Franjo Buljeta v Minister for Immigration & Multicultural Affairs [1998] 1579 FCA

MIGRATION - application for protection visa - whether Tribunal failed to identify and deal with material part of applicant's claim - whether such failure reviewable.

Migration Act 1958 (Cth) - pars 420(2)(b), 476(1)(a), (c), (e)

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

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

Shofi v Minister for Immigration & Multicultural Affairs (unreported, Einfeld J, Federal Court of Australia, 10 July 1998)

Sundarararaj v Minister for Immigration & Multicultural Affairs (unreported, Lindgren J, Federal Court of Australia, 13 May 1998)

Thevendram v Minister for Immigration & Multicultural Affairs (unreported, Finn J, Federal Court of Australia, 10 June 1998)

Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275

FRANJO BULJETA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 671 of 1998

KATZ J

SYDNEY

4 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 671 of 1998

BETWEEN:

FRANJO BULJETA

APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: KATZ J

DATE OF ORDER: 4 DECEMBER 1998

WHERE MADE: SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.  The decision of the Refugee Review Tribunal be set aside.

2.  The matter to which the Tribunal's decision related be referred to the Tribunal for further consideration.

3.  The respondent pay the applicant's costs of the proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 671 of 1998

BETWEEN:

FRANJO BULJETA Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE: KATZ J

DATE OF ORDER: 4 DECEMBER 1998

WHERE MADE: SYDNEY

REASONS FOR JUDGMENT

Section 486 of the Migration Act 1958 (Cth) ("the Act") confers on this Court jurisdiction with respect to "judicially-reviewable decisions". Among the decisions which are reviewable by this Court in the exercise of that jurisdiction are decisions of the Refugee Review Tribunal ("the Tribunal") (see par 475(1)(b) of the Act).

In this proceeding, review of a decision of the Tribunal is sought. The decision concerned is one which was made by the Tribunal on 22 June 1998, consequent upon an application for review which had been made to it by Mr Buljeta on 5 May 1998. The Tribunal's decision affirmed an earlier decision made by a delegate of the Minister for Immigration and Multicultural Affairs ("the delegate") on 28 April 1998, consequent upon an application for a protection visa which had been made to the Minister by Mr Buljeta on 15 April 1998. The delegate's decision on that application had been one to refuse to grant it.

Protection visas are dealt with in s 36 of the Act, which provides as follows,

"36 (1) There is a class of visas to be known as protection visas.

(2) A criterion for a protection visa is that the applicant for a visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

(The Refugees Convention referred to in subs 36(2) is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, while the Refugees Protocol referred to is the Protocol relating to the Status of Refugees done at New York on 31 January 1967: see the relevant definitions in subs 5(1) of the Act. I note also that criteria for a protection visa additional to that in subs 36(2) appear in Sch 2 to the Migration Regulations, under the heading, "Subclass 866--Protection". All such criteria apply to decision-making by the Tribunal, just as much as they do to decision-making by the Minister: see subs 415(1) of the Act.)

Australia has protection obligations to a non-citizen in Australia if that non-citizen is a refugee within the meaning of par 1A(2) of the Refugees Convention as amended by the Refugees Protocol. That paragraph refers (relevantly) to a person who is outside the country of the person's nationality (or, if the person has no nationality, the country of the person's former habitual residence) owing to well-founded fear of being persecuted for reasons of political opinion and who, owing to such fear, is unwilling to avail him/herself of the protection of that country (or, if the person has no nationality, is unwilling to return to the country of the person's former habitual residence).

It is convenient to begin consideration of Mr Buljeta's application for review of the Tribunal's decision by summarising in the following three paragraphs certain matters of fact said by the Tribunal, in that part of its statement of findings and reasons headed "Claims and Evidence", to have been asserted by Mr Buljeta in connection with his application for a protection visa. Those assertions were, broadly speaking, accepted as accurate by the Tribunal.

