Thanh Phat Ma v Billings

[1996] FCA 1121

CATCHWORDS

MIGRATION - application under Part 8 the Migration Act for review of a determination that the applicant was not a “refugee” - “error of law” within s 476(1)(e) - whether the Tribunal failed to speculate, by reference to the material before it, on whether there was a real chance of persecution for a Convention reason if the applicant were to return to his country of nationality, giving rise to an “error of law” - whether the Tribunal’s failure to have regard to all material arguably relevant to determining whether the applicant’s circumstances came within the legal test amounted to an “error of law” - whether the Tribunal’s failure to draw the applicant’s attention to a DFAT cable amounted to an “error of law” - by virtue of s 476(2)(a), “error of law” in 476(1)(e) not to be interpreted as extending to denials of natural justice.

MIGRATION - judicial review - whether the Tribunal’s alleged failure to comply with the statutory duties cast by ss 420 and 425 amounted to a reviewable error within s 476(1)(a) - whether s 420 obliges the Tribunal, in reviewing a decision, to comply with the rules of natural justice - whether any remedy available to a party for a breach by the Tribunal of the rules of natural justice, having regard to s 476(2)(a).

MIGRATION - judicial review - whether the Court’s power to review, pursuant to s 6 the ADJR Act, conduct of the Tribunal engaged in for the purposes of making a decision which involves a breach of natural justice, is excluded under Part 8 the Migration Act.

Administrative Decisions (Judicial Review) Act 1977 (Cth) - ss 5, 6

Migration Act 1958 (Cth) - ss 415, 420, 424, 425, 475, 476, 485, 486

Cases Considered

Asrat v Minister for Immigration and Ethnic Affairs (O’Loughlin J, unreported, 23 August 1996)
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Boucher v Australian Securities Commission (Full Federal Court, 5 December 1996)
Bouton v Labiche (1994) 33 NSWLR 225
Chan v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Collins v Repatriation Commission (1980) 48 FLR 198
Courtney v Peters (1990) 27 FCR 404
Dai Xing Yao v The Minister for Immigration and Ethnic Affairs (Full Federal Court, 18 September 1996)
Gray v Formosa [1963] P 259

Kioa v West (1985) 159 CLR 550 at 583
Kumar v Immigration Review Tribunal (1992) 36 FCR 544
MacAlpine v MacAlpine [1958] P 35
Mahboob v Minister for Immigration and Ethnic Affairs (Lehane J, unreported, 15 April 1996)
Minister for Immigration and Multicultural Affairs v Ozmanian (Full Federal Court, 21 November 1996)
Minister for Immigration and Ethnic Affairs v Wu (1996) 136 ALR 481
National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296
Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103
R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
Salemi v Mackellar (No 2) (1977) 137 CLR 396
Singh v Minister for Immigration and Ethnic Affairs (Lockhart J, unreported, 18 October 1996)
Velmurugu v Minister for Immigration and Ethnic Affairs (Olney J, unreported, 23 May 1996)
Zakinov v Gibson (North J, unreported, 26 July 1996)

THANH PHAT MA v J BILLINGS (Constituting the Refugee Review Tribunal) & ANOR
VG 139 OF 1995

DRUMMOND J
BRISBANE
13 DECEMBER 1996

IN THE FEDERAL COURT OF AUSTRALIA                 No VG 139 of 1995
VICTORIA DISTRICT REGISTRY  
GENERAL DIVISION  

BETWEEN:THANH PHAT MA

Applicant

AND:J BILLINGS

(Constituting the Refugee Review Tribunal)

First Respondent

AND:THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

MINUTES OF ORDERS

CORAM:  Drummond J
DATE OF ORDER:  13 December 1996
WHERE MADE:  Brisbane

THE COURT ORDERS THAT:

1. The application for review is dismissed, with costs.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA                 No VG 139 of 1995
VICTORIA DISTRICT REGISTRY  
GENERAL DIVISION  

BETWEEN:THANH PHAT MA

Applicant

AND:J BILLINGS

(Constituting the Refugee Review Tribunal)

First Respondent

AND:THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Second Respondent

CORAM:Drummond J

DATE:13 December 1996

PLACE:Brisbane

REASONS FOR JUDGMENT

This is an application to review the decision of the Refugee Review Tribunal that the applicant is not a refugee and which affirmed the decision of the primary decision-maker refusing the applicant a domestic protection (temporary) entry permit.  The question for determination by both the primary decision-maker and the RRT was whether the applicant was a “refugee” within the 1951 Geneva Convention Relating to the Status of Refugees, as amended by the 1967 New York Protocol Relating to the Status of Refugees.

