Mohideen, Mohamed Ameen Meeran v Minister for Immigration & Multicultural Affairs
[1997] FCA 286
•17 APRIL 1997
CATCHWORDS
MIGRATION - refugee status - review of decision of the Refugee Review Tribunal - whether well-founded fear of persecution - whether error of law - whether error in application of the law - whether failure by the Tribunal to observe the standards set out in s 420 Migration Act 1958 - whether failure to observe procedures required by the Act - whether breach of natural justice - whether judicially reviewable
Migration Act 1958 ss 420(1), (2), 423(1), (2), 424, 425(1)(a), (2), 476(1)(a), (e), (g), (2)(a), (b), (4), 486
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 455
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Collector of Customs v Pozzolonic (1993) 43 FCR 286
Kioa v West (1985) 159 CLR 550
Thanh Phat Ma v Billings (1996) 142 ALR 158
MOHAMED AMEEN MEERAN MOHIDEEN AND OTHERS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND ANOTHER
VG No 228 OF 1996
Olney J
Melbourne
17 April 1997
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION No VG 228 of 1996
BETWEEN:
MOHAMED AMEEN MEERAN MOHIDEEN
Applicant
-and-JAIZUL RAJINA AMEEN
Second Applicant
-and-
FATHIMA SAJEERRA AMEEN
Third Applicant
-and-
AYISHA AMEEN
Fourth Applicant
-and-
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
-and-KERRY BOLAND
(Constituting the Refugee Review Tribunal)
Second Respondent
Coram: Olney J
Place: Melbourne
Date: 17 April 1997
MINUTE OF ORDER
THE COURT ORDERS THAT:
The application be dismissed.
The applicants pay the respondents' costs including any reserved costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION No VG 228 of 1996
BETWEEN:
MOHAMED AMEEN MEERAN MOHIDEEN
Applicant
-and-
JAIZUL RAJINA AMEEN
Second Applicant
-and-
FATHIMA SAJEERRA AMEEN
Third Applicant
-and-
AYISHA AMEEN
Fourth Applicant
-and-
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
-and-KERRY BOLAND
(Constituting the Refugee Review Tribunal)
Second Respondent
Coram: Olney J
Place: Melbourne
Date: 17 April 1997
REASONS FOR JUDGMENT
BACKGROUND
The first applicant is a Sri Lankan national of Tamil Muslim origin. The second applicant is the wife of the first applicant and the third and fourth applicants are their children. The family arrived in Australia from Sri Lanka on 17 March 1995 and on 19 April 1995 sought protection in Australia as refugees. That application was, on 28 July 1995, refused by a delegate of the first respondent (the Minister). On 7 August 1995 the applicant applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate's decision and on 22 March 1996 the Tribunal determined that the first applicant was not a refugee and affirmed the decision of the primary decision-maker. An application for judicial review was filed on 23 April 1996 and an amended application was filed by leave on 4 June 1996. The matter was heard on 4 April 1997.
THE APPLICATION
Relief was initially sought pursuant to the Court's jurisdiction under s 486 of the Migration Act 1958 (the Act) on a total of 8 grounds, but at trial only 3 grounds were pressed and reliance on some of the particulars pleaded in respect thereof was abandoned. The applicants' case was argued on the following grounds (which are numbered according to the amended application):
The decision involved an error of law involving an incorrect interpretation of the applicable law.
Particulars
The Tribunal misinterpreted the law relating to the definition of refugee for the purposes of the Migration Act 1958 ("the Act"), including by:
a)interpreting the definition as requiring the applicants to establish that the chance of the first applicant being persecuted was more than plausible;
The decision involved an error of law involving an incorrect application of the law to the facts as found by the Tribunal.
Particulars
The Tribunal misapplied the law relating to the definition of refugee for the purposes of the Act, including by:
c)failing to determine whether the first applicant faced a real chance of being persecuted upon returning to Sri Lanka;
The Tribunal did not observe procedures required by the Act to be observed in connection with the making of the decision.