Mr Buljeta was born in 1932 in the city of Zagreb, which was then in what was Yugoslavia, but is now in what is the Republic of Croatia. During World War Two, his father was a general in the army of the short-lived Independent State of Croatia, which state had been established following the invasion of Yugoslavia by German and Italian forces. His father fought in the Soviet Union on the German side and was opposed to communism. Following the end of World War Two, the Yugoslav communist government sought to arrest his father for political crimes, but his father remained in hiding with the assistance of Mr Buljeta and other members of the family, before escaping to South America in 1955. Thereafter, in March of 1955, the military police arrested Mr Buljeta and other members of the family because of their involvement in his father's hiding and escaping from the country. Because of that involvement, Mr Buljeta was convicted of an offence and sentenced to twelve years imprisonment. In March of 1958, however, Mr Buljeta escaped from prison to Italy and then, in October of 1958, came to Australia as a "refugee" or "political immigrant".

Mr Buljeta lived in Australia from 1958 until 1973. He had many jobs during that time, one of which was working for an American insurance company doing business in Australia. In 1971, he sold some insurance on behalf of the American insurance company to the Yugoslav Consulate in Sydney. His doing so was discovered by members in Sydney of the USTASHI (a Croatian anti-communist party, members of which are now in power in the Republic of Croatia), who accused him of being a communist and stabbed him twice. To escape them, he left Sydney and went to live in Perth, where, he hoped, the USTASHI would not find him. In selling the insurance to the Consulate on behalf of the American insurance company, Mr Buljeta had not been motivated by political reasons, but simply by commercial ones.

In early 1973, Mr Buljeta decided, because of the ill health of his mother in Yugoslavia, to travel from Australia to Germany, to which country he hoped to obtain his mother's departure. For the purpose of such travel, he obtained a passport with the assistance of the Yugoslav Consulate to which he had earlier sold insurance on behalf of the American insurance company. The Consulate was prepared to assist him to obtain a passport because of his having assisted it with the insurance at a time when it had had difficulty obtaining cover due to earlier bombings of Yugoslav government premises in Australia. He also obtained an Australian re-entry permit valid for two years. He used the passport to travel to Germany, but it was stolen from him whilst he was there in 1973. Having no travel document, he was unable to return to Australia on his re-entry permit and thereafter remained based in Europe, using, when necessary to produce travel documents, various false ones, until he returned to Australia in 1998 (for which purpose he used a false Greek passport).

Having now summarised certain matters of fact said by the Tribunal in its statement of findings and reasons to have been asserted by Mr Buljeta in connection with his application for a protection visa, which assertions were, broadly speaking, accepted by it as accurate, I should mention that Mr Buljeta's claim before the Tribunal was that he was unwilling, owing to well-founded fear of being persecuted for reasons of political opinion, either to avail himself of the protection of or to return to the Republic of Croatia (the country which the Tribunal considered to be the appropriate one in connection with Mr Buljeta's application).

I turn next to that part of the Tribunal's statement of findings and reasons headed "Findings and Reasons", for the purpose of setting out or, in some cases, summarising those findings and reasons as they relate to the application presently before the Court for review of the Tribunal's decision.

In that part of its statement of findings and reasons headed "Findings and Reasons", the Tribunal identified two bases upon which, according to it, Mr Buljeta had claimed that he was unwilling, owing to well-founded fear of being persecuted for reasons of political opinion, either to avail himself of the protection of or to return to the Republic of Croatia. It said (numbering added),

"The Applicant's claims are that he fears persecutory treatment and possibly death at the hands of the Croatian authorities if he returns to Croatia. He claims the reason for his fear of persecution is his political opinion, [1] as an opponent of the communist Yugoslav regime in 1954-8 and [2] as a resident of Australia, from 1958 to 1973."

It then added, with obvious reference to the matter I have numbered "[2]" above, and, as I read the passage, by way of description of those events on which, the Tribunal considered, Mr Buljeta was relying, so far as his residence in Australia between 1958 and 1973 was concerned,

"He claims he helped the Yugoslav communist regime whilst in Australia and suffered persecution from the USTASHI in Australia for organising insurance for the Yugoslav Consulate in Sydney, which was unable to obtain insurance because it had been bombed."

