Inderjit Singh v Minister for Immigration & Multicultural Affairs [1998] 1366 FCA

MIGRATION LAW - review of decision of Refugee Review Tribunal - well founded fear of persecution - whether Tribunal failed to act according to substantial justice and merits of the case - findings of credibility by Tribunal based on fundamental misconceptions - failure of Tribunal to identify its reasons for its findings - failure rationally to consider probative evidence.

Migration Act 1958 , ss 36(2), 420, 475(1)(b), 476.

Migration Regulations, Schd 2, Pt 866.221.

Minister for Immigration and Ethnic Affairs v Singh (1997) 142 ALR 191

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567

Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300

Drekevutu v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 248

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505

Velmurugu v Minister for Immigration and Ethnic Affairs (1997) 48 ALD 193

Amarjeet Singh v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Beaumont J, 8 September 1998)

Kopalapillai v Minister for Immigration and Multicultural Affairs (unreported, Full Court, Federal Court, 8 September 1998)

Kathiresan v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Gray J, 4 March 1998)

Nominal Defendant v Clements (1960) 104 CLR 476

Wentworth v Rogers (No 10) (1987) 8 NSWLR 398

Son v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Hely J, 19 October 1998)

Ahmad v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Sundberg J, 20 May 1997)

Abdalla v Minister for Immigration and Multicultural Affairs (unreported, Full Court, Federal Court, 20 August 1998)

Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550

Singh v Bolkus (1996) 42 ALD 239

Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223

Ranatora v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 693 Kumaraperu v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Weinberg J, 22 October 1998)

Nguyen v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Merkel J, 16 October 1998)

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

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247

Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Roads Corporation v Dacakis [1995] 2 VR 508

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

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

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212

Abalos v Australian Postal Commission (1990) 171 CLR 167

RRT Reference N96/12496 (18 April 1998)

INDERJIT SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 89 OF 1998

WEINBERG J

MELBOURNE

29 OCTOBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 89 of 1998

BETWEEN:

INDERJIT SINGH Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: WEINBERG J

DATE OF ORDER: 29 October 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1.   The decision of the Refugee Review Tribunal made on 11 February 1998 be set aside.

2.   The matter be remitted for rehearing according to law.

3.   The respondent pay the applicant's taxed costs of the application for review.

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

VG 89 of 1998

BETWEEN:

INDERJIT SINGH Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: WEINBERG J

DATE: 29 October 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT

This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") which, on 11 February 1998, affirmed a decision of a delegate of the respondent made on 13 March 1997 that the applicant was not entitled to a protection visa because he was not a refugee.

The factual background to the present application

The applicant was born on 4 February 1971 in the city of Ambala in the State of Haryana, in India. He is a citizen of that country. Ethnically and religiously he is a Sikh. From June 1986 to July 1988 he lived with his parents and his younger brother and sisters near Kasauli village in the Punjab. His father was a farmer who owned and cultivated some forty-five acres of land.

From 1982 to 1987 he attended a Government high school in the town of Jaraut in the Punjab. In 1988 he enrolled in a senior secondary college. In March 1988 he joined the Sikh Students Federation ("SSF").

Various school friends of the applicant visited him from time to time. On occasion these friends stayed at the family home. The applicant's father suspected them to be members of a militant Sikh separatist movement, Babbar Khalsa. That organisation was reputedly the most zealous of the major groups which dominated Sikh terrorism at this time, and was known to be responsible for a number of bomb attacks. He asked them to leave his home. After they threatened the applicant's father, they were permitted, under duress, to stay. The applicant subsequently discovered that a man by the name of Jarnail Singh, a particularly high profile member of Babbar Khalsa, had accompanied some of his friends when they visited his home.

On or about 27 July 1988 Jarnail Singh was arrested by the police. This event was widely publicised. On the next day, the police came to the applicant's house, and both he and his father were arrested.

The applicant claimed to have been detained by the police for a period of about eight days at the nearby town of Ropar. He said that during this time he was subjected to various forms of torture, including electric shocks. He claimed to have developed a permanent speech impediment as a result of this torture. He understood that he had been detained because Jarnail Singh had told the police that he had stayed at the applicant's house.

The applicant was released by the police after his family had paid them a bribe. He was bedridden, recovering from his detention, for some days. About a month later, the police again came to his home. However, he was elsewhere, visiting an aunt at the time. After this, the applicant decided to leave the Punjab.

He moved to the village of Bral in the State of Himachal Pradesh where he claimed he remained in hiding from the Ropar police, living with relatives. He enrolled in a correspondence course offered by Bodhgaya University in the State of Bihar. He understood that throughout the period 1988-1994 the police in the Punjab continually approached his family seeking his whereabouts. Those same police registered an "FIR" (a type of warrant or report) against the applicant. It remained current until he ultimately left India.

In January 1989 his father bribed an official to obtain a passport for him. The applicant was married in 1993 in a religious ceremony which did not require registration. He lived with his wife in his relatives' house in Bral for a period of approximately four months. His wife then returned to the Punjab. Their son was born on 8 March 1994.

The applicant's passport was renewed in September 1994, once again after payment of a bribe. He claimed that his father had to pay bribes periodically to the police in order to avoid harassment. He stated that the police came to his family's house in the Punjab during a crackdown that occurred after the assassination in late August 1995 of Chief Minister Beant Singh. This major terrorist incident was attributed to Babbar Khalsa, one of the few Sikh militant groups still operating at that time. He asserted that the police had then detained and tortured his father to learn his whereabouts. In late 1995 the police finally discovered from the applicant's father that he was in Bral. In December 1995 the police from Ropar came to the house in Bral where the applicant was living. He was not at the house at the time, as he was working in the fields, some short distance away. After this, his relatives asked him to leave, and he did so. He claimed that the police also periodically visited his aunt's house in Haryana asking after him.

By early 1996 the applicant's father had arranged for the applicant to be issued with a student visa to enter Australia. On 6 April 1996 he arrived in Australia having previously arranged to enrol in a course at a TAFE college. The applicant never, however, at any stage, intended to undertake any studies in Australia.

On 3 June 1996 the applicant completed an application for a protection visa. That application was lodged on 12 June 1996. He claimed in that application to have been in regular contact by telephone with his family. He asserted that he understood that since his departure from India his family had been further harassed by the police concerning his whereabouts.

He also claimed that, despite some slight improvement in the manner in which Sikhs were treated in the Punjab, police there continued to abuse human rights. He stated that he believed that it would be unsafe for him to return to India by reason of his past involvement with the SSF, and with Jarnail Singh. He asserted that he had no relatives outside the Punjab, Himachal Pradesh, and Haryana. These were all States in which he had lived, but to which the police had pursued him throughout the period leading up to his departure for Australia.

