Colombage, Ex parte - Re Min for Immigration

[2000] HCATrans 202

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B24 of 2000

In the matter of –

An application for Writs of Prohibition, Mandamus, Certiorari and Injunction against the MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

G. BREWER

Second Respondent

Ex parte –

MICHAEL MARASALYN GRIFFITH FERNANDO WARNAKULASOORIYA COLOMBAGE

Prosecutor

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 17 MAY 2000, AT 10.15 AM

Copyright in the High Court of Australia

MR D.C. RANGIAH:   Your Honour, I appear for the prosecutor in this matter.  (instructed by Nicol Robinson Halletts)

MR P.G. BICKFORD:   Your Honour, I appear for the respondents.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Rangiah.

MR RANGIAH:   Your Honour, I read the affidavit of Fraser Syme filed on 30 March 2000.  I seek leave to read and file an affidavit of the prosecutor, sworn yesterday.

HIS HONOUR:   Is there any objection to that, Mr Bickford?

MR BICKFORD:   No, your Honour.

HIS HONOUR:   Yes, you have leave.

MR RANGIAH:   And I also seek leave to file a further draft order nisi.

HIS HONOUR:   Yes.  No objection to that, Mr Bickford?

MR BICKFORD:   No, your Honour.

HIS HONOUR:   Thank you.  Well, you have that leave.  I will just read the affidavit.  Yes, I have read that affidavit.

MR RANGIAH:   Your Honour, the draft order nisi which I have just filed really sets out the grounds upon which the prosecutor now relies and it expands the grounds in the original which was filed earlier.

HIS HONOUR:   Mr Rangiah, can I go to your first ground.  “Failing to set out findings on the questions whether the prosecutor was, on or about 16 November 1996, detained and threatened by security forces.”  Paragraph 5.4.1.4 of the Tribunal’s decision deals with that matter, is that right?

MR RANGIAH:   Your Honour may be looking at the original decision by the delegate of the Minister.

HIS HONOUR:   Yes, Delegate of the Minister, that is right.  It is not the Tribunal, you are quite right.

MR RANGIAH:   The Tribunal’s decision is set out at exhibit D of Mr Syme’s affidavit.

HIS HONOUR:   The second respondent, is that the Tribunal or is that the Minister’s Delegate?

MR RANGIAH:   That is the Tribunal, your Honour.  The heading should, according to the Rules, identify the position but it does not.

HIS HONOUR:   So, the document I have just drawn your attention to is the Delegate’s decision, is it?

MR RANGIAH:   Yes.

HIS HONOUR:   And the Tribunal’s decision – I see, yes.  Would you just give me a moment to look at this, please, because I read the Delegate’s decision but I have not read the Tribunal’s decision.

MR RANGIAH:   Your Honour, it might save you a bit of time if I indicate that the first five pages are really taken up with the recitations of case law and the crux of the decision starts at page 6.

HIS HONOUR:   Right, thank you.  Mr Rangiah, looking at page 7, “DISCUSSION OF EVIDENCE AND FINDINGS”:

In relation to the applicant’s claims concerning the intervention of the authorities in November 1996 the Tribunal notes –

and so on.  Assuming an obligation to make a finding, which may or may not be a valid assumption, is that not a finding?

MR RANGIAH:   Well, your Honour, in my submission, there is no finding.  The only reference to the claim made by the prosecutor is in that first sentence and all that indicates is that the Tribunal notes that “the applicant said that he was questioned for a short time.”

HIS HONOUR:   But then if you read that in combination with the first paragraph on page 8:

the Tribunal finds that the applicant was not in hiding from the authorities –

and then, more particularly –

that he was not of any interest to them for any Convention reason.

Did not the High Court, in any event, say something about necessity to make relevant findings in Eshetu or Abebe?

MR RANGIAH:   Yes, and, your Honour, in your Honour’s decision in Eshetu you referred in a slightly different context to – not specifically in relation to section 430 about the necessity to make findings on ultimate facts but, in my submission, Eshetu does not specifically deal with section 430.  And there is a long line of Federal Court decisions - - -

HIS HONOUR:   Yes, I know about those decisions.

MR RANGIAH:   Your Honour may have heard the special leave applications in Your Honour may have heard the special leave applications in Yusuf and Israelian.  Your Honour, can I take you back briefly to the point - - -

HIS HONOUR:   Let me just look at section 430 again.  Yes, all right, go ahead.

MR RANGIAH:   Your Honour referred to the first paragraph of page 8.  It simply does not indicate any finding in particular that the prosecutor was detained by the authorities and it does not indicate any finding that he was threatened by the authorities.  There may be an implication that there was a finding that he did not escape and was in hiding from them but it is certainly not explicit.

HIS HONOUR:   Yes.

MR RANGIAH:   Your Honour, can I take you then back to page 7 and to the first paragraph under the heading “DISCUSSION OF EVIDENCE AND FINDINGS” to make good my contention that it really does not deal with my client’s claims.  The first sentence does not indicate that any finding was made of credit or anything else.  The paragraph goes on to talk about the lack of connection with the LTTE, that he had a legitimate reasons for his association with Tamils; that:

It is mere speculation that his Tamil employees fled due to their involvement with the LTTE –

and –

If his employees did flee…..it is to be expected that the applicant would be questioned about matters…..as a normal part of an investigation –

The reference to questioning appears to be to my client’s claim which is set out in the decision of the Minister’s Delegate, to which your Honour has referred, that after the employees fled, he was questioned by the security forces but the next day he was detained or kidnapped and taken to another place, blindfolded, and there threatened, and he later escaped.  There has been no decision made about whether the episode which was alleged to have occurred when he was detained and threatened, whether that actually occurred or whether he was to be believed about that.

