Kalala v Minister for Immigration & Multicultural Affairs [1999]

MIGRATION - judicial review - application for a Protection Visa - whether Refugee Review Tribunal made findings on matters that were material to whether the applicant had a well founded fear of persecution

Migration Act 1958 (Cth) ss 430(1) and 476(1)(a)

Migration Regulations Cl 866.221

Borsa v Minister for Immigration and Multicultural Affairs [1999] FCA 348 - cited

Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 - considered

Paramananthan v Minister for Immigration and Multicultural Affairs (1996) 160 ALR 24 - applied

Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635 - cited

Abebe v Commonwealth of Australia (1999) 162 ALR 1 - cited

Visvanathan v Minister for Immigration and Multicultural Affairs [1999] FCA 1508 - cited

Brew v Repatriation Commission [1999] FCA 1246 - considered

Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 - applied

Geng v Minister for Immigration and Multicultural Affairs [1999] FCA 951 - cited

Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411 - cited

KALALA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 302 of 1999

JUDGE: MERKEL J

DATE: 19 NOVEMBER 1999

PLACE: MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 302 OF 1999

BETWEEN:

MUTSHIMANS KALALA Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: MERKEL J

DATE OF ORDER: 19 NOVEMBER 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1.  The decision of the Refugee Review Tribunal made on 18 May 1999 be set aside.

2.  The matter be remitted to a differently constituted Refugee Review Tribunal to be determined in accordance with law.

3.  The respondent pay the applicant's costs which are fixed at $500.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 302 OF 1999

BETWEEN:

MUTSHIMANS KALALA Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: MERKEL J

DATE: 19 NOVEMBER 1999

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of the Democratic Republic of Congo (formerly Zaire) ("the DRC"), arrived in Australia on 18 February 1998. Pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act") and the Migration Regulations he applied for a Protection visa on the ground that he was a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951 as amended to the Protocol Relating to the Status of Refugees 1967 ("the Refugees Convention"): see Cl 866.221 of Sch 2 of the Migration Regulations. A criterion for a Protection visa is that at the time of decision the Minister is "satisfied" that the applicant is a non citizen to whom Australia has protection obligations under the Refugees Convention.

2. The applicant claims that under Article 1A(2) of the Refugees Convention he is a person who has a well founded fear of being persecuted for reasons of political opinion and is unable or, owing to such fear, is unwilling to return to the DRC.

3. The applicant's application for a Protection visa has had a troubled history. Initially, his application was refused by a delegate of the Minister and, on review, the Refugee Review Tribunal ("the RRT") affirmed the delegate's decision not to grant a Protection visa. The decision of the RRT was set aside by an order of the Court made by consent under Pt 8 of the Act. The same sequence of events was repeated in respect of the next review. A differently constituted RRT again affirmed the decision of the delegate but after a further application by the applicant to the Court an order was made by consent under Pt 8 of the Act setting aside the second RRT decision. On the third review a differently constituted RRT affirmed the decision of the delegate after conducting a further hearing at which the applicant again gave evidence in support of his claim. The applicant has, once again, applied to the Court under Pt 8 of the Act to review the third RRT decision.

Background

4. The applicant's claim for refugee status was based on the following claims made by him. In late January 1997 the Government of Zaire, headed by President Mobutu, called for volunteers to go to the refugee camps in the east of Zaire to assist Rwandan refugees. On or about 24 January 1997, in response to that call, the applicant joined the Red Cross and subsequently went to the Tingi Tingi refugee camp in order to provide general assistance to refugees under the auspices of the Zairean Red Cross. Rebel forces under the command of Laurent Kabila took control of the camp and killed significant numbers of the refugees.

5. Mans Kabangu, the applicant's friend and supervisor, had taken photographs of the killings and atrocities committed by Kabila's troops at, or in the proximity of, the camp. The applicant said he had witnessed the atrocities and killings. In about March 1997 Kabila's troops became concerned that United Nations representatives were to inspect the Tingi Tingi camp and might become aware of the killings and atrocities that had been committed by them. Consequently, anyone who was perceived as willing or able to provide evidence of the killings and atrocities to the United Nations representatives had reason to fear possible reprisals against them by Kabila's troops.

