she was assisted by persons from the same clan as her attackers."

The Minister's argument on the appeal 11 Counsel for the Minister argued: (i) A failure to comply with the obligation under s 430(1)(c) cannot constitute a failure to observe procedures required by the Act within the meaning of s 476(1)(a); (ii) Alternatively, his Honour erred in holding that in the present case there was a failure to set out the findings on any material questions of fact.

Application of s 476(1)(a) to s 430(1) 12 A uniform line of Full Court authority is conclusive against the Minister's argument: Muralidharan v Minister (1996) 62 FCR 402 at 413-416, Paramanathan v Minister (1998) 160 ALR 24 at 27, 31, 37, 47 and 63, Logenthiran v Minister [1998] FCA 1691, Hughes v Minister [1998] 53 ALD 607, Perampalan v Minister [1999] FCA 165, Sellamuthu v Minister [1999] FCA 247, Voitenko v Minister [1999] FCA 428, Thevendram v Minister [1999] FCA 182 and Borsa v Minister [1999] FCA 348 at [26] and [27] and Addo v Minister [1999] FCA 940. Counsel for the Minister did not argue that these authorities were distinguishable. 13 It would be unusual indeed for a Full Court to depart from such a strong and consistent course of decisions. In Nguyen v Nguyen (1990) 169 CLR 245 at 269 Dawson, Toohey and McHugh JJ said: "Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predicability of the law: see Queensland v The Commonwealth (1977) 139 CLR 585, at pp. 620 et seq., per Aickin J." 14 See also Qantas Airways Ltd v Cornwall (1999) 84 FCR 483 at 489-490 and Byrne v Australian Airlines (1994) 47 FCR 300 at 304. Caution is all the more called for when there are not one, but at least nine Full Court decisions and the point at issue involves the day to day operation of an important area of administration and judicial review. In any case, in our respectful view for the reasons we will explain, the Full Court decisions accord with the meaning of the section. 15 Counsel argued that procedures "in connection with the making of the decision" can only refer to procedures required to be observed prior to the decision being made. 16 This argument poses two questions. Are the obligations under s 430(1) "procedures"? If so, are they, and in particular the s 430(1)(c) obligation, procedures "in connection with the making of the decision"? 17 As to the first question, we think that all the obligations imposed by s 430(1) are to be characterised as procedures. The sub-section is speaking not of any substantive right or obligation, but of the preparation of a particular sort of document on a particular occasion and what that document must contain. In ordinary legal discourse this would be readily recognised as procedure. In White v White [1947] VLR 434 at 441 the Full Court of the Supreme Court of Victoria said: "According to Lord Westbury, L.C., in A.-G. v. Sillem [1864], 10 H.L. Cas. 704, at p. 723, the common and ordinary sense of 'practice' is 'the rules that make or guide the cursus curiae and regulate the proceedings in a cause within the walls of the Court itself'. 'Procedure' has a wider meaning; 'procedure in a suit includes the whole course of practice, from the issuing of the first process by which the suitors are brought before the Court to the execution of the last process on final judgment': (per Erle, C.J., in A.-G. v. Sillem [1863], 2 H. & C. 581, at p. 627). In the appropriate context, it comprehends all steps necessary to be taken in litigation for the establishment of a right in order that the right may be judicially recognised and declared in such manner as will enable the party asserting the right legally to enjoy it; it covers not only the acts of the Judges of the Court, but also the acts of the officers of the Court which are necessary to give effect to judicial pronouncements." 18 This conclusion emerges particularly clearly in relation to s 430(1)(a) and (b). If the RRT gave no written statement, or a statement which contained its conclusion but no reasons at all, a failure to observe procedures required by the Act would be manifest. 19 The specific requirements of s 430 are in marked contrast to the general exhortations in s 420 considered by the High Court in Minister v Eshetu (1999) 162 ALR 577. Section 430 is the culmination of a number of interrelated procedural duties required to be discharged by the RRT. The inquisitorial function of the RRT (which, as with the AAT, requires it to arrive at the correct or preferable decision according to the material: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425 per Brennan J), and which arises under the statutory provisions relating to its duty to review the decision before it (see in particular s 414, 415, 425, 426 and 430) requires the RRT to determine the substantial issues raised by the material and evidence before it and upon which the case turns: see Paramanthan at 56-57, Sellamuthu at [8] per Wilcox and Madgwick JJ, Thevendram at [37] and Addo at [9]. 20 Whilst it is open to the RRT, as a tribunal of fact, to reject evidence or material which was material to the issue of whether a fear, held for a Convention reason, was well founded, if it does so it must set out its own findings in respect of the material questions of fact in that regard: see Addo at [9] and Thevendram at [35]. 