Particulars
The Tribunal failed to act according to substantial justice and the merits of the case as required by s 420(2)(b) of the Act, and failed to pursue the objective of providing a fair mechanism of review as required by s 420(1) of the Act, in that it:
a)failed to give the applicants the opportunity of commenting on the views of the Department of Foreign Affairs and Trade expressed in May, August and October 1993 referred to at pages 13 and 14 of the Tribunal's reasons for decision;
The relevant provisions of the Act relating to these grounds (s 476) are as follows:
420 (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.
(2)The Tribunal, in reviewing a decision:
a)is not bound by technicalities, legal forms or rules of evidence; and
b)must act according to substantial justice and the merits of the case.
(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
...
e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
...
The following are not grounds upon which an application may be made under subsection (1):
a)that a breach of the rules of natural justice occurred in connection with the making of the decision;
b)that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.
...
It is common cause that the decision is a judicially reviewable decision as defined in Part 8 of the Act and that the Court has jurisdiction in respect thereof.
It is also common ground that it is the status of the first applicant and not that of his wife and children that is in issue. The first applicant is referred to hereafter simply as the applicant.
THE TRIBUNAL'S REASONS FOR DECISION
a)The legal framework
In its reasons for decision the Tribunal initially addressed the legal issues raised by the application. First, it stated that it was satisfied that the application for review had been validly made and that the Tribunal had jurisdiction to review the decision in question. It then addressed the definition of refugee in these terms:
The central issue for the Tribunal to decide is whether or not the applicant is a "refugee" under the 1951 Convention and 1967 Protocol relating to the status of refugees. If the applicant is a refugee he is a person to whom Australia has protection obligations.
Article 1A(2) of the Refugees Convention defines a refugee as "any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail herself[sic] of the protection of that country".
The Tribunal went on to refer to three elements of the definition which it considered required elaboration, namely "well-founded fear", "persecution" and "convention reasons" which it dealt with under separate headings.
Under the heading "well-founded fear" the Tribunal referred to para 38 of the Handbook on Procedures and Criteria for Determining Refugee Status (1992) published by the United Nations High Commissioner for Refugees (the Handbook) and concluded that not only must an applicant be in fear, but also, there must exist circumstances which objectively support that state of mind. Reference was also made to the decision of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) in which it was held that a fear would be well-founded if there was a real chance that an applicant would suffer persecution if he or she returned to his or her country of nationality. Referring further to the decision in Chan the Tribunal said:
A "real chance" was said to be one which was "substantial, as distinct from a remote chance" (Mason CJ at p 389; Toohey J at p 407 and see also Dawson and McHugh JJ at p 398 and p 429).
Under the general heading of "persecution" the Tribunal said:
Secondly, concerning "persecution", as stated by Dawson J in Chan (at p 399), "there is general acceptance that a threat to life or freedom for a Convention reason amounts to persecution". Beyond this there is less than general acceptance of what constitutes persecution. Mason CJ held it to mean "some serious punishment or penalty or some significant detriment or disadvantage" and continued: "Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason" (at p 388). McHugh J, in the course of certain incidental remarks, said (at p 430) that "[m]easures `in disregard' of human dignity may, in appropriate cases, constitute persecution ... Thus the U.N.H.C.R. Handbook asserts that serious violations of human rights for one of the reasons enumerated in the definition would constitute persecution ..."
It concluded its discussion of persecution with these observations:
Whether discrimination will amount to persecution is specifically addressed in paragraph 54 of the Handbook where it is said that it "would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities" (emphasis added).
Under the heading of "convention reasons" the Tribunal said:
The applicant must fear persecution for a Convention reason, viz. for reasons of "race, religion, nationality, membership of a particular social group or political opinion". If the harm suffered is related to some other reason, such as economic conditions, Convention protection is not available.
The only other legal issue discussed by the Tribunal had to do with the relevant date for determination of refugee status. After referring again to Chan and a single judge decision in Lek v Minister (1993) 117 ALR 455 the Tribunal observed:
The point may be restated by adapting the words of Mason CJ in Chan (at p 391) and saying that the question of refugee status is one for consideration at the time when a determination is required, but that, while this remains so, "in the absence of facts indicating a material change in the state of affairs in the country of nationality, an applicant should not be compelled to provide justification for his continuing to possess a fear which he has established was well-founded at the time when he left his country of nationality".
