"X" v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|1987-07-28|Before: North J

REASONS FOR JUDGMENT 1 This is an application by "X" for a review of the decision of the Refugee Review Tribunal (the Tribunal) made on 17 July 1998. The Tribunal affirmed the decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs (the respondent), to refuse to grant the applicant a protection visa. 2 The applicant is a Kenyan citizen. He arrived in Australia on 17 April 1998. He arrived with his friend "Y" with whom he had stowed away on a ship which sailed from Kenya. Although there is controversy about the ages of the boys it is sufficient for present purposes to record that both boys were at the time of arrival under eighteen years of age and either over or nearly over sixteen years.

BACKGROUND AND CLAIMS 3 The Tribunal set out the claims of the applicant and the evidence relied upon. The following is a summary of the relevant and important aspects taken from the Tribunal's decision. 4 The applicant is a Muslim and lived in Likoni, which is a suburb of Mombassa. In August 1997 there was fighting between Christians and Muslims in the Likoni area. The applicant claimed that there were riots which were caused by the resentment of Muslims towards Christians. Many Christians had come from the highlands and settled on the coast. The Muslims believed that the Christians were taking their jobs. The Muslims lived in the area first and wanted the Christians to go back to the highlands. In August 1997 riots erupted when some Muslims raided a police station and stole weapons. Police from Nairobi came to quell the riots. The police were a mixture of Muslims and Christians. 5 Shortly afterwards, the police raided the house of the applicant's neighbours and then came to his house. When the police arrived he was in the toilet. He heard noises and shouting and became frightened. He then escaped through the back door which was not guarded by police. When he returned after an hour, the house had been ransacked and his mother's face was swollen. 6 The applicant went with his friend to live on the beach after the police raid. The police did not return to his house to search for him. The police came to the beach at the time of the raid on the applicant's home and one week later, but did not visit the beach again. 7 The applicant believed that his father and brothers were taken to prison because they were Muslim and were suspected of being involved in the violence. The applicant did not know why they were suspected of such involvement. The applicant's father was a member of the KANU (Kenyan African National Union) Party. 8 The applicant was frightened of being harmed by Christian gangs. He and his friend were beaten up by one such gang because they had a boat which the gang wanted. The gang threatened to kill them if they did not hand over the boat. 9 The applicant said he feared returning to Kenya because he thought he would be arrested like his father and brothers. The guns stolen from the police station had still not been recovered, and the applicant feared that, having fled Kenya, he would be suspected of having stolen the guns. 10 He also feared that he would be imprisoned on return for having left illegally without documents. 11 In summary the applicant feared that he would be arrested because he is Muslim, because he is a member of a family that had already been the subject of persecution and suspicion, and because he is a member of the Digo tribe. He feared that he would be arrested, jailed and subjected to torture and possibly execution. 12 The applicant rejected the delegate's finding that it would be safe for him to return to Kenya because the tensions that existed during August 1997 were no longer a problem.

THE DECISION OF THE TRIBUNAL 13 Under the heading "Civil Disturbance" the Tribunal dealt with conditions in Likoni in August 1997. It accepted that there was large scale civil unrest in the area. The Tribunal referred to reports of the eruption of violence on 13 August 1997 when a gang of marauders attacked the main police station at Likoni and stole thirty automatic guns and 5,000 rounds of ammunition. Six policemen were killed and the Tribunal referred to a news service report which indicated unconfirmed reports of up to 100,000 persons having been displaced by the violence. Reference was also made to an article in the Economist on 23 August 1997 which reported that the violence had spread by 20 August and the death toll then stood at 39. The Economist also referred to the government view that the violence had been stirred up by the opposition, and the opposition view that the violence was a protest against government opposition to reform. Indeed, some political leaders had been arrested by the police for involvement in the violence. 14 The Tribunal then said: "However, no matter how serious, the hardship and dangers to people caught up in civil disturbances do not, without more, amount to persecution. Nevertheless, if a group is being harassed for a Convention reason, there is no reason why a member of that group might not fall within the Convention definition of a refugee. It is in this context that the question of fact and degree is particularly important." 15 The Tribunal then sought to distinguish between patterns of persecution and patterns of communal violence by reference to the decision of Wilcox J in Murugasu v MIEA (unreported, Federal Court of Australia, 28 July 1987) and quoted a passage at par 8 which included the following: "It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances. … it is not essential to the notion of persecution that the persecution be directed against the applicant as an individual. In a case where a community is being systematically harassed to such a degree that the word persecution is apt, then I see no reason why an individual member of that community may not have a well-founded fear of being persecuted." 16 The Tribunal then referred to an observation of Davies J in Paramananthan v MIMA (1998) 94 FCR 1, which included the following at 3: "However, the Refugees' Convention does not apply to persons merely because they flee from war." 17 The Tribunal then said: "The Federal Court also observed in Mohamed Dahir Mohamed v MIMA (unreported, Federal Court of Australia, Hill J, 11 May 1998) that where a country is engaged in a civil war, acts committed against its nationals as a result of that war do not as such constitute persecution for a Convention reason. The House of Lords concluded in R v Secretary of State for the Home Department, Ex parte Adan ([1998] 2 WLR 702) [that] it is not enough for an asylum-seeker to show that he or she would be at risk in times of civil war. A differential impact, or fear of persecution for Convention reasons over and above the ordinary risks of ethnic warfare, must be shown." 18 Shortly afterwards the Tribunal concluded: "In sum, a fear of persecution for Convention reasons over and above the ordinary risks of civil war must be shown. On the evidence presented by the applicant and independent evidence discovered under the Tribunal's own investigations, the Tribunal is not satisfied that the applicant has suffered a differential impact, or fear of persecution for Convention reasons over and above the ordinary risks of ethnic/religious warfare. Although, on the evidence of the applicant, the authorities were targeting Muslims and the Tribunal finds this to be a legitimate security measure as the Muslims had started the ethnic/religious unrest by raiding the police station and stealing guns which they then used to kill Christians. In the circumstances it was legitimate for the authorities to concentrate on the Muslim population in the investigation of those responsible for the theft of the guns." 19 Although this paragraph seems to express final conclusions about the case before the Tribunal, in the page following this passage further development of the argument is undertaken. The Tribunal made further reference to a passage at 3 in the judgment of Davies J in Paramananthan as follows: "It necessarily follows that random acts of violence which occur during civil war do not constitute persecution for the purposes of the Convention and it also follows that acts done in the protection of the community in the course of the identification or punishment of criminals or terrorists would not ordinarily be seen as persecution of the individuals affected." 20 Then the Tribunal referred to the observations of McHugh J in Applicant A & Another v MIEA (1997) 142 ALR 331 at 354 as follows: "Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens." [Emphasis added by the Tribunal] 21 The Tribunal then found "that although Muslims were targeted in the search for the guns it was a legitimate exercise of the state to arrest those it believed were involved in criminal acts. … [A] band of Muslims were suspected of the police raid. It is therefore logical that mainly Muslims should be targeted." 