Review of this decision is sought on six grounds. However, there is an objection to competency and, at the hearing, the applicant acknowledged that, by force of s 476 the Migration Act 1958 (Cth), he could not seek review on grounds (1), (3)(a), (b), (d) and (6).  The applicant did not press ground (5).  The applicant indicated that the main thrust of his attack on the decision was to be found in ground (4).

Ground (4) relies on s 476(1)(e), which confers jurisdiction on this Court to review the decision made by the RRT in this case, on the ground “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 decision¼”. The second limb of this provision does not empower the Court to review any error of law made by the RRT; the Court is confined to the facts found by the RRT and can only intervene under that limb if an error of law of the kind referred to can be identified in the context of the facts as found by the RRT.

The main error of law said to have been made by the Tribunal was its failure to speculate, by reference to the material before it concerning the circumstances of the applicant’s departure from Vietnam, his family background and his political opinions, on whether there was a real chance that the applicant would be persecuted for a Convention reason, if he were to return to Vietnam.

The applicant referred to Chan v The Minister for Immigration and
Ethnic Affairs (1989) 169 CLR 379, where it was held that a person was entitled to refugee status if he could show genuine fear founded on a real chance that he would be persecuted for a Convention reason if he returned to his country of nationality: see pp 389, 398, 407, 429. The applicant also referred to Minister for Immigration and Ethnic Affairs v Wu (1996) 136 ALR 481 at 494-495, where Brennan CJ, Toohey, McHugh and Gummow JJ said that the “real chance” test adopted in Chan involved speculation in the sense of prediction as to future chances of persecution. The applicant relied particularly on what Kirby J said, at 507:

“Because the test propounded by this Court in Chan involves the necessity of a measure of speculation about what the chances held in store for an applicant, and whether there was a ‘real chance’ that made an established fear of persecution ‘well-founded’, an indication that the delegates had put all speculation out of account would certainly show legal error.  So would an indication that the evaluation of the ‘chance’ and its ‘reality’ had been made by a test of weighing the probabilities.  Two points must be made here.

First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not ¼  It is not an error of law for such a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, so long as, in the end, he or she performs the function of speculation about the ‘real chance’ of persecution required by Chan.

Secondly, the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material.  Evaluation of chance, as required by Chan cannot be reduced to scientific precision.  That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question:  ‘What if I am wrong?’  Otherwise, by eliminating facts on the way to the final conclusion, based upon what seemed ‘likely’ or ‘entitled to greater weight’, the decision maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a ‘real chance’ of persecution.”

The applicant did not shy away from the proposition that, in reliance on Kirby J’s closing comments in this passage from his judgment in Wu, it was an error of law for the RRT to put speculation to one side at the initial stage when it was examining the cogency of the factual material in the course of deciding whether there was a real chance that the applicant would be persecuted for a Convention reason.  This proposition is inconsistent with what Kirby J said in the second paragraph of this same passage.  I do not, in any event, understand anything in Chan or Wu to lend any support to the proposition that, in refugee cases, the decision-maker must not form a view, on the basis of the material before him, on the various factual issues which are relevant to enabling the decision-maker to determine whether the objective element in the test of whether a person is a refugee is established.  I do not think that Kirby J, in the last part of the passage in his reasons in Wu which I have set out, suggests that the decision-maker must refrain from reaching conclusions on the factual issues before him, but must instead proceed immediately to speculation on whether, on the whole of the material before him which he has not attempted to assess for probative cogency, the particular applicant for refugee status has a well-founded fear of persecution.  If that were to be the way the decision-maker had to proceed, few would be denied refugee status:  assume a person claims to be a refugee because he has expressed political opinions that have angered the authorities in his homeland and that, in consequence, he will suffer retribution if he returns.  He would inevitably succeed on such a claim to refugee status if the decision-maker had to refrain from evaluating the reliability of the claim and accept it uncritically and go on to speculate whether the unassessed claim was enough to show a real chance of persecution.  All I think
Kirby J was concerned to explain was that, unless the decision-maker can dismiss as unfounded factual assertions made by the applicant, the decision-maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect.