21 If the RRT's obligation to set out findings on any material questions of fact is, like other obligations under s 430(1), subject to judicial review, the RRT itself cannot have the exclusive power to decide what is or is not material in a given case. If the statement of reasons contains no finding of fact on an issue it is no answer to say that if the RRT did not mention the issue it is therefore not material. Provisions of Division 4 of Part 7 of the Act contain references to "the issues arising in relation to the decision under review": s 423(1)(a) (applicant may give Registrar written arguments relating to such issues); s 425(1) (RRT must invite applicant to give evidence and present arguments relating to such issues). These provisions suggest that in any given case it can be objectively determined what are the issues. It is these issues which the RRT has to consider in its review of the decision under s 414 and on these issues it has to make findings on any material questions of fact, in the sense of "deal(ing) with the substantial issues on which the case turns" (Muralidharan, at 414). 22 It is in that statutory setting that s 430(1) is to operate. Thus, although s 430(1) requires the RRT to set out the reasons for the decision, the findings on any material questions of fact and refer to the evidence or any other material on which the findings were based, it is plain from the statutory functions of the RRT, to which we have referred, that the obligation to do so relates to the findings it is required to make in respect of material questions of fact. In that context we consider that where the RRT prepares a written statement in purported compliance with s 430(1) and that statement reveals it has not discharged those obligations it will have failed to observe the procedures required to be observed under the Act: see s 476(1)(a). Usually written reasons are handed down or published together with the decision. Irrespective of whether they are handed down then or later, if they reveal a failure of the RRT to discharge its functions and duties as set out above there is no reason why the decision should not be reviewable under s 476(1)(a). 23 As to the second question, "in connection with" merely requires a relationship or link between the making of the decision and the procedures. If the Act requires a particular step, such as the preparation of a written statement where a decision is made, then we fail to see how that can be anything other than a procedure "in connection with the making of the decision": see Our Town Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 479-480, Kandiah v Minister [1998] FCA 1145 at 10, Hughes [1998] FCA 1155 at 7. 24 Counsel for the Minister argued that s 476(1)(a) is directed only to the making of the decision and that s 430 speaks of acts which are to occur after the decision is made. The short answer is, as we have just noted, that the expression "in connection with" is neutral as to time. In the literal sense a decision is made when the decision-maker reaches in his or her own mind a conclusion as to the question, Refugee, yes or no? Practicality however requires that more be done. Is the announcement of the decision to be made orally or in writing? And with reasons? And, if so, what kind of reasons? All these are, in ordinary language, matters "in connection with the making of the decision". 25 Moreover, the introductory preposition "where" in s 430(1) is used in the sense of "on the occasion of". The requirements that follow are part of the process or task required of the decision-maker. 26 Nor do we accept that the way his Honour applied s 430(1) involved an avoidance of s 476(3) which provides that taking into account irrelevant considerations or failing to take into account relevant considerations is not to be regarded as an improper exercise of power for the purposes of s 476(1)(d). The present case is concerned with the observance of procedures (s 476(1)(a)) and not with an improper exercise of power. Findings on material questions of fact, which are required to be made as part of the procedures mandated by the Act, either have or have not been made. Once the requisite findings and the evidence or material on which those findings were based are set out, the procedures required by s 430 will have been observed. Whether those findings are rational, based on probative evidence or inconsistent with other material, are matters outside the purview of s 430. 27 Reference was made to a passage from the judgment of Gummow J in Eshetu. Speaking of s 430, his Honour remarked (at [116]) that it imposed "significant requirements on the tribunal with respect to the formulation and presentation of its decision". One consequence was that prohibition or mandamus might lie where the record contained a decision without disclosure of reasons or findings on material questions of fact or references to the evidence or material on which those findings were based. His Honour continued (at [117]): "The second point to be made is that in such a proceeding the subject matter for judicial review nevertheless remains the decision itself. In some degree, the submissions for the prosecutor treated as distinct subject matter for judicial review under s 75(v) of the Constitution the cogency of the reasoning of the tribunal and the adequacy of its findings on material questions of fact. Such an approach is misconceived. Section 430 obliges the tribunal to prepare a written statement dealing with certain matters It thereby furthers the objectives of reasoned decision-making and the strengthening of public confidence in that process. But the section does not provide the foundation for a merits review of the fact-finding processes of the tribunal."