The delegate's decision to refuse a protection visa

The delegate noted correctly that the criteria to be satisfied in relation to the grant of a protection visa are those set out in s 36(2) of the Migration Act 1958 ("the Act") and Pt 866.221 of Sch 2 to the Migration Regulations ("the regulations"). That clause states:

"The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention."

These provisions refer to the terms of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol ("the Convention"). Australia has protection obligations to persons who are refugees as defined in the Convention. A refugee is defined in Art 1A(2) as a person who:

"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence ... is unable or, owing to such fear, is unwilling to return to it."

Whether an applicant satisfies this definition is to be determined upon the facts as they exist when the decision is made - Minister for Immigration and Ethnic Affairs v Singh (1997) 142 ALR 191. However, the circumstances in which the applicant left his country remain relevant, and these are ordinarily the starting point in ascertaining his present status - Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 399 per Dawson J.

The delegate had interviewed the applicant on 14 August 1996 in connection with his application for a protection visa. That interview was tape-recorded. The delegate referred to it specifically when outlining the evidence which he had taken into account when arriving at his decision.

The delegate found that the applicant was not excluded from coverage of the Convention by any of Arts 1D, 1E or 1F, a series of exclusionary provisions. He found that the applicant was, indeed, a citizen of India, and, as was obvious, that he was outside that country. He found that the applicant had a subjective fear of harm or mistreatment on Convention grounds that would constitute persecution (if well-founded). The delegate characterised the applicant's claim as being related to his political opinions. He then turned to the question whether the applicant's fear of persecution on Convention grounds was well-founded. He held that it was not.

In summarising the applicant's claims, the delegate made mention of the applicant's membership of the SSF, and the fact that, besides members of that organisation, members of Babbar Khalsa had also, in 1988, sought food and shelter from the applicant's father. The delegate referred to the fact that during the interview of 14 August 1996, the applicant said that he became a member of the SSF in March 1988. The particular SSF group which he joined had a total membership of only about six, and was not very active. Unlike Babbar Khalsa, it was in no sense a militant or terrorist group.

The delegate made no mention, in summarising the applicant's claims, of any particular friends of the applicant who were associated with Babbar Khalsa, or with Jarnail Singh.

When the delegate summarised the applicant's claims in relation to the incident in Bral in December 1995 he did so in the following terms:

"... In December 1995, the police went to look for him in Bral but he was at that time working in the family farm which was about 1.5 km away. The police went without taking him as they could not find anyone to fetch him because there were only females in the house at that time."

In his reasons for rejecting the applicant's claim for a protection visa, the delegate concluded that it had not been established that there was a real chance that the applicant would face persecution on Convention grounds if he were to return to India. He found that the applicant's assertion that conditions in the Punjab had not improved should be rejected. He also rejected the applicant's contention that though the police were unable to locate the applicant, they had maintained a serious interest in him throughout the whole of the period 1988-1995.

After noting that the applicant had lived in the adjoining state of Himachal Pradesh for several years after leaving the Punjab, and had engaged in most normal activities during that period, the delegate turned to the claim that in December 1995 the police from Ropar went to Bral seeking to locate the applicant. The delegate stated:

"However, I do not find plausible the applicant's explanation that they went away without apprehending him because he was working in the relative's farm 1.5 km away and none of the females in the house could be asked to go and fetch him. Given that the police had travelled all the way to look for him, given that they had reached the house where he was staying, I find it incredible that the police did not themselves go up to the farm where he was working. I find therefore that this claim does not establish that the authorities had a serious adverse interest in the applicant."

The decision of the Tribunal

In affirming the delegate's decision not to grant to the applicant a protection visa, the Tribunal referred to the evidence which he gave at a hearing before it on 10 December 1997. The applicant spoke no English, and was assisted by an interpreter in the Punjabi language. He was, however, represented by a solicitor at that hearing.

After setting out in unexceptionable terms the relevant legislative provisions, and the principles governing claims to refugee status which had been established by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (supra); Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 and Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, and by the Full Court of the Federal Court in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, the Tribunal turned to the applicant's claims, and the evidence in support thereof. The Tribunal observed:

"The Applicant's claims are set out in written submissions to the Department and to the Tribunal and oral evidence given to both bodies." (emphasis added)

Presumably the reference to the oral evidence in question was a reference to the interview between the applicant and the delegate on 14 August 1996, and the testimony of the applicant before the Tribunal on 10 December 1997.

After setting out the factual background to the application, the Tribunal dealt with the events which had caused the applicant to leave his family home in the Punjab, and to go and live in Bral. The Tribunal made reference to the interview of 14 August 1996 and to the applicant's statements to the delegate concerning his membership of the SSF. It then turned to the evidence given by the applicant on 10 December 1997. The Tribunal stated:

"He was asked why the authorities would have taken so much interest in him given his young age at the time of the events which he has claimed. It was suggested to him that as his father owned the house and farm where the militants allegedly came, it would make more sense for the authorities to be more suspicious of his father. The Applicant responded that two of his school friends were closely associated with the freedom fighters, the Babar Khalsa. He was asked why he had not mentioned this at any time during the processing of his application for a protection visa. He responded that he thought he had included it in his written statement. (A check of his file indicated that he had not done so.) He claimed that at first he did not know that his friends were part of the group nor did he know anything much about the Babar Khalsa. He did not know where its base was. His friends did not talk much about it. He did not know where his friends were now. He had met them when he used to go to a college in Haryana for lectures. After the police picked him up he had never seen them again. However, the police believed he knew them well but they did not find out their whereabouts." (emphasis added)

The Tribunal then summarised the applicant's claims concerning the visit by the police in December 1995 to his relatives' house in Bral. The applicant claimed to have been working in the fields at the time. The Tribunal summarised the applicant's evidence in this regard in the following terms:

"He did not know why they did not return when he was there at the house nor why the local police did not arrest him if there was any request from the Punjabi police. However, the Punjabi police were well-known for doing anything they wanted and going across state borders."

When the Tribunal came to state its findings and reasons, it dealt initially with the applicant's claim to have been subjected to a long history of persecution. It stated:

"There is no doubt that the Punjab was a violently unstable place in the 1980s and into the early 1990s. The Sikh independence movement produced abuses from militants and authorities alike. It is quite possible that the Applicant and his father were threatened by militants and offered board and lodging to them. It also is feasible that they were taken into custody, questioned and ill-treated either for this particular reason or simply because the police decided to act against them on rumour and suspicion. I accept that the Applicant became so anxious about this that he went to a neighbouring state, where he remained for most of the next eight to nine years.

