Singh v Minister for Immigration & Multicultural Affairs [1999]

MIGRATION - whether the Tribunal failed to comply with procedure to be observed in connection with the making of the decision required by the Act contrary to s 476(1)(a) of the Act - whether s 430 prescribes procedures required to be observed in connection with the making of a decision under the Act - whether s 430 complied with.

MIGRATION - application for protection visa - application for review - potential violence in the Punjab region.

MIGRATION - whether Refugee Review Tribunal failed to comply with procedure required by the Migration Act 1958 (Cth) - whether the Tribunal failed to give the applicant an opportunity to appear before it to give evidence under s 425(1) of the Act.

MIGRATION - whether Tribunal failed to consider evidentiary material received - whether the Tribunal failed its obligation to review the decision of the delegate under s 414.

Migration Act 1958 (Cth) ss 36, 414(1), 418, 420(2), 423, 425(1)(a), 425(1)(b), 430, 476(1)(a) and 476(3)(e)

Administrative Appeals Tribunal Act 1975 (Cth) s 43(2B)

Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 considered

Steed v Minister for Immigration and Ethic Affairs (1981) ALR 620 considered

Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 considered

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 602 considered

Ozberk v Minister for Immigration and Multicultural Affairs [1999] FCA 700 considered

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 considered

Han v Minister for Immigration and Multicultural Affairs [1999] FCA 376 considered

Voitenko v Minister for Immigration and Multicultural Affairs (Federal Court, Moore J, unreported, 27 August 1998) considered

Kandiah v Minister for Immigration and Multicultural Affairs (Federal Court, Finn J, unreported, 3 September 1998) followed

Abebe v The Commonwealth (1999) 162 ALR 1 considered

Dornan v Riordan (1990) 24 FCR 564 applied

Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 applied

HARBHAJAN SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 5 OF 1999

MANSFIELD J

9 SEPTEMBER 1999

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 5 OF 1999

BETWEEN:

HARBHAJAN SINGH Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: MANSFIELD J

DATE OF ORDER: 9 SEPTEMBER 1999

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1.  The Tribunal's decision is set aside.

2.  The application is remitted to the Tribunal for reconsideration.

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

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 5 OF 1999

BETWEEN:

HARBHAJAN SINGH Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: MANSFIELD J

DATE: 9 SEPTEMBER 1999

PLACE: ADELAIDE

REASONS FOR JUDGMENT

Introduction

1. The applicant, a national of India, is now forty-nine. He was born in the Punjab region of India, and is of the Sikh religion. He arrived in Australia on 22 December 1996. On 17 March 1997, he applied for a protection visa under the Migration Act 1958 ("the Act"). A delegate of the respondent refused that application. The applicant sought review of that decision before the Refugee Review Tribunal ("the Tribunal"). On 24 December 1998, the Tribunal affirmed the decision of the delegate of the respondent not to grant to the applicant a protection visa under s 36 of the Act.

2. To qualify for such a visa, it is necessary that the applicant be a non citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (those two terms being defined in the Act). In a practical sense, that requires that the applicant be a refugee as defined in Article 1A(2) of the Convention.

The applicant's claims

3. The Tribunal noted the applicant's claims in some detail. This brief description of his claims is taken from the Tribunal's reason. In 1986 he joined the All India Sikh Students Federation ("AISSF"). His activities on behalf of that Federation led the police to seek to arrest him, so that between 1988 and 1992 he was constantly moving around India to avoid capture. In January 1993 he was arrested, with other members of AISSF. He was detained for two weeks, during which time he was beaten. He was then released. He remained in the same general area of India until about the end of 1994. At that time he learnt that two others who were members of the AISSF, and who had been arrested with him in January 1993, had been shot by police in fabricated encounters, so he went into hiding again. In September 1996, the applicant was again arrested and beaten, but after several weeks he was released following the payment of a bribe. He procured a passport through bribery and then fled to Australia.

4. His claim was that he had a well founded fear of being persecuted for reasons of his membership of the AISSF and other Sikh militant organisations and his political activities undertaken as a Sikh separatist.

