Thiagarajah Kandiah v Minister for Immigration and Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - application for review from Refugee Review Tribunal decision - failure to observe required procedures in connection with the making of a decision - contents of written statement of reasons - failure to advert in reasons to a material question of fact.

Migration Act 1975 , 1958 (Cth), s 36(2), s 420(2)(b), 430(1), s 476

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

Administrative Decisions (Judicial Review) Act, 1977 (Cth), s 5(1)(b)

Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 47 ALD 555 (referred to)

Muralidaharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 (applied)

Nadesan v Minister for Immigration and Multicultural Affairs, FCA, unreported, 12 March 1998, O'Connor J (referred to)

Ahmad v Minister for Immigration and Multicultural Affairs, FCA, unreported, 20 May 1997, Sundberg J (referred to)

Dodds v Comcare Australia (1993) 31 ALD 690 (considered)

Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 (referred to)

Ma v Federal Commissioner of Taxation (1992) 23 ATR 485 (applied)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 (considered)

Commissioner of Taxation v Osborne (1990) 26 FCR 63 (referred to)

Mifoud v Campbell (1991) 21 NSWLR 725 (referred to)

Copperart Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1993) 30 ALD 377 (applied)

Connell v Auckland City Council [1977] 1 NZLR 630 (considered)

Casarotto v Australian Postal Commission (1989) 86 ALR 399 (considered)

Sullivan v Department of Transport (1978) 20 ALR 323 (referred to)

Comcare Australia v Lees, FCA unreported 10 December 1997, Finkelstein J (referred to)

Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 (referred to)

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

VG 238 of 1997

FINN J

MELBOURNE

3 SEPTEMBER 1998

THE COURT ORDERS THAT:

1.   The application be allowed.

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

3.   The matter be remitted to the Refugee Review Tribunal for further consideration.

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

REASONS FOR JUDGMENT

Primarily because of the adverse credibility finding it made, the Refugee Review Tribunal ("the Tribunal") was not satisfied that the applicant, Thiagarajah Kandiah, was a refugee. This application for an order of review under Part 8 of the Migration Act 1996 , 1958 (Cth) ("the Act") is directed at how the Tribunal went about making that finding.

Mr Kandiah is a Sri Lankan national and a Tamil. Of the various incidents on which he relied to make out his claim of fear of persecution one event stood out. It was that, following a bomb blast in Colombo on 31 January 1996, he was detained at an army camp called Slave Island and tortured for fourteen days. He claims he was so badly beaten that on his release he went to Colombo General Hospital where he remained for more than a month. His principal treating doctor there he said was a Dr Rajakulendran.

In view of its credibility finding the Tribunal did not accept that these events occurred as claimed.

To appreciate both how those findings were made and the basis of Mr Kandiah's attack on them, it is necessary to describe in a little detail the manner in which his application was approached by the initial decision maker (ie the delegate of the respondent Minister) and then by the Tribunal.

Dealing with Mr Kandiah's Application

(a) The Decision of the Delegate

Mr Kandiah submitted a letter purporting to be from Dr Rajakulendran in support of his application.

It stated (formal sections apart):

"To Whom It May Concern

This is to certify that Mr Kandiah Thiyagarajah of 155/6, Galle Road, Colombo 04 was treated for multiple contusions and internal bleeding. He was in severe body pain. He was treated for five weeks from February 15 1996 and he given a history of being assaulted by Army personnal."

The delegate, having interviewed Mr Kandiah on 6 September 1996, initiated inquiries into the authenticity of the letter. On 9 September he wrote the following file note:

"Re: Thiyagarajah Kandiah

I spoke to Peter Hobbs about the medical certificate the abovenamed submitted in support of his application for refugee status.

In his application the applicant claimed that he was beaten by security personnel to the point that he required hospitalisation from 15 February 1996 and that he was in fact in hospital for a period of one month. The manner in which the certificate was worded indicated that it may not be genuine. Mr Hobbs suggested that verification should be sought from Sri Lanka.

I telephoned Sri Lanka on 9 September 1996 and spoke to Dr Rajakulendran, who was immediately familiar with the case. He stated that he did not actually examine Mr Kandiah but referred him to the General Hospital, Colombo and gave the telephone No. as 727070. However, when I telephoned this number a young person answered from a private residence. It was obvious that I was given the wrong number. I then telephoned the Sri Lankan High Commission, Canberra, who gave me the General Hospital's number viz: 691111. I rang this number and spoke to someone in the administration section who informed me that there was no person by the name of Kandiah Thiyagarajah having been admitted for treatment for the period claimed.

It now appears the medical certificate submitted by the applicant has been contrived.

I have decided to re-interview the applicant on this aspect."

On 12 September 1996 the delegate conducted the foreshadowed second interview. Mr Kandiah adhered to his story. When confronted with the delegate's account of his communications with Sri Lanka, Mr Kandiah explained that he had obtained the letter after his treatment to give himself "future credence" if he was later confronted by security officers in Sri Lanka.