22 The Tribunal then rejected the argument that the applicant's father was targeted merely because he was a member of the KANU Party. The Tribunal held that the police targeted those who were prominent KANU party members, and the applicant's father was not in that category. In concluding this section of the decision the Tribunal stated: "There is no evidence, either from the applicant nor from other sources such as the US State Report that Muslims were generally being detained and executed as claimed by the applicant. The Tribunal therefore is not satisfied that there is a real chance that the applicant will suffer a differential impact or persecution for a Convention reason over and above the ordinary risks of civil unrest and that his fear of being caught up in sporadic outbreaks of inter ethnic and religious conflicts or in random violence is not a fear of persecution within the meaning of the Convention." 23 Next, in a section headed "Credibility" the Tribunal analysed a number of inconsistencies in the applicant's evidence. The Tribunal did not draw any conclusions from the assessment of the applicant's credibility that are relevant to this review and consequently it is not necessary to elaborate on the Tribunal's approach to this matter. 24 The next section of the Tribunal's decision is headed "Well-Founded Fear". The Tribunal commenced its discussion in the following terms: "Even if the Tribunal was satisfied that the applicant's father and brother were arrested in the circumstances described by the applicant, the Tribunal finds that he does not have a well founded fear of persecution. The Tribunal must be satisfied there is a real chance that he will be persecuted for a Convention reason in the reasonably foreseeable future if he returns to Kenya." 25 After concluding that the applicant did not have the profile of a political activist necessary to attract police attention during the time of the riots, the Tribunal continued as follows: "Further the US State Report makes no mention of the violence continuing past September 1997: 'The efforts of security forces to contain the violence were slow and piecemeal, allowing the violence and the exodus of refugees to continue for many weeks' and a report from REFINFO dated 6 March 1998 (KEN28941.E) indicates that they could find no current reports of violence in Mombassa. The independent evidence therefore suggests that the violence did not last for more than 2-3 months and that at the time when the applicant left Kenya although large numbers of people were still displaced the violence was under control. Further there is no indication that the violence is continuing at the present time. The applicant's advisor referred to a number of reports to indicate that torture is commonplace in custody in Kenya, in support of his contention that the applicant's fear was well founded. The Tribunal accepts that Kenya does not have a good Human Rights record and that there are documented cases of the authorities using torture. It also accepts that conditions in Kenyan gaols are life threatening but finds that the applicant does not fall in the category of person who there is a real chance the authorities will harm. The victims of this treatment by the authorities are 'critics of the ruling party, including opposition parliamentarians, journalists, clergy and human rights activists and the pursuit of criminal suspects' (see US State Report). The applicant has no political profile, he is 17 and uneducated. The police did not visit the applicant's home again nor look for the applicant in the 5 months before he left. The violence has dissipated therefore the Tribunal finds there is not a real chance that he will be persecuted in the reasonably foreseeable future if he returns to Kenya and therefore he does not have a well founded fear of persecution within the terms of the Convention." 26 The Tribunal then considered and rejected the arguments that the applicant would be targeted because he left Kenya or because he is a member of the Digo tribe. Finally, in this section, the Tribunal rejected the argument that the applicant had a well-founded fear of persecution from the Christian gangs. The Tribunal concluded that the Christian gang attacked the applicant for the purpose of seizing his boat. As there was no other purpose for the attack, there was no basis to fear further trouble from the gangs. 27 Under the heading "Illegal Departure" the Tribunal considered and rejected the argument that the applicant would be subject to harsh and oppressive punishment amounting to persecution because of his illegal departure from Kenya. 28 Having found that the applicant did not have a well founded fear of persecution the Tribunal determined that it did not need to further investigate whether any such fear was based on a ground referred to in the Convention.

THE DIFFERENTIAL IMPACT ARGUMENT 29 A ground of review specified in s 476(1)(e) of the Migration Act 1958 (Cth) (the Act) is that the decision in question "involved an error of law, being an error involving an incorrect interpretation of the applicable law…" In reliance on this subsection the applicant gave the following particulars in paragraph 4 of his further amended application filed on 16 November 1999: "(a) The Tribunal failed to correctly construe the criteria for the grant of a protection visa contained in subclass 866 to Schedule 2 to the Regulations by wrongly construing the definition of refugee within Article 1A of the Refugees Convention and thereby.[sic] It did so by (i) requiring an applicant who claims to be a refugee to demonstrate a differential impact of fear of persecution for Convention reasons over and above the ordinary risks of ethnic warfare; (ii) holding that a fear of being caught up in sporadic outbreaks of inter ethnic and religious conflicts could not be a fear of persecution for a Convention reason; (iii) giving a narrow definition to the term 'persecution' by confining it to the infliction of death or torture." 30 In the extract from the decision of the Tribunal set out in par 18 the Tribunal followed the law as stated in Adan v Secretary of State for the Home Department [1998] 2 WLR 702, namely, that in order to show persecution an applicant must show a differential impact or fear of persecution for a Convention reason over and above the ordinary risks of ethnic warfare. It is not in the least surprising that the Tribunal stated the law in these terms. Adan was the most recent authority on the issue and was a decision of the House of Lords. However, in March 1999, that is to say after the Tribunal made its decision, the Full Court of this Court considered the law as stated in Adan. 31 The decision of the Full Court in Minister for Immigration and Multicultural Affairs v Abdi (1999) 162 ALR 105 involved a review of a decision of the Tribunal. In the Tribunal's decision in Abdi, the Tribunal set out the applicable law in the following terms, which are almost identical to the formulation by the Tribunal in the present case: "A person must be able to establish that they would be differentially at risk. They must be able to show 'fear of persecution for convention reasons over and above the ordinary risks of clan warfare' as stated by Lord Lloyd of Berwick, in Adan v Secretary of State for the Home Department [1998] 2 WLR 702 (House of Lords). His Honour in that decision stated: '… where a state of civil war exists, it is not enough for an asylum-seeker to show that he would be at risk if he were returned to his country. He must be able to show… a differential impact. In other words, he must be able to show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare.' That decision was agreed with and cited by his Honour Hill J, in Mohammed Dahir Mohamed v Minister for Immigration and Multicultural Affairs (Fed C, 11 May 1998, unreported). His Honour stated: 'Where a country is engaged in a civil war, acts committed against its nationals as a result of that war do not as such constitute persecution for a Convention reason. Were it otherwise as fortunes fluctuated in such a war, both sides would at some stage be able to claim refugee status.' The applicant has not on the accepted evidence established, nor would independent evidence support, that he or his clan would be at any differential risk of harm." 32 At first instance in Abdi v Minister for Immigration and Multicultural Affairs (1998) FCA 1335, Wilcox J refused to follow Adan and, consequently, held that the Tribunal had erred in the formulation of the law. As a result, one of the grounds of the Minister's appeal was that: "His Honour ought to have followed the decision of the House of Lords in Adan v Secretary of State for the Home Department [1998] 2 WLR 702 and held that an application for refugee status [sic] must show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare." 33 Thus, one question on the appeal was stated at par 5 as "whether the RRT erred in applying a requirement that in a clan war context something over and above the risk of harm inherent in the civil war was required to be shown …". The Full Court referred at par 31 to the speech of Lord Lloyd (with whom Lord Goff, Lord Nolan and Lord Hope agreed) in Adan as follows: "… 'I conclude from these authorities, and from my understanding of what the framers of the Convention had in mind, that where a state of civil war exists, it is not enough for an asylum-seeker to show that he would be at risk if he were returned to his country. He must be able to show … a differential impact. In other words, he must be able to show fear of persecution for Convention reasons over and above the ordinary risks of clan warfare. … the difficulty of establishing the facts does not undermine the principle that those engaged in civil war are not, as such, entitled to the protection of the Convention so long as the civil war continues, even if the civil war is being fought on religious or racial grounds [emphasis added].'" 