It is in the details which the Applicant has added during the course of the processing of his claim, that there are signs of an expansion of claims and an enhancement of his original fear of police and or militant violence against him.

I do not accept the claim made only at his hearing before me that he had close friends who were associated with the militants and that it was this association which meant he too was under serious suspicion by the police. The lateness of such a claim must count against him as there were earlier opportunities to link this in with the account of why the police came to his father's house. I do not accept that he would have never seen these friends again nor heard of their whereabouts in the years after the events of 1988 until he came to Australia in 1996." (emphasis added)

When the Tribunal came to deal with the December 1995 Bral incident, it observed:

"...the Applicant has based his claim to fear continuing persecution on what happened to him in 1988. While it is very possible that the 1988 incident(s) gave him a subjective fear of the police and of remaining in the Punjab, I am not satisfied that this fear was fed by repeated police searches for him. As he lived relatively long-term in a nearby state, married, had a son whose birth was registered, registered his matriculation, sat examinations, gained a passport and had it renewed, and left India openly under his own name and by a regular airport, it is implausible that he could have remained at large had he been of any serious interest to the police. As was put to him at his hearing, had the Punjabi police suspected him of being a terrorist, they had to hand legal instruments by which they could detain him and a reputation for ignoring any few legal niceties which might remain on the statute books. I do not accept that police would have visited his relatives' home in Bral, searching for him as a suspected militant, and then gone away empty-handed as he was out in the fields at the time.

I am satisfied that the fact that he lived in Bral in fear but unhindered for at least six years indicates that although he was frightened, he was not a wanted person." (emphasis added)

The Tribunal then dealt with the current situation in the Punjab. It found that there had been a significant improvement in the situation facing Sikhs in that region in recent years, and that although there had been a very high level of human rights abuse there in the past, the level of such abuse had declined. The Tribunal stated:

"I have taken into account the fact that the Akali Dal Party is the senior party in power in the Punjab and, while accepting the Applicant's assessment that it suffers from the same sins as of many other political parties of being interested primarily in the power of those who belong to it, it is a Sikh party which offers a political avenue for Sikhs other than the militant and terrorist strands of separatism."

The Tribunal expressed itself to be satisfied that the crisis in the Punjab was past, and that the applicant could rejoin other members of his family there without risk of persecution. It went on to say that even if it were not safe for the applicant to return to the Punjab, it was reasonable to expect that he could relocate to another part of India. The Tribunal referred in this regard to para 91 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, and to the decision of the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442-3 per Black CJ.

The legislative background to the present application

The application before this Court is made under Pt 8 of the Act. Decisions of the Tribunal are judicially-reviewable - see s 475(1)(b) of the Act.

Section 420 of the Act provides:

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

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case."

Section 476 of the Act provides:

"476 (1) Subject to subsection (2),application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b) that the person who purported to make the decision did not have jurisdiction to make the decision;

(c) that the decision was not authorised by this Act or the regulations;

(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f) that the decision was induced or affected by fraud or by actual bias;

(g) that there was no evidence or other material to justify the making of the decision.

(2) The following are not grounds upon which an application may be made under subsection (1):

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercise the power.

(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b) an exercise of a personal discretionary power at the direction or behest of another person; and

(c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d) taking an irrelevant consideration into account in the exercise of a power; or

(e) failing to take a relevant consideration into account in the exercise of a power; or

(f) an exercise of a discretionary power in bad faith; or

(g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) and (c)

(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

The applicant's grounds for review

By his further amended application for an order of review, the applicant relies expressly upon the ground specified in s 476(1)(a), namely, 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. The "procedures" to which the applicant refers are those required to be observed by reason of the operation of s 420(2)(b). The applicant contends that the Tribunal did not act in accordance with the requirements of that provision. The applicant submits, in particular, that the Tribunal did not "act according to substantial justice and the merits of the case" in:

its treatment of the applicant's claims concerning the reasons why the police had, long after 1988, maintained a continuing interest in his affairs;

its treatment of the applicant's claims concerning the actions of the police at Bral in December 1995.

The applicant also contends that the Tribunal's decision involved one or more errors of law, and relies, therefore, upon the ground specified in s 476(1)(e) of the Act. The errors which are particularised are, in substance, the same as those relied upon in connection with the claim pursuant to s 476(1)(a).

Finally, the applicant relies upon s 476(1)(g) of the Act, as modified by s 476(4)(b). The applicant contends that the Tribunal's decision was based, in part, upon a finding that the applicant had not claimed until the hearing before the Tribunal on 10 December 1997 to have had close friends amongst the militants, and that this friendship was the source of the authorities' continuing interest in him. The applicant submits that there was no evidence or other material to justify the making of this finding. The supposed fact upon which it is based, namely that he had not previously raised this explanation, was in truth, a misconception on the part of the Tribunal.

The relevant legal principles

Having regard to the way in which the applicant has framed his case, it is necessary to say something as to the debate within this Court concerning the correctness or otherwise of the decision of the majority in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300. As is well-known, a majority of the Full Court of the Federal Court, Davies and Burchett JJ, determined in that case that a breach of the procedures with which the Tribunal is bound to comply pursuant to s 420 of the Act is a ground of review under s 476(1) of the Act. The procedural elements prescribed by s 420 may be challenged under s 476(1)(a) while the "applicable law" to which reference is made in s 476(1)(e) includes the substantive elements of the requirement under s 420(2)(b) that the Tribunal act in accordance with the substantial justice and merits of the case. As is also well-known, Whitlam J dissented from the views of the majority.

Counsel for the respondent submitted that the views of their Honours Davies and Burchett JJ were dicta, that they were erroneous, and that they ought therefore not be followed. That was the approach taken by Madgwick J in Drekevutu v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 248. His Honour found himself unable to accept the reasoning of the majority in Eshetu, and expressed a strong preference for the reasoning of Whitlam J in that case.

The conclusion reached by Madgwick J that he was free to depart from the views of the majority in Eshetu, is, in my opinion, no longer properly open to a judge hearing a matter at first instance in this Court.

In Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 a majority of the Full Court of the Federal Court effectively determined that the views of the majority in Eshetu should be followed by the judges of this Court, at least until the High Court has finally resolved the question whether those views are correct.

In dealing with the relationship between s 420 and s 476(1)(a) of the Act, Wilcox J observed at 546:

"It is a vexed issue whether the stipulations of s 420 of the Act constitute "procedures ... required by this Act" within the meaning of s 476(1)(a); diverse views have been expressed by members of this court. The significance of the issue is that, if they do, a breach of a stipulation is a ground upon which application may be made for review of a tribunal decision. If such an application is successful, the court may set aside or quash the decision and/or grant other relief: see s 481(1)(a) of the Act.