Your Honour, can I hand up an outline of submissions and a bundle of cases.  The outline, I think, largely sets out what it was that I was going to say.

HIS HONOUR:   All right, certainly.  Thank you.  Mr Rangiah, does a failure to observe the procedures prescribed by the Act entitle you to prerogative relief though?  Why would it not be an error within jurisdiction?

MR RANGIAH:   Well, your Honour, that was the ruling in the case of Durairajasingham but his Honour Justice McHugh in that case also said that in order to obtain an injunction it is not necessary to have a jurisdictional error and part of the relief which is sought here is a mandatory injunction.

HIS HONOUR:   All right, thank you. 

MR RANGIAH:   Your Honour, I notice that I have omitted to give the citation to the decision of Durairajasingham.

HIS HONOUR:   I have it at any rate.  That is Justice McHugh’s?

MR RANGIAH:   Yes.

HIS HONOUR:   Thank you.  Yes, I have read the submissions and the references to them, Mr Rangiah.

MR RANGIAH:   Your Honour, can I just add some further submissions in relation to the issue of the materiality of the episode, if I can call it that, in which my client says that he was detained et cetera?

HIS HONOUR:   That is 16 and 17 November?

MR RANGIAH:   Yes.  Your Honour, I have referred in my outline to some decisions in which episodes similar to this, shall we say, have been held by the Full Court of the Federal Court to be material facts which are required to be set out in the reasons.  There was a decision of the Full Court in a matter of Xu to which I referred on page 9.

HIS HONOUR:   Has that case been referred to.  It is fairly recent, is it not?  What paragraphs, Mr Rangiah?

MR RANGIAH:   On page 9, your Honour.  Paragraph 9, I am sorry, of my outline.

HIS HONOUR:   No, what part of it did you want to refer to?

MR RANGIAH:   I am sorry.  I was not particularly going to take your Honour to any real part of it, I was just going to point out that the effect of that decision is that what is material depends upon the test in Peko‑Wallsend according to the majority in that decision.

HIS HONOUR:   Where do I find the reference to that?  Justices Whitlam and Giles, is it?

MR RANGIAH:   Yes.  It is at paragraph 37.  There is a quotation from the decisions of Justices Gummow and Hayne in Abebe and then after that, references to Peko-Wallsend.  Then the first sentence in paragraph 38 says that, “Even ignoring the effect of section 476(2) and 476(3), it would be anomalous to construe material in section 430(1)(c) as something less than relevant in the sense explained by Mason J in Peko-Wallsend above”.

Can I make two points about that, your Honour.  The first is that it is not a view which has been adopted in any other decision of the Full Court.  In fact, this was a statement made in obiter, in my submission.  Secondly, even if that test, the Peko-Wallsend test is applied here, then, in my submission, this is still a relevant fact when one looks at the statutory context.

HIS HONOUR:   This is the reference in paragraph 38 to Peko-Wallsend.  Is the principle from the Peko-Wallsend extracted anywhere in the judgments so I can put my hands on it quickly?

MR RANGIAH:   It seems that in order for something to be relevant there must be something explicitly or implicitly in the legislation which makes it relevant and my submission is that the event, which I have referred to, must be relevant in that Peko-Wallsend sense because section 36 of the Act talks about the criterion for a protection visa as being that the applicant:

is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention –

so it is necessary then – that is section 36, your Honour.

HIS HONOUR:   Yes, I am familiar with that.

MR RANGIAH:   So, it is necessary then, in my submission, to go to the Refugees Convention and see what that requires.

HIS HONOUR:   It is a well-founded fear of persecution, is it not?

MR RANGIAH:   Yes, and in order to establish a well-founded fear of persecution, the central matter to that is whether the events described by the applicant for the visa occurred.  In this case, there really was only one event relied upon by my client and that was the incident on 16 and 17 November 1998.  His claim really stood or fell, according to whether that incident occurred.

HIS HONOUR:   Let us assume that the incident did occur, that there was even a finding – say he had had a finding in explicit terms that it did occur.  His subsequent departure from and re-entry to Sri Lanka might have negatived, in any event, the impact or the affect of that.  In other words, perhaps he could have succeeded on that but nonetheless failed, is that possible?

MR RANGIAH:   It might have, your Honour.  That is possible but, in my submission, this Court does not have the benefit of knowing what would have happened had the decision maker explicitly made a finding on whether the incident in question did occur or not.

HIS HONOUR:   I do not know about that.  You see the last sentence on page 7:

The fact that the applicant voluntarily returned to Sri Lanka is incompatible with his claim that he was at the time in fear of his life and in hiding from the authorities.

That seems to be a finding, I would have thought, clearly adverse to his version of the events of November 1996.

MR RANGIAH:   Your Honour, it may be but it is certainly not explicitly stated.

HIS HONOUR:   We do not construe the decisions like statutes, as you would appreciate.

MR RANGIAH:   Yes.  But, nevertheless, your Honour, section 430 does impose a specific statutory requirement and - - -

HIS HONOUR:   What I am suggesting is that last sentence on page 7 might meet that requirement.