28 However, as the expression "in such a proceeding" in the opening of this passage shows, his Honour was speaking in the context of an application for prohibition and mandamus brought in the original jurisdiction of the High Court under s 75(v) of the Constitution. Section 476(1)(a), however, is a distinct statutory remedy which explicitly confers jurisdiction to review the procedures of the RRT in the sense of examining whether or not the requirements of the Act have been observed. Indeed the Act manifests an overall policy that the way the RRT goes about its task is to be subject to judicial review and oversight but the merits of its decisions are not - even where judicial review remedies might otherwise have been available: s 476(2),(3)(d)(e)(f) and (g).

A material question of fact 29 In Muralidharan 62 FCR 402 at 414, Sackville J said: "… it is not necessary that the reasons deal with all matters raised in the proceedings; it is enough that the findings and reasons deal with the substantial issues on which the case turns." 30 Obviously enough, the nature of a particular asylum-seeker's claim and the way it is presented to the RRT must be examined in order to identify the material questions of fact. But this is not impermissible merits review in a new guise. 31 Other Federal statutes impose obligations to set out findings on material questions of fact and the evidence on which these findings are based: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13(1), Administrative Appeals Tribunal Act (Cth) 1975 s 43(2B). These provisions have been construed so as to require more than a statement of a bare conclusion as to the ultimate statutory criterion - such as, to take the present case as an example, whether the asylum-seeker did or did not have a well founded fear of persecution in her country of nationality by reason of her race or membership of a particular social group. Thus in Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507 Woodward J, speaking of s 13(1) of the AD(JR) Act, said that provision requires a decision-maker to state reasons "… not in vague generalities or the formal language of the legislation." 32 In Brackenreg v Comcare Australia (1995) 56 FCR 335 at 349 (an AAT appeal) Sheppard J referred to a number of Federal Court decisions which had applied Wraith (ARM Constructions Pty Ltd v Commissioner of Taxation (1986) 10 FCR 197 at 203-205 and Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88). Sheppard J pointed out (56 FCR at 349) that although the obligations to state the findings of fact and the evidence upon which those findings were based are related to the obligation to give reasons, they are independent and separate obligations. 33 In Commissioner of Taxation v Osborne (1990) 26 FCR 63 a Full Court was concerned with an appeal from the AAT which had allowed certain deductions incurred in preparing land for planting chestnut trees. It was argued that the AAT had not complied with s 43(2B) of its Act. Pincus J (with whom Spender and French JJ agreed) said (at 65): "… this is a question of degree. A breach of that provision is not necessarily shown by pointing to matters which might, with advantage, have been the subject of fuller and more detailed discussion or to possible issues which have not been mentioned. Where there are (as is usual in the Tribunal) no pleadings or other documents formally defining the questions which the parties desire to have decided, subs (2B) does not necessarily and always require discussion of every point which might have been raised before the Tribunal whether or not it has been argued. For example, in a case of this sort, the parties might treat all the items of expenditure in question as governed by the same considerations, or else make particular submissions about some of them. It appears from the reasons that the representative or the Commissioner at the hearing before the Tribunal took the former course. Reading the reasons as a whole, one cannot predicate of them that they fail to reach the standard required by subs (2B). It is easy to think of matters which might have been but have not been dealt with; one which was particularly relied on before us was the absence of any separate discussion of the question of depreciation. But the content of the reasons suggest that the case was conducted on the basis that all the deductions claimed stood or fell together." 34 That statement was of course very much concerned with the instant case. But it is quite inconsistent with s 43(2B) being satisfied by a conclusionary statement in the terms of the relevant provision of the Income Tax Assessment Act 1936 (Cth). See also Statham v Federal Commissioner of Taxation (1988) 16 ALD 723 at 724 where another Full Court said: "The essential task of any primary tribunal is to find the relevant facts and then to evaluate them in the light of the applicable law." 35 In the present case, we discern no error in the way in which his Honour approached this aspect of the case. When assessing the relative centrality of issues raised - and hence their materiality - a specific instance of alleged maltreatment alleged, and upon which the asylum-seeker's fear of persecution for a Convention reason was said, in part, to be based, would usually constitute a material question of fact. Very often the success or otherwise of a claim will turn on the credibility the RRT attaches to the asylum-seeker's account of such incidents. 36 For the reasons his Honour gives, there was a failure to make a finding on what was plainly a material question of fact.