Having thus identified the two bases upon which, according to it, Mr Buljeta had claimed before it to be unwilling, owing to well-founded fear of being persecuted for reasons of political opinion, either to avail himself of the protection of or to return to the Republic of Croatia, the Tribunal next said, "There are two issues. The first issue relates to his claim of persecution for his political opinion prior to 1958 ..."

The Tribunal then dealt with that first issue. For reasons which will become apparent later, I will not summarise in these reasons the manner in which the Tribunal dealt with that first issue, although, as is apparent from the fact, already mentioned, that the Tribunal affirmed the delegate's decision, the Tribunal determined it adversely to Mr Buljeta.

The Tribunal then moved on to the second issue. I will set out hereunder what it said relevantly as to that issue,

"The central claim of the application relates to matters which occurred late in 1960 to early 1993 [sic] in Sydney. The applicant has stated that because of his activities in Sydney, helping the Yugoslav Consulate obtain insurance, he was targeted by the local Croatian Ustase [sic] and stabbed twice. The applicant's father had been a General in the Ustase army, served in Russia and he had been imprisoned by the very regime which he claimed he was helping. He further claimed that he was given a passport by the Yugoslav Consulate because of his help. On the current evidence before me I am not satisfied that his claim of involvement in a commercial decision some twenty five years ago, because of the passage of time and the change of government, would have any affect [sic] on the new independent Croatia. Further, the applicant claims he fears persecution if he were to return to Croatia in 1998. The applicant has stated at hearing that he returned to Croatia in 1991, 1992 and 1993 when he was on his way to Greece travelling on a false passport. I find it implausible that he would take the risk of entering Croatia three years in a row and run the risk of being caught on a false passport and being persecuted. I have found no independent evidence to suggest that circumstances in Croatia have changed from 1993 to date which would result in the applicant now having a fear of persecution when he did not hold such a fear in 1993.

I am not satisfied on the current information provided by the applicant and the independent evidence that there is a real chance of persecution on his return to Croatia, for activities which occurred in Yugoslavia some 30 years ago or in Sydney some 20 years ago. I find that the applicant does not have a well-founded fear of persecution for his political opinion or for any other Convention ground."

I return now to the Tribunal's statement of the two bases upon which Mr Buljeta had made his claim to be unwilling, owing to well-founded fear of being persecuted for reasons of political opinion, either to avail himself of the protection of or to return to the Republic of Croatia.

A question arises whether the Tribunal's statement of those two bases was accurate.

In order to answer that question, I consider that I should, although they are lengthy, set out various passages from Mr Buljeta's sworn testimony before the Tribunal. (I note that, in them, the word (or acronym, I know not which) "USTASHI" is rendered as "USTASI".)

"... In 1958 I escaped from the gaol [in Yugoslavia] to Italy and from Italy as an emigrant, political emigrant I come to Australia. I was here till 1973.... I never belonged to any political activities and in my opinion in Australia was only to be free and to work and earn money and live a normal life. I was in conflict very much with the people from the Croatian clubs over here, you know.

Why?---Because they would call themselves USTASI. See they have lots of, they done lots of harm, lots of bad things. They were not normal. They been, been having a sort of army over here, you know, and they were sending back people back to Yugoslavia to put bombs into theatres and all this and I was extremely very much against this. Plus I was working for an insurance company and well, I happen to insure Yugoslavian Consulate down in Double Bay which have been bombarded by the USTASI. These sort of people, you know, that I am talking about.

So you had contact with the Yugoslav Embassy at that stage?---Because I was working for the insurance company and wasn't very far - most of about 200 metres from my apartment when I was living down in Double Bay. So I was working for the insurance company, I insured them and that was why I was persecuted by the USTASI - - -

You were persecuted where by the USTASI?---Here in Sydney, yes, I was even stabbed a couple of times for this. That's why I decide to change the country and I went to Perth....

...if I go to Zagreb I will never come back, they will kill me. They want me. The police want me in Yugoslavia and in Zagreb.