MR RANGIAH:   Your Honour, not, in my submission, in view of what the authorities have said.  For instance, in Durairajasingham, Justice McHugh said that “The obligation to set out the reasons for the decision” – that is referring to a different paragraph – “will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings.”

HIS HONOUR:   But that is what the last sentence on page 7 does.  It says that there are other facts that are incompatible with his claim with respect to the particular event that he relies upon.

MR RANGIAH:   Your Honour, that talks about his claim that he was in fear of his life and hiding from the authorities but not whether the event actually occurred.

HIS HONOUR:   It assumes that that is the possibility of the event and rejects it, I think.  I mean, tentatively, it seems to me that that is how it has to be read.  You deal with that, by all means.  I am only saying that to give you an opportunity to deal with it.

MR RANGIAH:   Yes.  I understand your Honour.

HIS HONOUR:   But I would, myself, tentatively, regard that as a material finding of fact either that – or perhaps both – that the event did not occur, or not in the way in which he described it or, if it did, nonetheless, subsequent events show that he put the wrong complexion on it.

MR RANGIAH:   Your Honour, in terms of section 430 itself, it is my submission that there should be an explicit setting out of the finding of fact and - - -

HIS HONOUR:   Well, I think that arguably is an explicit finding of fact.

MR RANGIAH:   Your Honour, my submission is that it is not explicit because it simply does not deal with – the reasons do not deal with whether or not the event did occur.

HIS HONOUR:   All right.

MR RANGIAH:   Can I refer you in that context also to paragraph 6 and 7 of my outline where I referred to decisions in Yusuf and Logenthiran.  Your Honour, I do not think I can advance that submission any further.

The next matter is in relation to the second-last paragraph of page 8 of the reasons.  The Tribunal there was referring to evidence given by my client that there were inquiries made about him since he had left Sri Lanka.  In the first sentence the Tribunal said that it found:

in the circumstances of his case that such enquiries do not indicate a real chance of persecution of the applicant for any Convention reason. 

It is simply not explained why the inquiries do not indicate a real chance of persecution.

In the next sentence, the Tribunal goes on to say:

It is quite clear that the authorities had ample opportunity to take action against the applicant if they wished to do so.

And that is obviously a reference to while he was in Sri Lanka.  But it cannot, in my submission, bear upon whether the inquiries made about him since he left Sri Lanka indicate a real chance of persecution if he were to be returned to Sri Lanka.  Either, in my submission, the Tribunal misconstrued the question which it was required to answer which is whether there was a real chance of persecution if he were returned or it simply failed to give any explanation of its reason.  In my submission, that amounts to a breach of section 430(1)(b) which requires the Tribunal to set out the reasons for the decision.  My contention is also supported by some authority and I have referred to that authority in paragraph 11 of my outline

Your Honour, the remaining submissions set out in the outline really reflect matters going to the two arguments which I have raised so far.  I have already submitted that the Tribunal misconstrued the question which it was required to decide amounting to an error of law and, in addition, there is some authority in the case of Sellamuthu referred to in paragraph 15 that a failure to comply with section 430 is also an error of law as well as ‑ ‑ ‑

HIS HONOUR:   If an error of law, that might entitle you to certiorari.

MR RANGIAH:   Yes.

HIS HONOUR:   But not to mandamus or prohibition.  Is that accepted?

MR RANGIAH:   Yes.  Well, I cannot argue against - - -

HIS HONOUR:   Certiorari not being mentioned in section 75(v) of the Constitution.

MR RANGIAH:   Yes, that is so, your Honour.  But certiorari is available with a mandatory injunction, in my submission.

HIS HONOUR:   Well, I think that is unsettled. I know that there are cases in this Court which suggest that notwithstanding the omission of any reference to certiorari in section 75(v) of the Constitution, the Court can grant certiorari as an aid to mandamus or prohibition or to make either of those remedies more efficacious but I am not too sure about the foundation for that. Justice Dawson discusses it, I think, in a case of Ruby without reaching any conclusion.  It has certainly been done by the Court but I am not too sure that the matter has ever been fully argued.

MR RANGIAH:   No, your Honour.  Justice McHugh expressly refers to ‑ ‑ ‑

HIS HONOUR:   Yes, he says, in the case you have referred me to, that failure to comply with the Act may be an error within jurisdiction and not outside jurisdiction.  I think that is the substance of it, is it not?

MR RANGIAH:   Yes, and he also refers to exactly the same point that your Honour has made that the issue is undecided but he accepts that certiorari is available with mandamus, prohibition or - - -

HIS HONOUR:   Exactly what I said but I am not too sure that that is so.  It seems to have been assumed in this Court rather than argued and, if you think about it, it is a little curious when mandamus, injunction and prohibition are all specifically mentioned but certiorari is not.  I am not too sure about that at all.

MR RANGIAH:   Yes.  Your Honour, in terms of what this case and the standard required in order to obtain an order nisi, it may be that it does not matter because - - -

HIS HONOUR:   You say you only have to show a prima facie case?

MR RANGIAH:   Yes, an arguable case.  An arguable case that would justify final relief by way of an order absolute.  Of course, your Honour, a mandatory injunction, as I have said earlier, is also sought and the error of law, which is demonstrated, then may found a mandatory injunction.

HIS HONOUR:   May support that.