6. On 5 May 1997 some of Kabila's soldiers came to the tent which the applicant shared with Kabangu and discovered the photographs in Kabangu's bag. The soldiers took Kabangu away after beating him. The applicant became frightened for his own safety and fled the camp. After reading of a report in a newspaper that Kabila's soldiers were searching for him and hearing that Kabila's soldiers made threats to his family when visiting his cousin's home seeking the applicant, the applicant managed to cross the border into Zambia and travel by truck to South Africa. After working in South Africa the applicant obtained a false South African passport which he used to travel to Australia.

7. In support of his claims the applicant provided to the RRT two certificates of the Red Cross of the DRC which had been obtained by the Australian Red Cross at the request of the applicant. The certificates confirmed that the applicant had worked as a volunteer for the Red Cross at Tingi Tingi at the relevant time. The applicant also relied upon an article published in "Le Phare", a newspaper published in the DRC, on 6 March 1998. The article reported that five people, three in military fatigues and two in civilian clothing, visited the applicant's family home claiming that the family was hiding the applicant who was said to be "a dangerous enemy". The article also stated that the visitors warned the applicant's father that "they would return and woe betide him" if the applicant was later found to be hidden by him.

The RRT's decision

8. The RRT had access to the applicant's previous evidence and statements in support of his initial application, his application to the delegate and the evidence given by him at the first two RRT hearings. The RRT accepted that there was evidence that atrocities had been committed at the Tingi Tingi camp by Kabila's troops and that, after Kabila had assumed power in the DRC, his troops would be likely to arrest or harass witnesses to those atrocities if they believed the witnesses might provide evidence in relation to the atrocities to a United Nations Investigative Committee.

9. The RRT treated the applicant's claim that he worked at various times for the Red Cross at the Tingi Tingi camp between late January 1997 until 5 May 1997 as critical to his application for refugee status. In its reasons for decision the RRT set out the material that did and did not support the applicant's claim. The material that did not support the claim included certain documents that were in the applicant's possession when he arrived in Australia. The documents suggested that the applicant was likely to have been in South Africa, rather than the DRC, during a significant part of the relevant period. The RRT accepted that the applicant's evidence and the two Red Cross Certificates supported his claim that he was at the Tingi Tingi camp in the DRC during the relevant period. However, the RRT preferred the documentary material in the applicant's possession on his arrival in Australia which suggested that he was not in the DRC as he contended. The RRT concluded that that documentary material ought to be given more weight than the Red Cross Certificates, which the RRT stated had been obtained for the "purpose of" and was "generated in the context of" the applicant's claims.

10. The RRT formed the view that, as the applicant had not provided an acceptable explanation as to why the documents in his possession were forged or untrue and as the applicant's account of his time at the Tingi Tingi camp was not consistent with the known country information, the applicant was not at Tingi Tingi at the time he claimed to be there. The RRT then concluded that, as the applicant was not at Tingi Tingi:

"there is no basis for accepting that he fled Tingi Tingi because of what happened to his friend or that he faces a real chance of persecution should he now return because of what he witnessed."

11. The RRT then proceeded to consider whether, even if the applicant was at Tingi Tingi as he claimed, it was satisfied that he would face a real chance of persecution should he return to the DRC. The RRT, after considering various aspects of the applicant's claimed fear of persecution because of his association with Kabangu, said it did not regard the applicant's claims to be plausible. The RRT concluded:

"Even if the applicant was at Tingi Tingi camp, the RRT does not find the applicant's account of Kabila's troops taking an interest in him after he left to be anything other than far fetched."