Why?--Because I was over here in Australia and there are people, people who used to live over here who got your Australian passports and everything, USTASI, whatever they are, Croatians, I had a problem with over here, they are all in Croatia now and they're ruling the country, see, and they know me well. They know exactly. I never put my foot into Croatian Club and I never deal with the politic [sic]. They knew that. They knew that I should have used an Embassy. They were against me completely here and I want to say now, it's worse now. So if I go down there I'm a dead man. If you send me down there. I'm a dead man or I finish in mental house and they will make experience on me, like they do with every other people.

...

So what you're saying is that you've been on the run since 19 - - -?---On the run for 25 years, madam, for 25 years, stateless and nameless and I can't do it any more, I just can't. I can't do it any more. 43 [sic] years that I left my country, 43 years.

So why do you think that they'll remember you now?---They remember me because I got the friends living in Germany, there are lots of Croatians in Germany and everywhere, people who closer and closer and back here and there. I pay for it to see what's going on. They want me. Police, they're looking for me all the time. Why, I don't know. I haven't been there for 43 years, what they want from me? There's only one thing, they're people who used to be getting in Australia, in Sydney, they are the people. They are there in police force, they are there, and they are looking for the people from Australia. People who never enter Yugoslav - I mean, Croatian club, people who are against them political over here because they been training people to go to Europe and kill the other people that are there. Special with the Priest Carsige. You know the Priest Carsige?

I don't, I'm sorry, no?---Yes, he was leader, Priest Carsige. He was with me in the gaol, Amish, he was the leader, he was a priest. Yes. Now he's a big man.

So tell me something?---Yes, madam.

Which I am still at a loss to quite comprehend. You were imprisoned because of your father's political activities, right?---Yes, yes, all my family.

Okay. They were imprisoned because of their political activities?---Yes.

Exactly what were those political activities?---No, because we hiding. You see, when he comes out he was wanted.

Why?---Because he was a military man, he was fighting against Communism, madam, against Communism.

So he's a military man and he fought against Communism, right?---Yes, yes.

So I can relate to that. Now, Croatia has abandoned Communism and it's now become an independent country?---But that was - - -

Why can't you go back now?---I can't because they want me for what I've done in Australia.

I see, so they actually want you - - -?---They want me for this, madam.

Nothing to do with your family?---Absolutely nothing to do with my family, for me, because I was against them over here in Australia. I've told them it's no good what they're doing over here. They can't train their people to send them and then kill the other people. I'm talking about Croatians and the great Croat [sic], but I couldn't be leave here. If I was working for insurance I don't care who insure, I was earning money for living for it.

So they basically have a problem with the fact that you organise the insurance for the Yugoslav Consulate in Double Bay?---That's right. That is the one thing. I was stabbed with a knife twice, you understand.

By whom?---Yes. By people, you know, they were part of the cause in the front of - I mean, about 100 metres away from the embassy and they would photograph every person who goes inside into embassy, and they photographed me and they say what am I doing in there? I've been telling people that I was in gaol, my whole family was in gaol by the communists and what I am doing in the communist embassy, they didn't know that.

So when did this stabbing occur?--Here in Sydney.

Yes, but when?---In October.

What year?---1971, yes.

...

Okay, so let's just get this clear. What you're saying is that the Croatian Government now, the current Croatian Government, is after you because of your activities here in Australia?---That's right.

Nothing to do with what happened to you previously?---Absolutely not.

Okay. Now, I'm starting to comprehend what you're saying. Now, this was because of your activities in organising insurance for the Yugoslav Consulate. Now, when you were stabbed twice, did you report it to the police?---Well, I did, but they didn't do nothing about it...."

Based on the various passages from Mr Buljeta's sworn testimony before the Tribunal which I have set out above, I have decided that the Tribunal's statement of the two bases upon which Mr Buljeta had made his claim to be unwilling, owing to well-founded fear of being persecuted for reasons of political opinion, either to avail himself of the protection of or to return to the Republic of Croatia was erroneous in two respects, one of which did not operate to the detriment of Mr Buljeta's claim for refugee status and one of which did.