b) The Applicant's claims and evidence
The applicant's evidence before the Tribunal may be summarised as follows:
The applicant is 40 years of age and bases his claim for refugee status on race and imputed political opinion. He and his family are Tamil-speaking Muslims who lived in Jaffna until 1990 when they were forced to flee to Colombo. After the death of his father in 1978 the applicant became managing partner of a family electrical goods business established in 1928. With the commencement of communal violence in 1983 various Tamil groups (including the Liberation Tigers of Tamil Eelam (LTTE)) started making demands for money which the applicant and his brothers complied with under threat of death. Once the Indian Peace Keeping Force (IPKF) established a presence in Jaffna the applicant developed a close working relationship with them which compounded his problems with the LTTE who regarded the IPKF as the enemy. Within days of the departure of the IPKF in 1990 a number of armed LTTE members came to the applicant's shop to arrest him. He initially went into hiding at his uncle's home but was arrested. The LTTE demanded a ransom of 5 million rupees for his release and his family agreed to pay 1 million immediately and the balance within one month. As he was unable to pay the balance he and his family fled from Jaffna to Colombo. Following his escape his uncle was arrested by the LTTE and killed.
The applicant and his family arrived in Colombo in July 1990. At first they resided in a camp for displaced persons and later in a house owned by a wealthy friend. The applicant was detained on 3 occasions; first in 1992 and then twice in 1994 for 2 days and 7 days respectively. He was unable to get work in Colombo because his national identification card showed his Jaffna origin and he could not speak Sinhala. During this period he received a fortnightly allowance paid to internally displaced persons and supplemented his income from occasional trading. He believes that Muslims from Jaffna are
not given any real recognition and assistance because they are primarily identified as Tamils and do not speak Sinhala.
The applicant says that the LTTE passed a death sentence on him and his family in 1990 because of his affiliation with the EPRLF (a rival Tamil organisation) and for giving information about the LTTE to both the EPRLF and the IPKF. The LTTE are still seeking him for payment of the outstanding 4 million rupees. He has received a document entitled "Notice of the Death Sentence". A neighbour in Colombo who received a similar threat was subsequently killed by the LTTE. The applicant came to Australia because he had decided it was not safe for him and his family to remain in Colombo.
In response to questions by the Tribunal the applicant said that the LTTE did not pursue him while he was living in Colombo as they did not have the opportunity to reach him. He has not had any form of contact with the LTTE since he fled from Jaffna. Until the national elections in 1994 he was able to rely on the protection of the EPRLF but if he now returned to Colombo he would not have the protection of the authorities. He is still in fear of the LTTE. He says that it is not safe to live in the displaced persons camps because the LTTE infiltrate them. He would be unable to obtain employment. The security forces continue to detain people who speak Tamil and whose ID cards show they come from Jaffna.
A witness called in support of the applicant's case, a Tamil-speaking Muslim from Jaffna who has lived in Australia since 1990, attested to the plight of the Muslim Tamils and said that the applicant was known to be a fundraiser for the EPRLF since 1985.
c) Findings
The Tribunal prefaced its findings with the following observations:
As discussed, in order to satisfy the Convention definition of a refugee, the applicant must have a well-founded fear of persecution. He must have a subjective fear, and that fear must be well-founded when considered on an objective basis. There must be a real chance that the applicant will be persecuted for a Convention reason if he returns to Sri Lanka. The Tribunal assumes that the applicant and his family, being outside their country of origin, have a subjective fear of persecution should they return to Sri Lanka.
The issues in this case are whether or not the applicant has a well-founded fear of the LTTE and/or the security forces in Sri Lanka. The remaining issue is the discrimination that he claims to have suffered because of his Tamil ethnicity. The applicant's claims may be characterised under the Convention as falling under the ground of race and imputed political profile. As the applicant's claims in relation to these matters overlap, the Tribunal will consider them together.
In order to assess the applicant's claims it is necessary to put them in context.
The Tribunal then embarked upon an extensive review of various government, newspaper, Amnesty International and UNHCR reports dealing with the state of affairs in Sri Lanka spanning a period from 1990 to 1996.