The Tribunal's Findings

5. The Tribunal recognised that the AISSF was a wing of Akali Dal, a mainly Sikh party in the Punjab advocating greater independence for Indian states from the central Indian government. It found that the AISSF was a banned organisation between March 1984 and April 1985, during which time many of its members were arrested. After the ban was lifted, the AISSF split into a number of factions with each faction having varying degrees of militancy. Certain of its factions retained terrorist connections.

6. The Tribunal found that the AISSF is no longer itself a proscribed organisation. It found that mere membership of, or support for, the AISSF would not attract adverse attention from the authorities in India.

7. It then addressed the particular situation in the Punjab. It noted that there has been a long period of instability and violence associated with the demand for a separate Sikh state. From 1984, there have been violent and oppressive measures taken against members of the AISSF and those promoting an independent Sikh state, illustrated by the assault by the Indian Army on the Golden Temple at Amritsar, and following the assassination of Prime Minister Indira Gandhi by two Sikh body guards with very substantial resulting riots. Those two incidents led to the deaths of many Sikhs.

8. It then noted that from about July 1992 there had been a "rapid decline" in the level of militant activity in the Punjab. Material available indicated that by early 1994, general unrest in the Punjab had been much reduced so that, unless an individual had a particular established history of terrorist association or an established profile as a human rights advocate, the chances of that person facing Convention related difficulties on return to India would be remote. It noted the independent evidence in the following terms:

"Independent country information available to the Tribunal indicates that the current situation in Punjab is peaceful, that the police have been restrained by the Government and that only high profile militants are at risk. The independent evidence is that, Sikh militancy in the Punjab has been virtually eliminated ... many groups like the All India Sikh Students Federation ("AISSF") and the Sikh Student Federation ("SSF") have in recent years denounced the use of violence and committed themselves to only pursuing a peaceful agenda ..."

9. The Tribunal consequently observed:

"Almost all sources consider that the situation has changed significantly since about 1995. This appears largely to be a function of the fact that Sikh terrorism has been more or less contained, with most Sikh terrorist leaders either dead or in gaol. It is notable that Amnesty International, Human Rights Watch, the US State [Department's] Reports on Human Rights Practices and other such bodies no longer allege persecution of Sikhs in Punjab. The most recent Country Reports say that the pattern of disappearances prevalent in Punjab in the early 1990's appears to be at an end. It is agreed by all that serious human rights violations continue to occur in India, but the principal areas of concern today are not Punjab but Kashmir and the northeastern frontier states."

10. The Tribunal found, after surveying the evidence, that while the human rights situation in the Punjab has improved significantly since 1995, some human rights violations by the Punjab police continue at the present time. From the materials referred to by the Tribunal, it appears that it reached the view that those ongoing violations were directed principally against individuals with an established history of terrorist activities, such as those in organisational or leadership roles in the pro-Khalistan militant groups, and those with an established profile in human rights activities.

11. The Tribunal then addressed the applicant's particular circumstances. He was a farm worker after leaving school, and after working in Iraq between 1979 and 1984, he returned to India to undertake farm work again.

12. It accepted that the applicant became a member of the AISSF (called the Student SSF from 1984), but noted that it was by then a legal organisation. It accepted that the applicant was involved in its meetings from time to time. The Tribunal did not accept that the applicant was on the run from fear of arrest as a result of that involvement between 1986 and 1989. The applicant said in his evidence to the Tribunal that, over that period, he attended conferences and went to villages and townships to spread the word about the religion to inspire young people to make the Sikh religion a prominent religion. The Tribunal regarded his movements over that period of time as part of that proselytising, rather than being movements prompted by fear of arrest. It considered that it was implausible that the applicant would be able to avoid detection and arrest over that period whilst engaging in those sorts of activities if he were really a target for arrest.