First and unharmfully to his claim for refugee status, Mr Buljeta did not rely at all, in making his claim, on his having been "an opponent of the communist Yugoslav regime in 1954-8". As to that, Mr Buljeta was quite emphatic. He told the Tribunal that the reason why he was "want[ed]" in Croatia had "[a]bsolutely nothing" to do with his family. It was something personal to him, "because I was against them over here in Australia". Later, when asked whether the Croatian government was "after" him because of his activities here in Australia, he replied, "That's right" and when asked whether the Croatian government's being "after" him had "[n]othing to do with what happened to you previously", he replied, "Absolutely not".

Secondly and harmfully to his claim for refugee status, on a fair reading of his sworn testimony (which includes recognition of the fact that English is not Mr Buljeta's first language), Mr Buljeta did not rely only, so far as his activities in Australia were concerned, on his having organised insurance for the Yugoslav Consulate in Sydney. He relied also on his having actually opposed the activities of the USTASHI, as well as on his having been erroneously perceived to have done so merely by organising the insurance.

In reaching that conclusion I draw attention particularly to a number of things said by Mr Buljeta in the course of that part of his sworn testimony from which I have already quoted above.

First, he said that he had been "in conflict very much with the people from the Croatian clubs" in Australia, that he was "extremely very much against" their activities, which had included "having a sort of army over here, you know, and they were sending back people back to Yugoslavia to put bombs into theatres and all this" "[p]lus" he had insured the Consulate. Secondly, he said that those in charge now in Croatia knew that he "never put" his "foot into Croatian Club". Thirdly, he said that the Croatian police, which included USTASHI from Australia, were "looking for the people from Australia. People who never enter ... Croatian club, people who are against them political over here because they been training people to go to Europe and kill the other people that are there". Finally, he said that he "was against them over here in Australia. I've told them it's no good what they're doing over here. They can't train their people to send them and kill the other people".

I note that it was not submitted before me on the Minister's behalf that Mr Buljeta had not relied before the Tribunal on his having actually opposed the activities of the USTASHI in Australia, as well as on his having been erroneously perceived to have done so merely by having organised insurance for the Yugoslav Consulate in Sydney. Instead, what was submitted was that his "emphasis" before the Tribunal had been on the latter, rather than the former.

It was further submitted on the Minister's behalf that, reading the Tribunal's statement of findings and reasons as one is required to do (see Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272), one would conclude that, irrespective of the manner in which the Tribunal had identified the two bases on which Mr Buljeta was said to have made his claim for refugee status, nevertheless the Tribunal had dealt adequately in its statement of findings and reasons, not only with the insurance episode, but also with Mr Buljeta's actual opposition to the activities of the USTASHI in Australia.

In order the better to deal with that submission, I set out again hereunder (this time, with each sentence numbered) the relevant passage from the Tribunal's statement of findings and reasons:

"[1] The central claim of the application relates to matters which occurred late in 1960 to early 1993 in Sydney. [2] The applicant has stated that because of his activities in Sydney, helping the Yugoslav Consulate obtain insurance, he was targeted by the local Croatian Ustase [sic] and stabbed twice. [3] The applicant's father had been a General in the Ustase army, served in Russia and he had been imprisoned by the very regime which he claimed he was helping. [4] He further claimed that he was given a passport by the Yugoslav Consulate because of his help. [5] On the current evidence before me I am not satisfied that his claim of involvement in a commercial decision some twenty five years ago, because of the passage of time and the change of government, would have any affect [sic] on the new independent Croatia. [6] Further, the applicant claims he fears persecution if he were to return to Croatia in 1998. [7] The applicant has stated at hearing that he returned to Croatia in 1991, 1992 and 1993 when he was on his way to Greece travelling on a false passport. [8] I find it implausible that he would take the risk of entering Croatia three years in a row and run the risk of being caught on a false passport and being persecuted. [9] I have found no independent evidence to suggest that circumstances in Croatia have changed from 1993 to date which would result in the applicant now having a fear of persecution when he did not hold such a fear in 1993.