In addressing the applicant's fear of the security forces the Tribunal reached these conclusions:
The Tribunal accepts that Colombo is not a safe refuge for all Tamils but there is no evidence to support the applicant's claims that he is at risk from the security forces by reason of his ethnic origin - a Tamil-speaking Muslim from Jaffna. The Tribunal accepts that the applicant has been held in temporary detention on three occasions, the last occasion being in 1994. These security checks, while no
doubt intrusive and humiliating, are part of the government's wide sweeping security measures. Further, although the applicant holds a National Identity Card issued in the north, it identifies him as a Muslim Tamil with a Muslim name, a profile not suggestive of support for the LTTE. This profile would suggest his strong opposition for the LTTE particularly in light of the country information referred to earlier in this decision regarding the LTTE treatment of the Muslims from the north. Moreover, the applicant did not leave the country until several years after his passport was issued and he left the country without any difficulties. There is no prospect that the protection afforded the applicant before the change of government in 1994 would not continue.
All the evidence suggests that under the present government the applicant would continue to be given adequate protection. The Tribunal accepts the UNHCR's most recent advice (supra) that although checking of numerous individuals takes place, it occurs regardless of their ethnic origin and they are treated in a fair and humane manner by the police and security authorities and most people are now released within 24 hours. The UNHCR's view is that the institutional and legal mechanisms to monitor and prevent human rights violations are functioning.
Having regard to all these circumstances and to the country information referred to earlier, the Tribunal finds that there is no real chance of the applicant being persecuted by the security forces should he return to Sri Lanka. The Tribunal finds that his fear of the security forces by reason of him being a Tamil-speaking Muslim from Jaffna is not well-founded.
The Tribunal then directed its attention to the question of whether there is a real chance that the applicant may face persecution from the LTTE because of his refusal to succumb to their ransom demand, leaving Jaffna without their permission in 1990 and their suspicion that he would have provided intelligence to the authorities about LTTE personnel.
Again the Tribunal made extensive reference to country information regarding LTTE activities in the Colombo region. The information considered came from Australian government sources as well as from newspaper reports and from the UNHCR. The Tribunal concluded:
Whilst the Tribunal finds it plausible that the LTTE would pursue a suspected IPKF and EPRLF collaborator, even though he stated that this group as well as the LTTE extorted large sums of money from his business on a regular basis, the Tribunal does not consider that there is a real chance of the applicant being subjected to persecution from the LTTE if he were to return to Sri Lanka.
The applicant fled Jaffna shortly before the LTTE enforced the evacuation of all Muslims from the north of Sri Lanka, and any return to the north by him or any other Muslim is not possible.
The next reason is that the applicant was able to live in Colombo from mid-1990 to March 1995 without any contact with the LTTE. If, as the applicant claims, he owed a four million rupee ransom to the LTTE for the abolition of a previous death sentence they would have already made some attempt to secure it if they wanted to. There is no indication that the LTTE made any attempt to pursue him in the almost five year period after the applicant fled to Colombo. He was a registered IDP, and lived in a suburban house under his true identity in those years and presumably would not have been difficult to locate. Moreover, there is no evidence that the LTTE sought out other members of his family during this period.
Although the applicant said he would disclose information about LTTE personnel to the authorities, he has not done so and presumably any intelligence he has about the LTTE in Jaffna is outdated. The applicant has not been involved in any political activity since he fled Jaffna.
The final reason is that the authoritative sources do not support his claim. As the above reports indicate, while the LTTE have infiltrated Colombo, the evidence is that they are only targeting "strategic and high profile targets" and that the LTTE would not expend important resources on the forcible extortion of money or indeed carry out a death threat on civilian individuals living in the Colombo area especially those from whom they have already taken money and are known to have left all their wealth in Jaffna. The instances of LTTE victims cited by the applicant do not directly relate to his situation.
Having regard to the individual circumstances of the applicant and his family the Tribunal finds that the chances of them being subjected to persecution by the LTTE in the Colombo region on return is not a real or substantial one.
THE CASE FOR REVIEW
a) Error of Law
In its articulation of the tests applicable to the interpretation of the definition of refugee the Tribunal quite properly relied upon various dicta from the judgments in Chan. The Tribunal's decision on 22 March 1996 predates the High Court decision in Minister v Wu Shan Liang (1996) 185 CLR 259 (Wu) by some two months. In Wu Brennan CJ, Toohey, McHugh and Gummow JJ said at p 263:
Chan established two propositions as to the steps by which refugee status was to be "determined" under s 6A(1)(c) of the Act. First, the definition of refugee involved a mixed subjective and objective test. Second, the definition would be satisfied if an applicant
could show genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason.