13. However the Tribunal did accept that the applicant was detained in January 1993, and was released after about two weeks. At the time, there was in force a Terrorist and Disruptive Activities Act, which (it found) ceased to operate in May 1995. The applicant was not then charged with any offence. That legislation had been introduced to deal with the violent secessionist groups in the Punjab. Consequently the Tribunal regarded the fact that the applicant was not charged and was released as an indication that he was not of particular interest to the Police.

14. The Tribunal then referred to the applicant's evidence regarding his alleged arrest in September 1996. It noted variations in his oral evidence to the Tribunal and in earlier versions of his concerns. It said:

"Given the fact that he was a recidivist by his own account the Tribunal finds it implausible that he would be released following payment of a bribe and given the inconsistencies in the Applicant's account in relation to the length of his detention and the fate of his comrades. If indeed the police had been pursuing him for years as he claims, the Tribunal finds that they would have been unlikely to release him after such a short time and upon payment of a bribe. The Tribunal thus does not accept that the Applicant was detained for a second time in 1996 as claimed. The Tribunal does not accept, therefore, that the Applicant is on a "hit list" nor does it accept that he was told to leave before he would be arrested and killed."

15. The Tribunal also noted that it was odd that he acquired his passport urgently in July 1996 as he "feared for his life", but then did not seek a visa to come to Australia until December 1996. Other material procured in support of that visa application also did not suggest any urgency.

16. Thus the Tribunal concluded:

"... that the Applicant was a member of the AISSF (SSF) but that his profile was not such as to engage the interest of the Indian police based on the fact that he was not charged with any offence in 1993 when he was detained; indeed when asked at the hearing what role he played in the organization (ie the AISSF) the Applicant replied that he was an active member, he attended conferences, he had no position, he was working like others: they would tell him what to do and he would do it. This is in stark contrast to the applicant's claim that he was a leader of the AISSF and an activist."

17. The applicant was then given the opportunity to comment upon country information that the situation in the Punjab had changed and that some degree of normalcy had returned. He indicated that he did not agree with that information, and that atrocities are going to continue because the police are the same. After referring to that evidence, the Tribunal concluded:

"The number of sources quoted above and others confirm to the Tribunal that the situation in the Punjab has changed and that in the present circumstances a well as in the foreseeable future the Applicant does not face a real chance of persecution for his political opinion."

18. It also found that the applicant had been actively involved in the International Sikh Youth Federation of Australia, participating in activities in which he expressly disagreed with Indian policies. It did not regard those activities as being of any consequence to his profile in India.

19. Accordingly, the Tribunal concluded that there was no real chance that the applicant would be persecuted for reasons of his political opinion, now or in the reasonably foreseeable future should be return to India. It found that his fear of persecution for a Convention reason was not well-founded.

The grounds of review

20. Following the decision of the High Court in Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21, the grounds of review in this application were substantially recast. No formal amendment was sought, but there were three matters of review argued at the hearing. The respondent did not object to those matters being then argued. He was given an opportunity to complement the oral submissions by written submissions so as to ensure he had a proper opportunity to address those grounds. Accordingly, I propose to consider this application on the basis of those contentions.

21. The applicant argued that the Tribunal had committed reviewable errors in the following respects:

(1)        the Tribunal failed to comply with a procedure required by the Act to be observed in connection with the making of a decision contrary to s 476(1)(a) of the Act, in that it failed to give to the applicant an opportunity to appear before it to give evidence as it was obliged to do under s 425(1)(a) of the Act,

(2)        the Tribunal failed to consider significant evidentiary material received by the Tribunal in the course of the hearing, contrary to its obligation to review the decision of the delegate under s 414(1) of the Act, and

(3)        the Tribunal failed to comply with a procedure to be observed in connection with the making of the decision required by the Act contrary to s 476(1)(a) of the Act, and the decision of the Tribunal involved an error of law contrary to s 476(1)(e) of the Act, in that it failed to provide a written statement of its decision and reasons, setting out its findings on material questions of fact and referring to the evidence or any other material on which those findings were based, contrary to s 430(1) of the Act.