12. The RRT added that it had also formed the view that there was no reason why the authorities in the DRC would consider that the applicant had any knowledge about the atrocities or might have seen the atrocities. Accordingly, the RRT decided that, should the applicant return to the DRC, there was no real chance he would face difficulty as a result of being at the Tingi Tingi camp as claimed by him.

The original grounds of review

13. Initially, counsel for the applicant relied upon three grounds of review. The first was that the RRT had failed to set out findings on material questions of fact and the evidence or other material on which those findings were based in accordance with s 430(1) of the Act and therefore failed to observe the procedures that were required by the Act to be observed in connection with the making of the decision: see s 476(1)(a). The main contention in support of the ground was said to be the failure of the RRT to explain the basis upon which it had rejected the two Red Cross certificates.

14. Section 430(1) provides as follows:

"Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a) sets out the decision of the Tribunal on the review; and

(b) sets out the reasons for the decision; and

(c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or any other material on which the findings of fact were based."

15. The requirements of s 430(1) have been considered in numerous cases. Section 430 does not require the RRT to prepare lengthy reasons dealing with every aspect of the evidence; rather, it is enough that the findings deal with the substantial issues on which the case turned: see Borsa v Minister for Immigration and Multicultural Affairs [1999] FCA 348 at [26] and [27]. Although s 430(1)(d) requires the RRT to refer to the evidence on which the findings on material questions of fact are based, it does not require the decision maker to give reasons for rejecting each item of evidence inconsistent with the findings made: see Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at [24]. The RRT is not entitled to reject evidence of matters that are directly, and objectively, material "to whether a person is in truth a refugee" without some explanation for doing so, notwithstanding that there is material that the RRT was entitled to accept which would justify the decision against the applicant: see Baljit Kaur Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1126 and Yue v Minister for Immigration and Multicultural Affairs [1999] FCA 1404 at [9] and [10]. As was noted by Wilcox J in Paramananthan v Minister for Immigration and Multicultural Affairs (1996) 160 ALR 24 at 27, one of the purposes of s 430 is to ensure that an unsuccessful applicant for a Protection visa is told why the application has failed and that if the reason, or one of the reasons, was that the tribunal rejected a material claim the tribunal must say so and indicate the evidence or other material on which the adverse finding was based.

16. Applying these principles I am of the view that the RRT has adequately and sufficiently set out the findings that led it to prefer the documentary evidence inconsistent with the applicant's claim that he was present at Tingi Tingi during the relevant period. Subject to observations I shall make later in respect of the "Le Phare" article I am also satisfied that it adequately explained its reasons for so doing.

17. The second ground relied upon by the applicant was that there was no evidence or other material to justify the RRT's decision not to accept the Red Cross certificates: see s 476(1)(g). It was contended, with some force, that the fact that the certificates were obtained for the purpose of furthering the applicant's refugee claim could hardly be used to taint the certificates that were obtained through the independent agency of the Australian Red Cross. Counsel for the applicant also submitted that the RRT's statement that the certificates were "generated in the context of the applicant's claims" is not accurate, as the evidence given by the applicant, that was not rejected by the RRT, was that the first of the certificates formed part of his Red Cross file in Kinshasa and, as such, was not connected with his claim for refugee status.

18. Notwithstanding the criticisms of counsel for the applicant, plainly there was material which entitled the RRT to prefer and place greater weight on the documents found in the possession of the applicant to the documents produced by the Red Cross. In any event, criticism of the reasoning of the RRT is not, of itself, an error of law. Thus, so long as there is some basis for a finding, in the sense that it is reasonably open even if it is arrived at as a result of illogical reasoning, "there is no place for judicial review because no error of law has taken place": see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 and Minister for Immigration & Multicultural Affairs v Epeabaka (1998) 84 FCR 411 at 421-422. My conclusion makes it unnecessary to consider whether, in any event, the ground relied upon under s 430(1) could be made out in relation to findings that related essentially to credit and, in the events that occurred, related only to one of the two bases for the decision by the RRT to reject the applicant's claim.