On any reading of the Tribunal's reasons it cannot be said that its interpretation of the relevant principles was erroneous. What the applicant says is that the passage in the reasons where the Tribunal found that it was "plausible" that the LTTE would pursue a suspected IPKP and EPRLF collaborator but nevertheless considered that there is no real chance of the applicant being subjected to persecution from the LTTE if he were to return to Sri Lanka, indicates that the Tribunal had an erroneous understanding of what is meant by a real chance of persecution.
There is no doubt that the description "a suspected IPKF and EPRLF collaborator" identifies the applicant and further that the manner in which the LTTE "pursues" its adversaries frequently results in very dire consequences and if by saying that it is "plausible" that such a person would be pursued in that manner the Tribunal meant that it is possible that the applicant would suffer such consequences the finding may well suggest that there is a real chance that the applicant would be dealt with in that way. However, this analysis depends upon what it was that the Tribunal intended to convey when it used the word "plausible".
The Concise Oxford Dictionary meaning of plausible (in the context of an argument or statement) is:
"specious, seeming reasonable or probable"
whereas the Macquarie Dictionary meaning is:
"having an appearance of truth or reason".
In Wu Kirby J said in relation to the reasons for decision of an administrative decision-maker (at p 291):
The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.
Similar statements can be found in numerous other judgments particularly in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at p 286-7.
Viewing the reasons in the instant case as a whole it is not possible to conclude that the Tribunal intended the word "plausible" to convey that it seemed reasonable or probable that a person such as the applicant would be pursued by the LTTE if he returned to Sri Lanka. Such a conclusion would contradict not only the view expressed in the same sentence that the Tribunal did not consider that the applicant would be subjected to persecution from the LTTE if he were to return to Sri Lanka but also the findings which are expressed in the 5 paragraphs which immediately follow that sentence.
The preferable view is that the Tribunal intended to convey the idea that whilst there may be an appearance of truth in the proposition that the LTTE would pursue the applicant if he were to return to Sri Lanka the appearance is not supported by the reality, namely that there is no real chance of that occurring. This is consistent with the Tribunal's stated
understanding of the law arising from the decision in Chan that a real chance is one that is substantial as distinct from a remote chance. In these circumstances there is nothing in the reasons of the Tribunal to suggest that the decision involved an error of law involving an incorrect interpretation of the applicable law.
b) Error in Application of the Law
Counsel for the applicant submits that the Tribunal erred in failing to classify as a well-founded fear of persecution the fears of the applicant in light of his arrest and detention in 1992 and 1994.
The Court's authority to review a decision under the second arm of s 476(1)(e) arises only in circumstances where the decision-maker has made findings of fact which upon a proper application of the law must lead to a particular conclusion. There is no question that the Tribunal found as fact that the applicant had in 1992 and 1994 been arrested and detained nor is there any doubt that he retained a subjective fear that if he were to return to Sri Lanka he would again be subject to some form of persecution, but these facts do not lead inevitably as a matter of law to the conclusion that the applicant's fear, viewed objectively at the time the decision was made, was well-founded.
The applicant has not demonstrated that the decision has been arrived at by reason of an erroneous application of the law to the facts as found by the Tribunal.
c) Failure to Observe Procedures
The applicant asserts that the Tribunal took into account in reaching its decision material upon which it did not give the applicant the opportunity of making submissions. The materials in question are extracts from documents identified as follows:
DFAT, 05/08/93, O.CL 35746, par 8.
ii)DFAT, 12/05/93, Information Regarding LTTE Action Against their Opponents; par 4.
iii)UNHCR, 14/10/93: "Answers provided by Swiss appeals Board on Returnees" Section 2.3
The extracts in question form the basis for the Tribunal's conclusion expressed in the paragraph (quoted above) commencing "The final reason ...". There can be no doubt that the Tribunal did in fact take this material into account in reaching its decision. Whether or not the material was put to the applicant is another matter. Counsel for the applicant says it was not whereas counsel for the Minister says that the substance was put to the applicant. Although a copy of the transcript of the Tribunal proceeding was tendered in the course of argument it is not a proper function of the Court in this proceeding to examine the record with a view to making its own assessment of what was put to the applicant. I will in the circumstances assume for present purposes that
the Tribunal did not put this material to the applicant nor invite him to comment or make submissions in relation to it.