22. The first point may be dealt with briefly. The respondent did not dispute the obligation imposed by s 425(1)(a) of the Act. However, in my view it is clear that the Tribunal did not fail to comply with that obligation imposed upon it. The applicant gave evidence before the Tribunal. It was contended that the applicant's evidence did not amount to a "genuine opportunity" to give evidence, because he did not have the opportunity to comment upon certain other evidence adduced in the course of the hearing relating to the position in the Punjab.

23. I do not accept that the applicant did not have an opportunity to give evidence. He did give evidence. It is not suggested that he was restricted in any way in his evidence. He was invited to comment on the country information. He did so. Whether he was able to give information of any significant weight on that topic, and what weight the Tribunal ascribed to his evidence on that topic was a matter for the Tribunal. He was no doubt aware of the other evidence proposed to be adduced on his behalf. It is referred to below. It did not constitute a failure by the Tribunal of its obligation to give him the opportunity to appear before it to give evidence that the Tribunal did not recall the applicant to comment on that particular evidence. It was not suggested that the applicant could have given any relevant evidence on that matter beyond what he had already had the opportunity to give.

24. The second and third points involve more substantial questions.

25. It is not disputed by the respondent that the Tribunal was obliged to consider the evidence which it received. Under the Act, once an application for review is brought to the Tribunal, the Secretary is obliged to provide certain information to the Tribunal pursuant to s 418 of the Act. That is information to which the Tribunal must have regard. There are other procedures by which the Tribunal procures or may procure evidence, eg. under ss 423 and 425(1)(a) of the Act. Once it has such evidence, in my view, it is obliged by implication to consider it. In addition, once it receives evidence in the exercise of its powers under ss 425(1)(b), 426 or 427, it is obliged to consider that material. If it failed to do so, it would be abdicating its obligation under the Act.

26. That is not to say that the Tribunal is obliged to give all or any material before it any particular weight. That is a matter for it. But it is not entitled simply to ignore it. To use a coarse example, it could not say in respect of the material provided by the Secretary under s 418, or of the evidence given by an applicant, that the Tribunal simply elects not to pay any attention to that material without considering whether it should do so.

27. These two grounds of review are based upon the submission that the Tribunal in fact simply ignored certain evidence regarding the situation in the Punjab when reaching its decision. That evidence is described in the following paragraph.

28. In the course of the hearing, three witnesses other than the applicant gave evidence on his behalf. They dealt with his work for the International Sikh Youth Federation whilst in Australia. The Tribunal noted:

"They also reiterated that the situation in the Punjab was not as has been construed by the outside world, i.e. the improvements reported have not taken place and they spoke of the risk to the life of the Applicant were he to return."

In the course of the evidence of one of those witnesses, there were tendered "numerous articles from internet on Khalistan" (the description in the Tribunal's document register). That material is included in the papers before the Court. It contains a very large number of reported incidents of assaults or atrocities committed against Sikhs in the Punjab in recent times. Many relate to assaults on women. They mainly but not exclusively cover the period apparently from about March to October 1997. Some relate to events years before.

29. The respondent contends that the Tribunal did have regard to that material but placed no weight upon it. If it did so, it did so in an obscure way. I have referred above to the particular passages in the reasons for the decision of the Tribunal upon which the respondent relies. It has referred to "independent" country information and independent evidence, in the course of the section of its reasons under the heading "Situation in the Punjab". It addressed the situation in the Punjab at some length in its reasons. It did not specifically refer to that material at all. In that discussion, it made the comment, noted above, that "almost all sources" consider that the situation has changed significantly for the better since about 1995. It said that its finding that:

"while it is true that the human rights situation in the Punjab has improved significantly since 1995, it is also true that some human rights violations by the Punjab police continue at the present time"

was reached after surveying all the evidence.

30. Later in its reasons, when discussing the applicant's evidence that he disagreed with the country information which it described as "reported above", it referred to those sources "and others" confirming to the Tribunal that in the present circumstances and in the future, the applicant did not face a real chance of persecution for his political opinion. It did so without any explicit reference to that material.