34 The Full Court then commented at par 32: "The last of the above extracts suggests that, in the view of their Lordships, even if clan or race-based persecution is established, the fact that it arises in the context of a civil war precludes those so targeted from Convention protection without more being shown." 35 The Full Court expressed its view on the question and explained the basis of its difference with the House of Lords in pars 37-40 and 42 as follows: [37] "In approaching the question of persecution in the context of a civil war, it is important to keep firmly in mind the wording of the Convention definition. The definition makes no reference to any different approach being adopted where the persecution exists in the context of civil war. There is no exclusion. The relevant question raised by the language of the definition requires a determination, on the evidence, of whether the harm or detriment is for a Convention reason. In the present case there appears to be a risk of serious harm in Somalia even to bystanders and those on the sidelines who are incidentally caught up in what might be called the 'cross-fire'. This, however, is not sufficient. The evidence must go further and disclose a Convention connection between the persecution of the applicant or the clan to which he belongs and the risk of harm. This in turn calls for a consideration, so far as can be determined on the evidence, as to the purpose and nature of the war, the way it is conducted, and the objectives sought to be achieved by the war. [38] In relation to Adan, we do not accept that a clan or race based war cannot, without some further and differential degree of risk, amount to persecution in the sense that an individual is selected out for persecution treatment because he is a member of a particular clan. If evidence establishes, for example, that the objective of a war is to harm the opposing party for one or more Convention reasons, then 'persecution' will be made out. It is somewhat odd to suggest that claimants are precluded from refugee status solely on the ground, for example, that a conflict based on race or religion which gives rise to the fear, can be described as a 'war'. The task of the decision-maker in these circumstances must be to investigate the reasons underlying the war and the way it is conducted in order to ascertain whether it is based on a Convention ground or has an objective which is covered by the Convention, namely: race, religion or other stated reason. This responsibility cannot be curtailed by a conclusion that there is a state of war. [39] It is difficult, with respect, to see the basis on which a super-added requirement of 'greater risk', 'differential risk' or 'risk over and above that arising from clan warfare' can be derived as a criterion for application of the Convention definition where the war is based on race or religion rather than for example a quest for property, power or resources. For example, once it is established that a person is at risk of being killed or tortured in a war by reason of clan membership, in circumstances where that is one of the objectives of the war, one might properly ask what further degree of danger or exposure needs to be established before the required nexus with a Convention reason is made out? Given the purpose of the Convention and the well-settled principle that a broad, liberal and purposive interpretation must be given to the language, it is difficult to see the reason why a 'second tier' of 'differential' or super-added persecution should be imposed on an applicant for refugee status. [40] If their Lordships in Adan intended that the reference to clan warfare meant warfare engaged in between clans or sub-clans for reasons such as the acquisition of dominance or power, the control of territory, or to obtain access to resources, then the broader statements of their Lordships, would, in our view be in accordance with accepted principles. Indeed, Lord Slynn (at 705) speaks of a type of civil war which is a struggle to gain power. He does not refer to a civil war which is necessarily concerned with racial or religious considerations. However, in contrast to the approach of Lord Slynn it is evident that Lord Lloyd, and the other three members of the House who concurred in his judgment, intended to impose the additional and undefined requirement of some form of fear of harm 'over and above' that 'ordinarily incidental' to a civil war, even where the civil war is fought on racial or religious grounds. In our view, there is no basis for the imposition of this additional requirement of differential treatment either in the language or objectives of the Convention. … [42] In our view the statements made in Adan travel beyond the requirements of the Convention by imposing additional or differential requirements where the civil war in question is based on racial or clan grounds and not grounds such as a struggle for power or dominance, the acquisition of territory, the appropriation of property or the acquisition of access to strategic resources or facilities. In the latter examples, examples where the civil war is not directed to racial persecution, it is necessary, of course, to establish the existence of selective harassment on a Convention ground, whereas in the former example such a ground is already present because the civil war is properly characterised as race based." 36 The Full Court then applied this approach to the decision of the Tribunal in question and said at par 43: "It is evident from the discussion in the RRT decision of the accepted evidence under the headings 'Findings and reasons', that the decision-maker focused on looking for something 'over and above' the existence of a civil war and thereby failed to direct his attention to the question whether the civil war itself was actuated by, or pursued for, a Convention reason. The approach taken was that everyone in a country engaged in civil war is at risk of injury and that it is necessary to find something 'more' to establish refugee status. However, as discussed above, the existence of the war itself may be sufficient if, for example, it can be said to be aimed at wiping out an opposing clan. In such a case all members of the clan may be at risk for a Convention reason and are therefore within the definition." 37 The respondent made two submissions in answer to the applicant's reliance on Abdi. First, the respondent formally submitted that Abdi was wrongly decided. Second, the respondent contended that despite directing itself consistently with Adan, the Tribunal did analyse the cause of the violence in Kenya and determined that the acts of violence were random and were provoked by politicians for political purposes related to the forthcoming elections. The reasoning of the Tribunal does not sustain the respondent's argument. This is hardly surprising because the Tribunal directed itself in accordance with the then most recent high authority. Having done so, one would not expect the Tribunal then to approach the matter in a different way. Upon examination of the reasons it is clear that the Tribunal analysed the facts for the purpose of determining whether the applicant had a justified fear arising from a differential impact on him of the civil disorder. The Tribunal, on this approach, did not, and did not need, to examine in detail whether the cause of the civil unrest arose from ethnic, religious or political causes. The Tribunal accepted without detailed examination that the warfare was "ethnic/religious". The concluding sentence of the Tribunal's reasons in the section concerned with "civil disturbance" demonstrates the point. The Tribunal said: "The Tribunal therefore is not satisfied that there is a real chance that the applicant will suffer a differential impact or persecution for a Convention reason over and above the ordinary risks of civil unrest and that his fear of being caught up in sporadic outbreaks of inter ethnic and religious conflicts or in random violence is not a fear of persecution within the meaning of the Convention." 38 It is likely that the reference to random violence is a reference to politically inspired acts of civil disturbance which did not have a primary religious or ethnic cause. The emphasis in this sentence is on the Tribunal's concern with the differential impact of the violence. Under the principle enunciated in Adan, it was not significant for the Tribunal to differentiate between one cause of the violence and another cause of the violence. However, according to the principle enunciated in Abdi it was necessary for the Tribunal to do so. 39 Thus, the decision of the Tribunal did involve an error of law being an error involving an incorrect interpretation of the applicable law within the meaning of s 476(1)(e) of the Act.