I do not propose to add to the plethora of opinions about the relationship between ss 420 and 476(1)(a). The matter was recently considered by a Full Court in Eshetu v Minister for Immigration and Multicultural Affairs .... By majority (Davies and Burchett JJ, Whitlam J dissenting) the court decided s 420 did establish procedures to which s 476(1)(a) applied. Counsel for the respondent, ... submitted Eshetu was wrongly decided and ought not be followed. Without expressing an opinion on the merits of the conflicting judgments in Eshetu, I decline to accede to that submission. I understand the case is presently the subject of an application for special leave to appeal to the High Court of Australia. If leave is granted and the appeal succeeds, the situation will change. In the meantime, as it cannot be said the result in Eshetu is "clearly wrong", the decision in that case should be followed by other Full Courts: ..."

It goes without saying that his Honour's strong admonition concerning the proper course to be followed by other Full Courts has even greater force when applied to the task to be performed by judges at first instance.

His Honour Burchett J who, together with Davies J, comprised the majority in Eshetu, also delivered a judgment in Qui. His Honour stated at 554:

"It is appropriate that I should say I remain of the view which I expressed in my reasons in [Eshetu]. Indeed, I am confirmed in that view by the endorsement it has since received from Lockhart J in Khan v Minister for Immigration and Multicultural Affairs (Fed C of A, Lockhart J, 4 August 1997, unreported) at 7 and Finkelstein J in Thambythurai v Minister for Immigration and Multicultural Affairs (Fed C of A, Finkelstein J, 16 September 1997, unreported)."

His Honour North J differed from the views of the majority in Qui. His Honour observed that prior to Eshetu he had expressed the view that the provisions of s 420 were not "procedures ... required by this Act" within the meaning of s 476(1)(a). He continued at 564-5:

"I remain of that view. The reasons of the trial judge on this aspect fortify me in that view. There have been many decisions on the issue in recent times. There is almost an equal number of decisions on each side of the argument. There is, therefore, an overriding need for an authoritative decision. It will be provided if the High Court grants special leave to appeal in Eshetu."

His Honour would have been prepared in Qui to reconsider the decision in Eshetu, and it would seem, to overrule it.

It was contended on behalf of the respondent that the observations of Wilcox and Burchett JJ in Qui were themselves dicta, and that I was not bound to approach Eshetu in the manner suggested by Wilcox J. That may be correct as a matter of strict logic. It is not, however, a course which commends itself to me. The High Court has, since Qui was decided, granted special leave to appeal against the decision of the Full Court in Eshetu. The appeal is scheduled to be heard in the very near future. That does not diminish the cogency of the views of Wilcox J in Qui that until the High Court finally resolves this matter, which still may not occur for some considerable time, the majority view in Eshetu should be followed by the judges of this Court.

In Velmurugu v Minister for Immigration and Ethnic Affairs (1997) 48 ALD 193 a Full Court comprising Davies, Burchett and Whitlam JJ (the same judges who comprised the Court in Eshetu) adhered to the views which they had each expressed in that case. Once again, it is arguable that, as in Eshetu, the positions taken by each member of the Court in Velmurugu were dicta. The actual basis of the Court's decision was that the applicants had not identified any procedure required by the Act or the regulations that had not been observed, and that the grounds which were relied upon were not grounds available under s 476 of the Act. Whether or not the approval given by Davies and Burchett JJ in Velmurugu to their own previous reasoning in Eshetu was in the nature of dicta, in my opinion a trial judge should, for the reasons given by Wilcox J in Qui, follow the views of the majority in Velmurugu as well.

I am fortified in my view that this is the correct course to follow by noting that in Amarjeet Singh v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, 8 September 1998) Beaumont J arrived at the same conclusion. His Honour stated:

"For present purposes, I accept that I am bound by the decisions of the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 and Sun Zhan Qui."

See also Kopalapillai v Minister for Immigration and Multicultural Affairs (unreported, Full Court, Federal Court, 8 September 1998) where a similar approach was adopted by the Full Court, their Honours O'Connor, Branson and Marshall JJ stating:

"Although the High Court has granted special leave to the respondent to appeal the decision in Eshetu's case to the High Court, we consider that it is appropriate for us to follow that decision."

See also Kathiresan v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Gray J, 4 March 1998) and Son v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Hely J, 19 October 1998).

In electing to follow the majority in Eshetu I do not intend to muddy the waters, let alone enter the bog, by expressing any views as to the correctness or otherwise of the reasoning adopted by Davies and Burchett JJ. It is sufficient to say that the views of those judges of this Court who disagree strongly with that reasoning cannot be discounted. In the interim, however, until the High Court finally resolves this matter, I propose to follow the approach adopted by the majority in that case.

The applicant's contentions

Put simply, the applicant contends that the decision of the Tribunal is flawed because it made a series of findings adverse to the applicant's credibility which were based upon a series of quite fundamental misconceptions.

The Tribunal had misstated, and therefore failed to address properly, the applicant's claims in relation to the continuing interest in his whereabouts shown by the Ropar police throughout the period 1988 to 1995 by treating as "recent invention" his explanation for that continuing interest. In fact, there was nothing "recent" about that explanation at all.

The Tribunal had also misstated, and therefore failed to address properly, the applicant's claims concerning the December 1995 police visit to Bral, a matter which was of considerable importance to his contention that he had a well-founded fear of persecution if he were to be required to return to India. The Tribunal rejected the applicant's version of that incident without having understood, or considered accurately, what the applicant had said in relation to it.

(a) The "two friends" explanation

In order to fully understand the applicant's contention in relation to the finding of "recent invention", it is necessary to refer to certain passages in the transcript of the evidence which he gave before the Tribunal on 10 December 1997. The Tribunal questioned the applicant about the events of 1988 in the following terms:

"MS WOOD: Now at that time you were only 18 yourself. Why would the police bother you when you were really only a very young person?

THE INTERPRETER: Among the freedom fighters there were two people who were my close friends and the police was harassing me and asking me questions about them because they claimed that I knew them.

MS WOOD: Who were these close friends?

THE INTERPRETER: They used to be my school mates earlier.

MS WOOD: And what are their names?

THE INTERPRETER: One was Rabinder and the other one was Swaran.

MS WOOD: Now I have not seen you mention these two friends before in your claims. Why did you not mention them earlier?

THE INTERPRETER: I did mention them earlier.

MS WOOD: Who did you mention them to?