31. The only other point in the Tribunal's reasons to which the respondent drew attention as possibly indicating that the Tribunal had considered that material was its brief reference to the evidence of the three witnesses called for the applicant in which those witnesses reiterated that the situation in the Punjab was not as had been construed by the outside world as the improvements reported have not in fact taken place.

32. I find it difficult to understand how the Tribunal did not refer in any detail to the material to which the applicant has drawn attention. It may have discounted the information because it was selective, or not specific to the situation of Sikhs, or because it was regarded as unreliable. Counsel for the respondent pointed out that part of it came from a Web site entitled "Khalistan", so that the Tribunal may have regarded it as selective and unreliable. It is really a matter of speculation as to what, if any, reasons the Tribunal had for not referring to it. However, that does not lead to the conclusion that the Tribunal simply overlooked the material altogether. It is hard to accept that the Tribunal chose to overlook it. The material refers to an elite special police commando squad called the "Black Cats" engaged in the harassment or killing of Sikhs, and of police torture and rape of Sikhs. It identifies specific occasions and specific victims in many instances. It is not merely a piece of evidence that did not need to be expressly dealt with: cf. Steed v Minister for Immigration and Ethnic Affairs (1981) ALR 620 at 621. The Tribunal may have contemplated obtaining the comment of one of the sources providing country information upon that material. It may be that it is material which has been investigated on other occasions and found to be unreliable.

33. With considerable hesitation, I have reached the view that I am not satisfied that the Tribunal failed to consider that evidence at all. That is because the Tribunal expressly said that it has surveyed the evidence, and it has expressly mentioned the evidence given by the three witnesses. It was through one of those witnesses that the material was tendered. It is possible that the Tribunal's finding that some human rights violations by the Punjab police continue at the present time is a finding based upon that material.

34. There remains therefore the question of whether the Tribunal's reasons comply with s 430 and, if they do not, whether that failure constitutes a ground of review under s 430 of the Act. Section 430 provides:

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

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

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

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

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

..."

35. The respondent contends that s 430 does not lay down a procedure required by the Act to be observed in connection with the making of the decision under review, so that the failure to comply with s 430 does not give rise to the ground of review available under s 476(1)(a). Emphasis is placed upon the proposition that the making of the decision is at a different stage of the process of the Tribunal's functions to the preparation of its reasons for its decision. It is said that s 430 has no work to do until the decision has been made, so s 430 cannot prescribe a procedure in connection with the making of the decision. It is alternatively contended that, in circumstances such as the present, the failure to provide a written statement adequately setting out the reasons for the decision is tantamount to a finding that the Tribunal failed to have regard to a relevant consideration and that s 476(3)(e) expressly provides that such a failure does not provide a ground for review under Pt 8 of the Act. Finally, the respondent contends that the Tribunal's written statement does adequately set out its decision, and the reasons for its decision. It does set out its findings on the material questions of fact, and it does refer to the evidence or other material on which those findings of fact were based. It found that there was no real chance that the applicant would be persecuted for reasons of his political opinion were he now to return to India, so that his fear of persecution for a Convention reason is not well-founded. It identified the evidence upon which that finding was based, namely the independent country information to which it referred. The respondent contends that it is not a breach of s 430 to fail to refer to other material on that topic from which a different finding of fact might have been reached, or to explain why certain evidence touching on or relating to that critical finding of fact was preferred in preference to other evidence. Emphasis is placed upon the words of s 430(1), and in particular subs (c) and (d).

36. Subject to its third contention, the respondent did not contend that the material in question was of such a character that it was not necessary to refer to it in its written statement cp. Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 per Lee J at par 8.