MR RANGIAH:   Your Honour, finally, in paragraph 16 of my outline, I have submitted that the Tribunal failed to take into account the prosecutor’s claims that he had been detained and threatened and escaped.  In view of the discussion I have had with your Honour, I do not have much more to say about that but, again, there is no explicit finding.

HIS HONOUR:   No.  Mr Rangiah, what actually happened here?  The application was made in the first instance to the Minister, was it?

MR RANGIAH:   Yes.

HIS HONOUR:   And the Minister appointed a delegate to decide it?

MR RANGIAH:   Yes.

HIS HONOUR:   And the Delegate rejected the application, is that right?

MR RANGIAH:   Yes.

HIS HONOUR:   Then under what section is the right to seek a review by the Tribunal of the delegate’s decision?  Under what section is provision made for that?

MR RANGIAH:   Your Honour, it is section 411 and section 412.  It is in section 411(1)(c) that:

a decision to refuse to grant a protection visa –

is an RRT-reviewable decision.  And then 412 talks about the formalities.  Then section 414 says that:

if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.

HIS HONOUR:   Yes.  There is some difference in consequences depending upon whether – not at the Refugee Review Tribunal level but earlier upon whether the Minister actually determines whether the visa should be granted or a delegate, is there not?

MR RANGIAH:   Your Honour, I think it is fairly well established that the Minister may delegate his powers to decide.

HIS HONOUR:   Yes, but he does not have to delegate them, I do not think.  In practice, I think he does, but I do not think there is an obligation to do so.  He certainly can.  I just had an idea that there was a different consequence.  It is probably immaterial to what happens here; a different consequence depending upon, or a different procedure depending upon whether it is the Minister or the delegate.  But 411 does not suggest anything of that kind.

MR RANGIAH:   Yes.  No, I am not aware of that. 

HIS HONOUR:   No, I will ask Mr Bickford anyway.

MR RANGIAH:   It may be that your Honour may be thinking of section 417 where the “Minister may substitute more favourable position.”

HIS HONOUR:   No, it was not that.  Your client has not made an application under 417, is that right?

MR RANGIAH:   He has, your Honour.  That has been rejected.  Originally, it was part of the application but that is not pursued.  Your Honour, those are my submissions, unless there is anything further.

HIS HONOUR:   Thank you, Mr Rangiah.  Yes, Mr Bickford?

MR BICKFORD:   Your Honour, I seek leave to read and file an affidavit of John Edward Bishop, sworn today.  That actually deals with the application to the Minister under section 417.  So, just for the sake of completeness, your Honour.

HIS HONOUR:   Is there no problem about that, Mr Rangiah?

MR RANGIAH:   No objection.

HIS HONOUR:   Yes.  You have leave.

MR BICKFORD:   I also hand up to your Honour’s associate the outline of the cases, your Honour.

HIS HONOUR:   Right, but Mr Rangiah says nothing is pursued in respect of the Minister’s decision under 417.

MR BICKFORD:   Yes, that is as I understand it, your Honour.

HIS HONOUR:   Thank you.  Shall I read these quickly first, Mr Bickford?

MR BICKFORD:   Well, your Honour, they were prepared before I saw Mr Rangiah’s submissions, so I am going to have to sort of go through his submissions at some length anyway, I would think, but - - -

HIS HONOUR:   All right.  Well, why do you not do that now.

MR BICKFORD:   Yes.  Your Honour, as I understand the applicant’s case at the moment, it really comes down to just an alleged breach of section 430 of the Act.  Your Honour has been taken to the decision of Justice McHugh in Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405. His Honour there was dealing with an application for an order nisi and, in my submission, his Honour made it perfectly clear that there was no occasion or, in his view, that even if there were a breach of section 430 of the Act, that would be an error within jurisdiction which could not give rise to a right to prerogative relief. I take your Honour to page 417 in that regard and, in particular, at paragraphs [67] to [70]. His Honour quoted from the decision of Justice Gummow in Minister for Immigration and Ethnic Affairs v Eshetu (1999) 73 ALJR 746, at 768, where his Honour was at pains to point out the jurisdictional basis for the decision to be made and that in those circumstances, properly understood, a failure to give proper reasons is something that happens after jurisdiction has already been established. So, it is an error within jurisdiction. It is not something that can give rise to prerogative relief.

It is a different question which the Federal Court has been considering and disagreeing about and apparently this Court is now going to consider itself whether a breach of section 430 would give rise to a right for the Federal Court to review the matter under section 476 of the Act because that is a particular statutory provision that deals with grounds similar to Administrative Decisions Judicial Review except that some grounds are excluded.  But we are talking about prerogative relief and, in my submission, there - - -

HIS HONOUR:   Well, plus the injunction.

MR BICKFORD:   Yes.  I was about to come to that, your Honour.  There is no decision that I know of that is contrary to what Justice McHugh says about this.  So, there is no dispute anywhere about this proposition.

At page 411, paragraph [31], Justice McHugh mentions the injunction that was sought, and he says:

In addition to the claim for prerogative relief, the prosecutor also seeks an injunction against the third respondent. No doubt the power to grant injunctions under s 75(v) is not confined to jurisdictional error, and, if an injunction was appropriate, in some situations certiorari would also lie to quash a decision or order so as to effectuate the grant of an injunction.

And I note your Honour’s comments about that being a controversial proposition. 