[10] I am not satisfied on the current information provided by the applicant and the independent evidence that there is a real chance of persecution on his return to Croatia, for activities which occurred in Yugoslavia some 30 years ago or in Sydney some 20 years ago. [11] I find that the applicant does not have a well-founded fear of persecution for his political opinion or for any other Convention ground."

The submission on the Minister's behalf that, in the passage just (re)quoted, the Tribunal had dealt adequately with Mr Buljeta's claim to fear persecution by reason of his actual opposition to the USTASHI while in Australia depended upon the terms of the sentences I have numbered above [1], [6]-[9], [10] and [11].

As to the sentence numbered [1] above, it was submitted for the Minister that the Tribunal's use therein of "the word `matters' ... show[ed] that the Tribunal was considering more than just the one claim in relation to insurance".

I do not consider that the Tribunal's use of that word showed that at all. The matters being referred to in the sentence numbered [1] above, it seems obvious to me, were those recited in the next four sentences of the quoted passage.

As to the sentences numbered [6]-[9] above, it was submitted for the Minister that they dealt with Mr Buljeta's claim to fear persecution by reason of his actual opposition to the USTASHI while in Australia.

I reject that submission, regarding those sentences as more likely to have been intended to deal with the very matters already dealt with in the preceding five sentences of the quoted passage.

(I note that no submission was made on behalf of the Minister that the sentences numbered [6]-[9] above showed that, if the Tribunal had committed a reviewable error by not identifying and dealing with that part of Mr Buljeta's claim relating to his actual opposition to the USTASHI in Australia, such error was immaterial in the circumstances.)

As to the sentence numbered [10] above, it was submitted for the Minister that the reference in it to "activities which occurred ... in Sydney some 20 years ago" "must include both the activities related to political opinions and arranging insurance".

The Tribunal's reference to "activities which occurred ... in Sydney some 20 years ago" seems to have been a slip, since Mr Buljeta had left Australia twenty-five years ago, but, in any event, I see no reason to treat that reference as having been intended to encompass anything beyond that already referred to earlier in the quoted passage.

Finally, as to the sentence numbered [11] above, it was submitted for the Minister that the Tribunal's finding that Mr Buljeta did not have a well-founded fear of persecution "for his political opinion" "can only be" a reference to Mr Buljeta's claim of actual opposition to the USTASHI in Australia, because, it was submitted, "[t]here were no other political opinions expressed by the applicant".

That submission ignores two facts: first, the Tribunal was, in the sentence numbered [11] above, intending to deal in part with what it mistakenly believed to have been Mr Buljeta's claim about "activities which occurred in Yugoslavia some 30 years ago"; secondly, the Tribunal was also intending to deal with Mr Buljeta's claim based on his having been involved in insuring the Consulate, which was actually a claim of feared persecution by reason of political opinion, albeit a political opinion wrongly imputed to him merely by reason of his having organised insurance for the Yugoslav Consulate in Sydney.

In sum and contrary to the submissions on behalf of the Minister, it appears to me that the Tribunal failed properly to identify and then deal with an important issue raised by Mr Buljeta in his sworn testimony before it as part of his claim to refugee status, namely, whether he had actually opposed the activities of the USTASHI in Australia and therefore had a well-founded fear of being persecuted for reasons of political opinion.

The question next arises whether such failure by the Tribunal was an error reviewable by this Court under s 476 of the Act.

(In that connection, I note that, although it was submitted before me on the Minister's behalf that it was apparent from the Tribunal's statement of findings and reasons that it had identified and then dealt with the issue whether Mr Buljeta had actually opposed the activities of the USTASHI in Australia, no submission was made that, if that was not so apparent, then, nevertheless, the Tribunal's decision was not reviewable.)

A number of decisions of this Court are relevant in that respect. I will refer, in particular, to five of them.