THE INTERPRETER: When I give a written statement I did mention them there.

MS WOOD: I have a written statement here and this talks about Jamal (sic) Singh of Roypar (sic) District but there is no mention here of friend.

THE INTERPRETER: I was never really asked as to how many friends I had so I never really gave a specific figure.

MS WOOD: Now were these friends your age?

THE INTERPRETER: Yes.

MS WOOD: And why were the police interested in them?

THE INTERPRETER: They were connected with the freedom fighters.

MS WOOD: What part of the freedom fighters because Sikhs in the Punjab were a bit split in the 1980s were they not, over who to support?

THE INTERPRETER: To begin with I did not even know that they were connected with the freedom movement, but later I found out that they were connected with Bubelkasar (sic)."

The questioning proceeded:

MS WOOD: Did your two friends ever try to get you to join the Bubelkasar (sic)?

THE INTERPRETER: No they didn't.

MS WOOD: Why not, why would they have not encouraged you to join them?

THE INTERPRETER: I really don't know.

MS WOOD: And you did not ask them very much about what they were doing?

THE INTERPRETER: They never really talked too much about it.

MS WOOD: Did the police go and visit - did the police go and raid the houses of other friends of your two friends?

THE INTERPRETER: Yes, whoever these two people were connected with they did raid their homes and one person who lived very close to our home was beaten up by the police and killed.

MS WOOD: Over the question where these other two friends were, is that the key?

THE INTERPRETER: Yes that's right.

MS WOOD: Did they find your friends?

THE INTERPRETER: No they didn't.

MS WOOD: Do you know where they are now?

THE INTERPRETER: No I don't.

MS WOOD: When did you last hear of anything about them?

THE INTERPRETER: When after the police pick me up I never met them again.

MS WOOD: As far as you know they have never been captured by the police?

THE INTERPRETER: I really don't know.

MS WOOD: Now you have claimed that you also had some problems because Jamal (sic) Singh came to your house, tell me about that?

THE INTERPRETER: Jamal (sic) Singh was the friend of these two people who were my friends.

MS WOOD: Okay. This Bubelkasar (sic), where was its headquarters or its base?

THE INTERPRETER: I really don't know.

MS WOOD: Why would Jamal (sic) come to your house?

THE INTERPRETER: To begin with he used to come with these two friends of mind (sic) and then once he started coming a few others started coming as well.

MS WOOD: The two friends of yours, were their families living in the same village as you?

THE INTERPRETER: No they came from villages far away.

MS WOOD: Right, so you had met them at college?

THE INTERPRETER: Yes."

The questioning subsequently continued:

"MS WOOD: Why was there constant harassment of you?

THE INTERPRETER: They believe that I have connections with these two people.

MS WOOD: When it became fairly clear that your connection must have been fairly remote, why did the police continue to harass you?

THE INTERPRETER: The police believed that I knew them very well and that I was connected with them and that was why they kept on asking me of their whereabouts."

Later, the Tribunal continued:

MS WOOD: Right. As far as you know, were your friends, or Jamal (sic) Singh, involved in violence?

THE INTERPRETER: Jamal (sic) Singh, it was certain that he was.

MS WOOD: Right. And do you know anything about what your friends might have done?

THE INTERPRETER: These two were always with Jamal (sic) Singh."

The Tribunal returned to the issue of the applicant's two friends, and the questioning proceeded:

"THE INTERPRETER: The police believe that these two friends of mine were extremists and that I am an extremist too.

MS WOOD: I know the police in the Punjab do not need much evidence, but is the only thing they have got against you is that you were associated with your two friends?

THE INTERPRETER: I don't understand the question.

MS WOOD: Okay. In the 1980s I understand that the police just picked up young Sikhs and were certainly brutal towards them, but you are saying that even nine years later they would be looking for you even though there is really no evidence, any seriousness that you were ever involved in militant activity.

THE INTERPRETER: The police believed that I was connected with them and that I have been guilty of disturbing the peace and that I have killed many people."

The applicant contended that the Tribunal had erred in failing to appreciate that the explanation which he gave as the reason for the continuing interest by the police in his whereabouts, namely having had two close friends who were members of Babbar Khalsa, was not an explanation which was given for the first time before the Tribunal, but rather one which he had given previously.

It was submitted that the applicant had referred to his friends, and to their involvement in Babbar Khalsa, in his original written submission dated 3 June 1996 in support of his claim for a protection visa. In that written submission, the applicant had stated:

"I was a member of Sikh Students Federation. I never cut my hair and beard. My family lives in a farm house away from the village.

My friends were usually coming to stay at our farm house. In 1988 some other people started coming to our farm house with my friends. When we suspected these people to be militants my father told them not to come there. But they showed AK 47's to my father and threatened to wipe out the whole family if any of us opened mouth to the police. We had no option but to give shelter and food to them. One of them was Jarnail Singh Jaila of Ropar District who was a member of Babbar Khalsa." (emphasis added)

Moreover, a transcript of the interview of the 14 August 1996 conducted between the applicant and the delegate revealed the following questions and answers in relation to the events of 1988:

"D Right. This from Babbar Khalsa was there Jarnail Singh only, or were there other members of Babbar Khalsa ... who used to come and stay?

A Initially there were two friends, I knew them. And this Jarnail started coming with them. Initially. And then more boys started coming with them. With him.

D You have said in your letter that there were some people who were friends of yours who use to come. In your statement. But later you say others starting coming. How many of them were members of the Babbar Khalsa, or did you know whether they were members of anything?

A I don't know." (emphasis added)

The applicant's account of having been subjected to arrest and torture in 1988 as a result of Jarnail Singh having received food and shelter at his father's home was accepted by the delegate. It seems also to have been accepted by the Tribunal. Plainly, however, it was necessary for the applicant to provide some justification for his claim to have a well-founded fear of persecution if he were required to return to India in 1996 or 1997. The events of 1988, taken in isolation, could not reasonably support any such finding. What the applicant had to demonstrate was that throughout the period 1988-1995 the police had maintained an interest in locating him, and indeed that they were still interested in his whereabouts in 1997.

In an effort to make good this contention the applicant claimed that the police had, on a number of occasions between 1988 and 1995, sought to locate him. He gave a number of examples which were said to demonstrate their continuing interest in finding him. These included their having made enquiries about him of his aunt in Haryana, and also their having tortured his father in 1995 in order to ascertain where he was living. There was also his evidence concerning the visit in December 1995 by the police to his relatives' home in Bral.