During the interview the delegate appears again to have telephoned Colombo. The delegate narrated the burden of the call as follows:

"Okay, well, I telephoned the hospital again, I spoke to a male nurse called Leonard in ward 33, and he looked up the record - took him half-an-hour - he looked up the records for that ward and he found no record of your admission. He found no record of this doctor actually working in that ward for anyone. So I do not know where we go from here. There is one more thing that I am going to check, and that is the general admissions register for the hospital, whether the admission was made on the general admission. But he has got no -he does not know this doctor. And this male nurse, he works - called Leonard - he works in that ward and knows all the doctors who go there."

On 17 September Mr Kandiah wrote to the delegate concerning the interview. He reiterated his story and that the male nurse to whom the delegate spoke gave incorrect information because he knew Mr Kandiah was a Tamil.

The following day the delegate contacted an officer in the Australian High Commission seeking that, as a matter of urgency, discrete inquiries be made. He observed that there appeared to be a "serious credibility gap" in Mr Kandiah's story. He was informed on 7 October that the inquiries sought would have to go through proper "DFAT" channels.

There the matter of inquiries stopped. On 15 November 1996 the delegate gave his decision refusing the grant of a protection visa.

(b) The Tribunal's Decision

In a letter of 13 January 1997 prepared by a migration agent in explanation of Mr Kandiah's application to the Tribunal, it was stated that:

"5. The applicant says that when he rang up to the doctor to find out why he denied treating him at the General Hospital, Colombo when he had actually given treatment to him, the doctor replied as follows:

(a) He said that when the call came to him inquiring about the letter he had given the applicant, he had admitted that he did so.

(b) Later from the way questioning were put to him, the doctor suspected that the Sri Lankan authorities were posing off as Australian Immigration Officials, and when such a suspicion arose in his mind, he denied treating him in hospital because of fear of his own life. (Please see the letter annexed herewith, issued by the same doctor.)"

The annexed letter (of 23 December 1996) was addressed to the Immigration Department. It purports to have been written by Dr Rajakulendran and said as follows:

"I have to give you the following information regarding Mr Thiyagarajah Kandiah, who was my patient at the General Hospital (National Hospital), Colombo 10.

I treated him for five weeks from February 15^th, for multiple contusions and internal bleeding. He was in severe body pain. He has given a history of being assaulted by army personnel.

When I was contacted by a person over the phone and inquired about this matter in the first week of September, 1996, I did not realise that the person was actually from the Immigration Department, Australia and I also suspected that the person might be a Sri Lankan authority. As such, I denied that I had treated him.

I wish to confirm that I have actually treated him during the period stated above and the information I gave in my previous letter dated 15^th April, 1996 is true and correct."

Also included with the migration officer's letter of 10 January was a letter of 3 September 1996 (sic) purporting to come from the Director of the National Hospital of Sri Lanka and written on hospital stationery. It said (omitting formal parts):

"TO WHOM IT MAY CONCERN

This is to certify that Dr. F.A. Rajakulendran is a Medical officer attached to National Hospital of Sri Lanka, Colombo 10."

Neither at the hearing nor in the Tribunal's reasons was reference made by the Tribunal to either of these letters. To the extent that reference was made at the hearing to Mr Kandiah's claimed hospitalisation and treatment in Colombo, it related (i) to information provided to the delegate in his telephone call to the General Hospital that it had no record of Mr Kandiah being admitted for treatment; (ii) to Mr Kandiah's failure to mention to a Human Rights Task Force in Sri Lanka that he was detained, beaten and then hospitalised; and (iii) to the delegates, and then to Mr Kandiah's claimed, phone calls to Sri Lanka. On two occasions at the hearing the lack of a hospital record of admission was put to Mr Kandiah. In each instance he claimed this was "wrong". The latter two of the matters above were dealt with sequentially at the hearing as the transcript records. I would note that the initial references in what follows to a "statement" is to a document prepared for Mr Kandiah by the Human Rights Task Force in light of a statement made by him at that body's office.

"MR KISSANE: It [ie the statement] also makes no reference of you being beaten by the army on 10 or 11 January of 1996. What I find most extraordinary about this letter is that it makes absolutely no mention of your being detained at Slave Island for two weeks.

THE INTERPRETER: In fact I mentioned that also when I gave the statement.

MR KISSANE: It also makes no mention [...]that you were hospitalised for one month.

THE INTERPRETER: In fact they said information regarding this first of all I will have to lodge that complaint with the police before they could lodge it with them.

MR KISSANE: I find that sort of statement difficult to accept, I think. It seems to me that if you have gone to the Human Rights Task Force to complain about your treatment that it makes sense to me that you would start with the most serious offence, serious incident, and tell them about that first.

THE INTERPRETER: But I did go there to mention the important and serious things that have happened to me.