Here, the applicant relied in part on his having to pay a bribe to procure permission to leave Vietnam as going to show, with other material, that his fear of persecution, should he return, was a well-founded one.  The RRT reviewed the material available to it touching on the payment of bribes to procure exit permission and then said:

“Although the Applicant claimed that a bribe was necessary for him to obtain permission to leave the country, from the above evidence it would appear more likely that any bribe was paid simply to encourage officials to perform their duty.  The Applicant believed that officials in his ward would have refused his application.  [He made his application to the officials in the ward in which his parents lived.]  Whether or not they would have done so, or also required some financial inducement before granting his application, is a matter for speculation.

The fact then that the Applicant’s departure could have been prevented by central or local authorities though was not suggests, along with the Applicant’s general circumstances and history, that he is not of particular interest to them for his passport application contained relevant if incomplete personal details.

If the payment of bribes would have any consequences now - which would seem remote given the prevalence of corruption - those consequences would appear likely to be limited to prosecution for the criminal act of corrupting an official, which in itself is not the same thing as persecution.”

The applicant did not criticise the comment by the Tribunal in the first paragraph of this passage about the attitude of officials in the ward in which he resided to an application by him for permission to leave Vietnam being a matter for speculation.  What the Tribunal had to say here was only by way of commenting on the lack of material sufficient to enable it to form any view at all on the likely attitude of those officials.  Cf Wu at 495. The applicant’s criticisms of this passage focused on the last paragraph and were to the effect that, having recognised that the fact that the applicant had paid a bribe to procure permission to leave Vietnam might throw light on there being good reason to fear persecution if he were to return, the Tribunal then failed to engage in the process of speculation that was essential, if it were to correctly apply the Chan test.  However, I read this passage in the Tribunal’s reasons as showing that it was alert to the need to speculate, ie, to make an assessment of the future chance of persecution for a Convention reason raised by the evidence showing that the applicant had paid a bribe to procure permission to leave Vietnam.  The result of its speculating on what might happen if the applicant were now to return to Vietnam was that the Tribunal considered that, in the unlikely event that his having paid a bribe, years before, to procure permission to leave would have any detrimental consequence for him, that consequence was likely to be limited to punitive action that would have nothing at all to do with persecution for a Convention reason.  This passage shows, in my opinion, that the Tribunal well understood the test which it was required by Chan to apply in determining whether the applicant could bring himself within the Convention as a person with a well-founded fear of persecution and that it correctly applied that test to what it
considered was the best assessment that could be made of relevant factual considerations.

Under ground (4), the applicant also contended that the Tribunal made an error of law in the way it dealt with the evidence concerning the likely impact on the applicant of his earlier unsuccessful attempts to leave Vietnam illegally, should he now be returned.  The applicant, in a brief submission, contended that the Tribunal made an error of law by accepting as correct the statement in Hathaway, The Law of Refugee Status (Butterworths Canada Ltd, 1991, pp 116-124) to the effect that punishment for illegally departing a country might amount to persecution where the punishment is harsh or oppressive and is intended to punish the act of illegal departure as itself amounting to an act of perceived political dissent.  The applicant submitted that that was too narrow a test and the Tribunal should have explored the possible relationship between any punishment that the applicant had received for his unsuccessful prior illegal departures and his family background and his political opinions.  The Tribunal reached certain factual conclusions to the effect that the punishment the applicant did receive for his prior unsuccessful attempts at illegal departure could neither be characterised as punishment for an act of perceived political dissent nor as being suggestive of a real chance of persecution in the future should he be returned to Vietnam.  The Tribunal here was dealing with whether the applicant could be said to have suffered persecution for a Convention reason in the past, having regard to the way the authorities dealt with him, following his early unsuccessful attempts to illegally leave Vietnam.  No criticism was made of the appropriateness of the Tribunal undertaking that exercise.  Contrary to the
applicant’s submission, the Tribunal did take into account, in addition to the applicant’s own experiences associated with his unsuccessful attempts at illegal departure, the possible impact on the applicant of his brothers’ own similar unsuccessful attempts. The complaint here seems to me to be that the Tribunal, in assessing the material touching on the significance of the applicant’s previous unsuccessful attempts at illegal departure, failed to have regard to all the material arguably capable of throwing light on the reasons for the applicant being dealt with in the way he was. In my opinion, there is no error of law within s 476(1)(e) when a Tribunal takes into account only some of the factual considerations that may be relevant to determining whether a particular set of circumstances comes within a legal test. Such a deficiency in the decision-making process cannot, I think, be brought with the words of s 476(1)(e) describing the only two classes of error of law that are reviewable. Even if such an approach to decision-making were otherwise capable of being characterised as an error of law, the exclusion, by s 476(3)(d) and (e), of the complaint that relevant considerations have been ignored as grounds for reviewing an RRT decision under s 476(1)(d) requires “error of law” in s 476(1)(e) to be construed, in any event, as not extending to such defects in the decision-making process.