19. The third ground relied upon was actual bias: see s 476(1)(f). The ground was recently considered by a Full Court in Geng v Minister for Immigration and Multicultural Affairs [1999] FCA 951 at [40], [157] and [158]. See also Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1542. I am not satisfied that the RRT had a closed mind to the issues raised or was not open to persuasion or applied its mind with any preconceived prejudice or bias one way or the other to the material placed before it. Accordingly, there is no basis for the allegation of actual bias. As I pointed out in Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635 at 645:

"In the review process [the RRT] was entitled, and indeed obliged to make findings as to credit and express the findings in the manner [it] deemed appropriate. The expression of such findings in strong language does not afford a basis for alleging bias."

The article in "Le Phare"

20. The RRT's treatment of the article published in "Le Phare" on 6 March 1998 is curious. The article was relied upon by the applicant to support his claim that, as Kabila's agents were still seeking to "trace" him or were still "after" him, he was seeking refugee status "to live safely here in Australia and save my life from Kabila's government".

21. The events reported in the article were material to the applicant's claims that:

he feared persecution on political grounds because of the knowledge he gained or was perceived to have gained at the Tingi Tingi camp concerning massacres by Kabila's agents;

he feared being returned to the DRC because, as at March 1998, he was being sought by Kabila's agents as "a dangerous enemy".

22. Notwithstanding the above matters the RRT decided to reject the applicant's claim of feared political persecution, by reason of his alleged presence at Tingi Tingi, prior to its consideration of the article. The RRT only turned to consider the article after it had made findings against the applicant on the two critical aspects of his claim; his presence at Tingi Tingi and being sought by Kabila's troops because of his perceived knowledge of atrocities committed at Tingi Tingi by Kabila's troops.

23. The RRT expressed its findings in relation to the article as follows:

"Having said this it is necessary for the RRT to consider the impact of the claimed events that occurred to his father as reported in the newspaper article. In the RRT's view the question to be answered is does this provide evidence of an ongoing interest in the applicant. The newspaper article that was obtained by the applicant is in the `Le Phare' newspaper of 6 March 1998. The article is headed `Des visiteurs tres speciaux sur l'avenue Kalombo' (`Some very special visitors on Kalombo Avenue') and translates as follows:

`There were five of them, three in military fatigues and two in civvies. Speaking Swahili, they turned up at 11 pm at Mr Kalombo's house at No. 1 in the street of the same name in the Commune of Lemba.

Giving the occupiers no time to speak a single word, these night time visitors began to threaten the parents who were to blame for hiding a dangerous enemy answering to the name of Muntshimans Kalala. `We are hot on his trail since Goma and now we have come to learn that all this time you have been hiding him'. To reinforce the allegation, they rained rifle butt blows upon the old man, a gentleman who was already weighed down with old age and who had only tears and the name of the Lord to argue with or to touch the hearts of these torturers.

Those tears served a couple of purposes: first, the blows were in effect bringing about his martyrdom at his advanced age, and second because raising the name of Muntshimans Kalala was a blow like stabbing at a raw wound. Mr Kalombo had in effect arranged the mourning rituals for his son in the previous six months, having vainly searched everywhere for him, to learn that he was reported as having died at Goma.

Now it was that death that those special visitors were revisiting. They at last left, warning the old man that they would return and woe betide him if he was found to be, in fact, hiding their quarry. Not knowing which way to turn, Kalombo notified some human rights defence organizations, and decided to make a complaint against the unknown persons, because one never knows.'

