reasoning on appeal
20 The first ground of appeal relates to the RRT finding set out in paragraph 13 above, which is that writing letters seeking food was an activity that the government had embraced after the cease-fire as a duty to all those affected by the war, including people who formerly worked and fought for UNITA, or who lived under its control. The submission is that in directing attention to and concentrating on the present food policy, rather than the question of the perception by the government or UNITA Renovada of the appellant as a collaborator with UNITA, the RRT fell into error by not addressing the claim made: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [26], [27] and [95]. Failure to decide the matter which is put to the Court is a constructive failure to exercise jurisdiction.
21 In support of this submission, the appellant refers to the statement in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] that:
"It may be that if the element of the appellant's claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed because an element or integer of the claim put forward by her would not have been dealt with. In such circumstances it may be that, in a jurisdictional sense, a relevant consideration had not been addressed. However, it is unnecessary to decide this given that the Tribunal did address the elements or integers of her claim."
22 It is evident from the submission to the RRT by the solicitor for the appellant that the appellant's case was that he may be targeted by the government as a Bakongo or UNITA supporter, or by UNITA Renovada in renewed anti-government activity, and that because of such imputed political opinion he was in danger of persecution if returned to Angola.
23 This submission was appreciated by the RRT member. However, the RRT's reasons indicate that in making his decision the member was distracted from, and failed to properly address, the question raised as to the continued perception of the appellant by UNITA Renovada as a UNITA collaborator. The evidence indicates that the cease-fire was only adopted by the majority of the UNITA party, and that the splinter group of UNITA, UNITA Renovada, did not accept the cease-fire.
24 As his Honour found, there is "much sense" in the submission advanced by the appellant to the effect that the question for the RRT was whether the appellant would be persecuted for his perceived collaboration with UNITA. In my view, the Magistrate erred because he considered that the claim was not one of the integers of the RRT decision. The emphasis on the Angolan government's current food policy was clearly a matter to which the RRT attached great importance in reaching its conclusion. This is evident from the transcript of the RRT hearing and the RRT reasons, particularly the paragraph cited at [13] above. The reasons in that passage in the context of referring to the "central" elements of the appellant's claims, employs the expressions "very significantly" and "notably" in relation to the April 2002 peace accord, the food policy, and subsequent cooperation between the UNITA majority group and the government which reflect the importance attached to this consideration by the RRT. As a consequence, it failed to determine the claim actually made by the appellant that there was a real chance of persecution for an imputed political opinion by reason of his perceived co-operation with UNITA prior to his departure from Angola.
25 Accordingly, for these reasons, this appeal should be allowed.
26 A second ground that the appellant raised on appeal is that there was no evidence for the finding the RRT made about the status of the UNITA Renovada faction of UNITA.
27 The particular statement by the RRT that the appellant cites relied on is as follows:
"The Tribunal has considered the numerous failed ceasefires in Angola throughout the decades of civil war in that country. It can see no reason to assume that the latest is transitory, due to the extent of the surrender into government protection and the fragmentation of UNITA resulting in an anti-ceasefire faction, 'Renovado' [sic] that is reportedly quite small, isolated and ineffective." (Emphasis added)
28 In particular, it is said that there was no evidence before the RRT to enable it to conclude that the UNITA Renovada faction, which did not accept the cease-fire, was ineffective. I do not accept this submission because it is clear from submissions to the RRT, and from the RRT reasons, that it was aware that there was a UNITA Renovada faction of UNITA which did not accept the cease-fire. In a post-hearing submission to the RRT on 2 October 2002 by the solicitor for the appellant, the "Renovada faction" is referred to with references to internet citations. The content of that material does not appear in the papers. It is not discussed in submissions. It is of significance that, in reaching its conclusion about the fragmentation of UNITA resulting in the splinter faction "Renovada" being established, and in referring to its small, isolated, and ineffective operations, the RRT member uses the expression "reportedly". This indicates to me that the member has probably examined country information or material to that effect contained in reports before it.