But there is nothing in this case which would warrant the grant of an injunction against the third respondent unless the decision of the Tribunal was void.  Indeed, no order could be made against that respondent unless relief was obtained against the first and second respondents.  Nor is there anything in the case which would justify an injunction against the first and second respondents if mandamus or prohibition is not available.  There is nothing to suggest that, even if the first and second respondents have acted within their jurisdiction, they have acted or are threatening to act unlawfully in some way that infringes or threatens to infringe the legal rights of the prosecutor to stay in this country.

So, his Honour rejected the proposition that an injunction would lie or could lie.

HIS HONOUR:   Well, does he do that?  I do not know.  He says:

There is nothing to suggest that, even if the first and second respondents have acted within their jurisdiction, they have acted or are threatening to act unlawfully - - -

MR BICKFORD:   Yes.

HIS HONOUR:   Now, if somebody was threatening to act upon or act upon an order that was unlawfully made because it was in breach of section 430, if it were, why would that not provide a ground for an injunction?

MR BICKFORD:   Well, your Honour, it depends on what the consequences are of failing to comply with section 430.  It does not go to the jurisdiction of the decision maker.  That is certain.

HIS HONOUR:   No, it is not a jurisdictional question but officials cannot disobey the law.

MR BICKFORD:   Yes, I understand what your Honour is saying.  It could be argued that a failure to comply with the section amounted to an error of law which might ground an injunction if you were threatening to act on that decision that it was not lawfully taken.

HIS HONOUR:   Well, if there were a breach of section 430, if there were, then anything done in pursuance of that breach would surely be done unlawfully and a court would restrain it, subject to arguments, perhaps, about the balance of convenience and things of that kind.

MR BICKFORD:   Balance of convenience, yes, your Honour, that is right.

HIS HONOUR:   But there would be no doubt where the balance of convenience would lie here.  It would lie with the applicant.

MR BICKFORD:   Yes, and the matter would be easy to rectify in any event in those sort of proceedings because proper reasons could be given.

HIS HONOUR:   Well, I do not know.  He may be functus officio, the Refugee Review Tribunal.

MR BICKFORD:   Yes.  Your Honour, in any event, at the very worst or at the very best from the point of view of the prosecutor here, what that means is that if an order nisi was granted it would only be in respect of injunction, not in respect of any other prerogative relief because, as his Honour Justice McHugh makes clear, if there is a breach of section 430 it would not ground prerogative relief.

HIS HONOUR:   With respect, I think that is correct and that is what I put to Mr Rangiah, that would be an error within jurisdiction in the same way if a judge – judges are regularly called upon to construe statutes.  I suppose a statute going to the way in which you exercise your jurisdiction might be different.

MR BICKFORD:   Yes, but, your Honour, section 430, the point being that the obligation to give reasons only arises after you are seized of the matter, you have jurisdiction, so it is something that happens while you are exercising your jurisdiction.  So, it is within jurisdiction.  It is not a jurisdictional fact, in other words.  The giving of reasons happens after the jurisdictional facts have been established.  There is no suggestion ‑ ‑ ‑

HIS HONOUR:   In the same way as a judge construing any statute.  If the judge goes wrong in construing the statute, then you have an appeal but there is no suggestion that the judge has not exercised his or her jurisdiction.

MR BICKFORD:   No, quite so, your Honour.

Your Honour, I then need to turn to the adequacy of the reasons and your Honour has already pointed to a number of findings that we rely on as showing that the Tribunal did consider the relevant matters and made the decision.  But before I go to that, it is probably best to look at just exactly what section 430 and sections like it require of a Tribunal in any event.  I have handed up to your Honour a copy of the decision of the High Court in Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259. At page 271, in the judgment of the Chief Justice and Justices Toohey, McHugh and Gummow – and this has been often quoted and, your Honour, it is well established - under the heading “The proper role of a reviewing court”:

The Full Court recognised, on the face of the delegate’s assessment of the first respondent’s claim, “that the delegate correctly directed herself as to the test which she had to apply”.  Later in its reasons the Full Court noted –

and then goes on to state some of the facts:

In other words, the delegate starts and finishes with the correct test; it is only some phraseology in between which provides the basis for a conclusion that she had slipped from an assessment of real chance to an assessment of balance of probabilities. 

When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (1993) 43 FCR 280. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review.

And that was a customs case dealing with an Administrative Appeals Tribunal decision, your Honour, and of course, as you are well aware, the Tribunal has the same obligations to provide reasons that the Tribunal has in this case.

It was said that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker.  The Court continued:  “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

These propositions are well settled.  They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.  In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision‑maker upon proper principles into a reconsideration of the merits of the decision.  This has been made clear many times in this Court.  For example, it was said by Brennan J –

as he then was –

in Attorney-General v Quin –

and then there is a quote there from that particular decision. 

That is picked up, in effect, by Justice McHugh in Durairajasingham too, and I was going to take your Honour to the relevant passage there at page 416, paragraph [63] through to paragraph [65], your Honour.  This was a case that involved a gentleman, from Sri Lanka as well, complaining of persecution.  He was a Tamil and he arrived with his wife and child in Australia in June 1994 and applied for a protection visa in July 1994.  He maintained he had been approached to spy on his brother who was a prominent member of the LTTE.  He declined to do so and he maintained he had been persecuted as a result. 

At page 416, his Honour mentioned some of the relevant facts and then he said, at paragraph [63] and [64]:

There is some authority in the Full Court of the Federal Court for the proposition that s 430(1) requires the reasons of the Tribunal to refer to evidence contrary to findings of the Tribunal. 