Relief granted 37 Counsel for the Minister argued further that his Honour erred in treating himself as obliged to set aside the decision. 38 It is clear that the powers of the Court under s 481 are discretionary. However a fair reading of his Honour's reasons make it plain that he took the view, not that he had no discretion, but that the particular contravention was sufficiently serious to warrant an order setting aside the decision. His Honour said: "In light of the observations of the Full Court [in Thevendram [1999] FCA at 23, 36-37] and bearing in mind the apparent centrality of the attack upon the house to the events relied upon as founding the well-founded fear of persecution, it seems to me inevitable that I must conclude that the statement of reasons of the Tribunal is deficient in its failure to address this matter. In saying this, I emphasise I express no view upon whether the Tribunal's ultimate conclusion would in the event be different after it gave proper consideration to that matter. What I am emphasising is that it was obliged to consider it and to make plain to the applicant why it was not accepted as having the effect claimed by the applicant, if such indeed was the case. As the Full Court indicated in the quotation from Thevendram to which I have referred, a breach of section 430 may in a sense be technical. Nonetheless, it is important if public confidence is to be maintained in the tribunal system, no less than in the system of the courts, that when a case is put to a tribunal or for that matter to a court, an unsuccessful party is entitled to an explanation as to why their case was not accepted. In the circumstances then, I consider I am obliged to allow the application." 39 Counsel for the Minister referred to authorities supporting the proposition that at common law: · the rules of natural justice did not require the giving of reasons: Public Service Board of New South Wales v Osmond (1985) 159 CLR 656 at 670 · if there is any requirement to give reasons, the remedy for non-compliance is by mandamus and not the setting aside the decision itself: Repatriation Commission v O'Brien (1985) 155 CLR 422 at 445-446. 40 However the relevant provisions of the Act operate independently of the common law. Section 481 confers a wide range of powers on the Court including, it is true, a power to make mandatory orders (s 481(1)(d)) but also a power to make orders setting aside the decision complained of (s 481(1)(a)) and referring the matter to which the decision relates, with appropriate directions, back to the decision-maker for further consideration (s 481(1)(b)). Breach of the common law rules of natural justice usually renders a decision void ab initio; the decision-maker has not exercised the power conferred, a power only to be exercised in a particular way. A reviewable decision made under the Act, however, stands until the discretionary remedies under s 481 are exercised. The s 481 powers are discretionary and can be applied in a way appropriate to meet the justice of the case. Setting aside a decision and directing a re-hearing before a differently constituted tribunal may be appropriate in some cases but, in others, orders under s 481(1)(a) and (b) setting a decision aside but remitting it with directions for additional findings may be sufficient. The relief that is appropriate in a particular case will depend on all the circumstances of the case, including whether adverse credit findings were made against the applicant: see generally Nguyen v Minister for Immigration (1998) 88 FCR 206 at 215-216. Whilst we would not wish to fetter the discretion in that regard we note the observation of Ormiston J in Body Corporate Strata Plan No. 4166 v Stirling Properties Pty Ltd [1984] VR 903 at 912: "However, where the reasons are partly defective, in the sense that not all issues have been dealt with, then an order compelling delivery of further or better reasons would have an air of unreality about it. Such an order would merely give a tribunal an opportunity to patch up what has been shown to be defective in circumstances where it is more than likely that the tribunal overlooked the issue altogether."

Order 41 The appeal will be dismissed with costs, including reserved costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Merkel and Goldberg.

Counsel for the Applicant: A L Cavanagh and W Mosley

Solicitor for the Applicant: Australian Government Solicitor

Migration Act 1958(Cth)ss 430(1)(c), 476(1)(a), 481(1)

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