29 It is evident from the authorities that it is not necessary for the RRT to set out in its reasons all the details of country information on which it relies unless there is, for example, a specific reference which covers the particular applicant or class of applicants in some detail, and which is likely to be used against that person's case. That is not the present case.
30 In my view, it has not been shown that there was no evidence before the RRT on which it could conclude that UNITA Renovada was ineffective.
31 The third matter raised by the appellant concerns an alleged lack of procedural fairness in making the finding as to the ineffectiveness of UNITA Renovada. The error of law is said to be that the RRT member erred in not drawing to the attention of the appellant, prior to reaching its decision, the RRT's view that UNITA Renovada was a small, isolated and ineffective group. It is suggested that if this had been drawn to the attention of the appellant, then he "may" have been able to provide evidence to the contrary. It is said that the Magistrate erred in finding that if the RRT had denied the appellant procedural fairness by failing to put such information forward, the appellant was required to provide evidence indicating what evidence he would have provided.
32 In my view, this ground fails because there was no duty on the RRT member to disclose the view it ultimately formed in the decision making process as to the ineffectiveness of UNITA Renovada. The hearing was not one in which the RRT member was required to provide a draft of the ultimate reasoning process and decision. The reference to UNITA Renovada was made on behalf of the appellant in submissions by his solicitor, and in my view, it was not necessary for the RRT to inform the appellant of unformed conclusions or the reasoning process by which it ultimately reached its determination that UNITA Renovada was ineffective. In my view, it has not been established that there was any denial of procedural fairness on the ground of non-disclosure.
33 The other basis on which the denial of procedural fairness is advanced is that the RRT failed to put six matters to the appellant. This is framed in the Magistrate's judgment as follows:
"26 The matters which the applicant says are in breach of this sub-section are:
a) The Tribunal's failure to put to the applicant that it disbelieved his evidence that the accusation made by the other prisoner would not constitute evidence in the hands of the Angolan Government which would be used to bring a prosecution against him for collaborating with UNITA;
b) The Tribunal failed to put to the applicant that the stamps and entry permits in his Angolan passport were genuine and therefore indicated he travelled in March and April 2001;
c) The Tribunal failed to put to the applicant that it found troubling that two pages were missing from his Angolan passport, which had contained his visa to Portugal but made a finding to that affect;
d) The Tribunal failed to put to the applicant that he did not apply for protection in Portugal or France or anywhere else in Europe because at that time protection outside Angola was not his priority but made a finding to that effect;
e) The Tribunal failed to put to the applicant that he appeared to have a range of personal abilities, qualities and resources, in particular the financial ability to travel from Angola to France but made a finding to that effect, implying that he was not in need of protection;…
f) The Tribunal failed to put to the applicant that he did not apply for protection in Portugal or France or anywhere else in Europe because at that time protection outside Angola was not his priority, but made a finding to that effect.
g) The Tribunal failed to put to the applicant that there was no country information showing that the Bakongo or African people suffered discrimination in Portugal, but made a finding to that effect." (Emphasis added)
34 In my view there is no substance in this submission looking at each matter raised separately or considering them cumulatively. They are based on the premise that the RRT must put to the appellant its disbelief of his evidence. This is not required. It is solely a matter for the RRT to assess the relevance and importance of the evidence which is brought before it and this exercise is an integral part of the reasoning process and function of the decision-maker. To use the language of his Honour below, some of the RRT's findings may "crystallise" weeks after the hearing and may not be the subject of any concluded view or determination during the hearing. There is no requirement to put to an applicant unformed thoughts or views or call back an applicant after conclusions are formed for further investigation. On consideration of each of the six matters raised, the proper characterisation is that they are matters which bear on the evaluation of specific evidence before the RRT. It was not necessary to put any of these matters to the appellant in order to afford procedural fairness. The matters relate to the reasoning process of the RRT and not to the conduct of the hearing or the conduct of the member. The appellant had a full opportunity to present his case. There was no indication that the member had formed any view during the course of the hearing as to UNITA Renovada which made it incumbent, as a matter of procedural fairness, to raise a conclusion on that matter with the appellant.