The applicant submitted that it had been of fundamental importance to his case that he be believed when he claimed that the police were, in 1996-97, still interested in locating him. Rejection of that particular claim would almost certainly lead to rejection of his application to be granted refugee status. In assessing the applicant's credibility in relation to that claim, the Tribunal found that he had, in his evidence before the Tribunal, attempted to introduce for the first time an explanation as to why the police would, years after the events of 1988, still be interested in locating him. This explanation was, essentially, his close association with two named individuals, both members of Babbar Khalsa, who had, in 1988, stayed with Jarnail Singh at the applicant's house. These two friends became, in effect, the lynchpin of his entire explanation for the continuing interest by the police in locating him.

The Tribunal found that the applicant's story concerning his two close friends and their membership of Babbar Khalsa had first been mentioned by him on 10 December 1997, when he was questioned about the matter. His account bore all the hallmarks of "recent invention". It was hardly surprising, therefore, that the Tribunal rejected the applicant's entire explanation for the ongoing police interest in locating him.

A finding of "recent invention" is one which is generally devastating to the credibility of the witness against whom it is made - so much so that the ordinary rules which preclude evidence of prior consistent statements from being led are subject to an exception in the case of an allegation of this nature - Nominal Defendant v Clements (1960) 104 CLR 476 at 477-80 per Dixon CJ, at 486-90 per Menzies J, and at 490-6 per Windeyer J. Although the term "recent" is frequently used in connection with this doctrine, "the adjective `recent' is a misnomer and ... the doctrine is concerned with any fabrication subsequent to the events in question but anterior to the trial": Wentworth v Rogers (No 10) (1987) 8 NSWLR 398 at 401.

The applicant submitted that though there may perhaps have been some justification for the Tribunal's conclusion that the applicant had not in his written submissions to the delegate, raised his friendship with these two individuals as the basis for his continuing persecution, there was no justification for the Tribunal having made that finding in relation to the applicant's interview of 14 August 1996. The "two friends" explanation had been, at the very least, foreshadowed in that interview, and plainly was not a "recent invention". It had been wrong for the Tribunal to regard it as such.

(b) The Bral police visit

The applicant submitted that when the Tribunal came to deal with the visit by the police to Bral in December 1995, it wrongly rejected his account of that visit. That finding was significant because it tended to negate the applicant's claim that the police had maintained an interest in locating him throughout the whole of the period 1988 to 1995.

The delegate, in rejecting the applicant's claim concerning this visit, had earlier described the claim as being, in substance, that the police had arrived, were told by the applicant's female relatives that he was working in a field about 1.5 km away, and that none of those female relatives were in a position to go and fetch him, and had therefore left.

It is scarcely surprising that such a version of events would be rejected by the delegate. It is not merely implausible, but absurd to think that the police, having ostensibly tortured the applicant's father to learn his son's whereabouts, would then proceed to Bral, only to be fobbed off by the excuse that his female relatives were too busy to procure his attendance.

Unfortunately, the delegate seems to have proceeded upon the assumption that the claim, as articulated above, was in fact the version of events given by the applicant. The tape recording of the interview of 14 August 1996 discloses that the applicant said nothing of the kind. Rather, what he told the delegate was that when the police arrived at his relatives' home in Bral, they were informed by the relatives that he did not live there. The police did not locate the applicant on that day as he was, indeed, working in the fields, about 1.5 km away from Bral.

When the applicant was questioned by the Tribunal on 10 December 1997 he gave almost exactly the same account of the visit by the police to Bral in December 1995.

When it came to the Bral incident, the questioning was as follows:

"MS WOOD: Why did the police not find you then when they did come to that village?

THE INTERPRETER: I was in the fields at that time.

MS WOOD: Why would they not come after you to the fields?

THE INTERPRETER: My relatives told them that I didn't live there at all."

The Tribunal, in its reasons for decision, made no mention of the applicant's explanation for the failure of the police to locate him on that occasion. Rather, as noted earlier, the Tribunal simply rejected his entire account of the Bral incident as implausible.

The applicant submitted that the combined effects of the mistaken application of the doctrine of "recent invention" in relation to the "two friends" story, and the misstatement of the applicant's version of events concerning the Bral incident, led the Tribunal to reject his contention that, by reason of his close friendship with the two named individuals who had been members of Babbar Khalsa, the police were still interested in locating him, and in causing him harm. These were said to be matters of central importance to his case.

The respondent's contentions

The respondent challenged the applicant's contention that the Tribunal had erred in either of the ways suggested above.

(a) The "two friends" explanation

The respondent submitted that the Tribunal had been entitled to conclude that the applicant had raised the "two friends" explanation for the first time when questioned on 10 December 1997. The applicant's earlier references to "friends" in his written statement of 3 June 1996, and to "two friends" in his interview of 14 August 1996, had merely been of a passing nature. The applicant had not previously accorded the "two friends" explanation anything like the importance which he did, for the first time, before the Tribunal.

(b) The Bral police visit

The Bral incident was said to have been of peripheral significance only, and of no real importance to the applicant's case. The Tribunal's rejection of his version of this incident may have been based not upon any misconception of the type which admittedly had tainted the delegate's reasoning, but rather upon the improbability that the police would be "fobbed off" by a lie told by the applicant's relatives, had they indeed come to Bral. Alternatively, even if the police had been looking for the applicant at Bral in December 1995, their reason for doing so may have been entirely unconnected with any past political activity on his part.

(c) Harmless error and futility

The respondent submitted that even if the Tribunal had erred in the manner contended for by the applicant, these errors would not vitiate its decision. The truly significant aspects of the Tribunal's decision were those which dealt with the current position in the Punjab, and the possible relocation of the applicant to some other part of India. There was material before the Tribunal to suggest that the position of Sikhs in the Punjab was no longer anything like as bad as it had been in the late 1980s and early 1990s. Moreover, Sikhs could now relocate to many other parts of India with perfect safety - see Randhawa v Minister for Immigration and Ethnic Affairs (supra); Ahmad v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Sundberg J, 20 May 1997) and Abdalla v Minister for Immigration and Multicultural Affairs (unreported, Full Court, Federal Court, 20 August 1998). Accordingly, the respondent submitted, any errors which the Tribunal may have made were of a peripheral, or harmless nature, and should not lead to its decision being set aside.

Moreover, the respondent submitted, it would be futile to remit the matter to the Tribunal because it would inevitably arrive at the same conclusion - namely, that the applicant did not have a well-founded fear of persecution if he were to return to India. Futile applications are not remitted for reconsideration - see Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 at 560 per Sackville J; Singh v Bolkus (1996) 42 ALD 239 at 240 per Beaumont J; Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 at 238 per Sackville J; Ranatora v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 693; Nguyen v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Merkel J, 16 October 1998) and Kumaraperu v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Weinberg J, 22 October 1998).