NO CONTINUING VIOLENCE 40 The Tribunal determined that the applicant did not have a well-founded fear of persecution in the foreseeable future because he did not have a political profile sufficient to attract the authorities, and there was no indication that the violence which occurred in August 1997 had lasted more than 2-3 months. 41 If the Tribunal's conclusion on this aspect is sustainable the error of law which was found in the last section of these reasons would arguably have no consequence. This is because even if the applicant held a justified fear in the past, there would be no basis for holding such a fear in the foreseeable future. 42 The applicant attacked these conclusions on a number of legal bases which are set out in the following paragraphs of the further amended application: "3. The Tribunal did not observe the procedures required by the Migration Act 1958 (Cth) ('the Act') to be observed in connection with the making of the decision. (a) The Tribunal failed to set out its reasons for the decision with respect to its conclusion 'there is no indication that the violence is continuing at the present time' in contravention of the procedure prescribed by s430(1)(b) of the Act. (b) Further or alternatively, the Tribunal failed to set out its findings on material questions of fact in connection with the report of the Kenya Joint Research Mission dated 8 April 1998, and references to evidence or other material on which the findings were based, in contravention of the procedures prescribed by s430(1)(c) and (d) of the Act. … 5. The decision involved an error of law involving an incorrect application of the law to the facts. … (f) The Tribunal failed to correctly apply the applicable law by failing to determine whether there was compelling evidence of substantial change in the circumstances in Kenya; (g) The Tribunal erred by failing to consider the probability that ethnic repression would continue or return in the reasonably foreseeable future. 6. There was no evidence to justify the making of the decision within the meaning of s.476(1)(g) and (4)(b) of the Act. Particulars (a) The Tribunal made its decision on the basis of a particular fact described in the following way by the Tribunal: 'there is no indication that the violence is continuing at the present time'; 'the violence has dissipated'. This particular fact did not exist. There were indications that the violence continued and was of a re-occurring nature." 43 In relation to the Tribunal's conclusion that there was no indication in the evidence that the violence was continuing at the time of the hearing, the applicant relied upon the report of a joint research mission into Kenya by Amnesty International, Article 19, and Human Rights Watch (the Amnesty Report). This report is dated 8 April 1998. The applicant particularly drew attention to the fact that the report was dated about 1 month later than the latest information expressly referred to by the Tribunal on this subject. Relevantly the report stated: "NAIROBI. 8 April - A coalition of three major human rights groups today called Kenya 'a powder keg waiting to explode' and warned the government to stop using 'divide and rule' tactics that are likely to plunge the country deeper into violence. … The delegation found the situation particularly serious in the Rift Valley, where killings continue sporadically after the recent mass attacks. More than 100 people have been killed and thousands displaced since the latest violence began in January 1998. 'Kenya is a powder keg waiting to explode, all the signs are there' said Edge Kanyongolo, a spokesperson for the delegation, speaking at a press conference today in Nairobi. 'The downward spiral of violence and ethnic hatred is resulting in increasing human rights violations, and will not end until the government stops using divide and rule tactics'. Survivors of violence in the area describe an ongoing 'war' in which members of previously mixed communities attack each other with arrows and pangas (machetes). In the first wave of incidents, in Laikipia, guns were also used. Many survivors are afraid to return to their homes, citing the lack of security in the area and the apparent unwillingness of the authorities to prevent further attacks. The government has systematically failed to investigate and punish armed aggressors, and to protect frightened, angry and displaced people. The human rights delegation expressed fears that the supporters of the ruling party are instigating political violence, but blaming the incidents on spontaneous outbursts of ethnic hatred." 44 The applicant contended that the failure of the Tribunal to refer to the Amnesty Report was a breach of s 430(1) of the Act which 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." 45 In particular, the applicant contended that the Report raised a material question of fact and the Tribunal failed to make a finding about that material question of fact in breach of s 430(1)(c). Presumably the material question of fact to which the applicant referred was the question of whether there was a danger of violence after 6 March 1998, being the date of the REFINFO report referred to by the Tribunal. 46 The applicant relied on the judgment of Wilcox and Lindgren JJ (with which Merkel J agreed) in Logenthiran v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 639 which stated at 645: "There is another aspect of failure to comply with s 430 of the Act; the failure of the RRT to deal with the information contained in the British Refugee Council report, Protection denied: Sri Lankan Tamils, the Home Office and the forgotten war, discussed, in a different context, in judgments delivered today in two other cases involving young Tamil males from LTTE-controlled areas in the north or east of Sri Lanka: Minister for Immigration and Multicultural Affairs v Sivarasa and Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24. There is no finding about the claims made in this document which appears to be a carefully prepared and comprehensive report dealing directly with the situation in Colombo in 1997 of young Tamil males from LTTE-controlled areas in the north and east, and which Mr Logenthiran, through his solicitor, supplied to the RRT. While it was open to the RRT, as a tribunal of fact, to reject the claims made in the report, it was not open to it to do so without setting out its own findings in respect of the situation claimed by the report and the evidence or other material on which those findings were based. The RRT's non-compliance with s 430 of the Act activates the ground of review provided for in s 476(1)(a)." 47 The applicant also contended that the Tribunal acted in breach of s 476(1)(g) of the Act which 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: … (g) that there was no evidence or other material to justify the making of the decision." 48 Section 476(4)(b) provides: (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: … (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 49 I take it that by this submission the applicant means that the Amnesty Report demonstrates the fact that there is a danger of violence in the future and consequently the finding that there was no such danger was the finding of a fact which did not exist. 50 The respondent relied upon several arguments in answer to the applicant's contentions. First, the respondent submitted that the Amnesty Report was concerned with a different geographical area in Kenya than the area in which the violence concerning the applicant occurred. Mr Tracey QC, who appeared as counsel for the respondent, contended that the Amnesty Report was concerned with violence in and around the Rift Valley, which was several hundreds of kilometres north west of the area near Mombassa where the applicant lived. Other material before the Tribunal, it was submitted, demonstrated that the centre of violent clashes was in the Rift Valley. For instance an issue paper entitled "Kenya Since the Elections (January 1994)" prepared in January 1994 by Richard Carver stated: "The problem of ethnic division has emerged most clearly in the violent clashes which have taken place in western Kenya - notably Rift Valley, Western and Nyanza Provinces - which are examined in more detail below." 51 Further, in an update to the end of July 1995 Richard Carver wrote: "The year 1994 was one of relative calm in the provinces of the Rift Valley and Western Kenya, which had been hit by political violence continuously since late 1991. While the violence exploited long-standing grievances over access to land, a series of reports by parliamentary, church and human rights groups had made clear that conflict was being stimulated or exploited by the government for its own ends. Most of those displaced from their homes - more than a quarter of a million - were Kikuyus and Luhyas presumed to be supporters of opposition political parties. The aggressors in most cases were members of the Kalenjin or Maasai who supported the ruling Kenya African National Union (KANU)." 