Next, the applicant argued that the Tribunal committed an error of law in holding:  “There was no evidence that the Applicant or his family held known dissident views”, when there was evidence to that effect.  The submission appears to be misconceived:  the Tribunal, in reaching the view I have set out, stated that it regarded it as “obviously necessary to examine the Applicant’s own family history”. 
The Tribunal, at pp 16-22, appears to have dealt with the material put before it by the applicant that related to, among other things, his family background.  The applicant, in his statutory declaration of 19 October 1992 and in his letter of the same date, both lodged in support of his application for refugee status, dealt at some length with his family background and history.  Various of the issues referred to in this material are the subject of the Tribunal’s discussion at pp 16-20.  The applicant did not attempt to identify any material available to, but not considered by the Tribunal that suggested that, by reason of the applicant’s family background, there was a real chance of his being persecuted for a Convention reason should he return to Vietnam.

The applicant then developed an argument based upon the fact that the Tribunal took into account, in reaching its conclusion that there was no evidence that the applicant or his family held known dissident views, the Australian Department of Foreign Affairs and Trade Cable No 27093. In this cable, the Department expressed the opinion that families of “current dissidents” are black listed and those with “known dissident views” will, in general, find attendant difficulties on matters concerning housing, employment, education, health access and the like. This cable was not drawn to the applicant’s attention and he complains that he was not given any opportunity to comment on it. The applicant accepted that it was not open to him to attack the decision for this reason on the basis that a breach of the rules of natural justice may have occurred in connection with the making of it, in view of s 476(2). However, he submitted that what was said to be the Tribunal’s omission in this respect involved a failure on its part to comply with

s 420 and s 425 and that it was therefore open to the applicant to have the decision reviewed under s 476(1)(a) and (e).

The contents of Cable 27093 are not adverse to the applicant: they provide grounds for a finding in his favour, if only he can show that he belongs to a “dissident” family. The applicant was alert to the importance of this issue. He put material before the Tribunal designed to show just that. The cable he was not given bolstered his case on this point. There is nothing in the argument that the fact that he was not provided with it before the Tribunal hearing leaves the Tribunal’s processes open to criticism. In any event, included in the material provided by the Tribunal to the applicant two months before the oral hearing, the applicant was given information from the Australian Embassy in Hanoi to the contrary effect to the information in the cable referred to by the Tribunal in its reasons, but not shown to the applicant, viz, that according to the United Nations High Commissioner for Refugees there was now “no discrimination in employment or eduction against people with ’unfavourable’ family connections, be they former regimes (sic), capitalist or Chinese”. This material can fairly be said to be adverse to the applicant in so far as it suggested that membership of a dissident family was unlikely to lead to persecution on Convention grounds. This information, given to the applicant before the oral hearing, was sufficient to draw his attention to this issue, if that needed doing, and the applicant dealt with this issue in the material he put before the Tribunal. He has not suffered the slightest prejudice from not being given the cable. But it is necessary to consider whether the Tribunal’s failure to draw his attention to the cable amounts to reviewable error within either s 476(1)(a) or (e).

As to s 476(1)(e), it was said that a breach of the rules of natural justice involves an error of law. That can be accepted. But for the reasons given, the Tribunal’s failure to give the cable to the applicant cannot amount to a breach of the rules of natural justice. In any event, s 476(2)(a) explicitly denies an applicant for refugee status any entitlement to challenge an RRT decision rejecting his application on the ground that a breach of the rules of natural justice has occurred in connection with the making of the decision. If the alleged omission by the Tribunal is characterised as a want of natural justice, in my opinion, s 476(2)(c) requires the expression “error of law” in the more general provision, s 476(1)(e), to be interpreted as not extending to denials of natural justice. No other basis for characterising the RRT’s omission as an error of law was suggested.

There remains the applicant’s contention that this omission constitutes reviewable error within s 476(1)(a). There is an apparent conflict between the duties cast by s 420 and 425 on the Tribunal and the limited review jurisdiction vested in this Court pursuant to s 475 and 476.

Section 420 provides:

“(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.”

Section 425 provides:

“(1)Where section 424 does not apply, 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.

(2)Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.”