The relevant legal principles

Before dealing with the specific contentions raised by each of the parties, it is necessary to refer to some of the statements of legal principle which must govern this application.

(a) The general approach to judicial review

It is clearly established that the approach which a Court should follow when dealing with the reasons of an administrative decision-maker is that laid down by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. In a joint judgment, Brennan CJ, Toohey, McHugh and Gummow JJ stated at 272:

"... the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision."

See also Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J.

(b) Mistaken findings of fact as a source of review

Giving full weight to the admonition that the Court must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision, there are, nonetheless, cases where certain types of mistaken findings of fact can give rise to reviewable error. Such cases must, of course, fit properly within one or more of the legislatively mandated grounds for review set out in s 476(1) of the Act, as explained by the majority in Eshetu.

There are instances where the Tribunal has been found to have failed to act according to "substantial justice" by making findings which were of such a nature as to warrant the intervention of the Court.

In Kathiresan v Minister for Immigration and Multicultural Affairs (supra) Gray J set aside a decision of the Tribunal which had rejected the applicant's claim to refugee status largely upon the basis that the approach taken by the Tribunal to the credibility of the applicant was not open to it on the material before it, was not based on rational grounds, and was not arrived at after consideration of matters that were logically probative on the issue of credibility. His Honour observed:

"The question which arises is whether it is open to this Court to overturn the finding of the tribunal on credit on the basis that the tribunal relied in part on two findings which were not open to it. It cannot be said with any certainty that, had the tribunal not relied on its finding as to the applicant's account of his education or on his suggested lack of knowledge of events during the time he was in Colombo, it would have come to the same conclusion as to his credit. There is much that resembles a house of cards in the tribunal's reasoning; disbelief of one fact is used as a reason to disbelieve another, and so on. The findings as to the applicant's educational history and unawareness of events whilst in Colombo were significant in the context of the tribunal's overall reasoning. It can therefore truly be said that the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist; see s 476(4)(b) of the Act. This is sufficient to make out the ground for review of a decision found in s 476(1)(g) of the Act, namely that there was no evidence or other material to justify the making of the decision.

I am also of the view that to make adverse findings as to credit on the basis of non-existent facts amounts to a failure to act according to substantial justice, within the meaning of s 420(2)(b) of the Act and therefore a failure to observe procedures that were required by the Act to be observed, within the meaning of s 476(1)(a) of the Act."

In Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 Finkelstein J set aside a decision of the Tribunal in circumstances where his Honour found that the Tribunal had failed to consider rationally certain probative evidence. His Honour distinguished between a failure of that type, and the making of a simple mistake of fact. Section 420(2)(b) of the Act imposed a procedural obligation upon the Tribunal requiring it to act rationally and reasonably. The Tribunal would not be acting rationally and reasonably if it made a finding of fact upon which its decision was based but which was not supported by probative evidence. The Tribunal would also have failed to act rationally and reasonably if it failed to consider rationally the probative evidence that was before it. In the particular circumstances, his Honour found that the Tribunal had failed to comply with that obligation. Its decision was therefore set aside on the grounds set out in s 476(1)(a).

Finkelstein J based his decision that there was an obligation upon a Tribunal to consider rationally the evidence before it upon the views of Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247, and of Deane J (with whom Evatt J agreed) on appeal in Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666. His Honour did not accept that Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357 had determined that these statements of principle did not represent the common law in this country - cf Roads Corporation v Dacakis [1995] 2 VR 508 at 520 per Batt J.

Whether a failure to consider rationally probative evidence is, as Finkelstein J held, clearly distinct from coming to a decision which is "irrational" (in the sense of so-called "Wednesbury unreasonableness": Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) may be open to doubt - the principles seem to me to overlap, at least in some cases. Nonetheless there is some justification for saying, as his Honour did, that a decision which is not reached as a result of the rational consideration of probative evidence may be described as the product of such reasoning by a Tribunal as can fairly be said to amount to a breach of its obligation to act according to "substantial justice and the merits of the case", and to fall outside the parameters of the exclusionary provisions of s 476(2)(b) of the Act.

In Kopalapillai v Minister for Immigration and Multicultural Affairs (supra) the Full Court referred to the judgment of Merkel J in Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635 in which his Honour had rejected an application to review the decision of the Tribunal upon the basis that it had erred when dealing with issues of credibility by noting that the approach of the Tribunal to the credibility issues "was open to it on the material, was based on rational grounds and was arrived at after consideration of matters that were logically probative of the issue of credibility". The Full Court in Kopalapillai endorsed the approach adopted by Merkel J in Emiantor to the question whether the Tribunal, when assessing the credibility of the story told by the appellant, had erred in law within the meaning of s 476(1)(e) of the Act.

Though Epeabaka was not mentioned, in terms, in Kopalapillai, the principles which the Full Court adopted in dealing with the appeal in that case may be seen as being broadly consistent with those adopted by Finkelstein J.

(c) Mistaken attributions of particular claims

In Abdalla v Minister for Immigration and Multicultural Affairs (supra) the Full Court considered the consequences of a finding that the Tribunal had made a mistaken finding of fact. The Tribunal had attributed to the appellant the claim that she came from a particular region in Somalia known as Gedo and that she had always been a member of a particular clan which controlled that region. It was clear that the Tribunal had erred in attributing these claims to the appellant. The question which had to be addressed was, what were the consequences of the Tribunal's errors in this regard?

The Full Court in Abdalla referred to the earlier decision of the Full Court in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 where Black CJ (with whom Spender and Gummow JJ agreed) had to consider the effect of a mistaken finding of fact. In that case the decision under review was set aside notwithstanding the fact that it could not be said that the particular mistaken finding of fact was itself the foundation of the decision. The Chief Justice in Curragh observed at 220-221:

"A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion.

If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact."

The Full Court in Abdalla applied the principles laid down in Curragh and held:

"The decision, in the present case, proceeds on the basis that although some areas of Somalia may be dangerous for the appellant, the Gedo region was generally safe for her. An erroneous premise that the appellant claimed to have come from Gedo is an important consideration bearing on this matter. For this reason it is probable that the factual mistake as to her always having claimed to be a Marehan from Gedo operated in a material way to influence the ultimate determination of the RRT that she was not a refugee. The principles set out in Curragh are applicable in the present case.

Furthermore, in our view, as a consequence of the reliance placed on the mistaken fact as to her association and origin, the RRT did not address the question whether it was reasonable to require her to locate in Gedo in circumstances where there was no significant evidence of previous or present association with Gedo ... Having regard to the foregoing, we conclude that the appellant has made good her case under s 476(1)(g) in that the decision was based, in part, on a fact and there was no evidence or material to support that fact."