From the outset it would appear that the matter presently in issue, however resolved, can have no bearing upon the outcome of the present application. Even assuming that the material in question was not put to the applicant as asserted, it is clear from the Tribunal's reasons that the conclusion it reached based upon the information in question was but one of several reasons which led it to conclude that there was no real chance that the applicant would be subjected to persecution by the LTTE if he returned to Sri Lanka. If all of the references to the three quoted passages and the whole of the paragraph commencing "The final reason ..." are disregarded, it is obvious that the Tribunal reached the same conclusion based upon other material to which no objection has been taken. In these circumstances what follows in these reasons is irrelevant, but as the issues raised and argued are important they deserve attention.
It should be noted that before entering upon its discussion of "Claim and Evidence of the Applicant" the Tribunal said:
The Tribunal took into account all the written materials provided by the applicant, being the material upon the file of the Department and the Tribunal's file and the evidence put at the hearing by the applicant.
On the face of it, one would expect that all of the material referred to in the Tribunal's reasons came within the ambit of this statement but this is not so. On 6 March 1996, after the conclusion of the Tribunal hearing, at the request of the
presiding member the Deputy Registrar of the Tribunal wrote to the applicant forwarding a copy of a UNHCR report entitled "Newly arriving Sri Lankan Asylum Seekers (UNHCR, 3 January 1996)" which it was said the Tribunal may take into account in reaching its' decision "in addition to the country information presented during the hearing". The applicant was invited to comment on the additional material which he did by letter dated 14 March 1996. All this suggests that the Tribunal was alert to the undesirability of resorting to material which was not known to the applicant. However, as the Court does not have access to the whole of the material on the departmental and Tribunal files it is not possible to form a conclusion one way or the other. Nor is it desirable that the Court should engage in such an exercise. The preferable course, not adopted in this case, would have been for the Tribunal to disclose in its reasons the precise details of the material which it had before it rather than to adopt the general statement quoted above.
For present purposes I will however assume that the three documents from which the Tribunal quoted were not part of the material available to the parties at the time of the Tribunal hearing.
The question which the Court must address is whether, in the circumstances outlined, the Tribunal failed to fulfil its statutory obligation to act according to substantial justice and the merits of the case (s 420(1)(b)) and to pursue the objective of providing a fair mechanism of review (s 420(1)); and if so whether in either case there has been a failure to observe procedures which are required by the Act to be observed in connection with the making of the decision (s 476(1)(a)). If the answer to the latter question is in the affirmative the ground of review provided for in s 476(1)(a) will nevertheless not be available if the conduct complained of amounts to "a breach of the rules of natural justice" (s 476(2)(a)).
In mandating that the Tribunal in carrying out its functions under the Act is to pursue the objective of providing a mechanism of review that is, inter alia, fair, the legislature has clearly indicated that procedural fairness must be accorded to the parties. I do not think that the words "mechanism of review" can be construed otherwise than to refer to the Tribunal's procedures.
And if the Tribunal did in fact make a finding of fact based upon evidence which was not available to the parties at the hearing and upon which the applicant had no opportunity to comment, then there would certainly have been a denial of procedural fairness.
The terms "natural justice" and "procedural fairness" are synonymous. In Kioa v West 159 CLR 550 Mason J (as he then was) referred (at p 584) to the application and content of the doctrine of natural justice or the duty to act fairly and at p 585 observed that the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. In the same case Wilson J observed (at p 601) that in the context of administrative decisions procedural fairness is an apt description of what natural justice requires. Deane J also used the two terms as alternatives. He said (at p 642):
In the absence of a clear contrary legislative intent, a person who is entrusted with statutory power to make an administrative decision which directly affects the rights, interests, status or legitimate expectations of another in his individual capacity (as distinct from as a member of the general public or of a class of the general public) is bound to observe the requirements of natural justice or procedural fairness.