52 The respondent's contention is not supported by either the text of the Amnesty Report or the full context of the issue papers written by Richard Carver. The reference in the Amnesty Report to the situation in the Rift Valley is not to the effect that the Rift Valley is the only place in Kenya where there is a danger of violence, but that the situation there is "particularly" serious. Elsewhere in the report the opinion concerning the prospect of future violence relates to the country as a whole. This view is consistent with the issue papers prepared by Richard Carver. The respondent relied upon three lines in the issue paper under the heading "Political and Human Rights Development in 1993". In order to get a full picture of Richard Carver's views one must also take into account the material under the heading "Religious Conflict" which describes violence in the streets of Mombassa flowing from discontent among members of the substantial Muslim community. The paper explains that the Muslim population of Kenya amounted to 6,000,000 out of a total population of 24,000,000 people and that the largest concentration is in the coast province where Mombassa is situated. It describes riots arising from the government's refusal to register the Islamic Party of Kenya and a number of other grievances of the Muslim community including the high incidence of unemployment in the area, and the government requirement that some Muslims were required to carry a special additional identity card. The paper then refers to the views of a Nairobi newspaper that "a political time bomb is bound to explode in the coast" and the statement of a local KANU politician warning of a "bloody religious conflict". Other details are given of the grievances of the Muslim community to support the conclusion that the coast province, particularly in and around Mombassa, is one of the troublespots in Kenya. Thus, it is not reasonably open to read the Amnesty Report as restricted to violence in the Rift Valley, but rather it is a commentary on the threat of violence throughout Kenya. 53 Next the respondent contended that s 476(1)(a) does not apply to an alleged breach of s 430. It was submitted that s 430 does not set out a procedure which is required by the Act to be observed in connection with the making of the decision. Rather, s 430 imposes requirements to be followed after a decision is made. After the conclusion of the hearing in the present case, two Full Courts have addressed this very argument. In Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681, which was decided on 2 December 1999, a unanimous decision of Heerey, Merkel and Goldberg JJ rejected this argument. On 17 December 1999 a Full Court comprising Whitlam, Nicholson and Gyles JJ decided Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741. Whitlam and Gyles JJ came to the opposite conclusion on this argument to the Full Court in Yusuf. Nicholson J was able to determine the appeal without deciding this argument, and said at par 93 that it was undesirable to add a further Full Court decision to the decision in Yusuf in which the argument had been canvassed fully. 54 Rather than entering into the question whether the decision of the majority in Xu on this argument was necessary to a disposition of the appeal, and was part of the ratio decidendi or not, I approach the question on the basis that I am faced with conflicting decisions of two Full Courts. Being free to choose between the reasoning of each of the decisions my preference is for the view expressed in Yusuf for the reasons set out in the judgment in that appeal. Consequently, in my view, the failure to observe the requirements of s 430 amounts to a failure to observe a procedure required by the Act within the terms of s 476(1)(a). 55 Other single judges of the Court have approached the conflict between Yusuf and Xu in slightly different ways. In Labed v Minister for Immigration and Multicultural Affairs [2000] FCA 35 Kenny J said at par 20: "As the Full Court in Yusuf noted, there are now numerous Full Court decisions in which that proposition has been accepted: see, e.g., Muralidharan v Minister of Immigration and Ethnic Affairs (1996) 62 FCR 402 ("Muralidharan") at 413 - 416; Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165 at par 22; Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 ("Sellamuthu"), pars 22 and 51; and Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 ("Thevendram") at pars 33-34. Although the reasons for judgment of Whitlam and Gyles JJ in Xu express the contrary view, they stand against the tide of judicial opinion in this Court. I can do none other than follow the Full Court in Yusuf." 56 In Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60 Burchett J said at pars 15 and 16: "However, counsel for the Minister submitted that I should not consider the applicant's argument based on s 430, because I should follow the views expressed in the joint judgment of Whitlam and Gyles JJ (from which, however, on this point R D Nicholson J expressly dissociated himself) in Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741. There is a difficulty about this approach. As R D Nicholson J pointed out (at pars 93), the views in question were 'not necessary for the resolution of the appeal', and were contrary to a decision 'in which the issue arose directly as the principal issue for argument' in Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681. Whitlam and Gyles JJ concluded their judgment (at par 66): 'We have agreed with R D Nicholson J in finding that the omissions put forward here are not material, however that term is defined. For the purposes of this case, we therefore do not need to resolve all of the issues which arise as to the proper construction and application of s430(l)(c), and refrain from doing so. To do so requires consideration of authority on this and cognate provisions well beyond that which was argued before us or appears in the reasons in Yusuf (supra). There is also a growing body of literature to be considered.' Having regard to the last statement, it seems to me the judgment of Whitlam and Gyles JJ should be read as a discussion of some of the relevant principles, in which some conclusions are expressed by way of obiter dicta, and not as the ratio decidendi of the decision. There is a powerful consideration which supports that view, namely, that their Honours expressly refer to Yusuf, in which (at paras 13 and 14) the joint judgment of Heerey, Merkel and Goldberg JJ cites the decision of the High Court in Nguyen v Nguyen (1990) 169 CLR 245, the decision of the full court of this Court in Qantas Airways Ltd v Cornwall (1999) 84 FCR 483 at 489-490 and Byrne v Australian Airlines Limited (1994) 47 FCR 300 at 304, per Black CJ. These authorities, and particularly the comments of the High Court in Australian Securities Commission v Marlborough Goldmines Ltd (1993) 177 CLR 485 at 492 which are cited in Qantas Airways Limited v Cornwall at 489, and the further authorities cited in the same judgment at 490, suggest that if Whitlam and Gyles JJ had intended actually to overrule Yusuf and the array of authorities on which it depended, they would have needed to have found Yusuf, in particular, to be 'plainly wrong', a conclusion they do not approach in their brief mention of it at paragraph 30. Accordingly, it seems to me that until the whole matter is reconsidered by a full court, a single judge must be bound by the direct decision of the full court in Yusuf, and indeed, by the many earlier decisions of full courts to the same effect. A recent statement of the binding character, even for a full court, of an earlier full court decision was made by Lindgren J (in a judgment with which Whitlam J agreed and I expressed general agreement) in Minister for Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95 at 104, where his Honour said the earlier decision should be followed 'unless we thought it plainly wrong'." 57 As each of these approaches arrives at the conclusion that the decision in Yusuf should be followed on this question, it is not useful to add to this area of discourse by examining which is the preferable route to that conclusion. 58 The respondent then argued that there had been no failure to observe the requirements of s 430. 59 Counsel for the respondent contended that there had been a noticeable shift in the approach of the Court to the requirements of s 430. The starting point is part of a passage from Logenthiran referred to earlier in these reasons in which the majority said "while it was open to the RRT as a tribunal of fact, to reject the claims made in the report, it was not open to it to do so without setting out its own findings in respect of the situation claimed by the report and the evidence or other material on which those findings were based. The RRT's non-compliance with s 430 of the Act activates the ground of review provided for in s 476(1)(a)". 60 Counsel for the respondent referred to two recent cases which, he suggested, indicated a narrower approach to the question of what amounts to a non-observance of the requirements of s 430. Both cases held that the Tribunal does not infringe s 430 by failing to deal with evidence inconsistent with its conclusions on an issue. In Ahmed v Minister for Immigration and Multicultural Affairs (1999) 55 ALD 618 the Tribunal rejected a claim for a protection visa by a Somali on the ground that a cease fire in the civil war in Somalia had taken effect and made it unlikely that inter-clan warfare would recur in that country. There was a press report before the Tribunal which indicated that there had been an exchange of gunfire between armed clan groups resulting in some deaths and injuries shortly after the cease fire was announced. The Tribunal gave reasons for its decision but made no reference to this press report. The appellant contended that in failing to refer to the press report the Tribunal had failed to observe the requirements of s 430. Lee J at pars 6-9 said: "[6] The tribunal set out the evidence on which its finding of changed circumstances was based. It did not refer to the reported violence which occurred after announcement of the cease-fire but did refer to material relating to events in Somalia later in time. [7] Given the well-known history of the civil war in Somalia, it might be thought that a conclusion that a truly effective and durable elimination of inter-clan warfare took root in Somalia upon the announcement of the cease-fire was either premature or unduly optimistic. Be that as it may, the tribunal had before it some material on which such a finding could be made and it proceeded to make it. See: J C Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991), at 199-203; The 1995 Annotated Refugee Convention: 1951 Convention Relating to the Status of Refugees, Ed: P Zambelli, (Scarborough, Ontario: Carswell, 1994), at 93-102.) [8] In making that finding the tribunal was not required under s 430 of the Act to set out how it had dealt with an item such as the press report of a clan disturbance occurring in the period after the cease-fire agreement. Obviously it was a matter to be assessed and weighed with other material but if the tribunal did not conclude that it gave cause for some other finding, it was not required by s 430 to make specific reference to it in its written statement prepared under that section. [9] It was a finding of fact open to the Tribunal and though it may not have been an obvious finding on the material before the Tribunal, reaching that finding did not involve a departure from the decision-making procedures of the Act to attract an entitlement to judicial review as provided by the Act." 61 Marshall J took the same approach at par 53. Branson J dissented and reference will be made to her judgment later in these reasons. 