The story seems to be at odds with the applicant's claims. He does not claim to have ever been to Goma or that he has been followed there. Secondly the suggestions that his father thought he had died in Goma is at odds with the applicant's history. The applicant stated that in the hearing that his father does not talk to his mother and would not have spoken to his cousins. The RRT considers this strange. It is stranger when it is considered that in the applicant's first interview with the department he talked about assistance from his parents. However, the question is whether the article satisfies the RRT that there is a real chance that the authorities might be after him for the reasons he has claimed. Given that the article does not appear to relate to the applicant's claims, and given that it appeared on 6 March 1998 by which stage the applicant was in Australia, and had lodged his application for refugee status, the RRT does not find the article at all persuasive of anything in this case. In the RRT's view it is sufficient for it to consider whether this evidence leads to a conclusion that the applicant faces a real chance of persecution for a Convention reason. In the RRT's view it does not. In the RRT's view this story being completely at odds with the applicant's claims about being sought after because of what happened at Tingi Tingi, is not evidence upon which it can place any weight whatsoever.

As a result the RRT is left in the situation where, not only does it reject the applicant's claim that he was at Tingi Tingi, it has also rejected the central plank of the applicant's claims, about being sought for sharing a tent with someone accused of photographing atrocities, as being implausible. The RRT finds that there is no real chance the applicant will face persecution should he now return to the Democratic Republic of the Congo as a result of any of his claims."

24. In the course of the hearing before me the applicant sought, and was granted, leave to add a further ground of review:

"The RRT erred in law in confining the case with which it was dealing to what it regarded as the case articulated by the applicant in relation to his presence at Tingi Tingi camp and not to whether the applicant faced persecution by reason of actual or perceived political opinion raised by the whole of the material before the RRT."

25. The applicant contended that on a fair reading of the RRT's reasons for decision it failed to make any finding as to the accuracy of the events reported in the article. In Paramananthan at 56-57 I stated that in reviewing a decision under the Act the RRT is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the "case" articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant. See also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 at [23] and Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15]. In Abebe v Commonwealth of Australia (1999) 162 ALR 1 at [187] Hayne and Gummow JJ referred to the inquisitorial function of the RRT and observed that it must decide if the claim for refugee status is made out on the basis of the evidence and arguments advanced by an applicant.

26. Whilst the RRT, as a tribunal of fact, can reject evidence which was directly material to whether a fear on a Convention ground is well founded, it is not open to it to do so without setting out its own findings in respect of that evidence under s 430(1)(d): see Addo at [19], Borsa at [26] and [27], Paramananthan at 27, Yue at [9] and [10]. Some decisions of the Court that might be relied upon to suggest otherwise can usually be explained on the basis that the evidence in question was not directly material to whether the applicant was a refugee within the meaning of Article 1A of the Refugees Convention: see for example Visvanathan v Minister for Immigration and Multicultural Affairs [1999] FCA 1508 at [37].

27 The question is whether the RRT was required, but failed, to make findings in respect of the events reported in the article. Recently in Brew v Repatriation Commission [1999] FCA 1246 at [31] I said:

"...as has often been noted the reasons of an administrative tribunal are to be read as a whole and are not to be approached by extracting particular sentences which, taken out of context, may reveal an error of law. The task of the Court in the case such as the present was aptly described by Burchett J in Baxter Healthcare v Collector-General of Customs (1997) 72 FCR 467 at 469:

`This case very well illustrates a point made in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287, and recently reiterated by the High Court of Australia in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. The point is that judicial review of decisions of the Administrative Appeals Tribunal is not concerned with technical legal niceties, looseness of language, or infelicities of expression, but with whether a decision is infected in substance by some error of law. To my mind, the primary argument in the present appeal turns on whether the Tribunal in reality mistook its legal task, or whether it merely strayed into a measure of obscurity in the statement of its reasons, the actual meaning of which can nevertheless be ascertained by some perseverance, and being ascertained, reveals no error.'"

28. The main focus of the RRT, throughout its reasons, was on the applicant's fear of persecution because of his presence at Tingi Tingi. However, if the RRT failed to consider and make findings in relation to the significance of the "Le Phare" article, as a ground for the applicant fearing persecution, that would constitute reviewable error. In approaching that question it is appropriate to ascertain whether, in that regard, the decision was infected in substance by that error.