Having imposed upon the Tribunal the obligation to adopt fair procedures, the legislature has specifically denied parties the remedy of judicial review in the event that procedural fairness has been denied. This result has been achieved by s 476(2)(a). But what of the requirement of s 420(2)(b) that the Tribunal in reviewing a decision must act according to substantial justice and the merits of the case?
In another context an administrative decision which fails to accord substantial justice or is contrary to the merits of the case may well be subjected to judicial review on the ground that it is so unreasonable that no reasonable person could have so exercised the power or that there was no evidence or material to justify the making of the decision. But those remedies are not available under s 476 of the Act. The unreasonableness ground is foreclosed by s 420(2)(b) whilst the no evidence ground (s 476(1)(g)) is so restricted in its operation by s 476(4) that it could rarely if ever be availed of in the circumstances referred to.
There may be room for debate as to whether s 420(2) is properly to be treated as laying down a procedure which is required to be observed. If it is to be regarded as regulating procedure then s 476(1)(a) would leave open the door to merit review not on the grounds of denial of procedural fairness or unreasonableness but simply because the decision is contrary to the merits of the case.
I do not think that such a conclusion is open. The whole thrust of s 420 read as a whole is to require the Tribunal to act in a manner that is essentially fair. The provisions of subsection (2) are an adjunct to subsection (1). The review process is to be conducted in accordance with procedures and standards which can properly be identified with the rules of natural justice rather than according to rigid and legalistic procedures. And having set such an altogether desirable standard of conduct, Parliament has quite specifically and deliberately left an aggrieved party without a remedy in the event that the Tribunal in any particular case falls short of its statutory obligations. I entirely agree with the view expressed by Drummond J in Thanh Phat Ma v Billings 142 ALR 158 where his Honour said at p 166:
If I am correct in thinking that s 420 obliges the RRT, in reviewing a decision, to comply with the rules of natural justice, while s 476(2)(a) prevents correction of a failure by the tribunal to do that, it follows that the parliament has adopted a process in which
an applicant for review is entitled to expect that his application will be dealt with by the RRT in accordance with the principles of natural justice, but, if that does not happen, he is left without any remedy. But I think this is what parliament must be taken to have intended.
and at p 168:
... the parliament has, I think, imposed on the RRT an obligation to comply with the rules of natural justice but has denied any remedy to a party for a breach by the tribunal of those rules (unless, as is the case with s 425(1)(a), the Act or the regulations themselves specify a particular aspect of the rules of natural justice with which the tribunal must comply, in which case a failure to comply with the prescription would be reviewable under s 476(1)(a)).
The reference to s 425(1)(a) directs attention to yet another aspect of the regime under which the Tribunal is required to operate. When application for review is made to the Tribunal the Secretary of the department is required to give to the Registrar, inter alia, each document or part of a document that is in the Secretary's possession or control which the Secretary considers to be relevant to the review of the decision. Section 423(1) provides that the applicant for review may provide a statutory declaration in relation to any matter of fact he or she wishes the Tribunal to consider and written arguments relating to the issues arising in relation to the decision under review. The Secretary of the department may also provide written argument (s 423(2)). If the Tribunal is not prepared to make a decision favourable to the applicant "on the papers" (s 424) the Tribunal:
a)must give the applicant an opportunity to appear before it to give evidence; and
b)may obtain such other evidence as it considers necessary (s 425(1))
but the Tribunal is not otherwise required to allow any person to address it orally about the issues arising in relation to the decision under review (s 425(2) and notwithstanding the rules of natural justice, the Tribunal is free to obtain any evidence it considers necessary and is under no statutory obligation to put such evidence to the applicant for review.
Having regard to the foregoing, the applicant is not entitled to seek review of the Tribunal's decision by reason of its failure (assuming there was a failure) to give the applicant the opportunity to comment on the three documents referred to above.
CONCLUSION
As the applicant has failed to establish any ground upon which the Court may review the Tribunal's decision the application will be dismissed with costs.
I certify that this and the preceding 21 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney
Associate:
Dated:
Heard: 4 April 1997
Place: Melbourne
Judgment: 17 April 1997
Appearances:
Mr K. Freckleton (instructed by Victorian Legal Aid) appeared for the applicants.
Mr M. Gunst (instructed by Australian Government Solicitor) appeared for the respondents.
0
11
0