62 In Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940 the appellant was a Somali who had been refused a protection visa. He complained that the Tribunal had failed to observe the requirements of s 430 in determining that he was not a member of the clan to which he claimed to belong and that the fighting in Somalia had ceased as the result of a cease fire. In relation to the first issue the Court said at pars 22-24: "The complaint is that the Tribunal did not say why it rejected the unequivocal evidence of the relatives of the Appellant. It was not suggested on behalf of the Appellant that it was not open to the Tribunal to reject that evidence. There are some aspects of that evidence which might engender suspicion. For example, at least two of the statutory declarations were in identical terms. Four of them contained paragraphs which were identical. However, the rejection may have been founded on different reasons. The unequivocal evidence of the relatives was not only corroborative of the Appellant's claim that he was a member of the Biyomal sub-clan. If accepted, that evidence established his membership of that sub-clan, independently of the Appellant's own evidence. It may have been the case, so confident was the Tribunal of its conclusion that the lack of familiarity by the Appellant of the characteristics and nature of the Biyomal sub-clan and its culture meant that his claim to be a member was incorrect, that such a conclusion required the rejection of any evidence in flat contradiction of that finding. The reasons of an administrative decision-maker are meant to inform, and it would have been preferable for the decision-maker to deal directly with the evidence wholly inconsistent with his conclusion on the Appellant's membership of the Biyomal sub-clan, rather than leave that rejection to be a matter of necessary inference, and without the giving of any reasons for that rejection. Nonetheless, in giving the reasons that it did, the Tribunal committed no error of law. Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with section 430(1) of the Act." 63 In relation to the question of continuing violence in Somalia, the Tribunal had evidence which cast doubt on its conclusion that the cease fire would hold. However, it did support the conclusion by reference to evidence which was before it. In those circumstances the Court said at par 31 "it is not necessary, in order to comply with section 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any findings which it made". 64 The view expressed in Addo and by the majority in Ahmed that the Tribunal does not fail to observe the requirements of s 430 where it does not refer to evidence which is inconsistent with its conclusion, is not only contrary to the earlier view expressed in Logenthiran referred to in par 59 of these reasons, but is also contrary to the view expressed in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28, Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182and the minority view of Branson J in Ahmed. 65 In Paramananthan Wilcox J said at 31: "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 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." 66 And later at 36 he said: "The Tribunal was not, of course, bound to accept the information or opinions contained in this report. But the report was a recent, comprehensive, and carefully compiled analysis of the position of Tamils in Sri Lanka, including Colombo. It bore directly upon the matters in relation to which Mr Paramananthan expressed fears and spoke of mistreatment that included the type of mistreatment which, the Tribunal accepted, he had suffered. The matters of fact alleged in the report were clearly material. But the Tribunal member gave no inkling as to her reaction to them. Did she accept the report to be factually correct? If not, why not? If it was factually correct, how could it be an answer to Mr Paramananthan's claim of a real fear of persecution to refer to the (earlier) Amnesty comment that abuses were not so widespread as before? There may be persecution at a particular time notwithstanding there was more widespread persecution at an earlier time. Although it was for the Tribunal to decide what finding to make about the matters stated in the British Council report, it was obliged, by s 430(1)(c) of the Act, to set out its findings and, by s 430(1)(d), to refer to the evidence on which they were based. The Tribunal did not do this. Apart from acknowledging its receipt, the Tribunal made no reference to the report anywhere in its reasons." 67 And to the same effect see the judgment of Merkel J at 47. 68 In Thevendram the Court said at par 35: "In Logenthiran v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Wilcox, Lindgren and Merkel JJ, 21 December 1998) a Full Court concluded that there was a breach of s 430(1)(c) by reason of the failure of the RRT to deal with claims made by the refugee claimant of two instances of arrest, detention, interrogation and torture shortly before his departure from Sri Lanka. The breach of s 430(1)(c) arose by reason of the obvious relevance of those claims to the issue of whether the RRT was satisfied that the claimant's fear of persecution was well founded. As was pointed out in the judgment of Wilcox and Lindgren JJ (at 13), whilst it may have been open to the RRT, as tribunal of fact, to reject material which was directly relevant to the issue of whether a fear was well founded, it was not open to it to do so without setting out its own findings in respect of the matters the subject of the material." 69 The Court concluded at par 36: "In the present case whilst it may have been open to the RRT to reject, or to give little or no weight to, the family harassment claim a failure to make a finding in relation to it is a breach of the requirements of s 430(1)(c)." 70 The view that the Tribunal complies with the requirements of s 430 even where it fails to set out the evidence and findings which are inconsistent with its conclusion was expressed by the majority in Ahmed and by the Court in Addo without any elaboration. However, in the minority judgment in Ahmed Branson J said at pars 31-35: "[31] Had the Reuters article been considered by the tribunal, it seems almost inevitable that it would have been referred to in its reasons for decision. First, the cease fire upon which the tribunal placed reliance was of recent origin. It had been signed only 11 days before the tribunal hearing. A conclusion by a decision-maker as to the likely effectiveness of the cease fire, having regard to the preceding 7 years of civil war in Somalia, called for some caution. Secondly, the material before the tribunal upon which it based its conclusion that peace had existed in Somalia since 31 January 1998 was, at best, tentative in character. The later Agence France Presse report spoke not of peace having been achieved but of developments which 'were said to again raise hopes for a return to peace'. Other reports noted by the tribunal referred to obstacles in the way of the implementation of the Cairo Agreement and the holding of the National Reconciliation Conference. [32] Furthermore, s 430 of the Act places the tribunal under an obligation to set out in a written statement not only its decision, but also the reasons for its decision, its findings on any material questions of fact and references to the evidence or other material on which its findings of fact were based. It is, in my view, too technical a view of the obligation imposed by s 430 of the Act to construe it as obliging a tribunal to refer to material before it which supports a finding on a material question of fact but as never requiring reference to be made to material which suggests against a finding made. Section 430, in my view, is to be understood as requiring an exposure of the reasoning process undertaken by the tribunal and a justification of its findings of fact (cf Fleming v R (1998) 158 ALR 379 at 388). Where weight is not placed by the tribunal on apparently probative evidence or other material, a reference to 'the evidence or other material on which the findings of fact were based' will involve, in my view, an explanation for the apparently probative material not being accorded weight. This will not require the making of exhaustive reference to the evidence and other material before the tribunal. However, it will require that the tribunal's written statement assist the applicant in understanding the basis upon which the tribunal chose to make a particular finding on a material question of fact where a different finding was reasonably open on the whole of the evidence and other material before the tribunal (see Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 160 ALR 24 per Wilcox J at 27 and 31-32; see also Merkel J at 47). [33] Justification in the circumstances of this case of the tribunal's finding of fact that the cease fire in Somalia would hold and 'that a substantial and durable change in conditions has occurred in Somalia since 31 January 1998 which removes any reasonably foreseeable risk to the applicant' required reference, as the tribunal recognised, to any material tending to suggest that the cease fire was not effective. The tribunal's failure to refer to the Reuters article in its reasons for decision can, in my view, only be explained on the basis that it did not have regard to the article. [34] To so conclude is not, in my view, to engage in merits review of the fact-finding process of the tribunal by reference to the written statement of its reasons for decision (see Eshetu (1999) per Gummow J at ALR 603). It is to allow the statutory requirement of s 430 of the Act to inform this court's understanding of the procedure adopted by the tribunal. [35] If I am wrong in concluding that the tribunal failed to have reference to the Reuters article for the purpose of reaching its decision, I would conclude that the tribunal failed to comply with its obligation under s 430 of the Act to refer to the evidence or other material upon which its finding of fact that there had been a change of conditions in Somalia such as to remove any reasonably foreseeable risk to the applicant, was based." 