29. The Minister contended that the RRT made a finding that the events reported in the article did not occur. It was said that, in substance, the RRT decided that it was not satisfied that there was any "ongoing interest" by the authorities in the applicant by reason of imputed political opinion and that that finding, which was ultimately one of fact for the RRT, was reasonably open to it to make. The applicant contended that when the reasons are read as a whole and the passages relied upon by the Minister are read in context no such finding was made.

30. The RRT appeared to regard the events reported in the article as being relied upon by the applicant to corroborate his claim that he was present at Tingi Tingi during the relevant period, rather than as constituting an independent ground or basis for him to fear persecution for reasons of perceived political opinion in the event that he returned to the DRC. Whilst some of the RRT's findings in relation to the article were expressed in general terms the preferable view is that the particular context suggests that they were intended to be directed to the "Tingi Tingi" issues.

31. The RRT stated that the question before it was:

"Whether this article satisfies the RRT that there is a real chance that the authorities might be after him for the reasons he has claimed."

32. The RRT treated the "reasons" the applicant claimed that there was a real chance of persecution as all relating to his presence at the Tingi Tingi camp. It was in that context that the RRT stated that the article:

"does not appear to relate to the applicant's claims."

and that it

"does not find the article as persuasive of anything in this case."

33. Although it is arguable that the RRT implicitly, if not explicitly, concluded that the events described in the article did not occur, and that therefore the article was "not evidence upon which [the RRT] can place any weight whatsoever", such an approach would be asking the Court to draw an inference from the reasons of the RRT that does not appear to be warranted by the context, the language it used or the material before it: cf Addo at [20]. In that regard it is to be noted that enquiries were made by the Department as to the status and reliability of the "Le Phare" newspaper, including whether the person writing the article was a reputable journalist, but no response was received. Further, information from the US Department of State suggested that "Le Phare" is a recognised and independent newspaper. Thus, the RRT was not well equipped to form a view on the veracity of the events reported in the article. I have referred to these matters, not for the purpose of concluding that it was not reasonably open to the RRT to form that view, but to indicate why it is unlikely it would do so without making explicit findings on those matters. For these reasons I am not prepared to infer that the RRT made specific and adverse findings concerning the occurrence of the events reported in the article. Although I accept that there is some ambiguity in the reasons of the RRT on this issue, the Court ought not give the reasons a favourable or beneficial construction when it forms the view, as I have that, as a matter of substance, the reasons did not make findings on the events reported in the article as an independent basis for the applicant's claimed fear of political persecution.

34. It follows from the foregoing that the RRT appears to have approached its task by reference to the claims of political persecution in respect of events at the Tingi Tingi camp and not by reference to the additional events reported in the "Le Phare" newspaper. In that respect the present case has some similarity to Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182. Thevendram concerned the failure of the RRT to make findings in respect of three letters that stated that after the applicant's departure the authorities had been harassing his family in Sri Lanka by reason of a perceived association between the applicant and the Liberation Tigers of Tamil Eelam. The Full Court (Spender, North and Merkel JJ) at [31] stated that if the veracity of the claim in the letters was accepted:

"it plainly supports Mr Thevendram's account of his arrest and detention and also provides an additional reason for his present fear of political persecution if he returns to Sri Lanka."

35. A similar situation has arisen in the present case. If the veracity of the events reported in "Le Phare" are accepted, they support the applicant's version of events at Tingi Tingi. More importantly, for present purposes they provide "an additional reason for [the applicant's] present fear of political persecution" if he returns to the DRC. In Thevendram the Full Court considered the claim of harassment set out in the letters to be a substantial issue on which the case might turn, and therefore a material question of fact for the purposes of s 430(1)(c). The Court stated at [35] and [36]:

