Conclusions in the application for judicial review
48 It is, in my opinion, relatively clear that the Tribunal overlooked the fact that a hearing had been conducted on 27 September 1999 at which the first applicant gave evidence. It is also relatively clear that the Tribunal overlooked and did not take into account what had been said by the first applicant at that hearing. First, the Tribunal did not mention the hearing in its reasons for decision even though reference was made to the hearing on 20 January 2000. One would ordinarily expect that if a summary was to be made of the occasions in which an applicant gave evidence it would be comprehensive. Moreover the Tribunal considered, at the time of the hearing on 27 September 1999, that the claim of the first applicant that he had been a refugee in Switzerland and this would have an impact when he sought to re-enter Sri Lanka, to be sufficiently important to warrant further inquiries being made.
49 I accept that at the hearing on 20 January 2000 evidence was given that could have justified a finding by the Tribunal that the first applicant had not been a refugee though the precise evidence of the first applicant included that he was "first refused" refugee status. However even on a generous reading of the Tribunal's reasons, in my opinion, no finding was made on this question. It is, of course, possible that the Tribunal did make inquiries after the hearing on 27 September 1999 and found the contention of the first applicant to be untenable. However, again, one would have expected mention to been made of this conclusion in the reasons even if only to say the contention was untenable and/or the factual foundation for it (that the first applicant had been a refugee) was not accepted. In my opinion, the better view is that the Tribunal forgot that the claim had been made and forgot that evidence had been given supportive of a conclusion that the first applicant had been given refugee status in Switzerland. The inference that the Tribunal overlooked the fact that a hearing had taken place on 27 September 1999 is fortified by the way the Tribunal commenced the hearing on 20 January 2000. The approach of the Tribunal was consistent with it then believing that it was the first occasion the first applicant was giving evidence. I do not think anything really turns on the fact that the Tribunal did not mention in its reasons the three matters referred to in the last sentence of par 44 above.
50 The evidence of the first applicant that he had been a refugee and that this would have certain consequences for him on re-entry did not concern a trivial matter and could have, potentially, a material bearing on his application for a protection visa. The evidence raised for consideration a number of questions. The first might be whether the Swiss authorities had been satisfied the applicants had a well founded fear of persecution were they to return to Sri Lanka. The second might be that if the Swiss authorities were satisfied of this, was it because they believed the Sri Lankan authorities would perceive the applicants as Tamil sympathisers. If so was that because they were Tamil sympathisers. Additionally, a question might arise whether people who actually had gained asylum in another country risked persecution in Sri Lanka by virtue of having gained that status. Ultimately the answers to these questions would be a matter for the Tribunal though the approach of the Tribunal at the conclusion of the hearing on 27 September 1999 lends support to the view that this aspect of the first applicant's evidence, even though emerging at the hearing for the first time, was not insignificant. These questions, in my opinion, point to the evidence as raising an objectively material matter.
51 Counsel for the Minister drew attention to the notations in the passports of both the first applicant and the second applicant and what might be inferred from them about whether both applicants had been granted refugee status in Switzerland and whether that would be revealed (by the notations themselves) to the Sri Lankan authorities. However it is not for this Court to make findings of fact about whether the first applicant had been recognised as a refugee in Switzerland or about the significance of certain entries in passports in proceedings such as these. In my opinion, I should proceed on the basis that the first applicant's evidence, at one stage, was that he had been accepted as a refugee in Switzerland, and that this was apparent from his passport and had certain adverse consequences for him on re-entry to Sri Lanka. This evidence was not considered by the Tribunal and concerned a material issue. For the reasons given by Mansfield J in Singh v Minister for Immigration and Multicultural Affairs (supra), the Tribunal was obliged to consider this evidence. In that case his Honour made the following observations (at par 25-26) with which I respectfully agree:
"It is not disputed by the respondent that the Tribunal was obliged to consider the evidence which it received. Under the Act, once an application for review is brought to the Tribunal, the Secretary is obliged to provide certain information to the Tribunal pursuant to s 418 of the Act. That is information to which the Tribunal must have regard. There are other procedures by which the Tribunal procures or may procure evidence, eg. under ss 423 and 425(1)(a) of the Act. Once it has such evidence, in my view, it is obliged by implication to consider it. In addition, once it receives evidence in the exercise of its powers under ss 425(1)(b), 426 or 427, it is obliged to consider that material. If it failed to do so, it would be abdicating its obligation under the Act.
That is not to say that the Tribunal is obliged to give all or any material before it any particular weight. That is a matter for it. But it is not entitled simply to ignore it. To use a coarse example, it could not say in respect of the material provided by the Secretary under s 418, or of the evidence given by an applicant, that the Tribunal simply elects not to pay any attention to that material without considering whether it should do so."
52 While s 425 was, as considered by his Honour, differently expressed, the material element concerning the applicant giving evidence continues as part of s 425. I am not aware of any Full Court decision given since then, and I certainly was not referred to any, which would suggest his Honour's conclusion was wrong or inapplicable to the Act in its present form. In my view, the failure of the Tribunal to consider the first applicant's evidence about his refugee status in Switzerland and the consequences of having been accorded that status involved a failure to observe a procedure required by the Act to be observed in connection with the making of a decision.
53 The position of the second applicant is slightly different. Her evidence was that she had been accepted as a refugee in Switzerland. The Tribunal took the approach, correctly in my opinion, that the applications of the first applicant and the second applicant should not be considered separately. The claim made by the first applicant (and the perceived significance of it to the Tribunal) coupled with the evidence of the second applicant (that she had been a refugee) raised for consideration, in relation to the second applicant, the same issue that the Tribunal did not consider in relation to the first applicant. I am satisfied that the Tribunal did not consider this issue (including the evidence of the first applicant) in relation to the second applicant either. It is not referred to by the Tribunal in its reasons for decision concerning the second applicant. Moreover if the Tribunal overlooked the fact that there had been a hearing involving the first applicant on 27 September 1999 it is probable, as earlier mentioned, it overlooked entirely the fact that this issue had been raised and its potential relevance to the second applicant.
54 I turn now to the submission by counsel for the applicants that the Tribunal failed to comply with s 430(1). The submissions of the parties were made on 28 June 2000. The judgment of the five member Full Court in the Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 concerning s 430 was given on 30 June 2000. Were it not for the conclusions already expressed which dispose of the application I would invite further submissions from the parties. However the failure of the Tribunal to consider the evidence of the applicants that they had been accepted as refugees in Switzerland, and the evidence of the first applicant that this would be evident from his passport and would draw attention to them on re-entry into Sri Lanka may well involve a failure to make a finding of the type referred to in par 47 of the joint judgment of Black CJ, Sundberg, Katz and Hely JJ. The only reasons why this conclusion is expressed in this qualified way is that, on one view, s 430 operates on an assumption that the Tribunal has, as a matter of fact and as a step in the process of making its decision, had regard to evidence before it, at least in the sense that it has not forgotten (as a demonstrable fact) that an applicant had given evidence on a particular occasion or overlooked entirely what that evidence was. However this is not a matter that requires further exploration given that the Tribunal's decision will be set aside and the applications remitted to the Tribunal in any event.
55 The decisions of the Tribunal should be set aside and the applications of the first applicant and the second applicant should be referred to the Tribunal for further consideration. The Minister should pay the applicants' costs. I so order.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.