This latter provision applied to the conduct by the RRT of its review of the primary decision-maker’s rejection of the applicant’s claim to refugee status.

The obligation cast by s 420(1) on the Tribunal to pursue the objective of providing a mechanism of review that is fair, in carrying out its functions under the Act, would appear to impose on the Tribunal the duty to comply with the rules of natural justice in dealing with each matter that is brought before it. “It has been said on many occasions that natural justice and fairness are to be equated ¼ And it has been recognised that in the context of administrative decision-making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness”: Kioa v West (1985) 159 CLR 550 at 583, 601, 613-615 and 622. The modern cases contain many dicta to the same effect. See, eg, National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296 at 312, 320 and 326; Salemi v Mackellar (No 2) (1977) 137 CLR 396 at 445 and 451 and, most recently, Boucher v Australian Securities Commission (Full Federal Court, 5 December 1996).

The Courts have declined to define the content of the requirement, not uncommon in Australian statutes dealing with administrative tribunals, that the Tribunal must act in accordance with substantial justice and the merits of the case, a requirement imposed on the RRT by s 420(2)(b). The notion of “substantial justice” is well understood in private international law. While common law courts will recognise as valid the decree of a competent foreign tribunal that determines the status of a person domiciled in the jurisdiction of that tribunal, those courts will still refuse to recognise such decrees where they offend against local ideas of substantial justice or have been obtained in the foreign court contrary to the requirements of common law notions of procedural fairness or natural justice: Bouton v Labiche (1994) 33 NSWLR 225 at 234. By reference to the concept of natural justice, foreign divorce decrees have been denied local recognition when obtained without notice to the other party: see, eg, MacAlpine v MacAlpine [1958] P 35 at 42. By reference to the concept of “substantial justice”, English Courts have refused to recognise foreign nullity decrees granted on the basis that the English marriage had not been solemnised in a church of a particular religious denomination: see, eg, Gray v Formosa [1963] P 259. It is clear, in the private international law context, that “substantial justice” involves concepts quite different from natural justice or procedural fairness.

There is authority that the obligation cast by s 420(2)(b) on the Tribunal to act, in reviewing a decision, according to substantial justice and the merits of the
case, does not entitle the Tribunal, in the exercise of the decision-making power conferred on it by s 415(1), to grant a visa to an applicant who is unable to satisfy the relevant statutory criteria. See Kumar v Immigration Review Tribunal (1992) 36 FCR 544. Fisher J reached a similar conclusion as to the significance of a provision to the same effect in s 107VG the Repatriation Act 1920 (Cth) in Collins v Repatriation Commission (1980) 48 FLR 198. That s 420(2)(b) has this operation is, I think, made clear by s 415(4), which prohibits the Tribunal from making a decision that is not authorised by the Act or the regulations. Section 420(2)(b) is thus directed to procedural, not substantive, matters. In Collins, Fisher J commented, at 210, that the view of Evatt J, in R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, was that a statutory injunction to an administrative tribunal to act according to substantial justice and the merits of the case required the Tribunal to comply with the principles of natural justice. While not attempting to identify precisely what was required by such a statutory direction to an administrative decision-maker, Lee J, in Courtney v Peters (1990) 27 FCR 404, said, at 411, that: “It is arguable that it requires at least that the standards of procedural fairness be met. Certainly it could not be said to be expressly excluding those requirements.”

Once it is accepted, as I think it must be, that, in the context of s 420 the Migration Act, the obligation imposed on the Tribunal to act in reviewing decisions in accordance with substantial justice and the merits of the case does not permit the Tribunal to disregard the statutory criteria governing the grant of visas, it is difficult to see how that statutory requirement can involve anything other than an obligation governing the kind of procedure the Tribunal must follow in applying the statutory criteria in the course of reviewing the decision.  The statutory duty must, therefore, I think, be limited to a duty to make a determination whether the statutory criteria are satisfied in accordance with procedures that will ensure that the real issues relevant to the determination are identified and considered.

I have difficulty in finding any distinction between such procedures and the requirements of natural justice. To so read s 420(2)(b) means that it adds little to the duty cast by s 420(1) on the Tribunal in carrying out its functions under the Act to pursue the objective of providing a mechanism of review that is fair and just. But that seems to me to be the effect to be given to s 420(1) and (2)(b). I do not read s 425 as cutting down the obligation cast by s 420 on the Tribunal to comply with the principles of natural justice or procedural fairness: rather does s 425 prescribe what has to be done in order to meet the inherently flexible requirements of procedural fairness or natural justice where the Tribunal decides that it cannot dispose of the matter “on the papers” under s 424.