71 This series of decisions indicates a divergence of view on the question whether the failure of the Tribunal to refer to material which is inconsistent with its decision amounts to a failure to observe the requirements of s 430. The views expressed in favour of this approach in Ahmed and Addo were expressed without elaboration or reasoning. On the other hand, the contrary view expressed in Paramananthan, Thevendram, Logenthiran and by Branson J in Ahmed provide a reasoned justification for the view that the failure of the Tribunal to refer to material which is inconsistent with its decision amounts to a failure to observe the requirement of s 430. 72 That was the state of the authorities when the decision was reserved in this case. Since then the two Full Court decisions of this Court discussed above, namely Yusuf and Xu, also highlight the divergence of views on this question and provide reasoned arguments for each view. 73 In Yusuf the trial judge set aside a decision of the Tribunal which refused a Somali woman a protection visa. He held that the Tribunal had failed to deal with an alleged attack on her house being one of three incidents which were central to the events relied upon by her as giving rise to her fear of persecution. He concluded: "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." 74 The Full Court upheld the trial judge's decision saying at par 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]." 75 As to what constitutes a material question of fact the Court said at pars 29 and 30: "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.' 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. 76 And at par 35 the Court said: '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.' 77 In Xu the appellant, a citizen of the People's Republic of China, complained that the Tribunal had failed to set out its finding on a material question of fact, namely, whether or not documents provided by the appellant corroborating his account of arrest and detention after 1990 were forgeries. His case before the Tribunal was that, as a result of his activities as a prominent activist in May and June 1989, he was arrested, jailed and tortured for a period of a year. He claimed that after his release on bail he was required to report regularly to the Public Security Bureau and was detained and interrogated a number of times over the following years. He submitted documents to the Tribunal which he claimed were copied from the file kept by the Public Security Bureau and which corroborated his claims of arrest in 1989, his claim that he was bailed or paroled in 1990, his claim that he was detained in 1991 and his further claim that he was detained in 1992. 78 The Full Court accepted the appellant's contention that the Tribunal made no findings in respect of 1991 and 1992. R D Nicholson J said at par 81 that "findings by the Tribunal in relation to the matters relied on are not material questions of fact within the paragraph [s430(1)(c)]". 79 In order to explain what constituted a material fact his Honour relied on the following passage from the judgment of the Full Court (Whitlam, R D Nicholson and Gyles JJ) in Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740: "The precise wording of s 430(1) needs to be considered. Leaving aside for the moment the effect of decisions of this Court concerning the sub-section, it seems to us that a plain reading of s 430(1)(c) and (d) supports the following understanding of their effect: (1) paragraphs (c) and (d) are to be distinguished because the latter refers to 'evidence or any other material' whereas the former refers to 'findings on any material questions of fact.' The implication from this is that evidence is to be distinguished from material questions of fact. This accords with the long recognized distinction drawn between facts in issue or principal facts and facts relevant to the issue: Phipson on Evidence 14th ed 1990 pars 7-01 and 7-02. The result is that the statute reinforces the distinction between material questions of fact and pieces of evidence. (2) the sub-section itself does not provide any test of materiality. 'Material' is defined in Butterworths' Australian Legal Dictionary as 'important, essential or relevant.' The word material relates to the reasons for the decision. What is material will be determined by reference to the requirements of the statute: cf Abebe v Commonwealth (1999) 162 ALR 1 at 195 and Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. Because of the distinction drawn between pars (c) and (d) and because of the exclusion from the jurisdiction of the Court of the grounds of judicial review based on relevance (see s 476(1)(d) and (3)(d) and (e) of the Act), the test of materiality will not be determined by relevance alone. It may be that notions of 'essentiality' or 'significance' could inform delineation of the concept of materiality but it is not necessary here to develop that issue further. There will always, however, be the need for judgment by the Tribunal and courts of review as to whether questions of fact do or do not come within the circle of materiality. Important to that will be consideration of the nature of the claim before the Tribunal. (3) where the findings of fact of the Tribunal are positive findings of fact, par (d) will require reference in the written statement to the evidence or any other material on which those findings are based. (4) where the findings of material fact of the Tribunal are negative findings of fact, that is findings rejecting the existence of material questions of fact, par (d) may require the written statement to refer to the evidence or other material on which the rejection of the fact is based, depending upon the basis for rejection. In our view, there is nothing in a plain reading of the section which requires the Tribunal to set out the evidence which is contrary to the findings of the Tribunal on any material questions of fact where such evidence is not evidence upon which a positive or negative finding is based." 80 The majority (Whitlam and Gyles JJ) agreed with R D Nicholson J that the facts about which the appellant complained were not material facts within the meaning of s 430(1)(c). They said at par 31 that the contrast between the provisions of s 430(1)(c) and s 430(1)(d) was between the ultimate fact in issue and the fact adduced to prove or disprove that ultimate fact. Their Honours continued at par 32: "Applying that analysis to the present section would suggest that (c) refers to those findings of fact which are necessary to the decision, and, in that sense, ultimate facts, and (d) refers to that which proves the necessary ultimate fact. That analysis is confirmed, and, in our opinion, required when it is recognised that s 430 relates to administrative decisions made on the merits pursuant to a statute. Materiality in s 430 must be materiality to the decision to which it applies. In other words, materiality as it is understood in administrative law. A statute may expressly or impliedly contain conditions which must either exist in fact or as to which the decision-maker must be satisfied before making the decision. A statutory provision may expressly or impliedly oblige the decision-maker to take certain facts into account when making the decision, or prohibit the decision-maker from taking certain facts into account when making the decision. These facts may either have to objectively exist or may depend upon the satisfaction of the decision-maker. Where a statute does not expressly or impliedly constrain the decision-maker, the decision-maker is the sole judge of materiality and there can be no judicial review of that question, no matter how wrong or illogical the decision-maker is seen to be by a judge. In those circumstances, a fact is material only if the decision-maker considers it so." 81 And at pars 35 and 36 they said: "On this view, what should happen is those facts which the Act requires to be decided, and perhaps those facts which the Tribunal decides are material in the area committed to its discretion, should be identified in the written statement and found, one way or the other, with reasons provided under (b) referring to evidence and other material under (d). As we have said, if there is a failure in the written statement to deal with what might be described as a mandatory fact, then a deficiency may be found. No such deficiency can be found on any other basis. To do so is to intrude into the decision, rather than supervise compliance with s 430." 