37. In my judgment, I am bound by earlier decisions of the Court to determine that the failure to comply with the statutory obligation imposed by s 430 can constitute a failure to observe a procedure that is required by the Act to be observed in connection with the making of a decision. In Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 602 Sackville J (with whom Davies and Beazley JJ agreed) determined that matter in respect of the former s 166E(1) of the Act. That section is now s 430(1): see eg Ozberk v Minister for Immigration and Multicultural Affairs [1999] FCA 700; Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24. The recent decisions of Sackville J in Han v Minister for Immigration and Multicultural Affairs [1999] FCA 376 and of Moore J in Voitenko v Minister for Immigration and Multicultural Affairs (unreported, 27 August 1998) refer to many of the decisions of the Court concerning s 430(1). Moore J in Voitenko also refers to a number of decisions concerning s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). Counsel for the respondent, appropriately, draw attention to many of the most recent decisions of the Court on the question in her written submission.

38. The particular point raised by the respondent that s 430(1) comes into operation only after the decision in question has been made was addressed by Finn J in Kandiah v Minister for Immigration and Multicultural Affairs (unreported, 3 September 1998). He rejected it. I respectfully agree with his Honour's conclusion and the reasons for it. The purpose of provisions such as s 430(1) is to expose the process of reasoning of the decision maker: Muralidaharan, above at 415. That purpose would be frustrated if the obligation under s 430(1) of the Act could be ignored, or not fulfilled, without consequence. It is an integral part of the process of judicial review under the Act that the decision maker expose the process of reasoning by which the decision under review was arrived at.

39. I have considered the decisions of the High Court in Abebe v The Commonwealth (1999) 162 ALR 1. That decision decided, inter alia, that s 420(2) of the Act did not impose upon the Tribunal procedural obligations of such a character, that the failure to comply with s 420(2) could give rise to the ground of review available under s 476(1)(a). The respondent contended that the reasons of the Court supported the conclusion that the failure to comply with s 430(1) similarly was not reviewable under s 476(1)(a). That issue was not expressly addressed by the High Court. I do not discern in its reasons anything which, by implication, indicates that I should not follow the many earlier decisions of this Court.

40. I reject the contention that the argument of the applicant based upon s 430 is, in effect, to contend that the Tribunal failed to have regard to a relevant consideration, and that s 476(3)(e) precludes review on that ground. I consider that the decisions of the Court in respect of s 430(1) and s 476(1)(a) demonstrate that review by reason of the failure to observe the procedure required by s 430 is different from a failing to take into account a relevant consideration. The Act prescribes procedures to be followed in connection with the making of a decision. Section 430(1) imposes one of those procedures. There is no reason to think that s 476(3)(e) means that a failure to comply with that procedure is not intended to be reviewable under s 476(1)(a). The character of the ground of review which s 476(1)(a) provides imposes a focus on the procedures prescribed, including s 430(1)(a). The matter raised by the respondent, if correct, could also be argued to apply in a similar way in relation to other procedures imposed by the Act, yet it is clear, having regard to the limitations or qualifications on the grounds of judicial review contained in ss 476(2), (3) and (4), that the legislature has intended that those prescribed procedures be complied with and that the failure to do so may be reviewable under s 476(1)(a).

41. I also do not consider that the failure to comply with s 430(1) has the character which the applicant contends, namely the failure to have regard to a relevant consideration. Section 476(3)(e) is part of the explanatory provision contained within s 476(1)(d), namely that the decision involved an improper exercise of power conferred by the Act. It does not qualify or limit the operation of s 476(1)(a). Section 476(1)(a) is not expressed to be subject to s 476(1)(d), or to that which is explained by s 476(3).

42. In Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 the High Court's focus was upon s 420 and the express provision in s 476(2) that certain matters do not provide grounds of review under s 476(1). Unlike s 476(2), which applies at large to the grounds of review specified under s 476(1), s 476(3) only qualifies or explains the scope of operation of the ground of review specified in s 476(1)(d). Accordingly, I do not consider that that decision affects resolution of the contention presently being addressed.