Since natural justice is “not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise” (Kioa v West, per Brennan J at 622), s 476(1)(a) would be apt to empower the Federal Court to review a judicially reviewable decision of the RRT on the ground that a breach of the rules of natural justice occurred in connection with the making of a Tribunal decision; but s 476(2)(a) excludes a breach of the rules of natural justice as a ground of review of RRT decisions.

There thus appears to be a conflict between s 420, in so far as it imposes on the RRT an obligation to comply with the principles of natural justice or procedural fairness in carrying out its review functions and s 476(2), which expressly denies to the Federal Court jurisdiction to review a decision of that Tribunal on the grounds that a breach of the rules of natural justice have occurred in connection with the making of the Tribunal decision. This conflict has been productive, in turn, of conflict in judicial opinion.

In Velmurugu v Minister for Immigration and Ethnic Affairs (unreported, 23 May 1996), Olney J did not attempt to identify the precise content of the requirement imposed on the Tribunal by s 420(2)(b) to act according to substantial justice and the merits of the case, but held that that provision did not establish a procedure which the Tribunal had to follow and, in consequence, an attempt to rely on an alleged failure by the Tribunal to comply with s 420(1)(b) could not give rise to an entitlement to call on this Court to review the Tribunal’s decision on the ground set out in s 476(1)(a), viz, that procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed. Olney J’s view was that whatever be the content of s 420(1)(b), it does not prescribe a procedure to be followed by the Tribunal which permits the Court to review the Tribunal’s decision on the merits. In Zakinov v Gibson (unreported, 26 July 1996), North J agreed with Olney J in considering that a challenge to a decision on the merits does not involve a contravention of any procedure set out in s 420 and thus cannot give rise to a review on the ground described in s 476(1)(a). In Singh v Minister for Immigration and Ethnic Affairs (unreported, 18 October 1996), Lockhart
J dealt with a submission that the manner in which the Tribunal conducted the review which his Honour held fell short of showing actual bias, nevertheless amounted to a failure on the part of the Tribunal to act according to substantial justice and the merits of the case as required by s 420(2)(b) and thus amounted to a failure by the Tribunal to observe procedures required by the Act to be observed in connection with the making of the Tribunal’s decision and so to result in a decision reviewable under s 476(1)(a). Lockhart J observed that, unlike the cases before Olney J and North J, the applicant was not seeking a review on the merits and that the instant case was thus distinguishable from the earlier two cases. Although his Honour did not find it necessary to identify the precise content of the requirements imposed by s 420(1) and (2) on the Tribunal, his Honour held that the applicant had failed to establish any failure on the part of the Tribunal to comply with these particular statutory requirements. In an obiter dictum, Lockhart J added:

“If I had been of the contrary view, and found that the Tribunal had acted so unfairly as to deny substantial justice to the applicant, that would in my view be a failure to observe procedures required by the Act for the purposes of s 476(1)(a), the procedure being to act according to substantial justice in reviewing a decision.”

In Asrat v Minister for Immigration and Ethnic Affairs (unreported, 23 August 1996), O’Loughlin J had to consider an application to review the decision of the RRT refusing a refugee visa on the grounds set out in s 476(1)(a). The applicant’s factual case was that the Tribunal had failed in its duty to draw to the applicant’s attention information adverse to his interests and to give him an opportunity to comment on that material before making any decision adverse to him.
The factual case was plainly that the Tribunal made its decision in circumstances in which a breach of the rules of natural justice was involved. O’Loughlin J examined the facts and concluded that, on the merits, there was no substance in the applicant’s case. But O’Loughlin J, obiter, expressed the opinion that, if information adverse to the interests of the applicant came to the notice of the Tribunal but the Tribunal failed to draw that information to the applicant’s attention so that he would have an opportunity to comment on it, that would leave the Tribunal’s decision open to review under s 476(1)(e), but not under s 476(1)(a). I am, with respect, unable to agree with his Honour’s view. It is not possible to avoid recognising that such a deficiency is nothing more nor less than a breach of one of the fundamental rules of natural justice and s 476(2)(a) precludes review on such a ground.

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.