That is the point my learned friend is making.

However the contrary view was taken by differently constituted Full Courts –

and he mentions a number of decisions there.  He quotes from the decision of the Full Court in Addo:

Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made…..

It is not necessary, in order to comply with s 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 finding which it made.”

In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d).  However, the obligation to set out “the reasons for the decision” (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings.  Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons.  But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal.  Indeed, to do so would be contrary to the direction in s 420 of the Act that:

“(1)  The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

And that is also relied upon, your Honour, and really fits in nicely with what the Full Court said in Liang because the Tribunal is under pressure, the Tribunal has to deal with a lot of these matters and the Tribunal cannot – the reasons for decision cannot be viewed in the same way as one might view the reasons of a court.

The complaints made, your Honour, in my submission, have been adequately dealt with in the reasons.  Albeit, no doubt, if a judge was dealing with the case, the judge might deal with the matter in a more comprehensive fashion.  The Tribunal, bearing in mind that the standard that has to be reached, in my submission, has clearly reached that standard.

If I could take your Honour to exhibit D which is the reasons of the Tribunal.  Under the heading, “BACKGROUND AND CLAIMS”, the Tribunal sets out in some detail the factual assertions made by the applicant and, in particular, at page 6 of its reasons, in the last three paragraphs on that page, they deal with the points that my learned friend refers to.  So, it is quite clear that the Tribunal was aware of the applicant’s assertions.  Under the heading “DISCUSSION OF EVIDENCE AND FINDINGS”, the Tribunal makes its findings and it is clear that the Tribunal was sceptical regarding the applicant’s assertion that he was questioned and then escaped.

In the first paragraph after “DISCUSSION OF EVIDENCE AND FINDINGS”, the Tribunal says, on page 7:

In relation to the applicant’s claims concerning the intervention of the authorities in November 1996 the Tribunal notes that the applicant said that he was questioned for a short time before allegedly escaping.  He is Sinhalese and had no actual connection with the LTTE.

That is a Tamil organisation, Tamil Tigers, your Honour.

He had been carrying on a business for some time in an area where many Tamils lived and worked.  He had legitimate reasons for his association, through work, with Tamils.  It is mere speculation that his Tamil employees fled due to their involvement with the LTTE or in specific acts of terrorism.  If his employees did flee upon the arrival of the authorities it is to be expected that the applicant would be questioned about matters such as their background and activities as a normal part of an investigation to establish what if any official action should be taken against them.

Following the alleged questioning of the applicant by the authorities he obtained a passport on which he first travelled to India for a private matter.  He then voluntarily returned to Sri Lanka and later left, again on his own passport, for Australia.  While accepting that the applicant enlisted the assistance of a friend to obtain his passport and paid money to that end, the Tribunal concludes –

and there is a finding –

that he did so in order to expedite travel arrangements.  It is implausible that the applicant would be able to obtain a passport and then pass through security and other airport checks on three occasions in Sri Lanka  without difficulty if he were of any continuing interest to the authorities.

The fact that the applicant voluntarily returned to Sri Lanka is incompatible with his claim that he was at the time in fear of his life and in hiding from the authorities.

So, in my submission, the Tribunal has clearly made findings there that deal with this issue.

HIS HONOUR:   What about Mr Rangiah’s submission that there is no finding and there should have been one with respect to inquiries of the applicant made after he left the country?

MR BICKFORD:   Yes, your Honour.  That is on page 8.  Firstly, at the top of page, the Tribunal again makes a finding:

In assessing all the evidence the Tribunal finds that the applicant was not in hiding from the authorities and that he was not of any interest to them for any Convention reason.

So, they clearly made a finding there.  They then make another finding:

The Tribunal accepts that the applicant may have had special obligations –

and so forth.  And then in the middle paragraph:

While accepting that the applicant’s business premises and equipment have now been destroyed, either by fire or other acts of vandalism, the Tribunal concludes in the circumstances of this case that such destruction does not disclose a Convention ground.  The applicant abandoned his business some time ago.  The Tribunal finds it implausible that the authorities would allow the applicant free passage in and out of Sri Lanka , yet damage his private or business premises due to a perceived political opinion.  There is no evidence that would provide any plausible explanation as to why they or others would seek to damage the applicant’s property for any Convention reason.

HIS HONOUR:   They deal with the matter I asked you about in the second-last paragraph.

MR BICKFORD:   Yes, that is right, your Honour.  Accepting that it is feasible the authorities may be making those inquiries, they say:

It is quite clear that the authorities had ample opportunity to take action against the applicant if they wished to do so.

So, the finding is that whilst they may have made some inquiries, they have had ample opportunity because he has been in Sri Lanka and if they had wanted to do something about him, they would have done something about him.  That is the finding of the Tribunal.

HIS HONOUR:   Well, the result of the inquiries may have been favourable to him.

MR BICKFORD:   They might have been, your Honour.

HIS HONOUR:   And that might be why they have not taken any - - -

MR BICKFORD:   That could be.  And he has to have a well-founded fear of persecution for a Convention reason at the time the matter is considered and the Tribunal clearly formed the view that although he may have had a subjective fear, it was not well founded.  And then they conclude, and this sums it all up:

In considering all the circumstances of this case, including cumulatively, the Tribunal finds that the applicants do not have a well‑founded fear of persecution for any Convention reason.