It is with these principles in mind that I approach the resolution of the competing contentions between the parties.

Conclusions

(a) The finding of "recent invention"

It is significant, in my opinion, that in his interview with the delegate of 14 August 1996 the applicant referred in terms to "two friends" and immediately linked them with Jarnail Singh who had, in 1988, started coming to the applicant's father's house with them. This was, in substance, the very point which he made when questioned by the Tribunal on 10 December 1997. While it might be true to say that the applicant went into a great deal more detail in answer to questions put by the Tribunal than he had in his earlier interview with the delegate, this was because the Tribunal itself had pressed for more detailed information.

The delegate, having heard the two friends mentioned, and having also heard them linked to Jarnail Singh, had asked only one further question in relation to this matter. He had then switched his questioning to another topic.

In my opinion, it cannot fairly be said that the more detailed explanation which the applicant gave to the Tribunal when pressed on the subject of his friends bore any of the hallmarks of afterthought or concoction. The Tribunal erred in concluding, as it did, that the applicant's more detailed explanation concerning his two friends' involvement with Babbar Khalsa was, in effect, a "recent invention" which rendered his version of what had occurred in 1988, and thereafter, so implausible as to warrant rejection.

(b) The rejection of the applicant's account of the Bral incident

The position regarding the Bral incident is not so clearcut. It is possible that the Tribunal accepted the reasoning of the delegate concerning that incident. That reasoning was, of course, based upon a wholly false premise, namely that the applicant had given a particular account of those events when plainly he had not. The Tribunal did not, in terms, say anything to indicate one way or another whether it placed any reliance upon the delegate's mistaken summary of what the applicant had said concerning this incident. It is not clear whether the Tribunal listened to the tape of the interview of 14 August 1996 - though it did say in its reasons for decision that it had regard to the oral evidence given by the applicant to the Department. That statement by the Tribunal may have meant no more, however, than that it had regard to the summary of that evidence given by the delegate in his own reasons for decision.

In my opinion, it was incumbent upon the Tribunal when rejecting the applicant's claims concerning the Bral incident to provide an explanation which identified its reasons for that finding. It is at least peculiar that in summarising the applicant's version of this incident the Tribunal omitted to refer to the most critical part of the applicant's explanation for the failure of the police to locate him - namely, that his relatives had succeeded in deceiving the police as to his whereabouts.

The applicant submitted that it was impossible to say whether the Tribunal rejected the applicant's account of the Bral incident because it had:

previously come to the conclusion that he was not a witness of credit based upon the "recent invention" of the "two friends" story, or

proceeded upon the assumption that the delegate had set out accurately the applicant's version of the events surrounding the Bral visit - a version which was so improbable that, had it in fact been advanced by the applicant, it would have been rejected immediately, or

failed to recall that the applicant had proffered an explanation which would have rendered his version of those events capable of acceptance - namely that his relatives had managed to deceive the police into thinking that he did not live with them at their home, in Bral.

The general terms in which the Tribunal rejected the applicant's account of this incident leave me with a feeling of disquiet as to which of the possible explanations for its decision is the true reason for its finding. It is one thing for a decision-maker to reject as implausible an account which is given by a particular individual. It is altogether different when the decision-maker has wrongly attributed to that individual a version which he had not in fact put forward, and which can easily be shown to be false. The advantage which a trier of fact has over an appellate court when assessing the credibility of witnesses through being able to observe their demeanour is palpably misused when the account given by a particular witness is misstated, misunderstood, or, in significant respects, ignored - Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 per McHugh J.

(c) The contention of "harmless error"

I am unable to accept the respondent's submission that the errors made by the Tribunal were harmless, or that it would be futile to remit the matter for reconsideration. Once the Tribunal rejected the applicant's claim that he had been subjected to continuing persecution throughout the period 1988 to 1995 because of his former close association with members of Babbar Khalsa it dealt with him as though he were merely a Sikh who had once been a member of the SSF, a relatively innocuous organisation.

The Tribunal's findings in relation to the current position in the Punjab of members of the Sikh religion are perhaps unexceptionable. What the Tribunal did not do, however, was to consider the position of a person who was not merely a Sikh, and a former member of the SSF, but rather one who had once had as his close friends two members of Babbar Khalsa, a militant terrorist organisation, who were themselves associated with Jarnail Singh, a major figure in that organisation, and who had come with that person in 1988 to stay at the applicant's home.

A person who is, or was in 1988, associated with members of a terrorist group might well be treated differently by the police in India today than would a Sikh with a history of involvement in non-violent separatism of the kind manifested by members of the SSF - see for example RRT Reference N96/12496 (18 April 1998) where the applicant was held to be entitled to a protection visa by reason of the fact that his estranged father had been a member of Babbar Khalsa. The Tribunal found that this made it unsafe for him to relocate to the Punjab, or to any other part of India.

It seems to me that the applicant has made good his contention that the errors into which the Tribunal fell are likely to have tainted its reasoning when it dealt with the current position of Sikhs in the Punjab. These errors are likely also to have tainted the Tribunal's reasoning in relation to the possibility that the applicant could be relocated to some other part of India. The principles laid down in Curragh Queensland Mining Ltd v Daniel (supra) support this conclusion.

These errors are, in my opinion, properly classified as judicially reviewable under s 476(1)(a) and, if necessary, under ss 476(1)(e) and (g) as well. They involve not merely a mistaken view of the facts on the part of the Tribunal, but a failure on its part to observe the procedures required by the Act and the regulations in connection with the making of the decision. The Tribunal proceeded upon a misconception as to the material before it concerning the issue of "recent invention", a misconception which led to a finding seriously adverse to the applicant's credibility. The Tribunal also misconceived the nature of his claim in what may have been an important aspect, namely the reason why the police had left Bral after having finally located the applicant at his relatives' home. The Tribunal's failure to rationally consider probative evidence before it gives rise to grounds based upon ss 476(1)(a) and (e), and the fact that its decision was based on the existence of a particular fact which did not exist gives rise to the ground based upon s 476(1)(g), as modified by s 476(4)(b).

The application must be allowed. The matter should be remitted to the Tribunal to be dealt with according to law. The respondent should pay the applicant's taxed costs of this application.

I certify that this and the preceding thirty (30) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg

Associate:

Dated:

Counsel for the Applicant: Mr P Gray

Solicitor for the Applicant: Schetzer Brott & Appel

Counsel for the Respondent: Mr P Booth

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 23 September 1998

Date of Judgment: 29 October 1998