Section 476 is an extraordinary provision in so far as by sub-section (1), it empowers the Federal Court to review judicially reviewable decisions on orthodox grounds but proceeds, in sub-sections (2) and (3), to drastically limit the reach of those review grounds. Section 476 is found in a part of the Migration Act
which also drastically limits the range of decisions which would, apart from those limitations, be judicially reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Judiciary Act 1903 (Cth): see ss 475, 485 and 486. But prior to the 1992 amendments, which came into effect on 1 September 1994, there was only limited provision for external merit review of departmental decisions in relation to visas. The main avenue for review was to the Federal Court under the ADJR Act or the Judiciary Act.  While the 1992 amendments greatly restricted the scope available for judicial review, they established new and elaborate procedures for full external merit review.  The Explanatory Memorandum accompanying the Migration Reform Bill 1992 states:

“39.The broadening of review rights for visa applicants in Australia is intended to simplify access to review by applicants, to address community concerns about the impartiality of immigration decision-making in Australia in areas where no independent merits review is currently available, and to lessen the scope for ‘merits’ review by the Federal Court by providing for merits issues to be determined by an independent administrative review tribunal.  It should also reduce the number of applications for judicial review by channelling the relevant cases into the immigration merits review system.

¼

Judicial Review

44.In acknowledgment of the special nature of immigration decisions and as a result of the widened availability of merits review the Reform Bill amends the Act to set down reformulated grounds for judicial review.  To ensure procedural fairness, procedures for decision making which embody the principles of nature justice have been set out in the Reform Bill.

45.The specific codified procedures in the Reform Bill, and those to be set out in the Migration Regulations, replace the current uncertain rules with regard to natural justice and statutory criteria for decision-making will clarify the matters which must be
considered in making a decision.  An applicant will be able to appeal to the Federal Court if the codified procedures and criteria have not been followed by decision-makers, but a Court appeal will only be permitted where the appellant has first pursued all merits review rights.”

Of the code of procedure, now contained in Subdivision AB of Division 3 of Part 2 of the Act, the Explanatory Memorandum states:

“51.This new subdivision is intended to end the uncertainty about what is required to make a fair decision on a visa application.  It will replace the uncodified principles of natural justice with clear and fixed procedures which are drawn from those principles.

52.The basic principles underpinning this Subdivision are that the Minister is under a duty to give a visa application fair and proper consideration and an applicant, who is seeking the benefit of the visa, has the obligation of doing everything reasonable to assist in the speedy consideration and determination of the application. It is essential that the proper administration of migration decision making is not frustrated by delays in the decision making process ¼ Note that new section 166LB [now s 476(2)] provides specifically that the Federal Court may not review a migration decision on the ground that the decision maker has not followed natural justice. Instead, it provides for judicial review on the ground that procedures that were required by the Principal Act, as amended, or the regulations, to be observed in connection with the making of the decision, were not observed.”

It is clear, from the Explanatory Memorandum, that the code of procedure contained in Subdivision AB of Division 3 was intended to displace entirely the rules of natural justice from the procedures involved in dealing with visa applications. The Explanatory Memorandum in the note to what is now s 476(1)(a) indicates that that provision was intended to provide an avenue for reviewing visa-related decisions on the ground that the code of procedure had not been complied
with and that, because the code of procedure set out exhaustively the procedure to be followed in relation to such decisions, there was no room for the application to that procedure of the principles of natural justice and thus no justification for the availability of a ground of review based on non-compliance with the rules of natural justice.  However, Lehane J, in Mahboob v Minister for Immigration and Ethnic Affairs (unreported, 15 April 1996), held that the code of procedure bound only the initial decision-maker, not the RRT; the decision of the initial decision-maker is an RRT reviewable decision and is not itself therefore a judicially reviewable decision: s 475(2)(d) of the Act. O’Loughlin J reached the same decision in Asrat. It is only the decision of the RRT that is judicially reviewable and that Tribunal is not bound by the code of procedure. Despite the belief of those responsible for the new provisions, s 476(1)(a) cannot provide a foundation for the judicial review of an RRT decision on the ground that the code of procedure has not been followed. But subject only to this particular failure of the 1992 amendments to give effect to the intentions of those responsible for their introduction, 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 that prescription would be reviewable under s 476(1)(a)).