"In Logenthiran v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Wilcox, Lindgren and Merkel JJ, 21 December 1998) a Full Court concluded that there was a breach of s 430(1)(c) by reason of the failure of the RRT to deal with claims made by the refugee claimant of two instances of arrest, detention, interrogation and torture shortly before his departure from Sri Lanka. The breach of s 430(1)(c) arose by reason of the obvious relevance of those claims to the issue of whether the RRT was satisfied that the claimant's fear of persecution was well founded. As was pointed out in the judgment of Wilcox and Lindgren JJ (at 13), whilst it may have been open to the RRT, as the tribunal of fact, to reject material which was directly relevant to the issue of whether a fear was well founded, it was not open to it to do so without setting out its own findings in respect of the matters the subject of the material.

In the present case whilst it may have been open to the RRT to reject, or to give little or no weight to, the family harassment claim a failure to make a finding in relation to it is a breach of the requirements of s 430(1)(c)."

36. The conclusion of the Full Court in Thevendram, that the RRT failed to deal with the harassment reported in the three letters, applies with equal force to the events reported in the "Le Phare" article. The authorities to which I have referred establish that the breach by the RRT of s 430(1) as a result of its failure to make findings in respect of the events reported in the "Le Phare" article is reviewable under s 476(1)(a) of the Act.

37. Further, as I explained in Paramananthan at 57 and 63 there will have been a constructive failure by the RRT to exercise its jurisdiction if it:

"misconceives its duty or fails to address the correct legal question committed to it by not applying itself to all the issues it is required to consider in determining the matter before it": see Paramananthan at 57

38. An alternative approach to the RRT's failure to make the requisite findings in respect of the events reported in the Le Phare article is to view that failure as evidencing a misconception by the RRT of its duty to apply itself to all of the material issues it is required to consider in determining the applicant's claim for a Protection visa. That misconception constitutes a breach of the procedures required by the Act and a constructive failure to exercise jurisdiction which is reviewable under ss 476(1)(a), 476(1)(c) or 476(1)(e) of the Act.

39. There is also an additional answer to the Minister's contention that the RRT found that the events reported in the article did not occur. If, contrary to my conclusion, such a finding was made by the RRT, it failed to meet the requirements of s 430(1)(d) as it did not refer to the evidence or the material on which the finding was based: see Logenthiran v Minister for Immigration and Multicultural Affairs [1998] FCA 1691 at [13] (Wilcox and Lindgren JJ). In arriving at that conclusion I do not regard the matters referred to by the RRT in relation to the article as constituting evidence or material on which such a finding was based. Rather, the matters referred to seek to explain why the events reported in the article were not regarded by the RRT as supporting the applicant's claim to have been present, and to have witnessed atrocities, at Tingi Tingi during the relevant period.

40. The present application is the third time the applicant has sought that the matter be remitted by the Court to the RRT, although on the first two occasions the remission was by consent. The Minister contended that in these circumstances the Court should exercise caution before making an order to remit the matter back a third time. I have some difficulty in accepting this submission. If it is suggested that the Court should be more cautious than it might otherwise be before determining error of law for the purposes of Pt 8 then it seems to me that the submission is misconceived. I do not accept that because there have been two remissions as a result of failures of the RRT to act in accordance with law, that that should somehow require the applicant to meet some higher threshold on his third application for review. If, on the other hand, the contention is that the matter should not be remitted unless the requisite ground is established under Pt 8 then the submission does no more than state the content of the duty of the Court in any event.

Conclusion

41. For the above reasons the decision of the RRT should be set aside and the matter is to be remitted to a differently constituted RRT for determination in accordance with law. The applicant's counsel indicated that the costs sought by the applicant, if he succeeds, are the costs actually incurred in relation to the application and preparation of submissions, which total $500. In the circumstances the appropriate order as to costs is for the Minister for pay the applicant's costs which I fix in the sum of $500.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated: 19 November 1999

Counsel for the Applicant: Mr RM Niall

Counsel for the Respondent: Mr W Mosley

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 28 October 1999

Date of Judgment: 19 November 1999