First, in Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275, Foster J referred to the duty imposed on the Tribunal by par 420(2)(b) of the Act to "act according to substantial justice and the merits of the case" "in reviewing a decision". He then said,

"Whatever else `substantial justice' may require it certainly demands, in my view, that a decision actually be made in respect of the significant issues posed in the case. If issues necessary for the proper determination of an application are clearly raised and left undecided by the decision-maker then, in my view, it is clear that `substantial justice' within the meaning of the section has not been accorded to the applicant. Section 420(2)(b) mandates that the Tribunal act in accordance with substantial justice. A failure to do so would be a non-observance of a procedure required by the Act and [therefore] reviewable under s 476(1)(a). It would also, in my opinion, be a decision `not authorised' by the Act and, pursuant to s 476(1)(c) similarly reviewable. It is possible that it may also be reviewable under s 476(1)(e) but I prefer to express no concluded view as to this."

Secondly, in Emiantor v Minister for Immigration & Multicultural Affairs (1997) 48 ALD 635 at 653, Merkel J referred with apparent approval to Foster J's conclusion in Yao-Jing that the duty imposed by par 420(2)(b) of the Act demands,

"... that a decision actually be made in respect of the significant issues posed in the case with the consequence that substantial justice will not have been accorded if issues necessary for the proper determination of an application are clearly raised and left undecided...."

His Honour did not, however, express a view as to which ground(s) of review under

subs 476(1) of the Act would be engaged by such a breach of par 420(2)(b).

Thirdly, in Sundararaj v Minister for Immigration & Multicultural Affairs (unreported, 13 May 1998), the Tribunal had failed to make findings on the material questions of fact whether an applicant for review before it had been detained and tortured in his country of nationality on three occasions additional to that as to which the Tribunal did make a finding. Lindgren J expressed the view (at 12-13) that such a failure by the Tribunal was a breach of

par 420(2)(b) of the Act, which breach engaged par 476(1)(a) of the Act.

Fourthly, in Thevendram v Minister for Immigration & Multicultural Affairs (unreported, 10 June 1998), Finn J said (at 12) that he was prepared to accept for the purposes of the case before him that "a failure to address and make findings on material questions of fact raised, can constitute a failure to act procedurally according to substantial justice and the merits of the case [so] as to constitute a ground of review under s 476(1)(a) of the Act". His Honour cited in support of that proposition the Yao-Jing [called by him Li] and Sundararaj cases.

Finally, in Shofi v Minister for Immigration & Multicultural Affairs (unreported, 10 July 1998), Einfeld J expressed the view (at 5) that "[i]t would seem to follow from the majority decision in Eshetu [v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300] that if the Tribunal does not correctly identify the applicant's claim, it does not consider his case on the merits". Accepting that that is so, it would seem also to follow that a breach by the Tribunal of its obligation under par 420(2)(b) to act according to the merits of the case by failing correctly to identify an applicant's claim is reviewable either under par 476(1)(a) or under par 476(1)(e) of the Act, depending upon whether such failure is considered to be a breach of the procedural elements of par 420(2)(b) or the substantive ones.

In the end, it does not appear to me to matter very much within which pigeon hole one puts it; the Tribunal's failure properly to identify and then deal with an important issue raised by Mr Buljeta in his sworn testimony before it as part of his claim to refugee status, namely, whether he had actually opposed the activities of the USTASHI in Australia, amounted to a breach of the obligation imposed by one or other or both limbs of par 420(2)(b) of the Act and therefore to a reviewable error under one or more of pars (a), (c) and (e) of subs 476(1) of the Act.

In those circumstances, it is necessary that the Tribunal's decision be set aside and that the matter to which that decision related be referred to the Tribunal for further consideration. Further, in those circumstances, it is unnecessary that I deal with various alternative grounds of review of the Tribunal's decision raised on behalf of Mr Buljeta.

I certify that this and the preceding 14 pages

are a true copy of the reasons for judgment of

the Honourable Justice Katz.

Associate:

Date: 4 December 1998

Counsel for the applicant: Mr M.W. Gerkens

Counsel for the respondent: Ms V. Hartstein

Solicitor for the respondent: Australian Government Solicitor

Date of hearing: 17 November 1998

Date of judgment: 4 December 1998