Davies J, in Dai Xing Yao v The Minister for Immigration and Ethnic Affairs (Full Federal Court, 18 September 1996), said, of Part 8 the Migration Act, in
a passage with which Sackville J expressed agreement in Minister for Immigration and Multicultural Affairs v Ozmanian (Full Federal Court, 21 November 1996):

“What has occurred is not illustrative of the outright ousting of jurisdiction.  The provisions of the Migration Act have been strengthened with a view to ensuring that an applicant will have fair treatment at the level of primary decision-making and will also have the opportunity of internal review and of further review by the Immigration Review Tribunal or the Refugee Review Tribunal.  Both the Immigration Review Tribunal and the Refugee Review Tribunal are required to provide a mechanism of review that is fair, just, economical, informal and quick and both are required to act according to substantial justice in the merits of the case.  Statutory rights have been provided in place of, indeed additional to, the rights that previously found their basis in the common law.  The provisions with respect to judicial review have been adjusted by Parliament in the light of this framework.”

I read this as recognition that the 1992 amendments to the Migration Act in this respect do create certain rights for the infringement of which there is no remedy.

On no view of the RRT’s omission to give the applicant the cable in question before making its decision on his application does it provide any ground for review of the decision under s 476(1)(a).

Part A of the application for review is therefore dismissed.

The applicant also sought, on a range of grounds, to review what he described as “the conduct of the first respondent and/or the second respondent in determining that the applicant does [not] have ‘a well founded fear of persecution for Convention reasons if he were to return to Vietnam’”. This conduct consists entirely of an intermediate finding that contributed to the RRT’s ultimate decisions that the applicant was not a refugee and that the decision of the primary decision-maker should be affirmed. It is substantive, not procedural in character. The Court’s power to review conduct is limited by s 6 the ADJR Act  to conduct engaged in for the purpose of making a reviewable decision.  As Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337, 338 and 340-343 shows, neither the making of that very decision nor the reaching of conclusions antecedent to that decision nor the making of findings which contribute to the ultimate or operative decision constitute conduct reviewable under s 6, unless the conduct complained of involves a breach of procedural requirements which the decision-maker was required to observe in the course of reasoning his way to his decision. Intermediate determinations, if required to be made by the statute before the decision-maker can proceed to make the ultimate or operative decision, are reviewable as decisions under s 5. But even if not reviewable directly, they are not “beyond reach” of review, since review under s 5 of the ultimate decision exposes for consideration the reasons given for the making of that decision and the processes by which it was made. The conduct sought to be reviewed is not conduct of the kind that is reviewable under s 6, but can be scrutinised by the Court in its review of the RRT’s ultimate decisions, provided one or other of the grounds relied on for review of the RRT’s decisions opens up those matters for examination by the Court. Further, the conduct here in question is so closely connected with the ultimate decision that even if (contrary to my preferred view) it were once reviewable under s 6, it ceased to be reviewable when that decision was made. See Minister for Immigration and
Multicultural Affairs v Ozmanian (Full Federal Court, 21 November 1996).

The applicant also argued that Part 8 the Migration Act does not exclude the Federal Court’s power to review, pursuant to s 6 the ADJR Act, conduct engaged in for the purpose of making a decision, which conduct involves a breach of natural justice.  The applicant relied on Ozmanian v Minister for Immigration Local Government and Ethnic Affairs (1996) 137 ALR 103. There, Merkel J held that, while the decision made by a senior adviser on behalf of the Minister that the Minister would not consider whether to exercise his power under s 417 was excluded from judicial review by s 475(2)(e), “the distinct, antecedent and preparatory procedural conduct of departmental officers in conducting inquiries, making recommendations and preparing a proposed draft of the decision for presentation to the minister or to his officers responsible for making the decision on his behalf”, was conduct engaged in for the purpose of making a decision which was not excluded by s 485 the Migration Act from judicial review under s 6 the ADJR Act:  see pp 131-134.  This case is quite different from Ozmanian in that the only conduct sought to be reviewed was conduct that constituted the making of the decision the subject of the present challenge or conduct which was “no more than steps in the deliberative or reasoning process” which produced that decision and, as such, not conduct of the kind with which s 6 the ADJR Act is concerned:  see Bond at 341-343. But since argument concluded, the Full Court has overturned Merkel J’s decision: see Minister for Immigration and Multicultural Affairs v Ozmanian (Full Federal Court, 21 November 1996).

Part B of the application for review must therefore be dismissed also.

I certify that this and the preceding 24
pages are a true copy of the reasons
for judgment herein of the Honourable
Justice Drummond.

Associate:

Date:  13 December 1996

Counsel for the applicant:  Mr R Niall

Solicitor for the applicant:  Michael MacKinnon

Counsel for the respondents:                   Mr C Gunst

Solicitor for the respondents:  Australian Government Solicitor

Date of hearing:  31 October 1996