43. In addition, in some decisions, the failure to give reasons contrary to s 430 is said to give rise to an error of law so as to be reviewable also under s 476(1)(e), eg. Muralidharan (above), per Sackville J at 95-96. I shall not refer to all the cases to which counsel for the respondent drew my attention. They are to the same effect. In respect of the Administrative Appeals Tribunal also, the failure to give proper reasons for its decision has also been found to be an error of law: Dornan v Riordan (1990) 24 FCR 564 at 573. Again, there are a number of decisions under s 43(2B) of the Administrative Appeals Tribunal Act 1975 to the same effect. It is also the case that s 476(3) does not apply to s 476(1)(e). For the same reasons as expressed above, I do not consider that s 476(1)(e) should be read down by the limitation or explanation of s 476(1)(d) provided by s 476(3).

44. The respondent contends that, notwithstanding that the Tribunal's reasons do not explain why it reached its conclusion despite the material referred to above, the Tribunal complied with s 430(1). Relevantly, it gave its decision and reasons for its decision. It set out the findings on the material questions of fact. It referred to the evidence and material on which those findings of fact were made. It did not refer to the evidence which did not support the material findings of fact, or explain why it apparently gave that material no weight. The respondent contends that, having regard to the precise words of s 430(1)(a)-(d), the Tribunal was not obliged to do so. The argument is not one that that material referred to was not of sufficient significance as to require reference in the Tribunal's reasons, or that it would be overzealous scrutiny of the Tribunal's reasons to conclude that the material has not been adequately dealt with: cp Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291; Dorman at 567-568.

45. That issue was specifically addressed in the dissenting judgment of Branson J in Ahmed (above). The view taken on other matters by the majority (Lee and Marshall JJ) did not require their Honours specifically to address it. I do not think that Marshall J in his reasons at par 53 is directly addressing the present issue, having regard to his Honour's assessment of the particular piece of evidence not discussed by the Tribunal in its reasons in relation to the totality of the evidence on that topic. Branson J said (at par 32):

"It is, in my view, too technical a view of the obligation imposed by s 430 of the Act to construe it as obliging a Tribunal to refer to material before it which supports a finding on a material question of fact but as never requiring reference to be made to material which suggests against a finding made. Section 430, in my view, is to be understood as requiring an exposure of the reasoning process undertaken by the Tribunal and a justification of its findings of fact (cf Fleming v R (1998) 158 ALR 379 at 388). Where weight is not placed by the Tribunal on apparently probative evidence or other material, a reference to "the evidence or other material on which the findings of fact were based" will involve, in my view, an explanation for the apparently probative material not being accorded weight. This will not require the making of exhaustive reference to the evidence and other material before the Tribunal. However, it will require that the Tribunal's written statement assist the applicant in understanding the basis upon which the Tribunal chose to make a particular finding on a material question of fact where a different finding was reasonably open on the whole of the evidence and other material before the Tribunal (see Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 160 ALR 24 per Wilcox J at 27 and 31-32; see also Merkel J at 47)."

46. I respectfully agree with her Honour's views, and the reasons for them. They reflect that it is important for the applicant, and others, to be able to understand why the Tribunal reached the conclusion that the visa sought should not be granted. See also the observations of Wilcox J in Paramananthan (above, at 27). The reasons why the Tribunal did not apparently ascribe that material any weight are not given. One might speculate why it did so, but it is not the Court's role to embark upon such speculation. I consider that the particular aspect of the claim to which the material relates is not simply material going to a question of fact under s 430(1)(c) but also goes to a critical step in the reasons for its decision: s 430(1)(b). In my judgment, the Tribunal failed to comply with s 430(1) of the Act.

Conclusion

47. For the reasons given above, I have reached the view that the Tribunal's decision involved a failure to comply with s 430(1), and that that was a failure to observe procedures required by the Act to be observed in connection with the making of the decision. Accordingly the ground of review under s 476(1)(a) is made out. I set aside the Tribunal's decision, and remit the application for review to the Tribunal for reconsideration.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 9 September 1999

Counsel for the Applicant: Mr M Clisby

Solicitors for the Applicant: Mark Clisby

Counsel for the Respondent: Ms S Maharaj

Solicitors for the Respondent: Australian Government Solicitor

Date of Hearing: 21 July 1999

Date of Judgment: 9 September 1999