And this is all said, your Honour, too, in light of a fairly extensive recitation of the legislative framework and the case law on the topic which, in my submission, indicates that the Tribunal member clearly understood the appropriate test.  It is certainly not an easy matter but it is a matter for him and unless he commits a jurisdictional - - -

HIS HONOUR:   I do not think any of these matters are easy, really.

MR BICKFORD:   No, no, clearly not, and the Parliament has provided a mechanism for review and the Court only needs to concern itself with jurisdictional errors primarily – this Court particularly, jurisdictional errors, and I suppose, as your Honour points out, if there was a clear breach of section 430 in that the reasons were clearly inadequate, the Court might restrain by injunction the Minister from deporting a person in those circumstances.

HIS HONOUR:   It is very difficult to know what is going on in another country, particularly a country which has its own internal problems.

MR BICKFORD:   Yes.

HIS HONOUR:   I do not know how you can ever be completely satisfied about who is or is not at risk.

MR BICKFORD:   No.  It is a very difficult matter, your Honour, but it is a matter that the Parliament has entrusted to these particular persons and they make their inquiries and they have to make a decision.

HIS HONOUR:   And who seem, in my experience – rather limited experience – to go to great lengths though to try and find out what the truth is.  They seem to consult widely and inquire widely to try to find out.

MR BICKFORD:   Yes.  There is information available through diplomatic channels too, your Honour.  Quite a lot of information comes from the Americans and from Australian authorities in the country.  The key issue here for the Tribunal, in my submission, your Honour, was that Mr Fernando had been able to go in and out of the country unhindered and unmolested and that, to the Tribunal, was compelling, and that is a matter for them.  It is really a question of weight.  My friend’s submissions, in my respectful submission, are really – it is always a fine line but you can easily get into the nitty-gritty of whether the finding of fact is right or not and there is no error of law in a wrong finding of fact, as his Honour Justice Brennan pointed out on a number of occasions.  Because the findings of fact, other than jurisdictional facts, are left within the exclusive province of the Tribunal.

Your Honour, I have dealt with a lot of those other issues in my written outline but I need not trouble you with those.

HIS HONOUR:   Thank you.  Yes, Mr Rangiah.

MR RANGIAH:   Just two brief points in reply, your Honour.  Firstly in relation to Durairajasingham, can I point out that no injunction was sought in that case against the member of the Tribunal who was the second respondent. 

HIS HONOUR:   What would be the form of the injunction that you would want?  An injunction to restrain whom from doing what?

MR RANGIAH:   Well, an injunction to compel the second respondent to ‑ ‑ ‑

HIS HONOUR:   Hear the matter according to law.  It sounds like mandamus to me.  If you could not make out a case for mandamus, why, as a matter of discretion, should you have an injunction which would be in exactly the same terms, effectively, as a grant of mandamus would?

MR RANGIAH:   Because, your Honour, all there is, is a difference in the nature of the unlawful act where one is in error within jurisdiction, the other is an error without jurisdiction but there is still an unlawful act.

HIS HONOUR:   But you do not get an injunction necessarily as of right.

MR RANGIAH:   No.

HIS HONOUR:   The Court has a discretion.

MR RANGIAH:   Yes, that is so.

HIS HONOUR:   And why would it exercise the discretion in your favour to give you something which, in substance, was something that you could not get under the Constitution, that is to say, a mandamus?

MR RANGIAH:   Well, your Honour, my submission about that is simply because there has been an unlawful act and the Court ought not condone that by refusing relief.

HIS HONOUR:   All right.

MR RANGIAH:   Your Honour, the other point was simply just to clarify my submission about this issue about the inquiries after he left Sri Lanka.  My submission is not that there was no finding of fact made in relation to that.  There was a finding of fact but, in my submission, there is authority – the ones I have referred to in my submissions as well as the ones referred to by Justice McHugh – to the effect that there needs to be some explanation given of - - -

HIS HONOUR:   Well, there is.  On the whole, they did not believe your client was the explanation.  There are two explanations.  They are plainly implicit, if not to say explicit, I think, of a reason.  One is that he was sceptical about your client’s – I take it is a male, the Tribunal is male?  Who is the Tribunal, Mr Bickford, do you know?

MR BICKFORD:   I think it is Mr Brewer.

HIS HONOUR:   Mr Brewer was sceptical about your client generally but, in any event, he did not think that those inquiries, assuming that they had been made, were such as to indicate any particular interest in your client that would be adverse to your client.  Nothing could really be clearer, could it?

MR RANGIAH:   Yes, your Honour, but my point is that there is authority to suggest that he has to give reasons.

HIS HONOUR:   But he has.  The reasons are he does not believe your client and the fact that your client was able to be in Sri Lanka without being harassed in any way are reasons why he did not think those inquiries were relevant or material.

MR RANGIAH:   Well, with respect, your Honour, it is not what it says in the sense that he says:

Although it is feasible that the authorities may have made enquiries about the applicant’s circumstances since his departure from Sri Lanka, the Tribunal finds in the circumstances of this case that such enquiries do not indicate a real chance of persecution - - -

HIS HONOUR:   That is right.

MR RANGIAH:   So, he did not find that there were not any inquiries made.

HIS HONOUR:   No.

MR RANGIAH:   He assumed that there were.

HIS HONOUR:   Well, I think, perhaps, a fair reading might be that he was prepared to assume that there were because he says “feasible”.

MR RANGIAH:   Yes.