82 They criticised the contrary view in par 55 as follows: "Our view as to the wrong turning which has occurred in relation to the construction of s 430 is confirmed by considering the decision-making process of the Court in Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24 and Logenthiran v Minister for Immigration & Multicultural Affairs (Wilcox, Lindgren and Merkel JJ, 21 December 1998, unreported), each delivered on the same day by the same bench, and the myriad of cases, including Thevendram (supra), which have followed this lead. It has involved very close attention to the whole course of the inquisitorial administrative proceedings of the Tribunal, including not only that put forward by the applicant, but a mass of information available to the Tribunal from other sources, in order to discern whether there was some fact or material which the Court considers should have been expressly dealt with by the Tribunal in its written statement but was not. This has involved the Court in assessing for itself, for example, the materiality of reports by various interest groups as to the conditions in overseas countries, and setting aside decisions because such a report was not expressly dealt with in formal findings, sometimes even if referred to in the body of the reasons. It has led to decisions being set aside because every factual claim of ill-treatment of the applicant or related persons has not been expressly ruled upon notwithstanding clear findings that the Tribunal rejects the whole basis of the applicant's claim because it does not believe the applicant. With respect to those who have taken a different view, we cannot accept that this is not to 'trespass into the forbidden field of review on the merits' (Minister for Immigration & Ethnic Affairs v Guo (supra) at 580) contrary to the clear legislative intent (Eshetu (supra) at 577)." 83 Again, on the question whether the failure of the Tribunal to refer to material which is inconsistent with its decision amounts to failure to observe the requirements of s 430 I regard Yusuf and Xu as expressing opposite views and feel free to choose between them. 84 And again, I prefer the view expressed in Yusuf, for the reasons stated in that decision, that in order to comply with s 430 the Tribunal is bound to refer to material which is inconsistent with its decision. Branson J put it particularly aptly in her dissenting judgment in Ahmed at par 32 as follows: "Where weight is not placed by the Tribunal on apparently probative evidence or other material, a reference to 'the evidence or other material on which the findings of fact were based' will involve, in my view, an explanation for the apparently probative material not being accorded weight." 85 In the present case the Tribunal found that there was no indication of continuing violence in the Mombassa area, and that the violence complained about dissipated in two to three months. This finding was the basis of the conclusion that the applicant could return to Kenya without fear of persecution in the reasonably foreseeable future. It was a finding on a material question of fact. The evidence which supported the conclusion, namely the United States Department of State Report and the report from REFINFO, was referred to. But the Tribunal did not refer to the later evidence contained in the Amnesty Report which contradicted the conclusion of the Tribunal . This failure was, in my view, a failure to fulfil the obligation cast upon the Tribunal by s 430(1)(d). 86 In view of this conclusion it is not necessary to consider whether the "no evidence" ground (s 476(1)(g)) has been made out in respect of the finding by the Tribunal that there was no continuing violence in Kenya.

The Tribunal's approach to persecution 87 The Tribunal held that the circumstances of the present case did not amount to persecution because the detention was a legitimate exercise of the power of the State to arrest those believed to have been involved in criminal acts. 88 The Tribunal relied upon the observations of McHugh J in Applicant A & Anor v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258 as follows: "Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race." 89 The applicant pointed out that after the passage relied upon by the Tribunal, McHugh J said at 259: "However, where a racial, religious or national group or the holder of a particular political opinion is the subject of sanctions that do not apply generally in the State, it is more likely than not that the application of the sanction is discriminatory and persecutory. It is therefore inherently suspect and requires close scrutiny. In cases coming within the categories of race, religion and nationality, decision-makers should ordinarily have little difficulty in determining whether a sanction constitutes persecution of persons in the relevant category. Only in exceptional cases is it likely that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving a legitimate government object and not amount to persecution." [footnote omitted] 90 Counsel for the applicant referred to evidence before the Tribunal in the United States Department of State Report for 1997 that: "There were also credible reports that security forces beat and brutalized citizens in the Likoni and Kwale areas of the coast in connection with searches for the raiders who perpetrated ethnic attacks in August and September. Reportedly, several of these victims were beaten to death (see section 1.c.). … There have, however, been no effective police investigations into many cases of extrajudicial killing." 91 The report also stated that "police tortured several people arrested in connection with the outbreak of ethnic violence on the coast during the summer". 92 Counsel for the applicant explained the alleged error of law committed by the Tribunal as follows: "MR NIALL: Properly understood, your Honour, page 289 appears to be a finding that it was a legitimate exercise of the state to arrest people it believed were involved in criminal acts. Detention is in that sense not convention-related persecution. It did not turn its mind to the question required of it - is to go the next step. It's not simply enough to say detention is always non-persecution because the law requires you to examine whether the conduct bears another character. The tribunal does not, at any stage, grapple with the task of whether that detention bore another character. In so doing it was wrong in law because it failed to properly interpret the test as requiring that exercise. HIS HONOUR: That is to say that it didn't ask the question whether the detention and execution was because of religious belief or imputed political belief. MR NIALL: Yes, your Honour, but that passage - there is no evidence either from the applicant nor from other sources such as the US State report that Muslims were generally being detained and executed as claimed by the applicant …the tribunal is there directing its mind to a different question. The tribunal is there saying, 'Is there any evidence that the police are roaming the streets and randomly picking up Muslims, detaining them and executing them?' That's a different question to the question of whether detention in certain circumstances could constitute persecution, because detention - where it results in death or torture or with the risk of death or torture - could never constitute an appropriate response. The tribunal there [has] … dealt with and disposed of the question of arrest. It then moves to a second issue about independently of arrest, or apart from those Muslims who are being arrested as a legitimate exercise, are any other Muslims generally being detained and executed? It just hasn't turned its mind to the question of what happens to those people who were arrested because the arrest is legitimate in the tribunal's conclusion." 93 I agree with the submission. It was not enough for the Tribunal to find that the arrest of some Muslims was not for a Convention reason without examining whether death or torture in detention which was not properly investigated constituted persecution. Such an approach in the circumstances, revealed by the evidence before the Tribunal, suggests a failure of the Tribunal to properly understand the legal concept of persecution. In this respect the Tribunal decision involved an error of law being an error involving an incorrect interpretation of the applicable law within the meaning of s 476(1)(e) of the Act. 94 Further, in the light of the evidence of torture and murder by the police referred to above, the Tribunal failed to comply with its obligations under s 430(1)(d) of the Act in that it failed to set out the evidence which was inconsistent with the finding that the applicant did not have a real chance of suffering persecution.

Sur plACE Claim 95 The applicant further contended that the Tribunal erred in not finding that he had established a sur place claim. The Minister responded that no such claim was put in plain, or indeed, in any, terms to the Tribunal. As the application must be reconsidered by the Tribunal it is not necessary to take this matter any further.

Conclusion 96 In the result, the decision of the Tribunal must be set aside, the application referred for further consideration and the Minister must pay the applicant's costs of and incidental to the application. 97 I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate: Dated: 29 May 2000 Counsel for the Applicant: Mr R M Niall Mr P Gray Solicitor for the Applicant: Erskine Rodan & Associates Counsel for the Respondent: Mr R R Tracey QC Mr N Green Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 15 - 16 November 1999 Date of Judgment: 29 May 2000

Migration Act 1958(Cth)s 430, 476

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