HIS HONOUR:   And he says, assuming that they were, they were not inquiries, perhaps, by implication, having regard to all of the other matters which were inquiries indicative of any interest in your client which would give rise to a well-founded fear of persecution.

MR RANGIAH:   Yes.  Your Honour, can I make two points?

HIS HONOUR:   Yes.

MR RANGIAH:   I am going back to the facts, I am afraid.

HIS HONOUR:   Yes, you do that.

MR RANGIAH:   But your Honour raised earlier, well, perhaps, the inquiries were, you know, favourable to him rather than indicating any negative - - -

HIS HONOUR:   Well, the inquiries may have not resulted in anything adverse to him.  Perhaps not “favourable”.

MR RANGIAH:   Yes, but the material indicates that the inquiries were made by the security forces in circumstances where there has been no rejection or no explicit rejection, any way, of my client’s claims that he had been detained.

HIS HONOUR:   But in an embattled country like Sri Lanka, I would think that the security forces would be making constant inquiries of various people and in various areas.  It may be difficult for us to visualise what it is like.

MR RANGIAH:   Your Honour, perhaps not for someone who is Sinhalese rather than Tamil, as my client was.

HIS HONOUR:   Except he was employing a number of Tamils which ‑ ‑ ‑

MR RANGIAH:   Yes, and except if he had come - - -

HIS HONOUR:   Was he living in a Tamil areas?

MR RANGIAH:   Yes.  As I understands it from the reasons, it is indicated that there were many Tamil people who lived in that area and were employed by various Sinhalese businesses and were required to be registered there.  I mean, I am not trying to get into the facts for the purpose of a merits review but just to explain the context in which the comment must have been made.  But in circumstances where he had obviously come to the attention of the security forces despite not being Tamil, and then inquiries were made after he left Sri Lanka about him, not by any immigration persons but by the security forces, there has to be - - -

HIS HONOUR:   Well, we do not know.  I mean, they may liaise with the immigration authorities.

MR RANGIAH:   Well, maybe, your Honour, but it cannot be assumed, in my submission, that - - -

HIS HONOUR:   I would be surprised if there were not liaison in a country which is having the problems that it seems to be having.  People were blown up recently there, were they not?  There was a recent very serious incident?

MR RANGIAH:   Yes, that is so, your Honour.  Your Honour, can I just quickly return to that passage because I just want to make clear what my point is about that?

HIS HONOUR:   Yes, certainly.

MR RANGIAH:   Two points:  first, in the sentence there is no explanation given for why the inquiries do not indicate a real chance of persecution; and the second is that it is an error of law in the sense that the next sentence is that:

It is quite clear that the authorities had ample opportunity to take action against the applicant if they wished to do so.

That is while he was in Sri Lanka.  So that when those two sentences are taken in combination, in my submission, it indicates that the Tribunal misconstrued the question which it was required to answer, that is, not whether he was at risk of persecution necessary.

HIS HONOUR:   Then, but now.

MR RANGIAH:   But if he were returned, whether he would be at risk of persecution.  I should add that that, in my submission, can found a basis for a prerogative writ.  The authority for that is a decision of the High Court in a matter of Craig to which I have referred where - - -

HIS HONOUR:   Yes.  Look, I do not have any trouble with your fundamental proposition, that the Tribunal’s attention should be directed to the present rather than to the past and if it has not been then it may – certainly, clearly arguably at least, it could be said that there has been an error of jurisdiction.  I understand the basic proposition.  The question is whether, on a proper reading of the reasons, the case is within the principle which you submit.

MR RANGIAH:   Yes, thank you, your Honour, I have no further submissions.

HIS HONOUR:   I intend to reserve this decision. 

MR BICKFORD:   Your Honour, I do not want to mislead you but I have just looked through the files further and I cannot actually find anything that suggests the gender of G. Brewer, so it is just an assumption on my part.

HIS HONOUR:   All right, thank you.  Just one thing, may I ask you:  does anything turn upon whether the decision is the decision of the Minister or the delegate?

MR BICKFORD:   Not that I am aware of your Honour, no.  The correct jurisdictional basis for the Tribunal to look at it is set out at the beginning of the Tribunal’s reasons and my friend has taken your Honour to those sections.  I do not think there is any contention by either side of the Tribunal, was it - - -

HIS HONOUR:   No.  I just have at the back of my mind that it may have arisen - - -

MR BICKFORD:   If the Minister considered it himself at the outset whether it is reviewable by the Tribunal, I could - - -

HIS HONOUR:   Yes.  I had one here before me where something did turn on it.  I have just forgotten what it was, or might have turned on it.

MR RANGIAH:   Your Honour, I am aware that in the past there have been matters brought and I do not know if they have ever been decided about whether the Minister’s delegate can make a decision under section 417 or whether it has to be made by the Minister personally.

HIS HONOUR:   That may be the point, Mr Rangiah.  I have just forgotten it.  But I do not think anything turns on it here, even if there is some sort of distinction.

MR RANGIAH:   Yes.  And my instructing solicitor tells me that it is Mr Brewer.

HIS HONOUR:   Thank you.  Very well, I will reserve this matter.  There is no interim order or anything?  What is the applicant’s position at the moment?

MR RANGIAH:   He is on a bridging visa so that no interim order is required.

HIS HONOUR:   All right, thank you.  I will adjourn this matter for decision later.  You will be notified about that.

AT 11.22 AM THE MATTER WAS ADJOURNED