MR KISSANE: Why would not you make sure that if you told them about being taken to Slave Island for two weeks and being hospitalised for a month afterwards, why would not you make sure that was in the statement that they gave to you?

THE INTERPRETER: In fact they did say that certain information first has to be lodged with the police before it is lodged with them.

MR KISSANE: But they have been set up as I understand it to monitor the human rights situation in Sri Lanka.

THE INTERPRETER: Yes. I went there with that impression.

MR KISSANE: I would have thought they would have been very interested in information from you that you had been held at Slave Island for two weeks and during that time you had been beaten so badly that you had been hospitalised for a month.

THE INTERPRETER: In fact considering this was the most important information that I wanted to give them and this is why I went there, in fact whoever was there receiving the complaint and accepting the complaint were Singhalese people. Before we can record such information from you this information has to be first - this complaint has to be first made to the police before we can accept it.

MR KISSANE: All right. How do you explain that when the Department of Immigration, or the delegate that considered your case, rang up the Colombo General Hospital that they had no record that you had been there for a month?

THE INTERPRETER: Yes, he did ring me up, and they told me - sorry, he did tell me that he had rung up. Yes, he told me personally that this was the information he had got when he had rung up ... (indistinct) ... . When he rang there was a Singhalese nurse, and she was the one who said that there was no such person there, and I did tell him that if she had said that, then it was not true, and it was wrong.

MR KISSANE: Why would Dr Rajakorendran say that he had never treated you, that he had just sent you off to the hospital after you told him of your history?

THE INTERPRETER: In fact after that I did ring up the doctor and speak to him, and I asked him: when you have treated me, why did you give it in the letter to say that you had not treated me?

MR KISSANE: What did he say to you?

THE INTERPRETER: In fact the doctor explained to me that when he received the telephone call from Australia, he was afraid of - he was under the fear that this could be a call within Sri Lanka, and wanted to know some information about me, and therefore that is why he gave a reply like this. In fact, he said that if it was the small authorities of CID, and if he had given a letter amounting to that, he was afraid that some harm would come to him. In fact, he said that there had been incidences when such things have happened.

MR KISSANE: Surely the doctor will know the difference between a call from someone in Sri Lanka and a call from an official in Australia.

THE INTERPRETER: In fact at that time he was really busy with his daughter's wedding, and in actual fact he really could not ... (indistinct) ... who was talking."

The Tribunal in its reasons dealt with the matter in the following way. First, it dealt with the delegate's actions:

"In light of the Applicant's claims the delegate contacted Dr Rajakulendran. Dr Rajakulendran indicated that he took a history only from the Applicant and referred him to the General Hospital. The delegate also contacted the Colombo General Hospital. They did not have any record of the Applicant being a patient there for the relevant period."

Second, it referred to the letter obtained from the Human Rights Task Force in consequence of his statement of complaint to it. The Tribunal noted:

"The complaint makes no mention of the Applicant being beaten at the holding camp on 10 January or on any other occasion. Even more significantly the complaint makes no mention of the Applicant being held by the army at Slave Island army camp and then hospitalised for over one month."

Thirdly the Tribunal then made its credibility finding and stated its conclusions in consequence.

"In view of the Applicant's failure to make the complaint to the Human Rights Task Force that he was detained for fourteen days without trial, beaten and tortured and hospitalised for over one month the Tribunal finds that the Applicant's claims lack credibility. The Tribunal is confirmed in this view by the absence of any records of his hospitalisation and rejects the Applicant's suggestion that the records were not revealed to the delegate because the delegate must have been speaking to a Sinhalese as implausible. Further his failure to depart Sri Lanka immediately after his claimed release from hospital on 19 or 20 March 1996 when he already had a valid visa for Australia and his delay until late June 1996 confirms the Tribunal's view that the Applicant was not detained and hospitalised as claimed.

Accordingly the Tribunal rejects the Applicant's claims of mistreatment by the police and security forces since he has been living in Colombo including the claims that he was beaten in Vavuniya, later detained for fourteen days and hospitalised for over one month. In view of the Applicant's credibility problems the Tribunal does not accept that the Applicant has suffered treatment before he left Sri Lanka that could be said to amount to persecution."

The Tribunal went on to consider and then reject whether, as a Tamil, Mr Kandiah filled the profile of someone who would be of interest to the Sri Lankan authorities.

The Tribunal was, in the event, not satisfied that there was a real chance that Mr Kandiah would face persecution were he to return to Colombo. Accordingly it concluded:

"Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant does not satisfy the criterion set out in s 36(2) of the Act for the grant of a protection visa." (Emphasis added)

The Present Application

Not atypically for applications of this type the stated grounds of review, though widely cast, were particularised in a fashion which narrowed their actual burden. First and foremost of the particulars was the failure to have regard to Dr Rajakulendran's letter of 23 December 1996.

At the hearing of this application, the applicant's various complaints reduced themselves for practical purposes to the ground that there was, under s 476(1)(a) of the Act, a failure to observe procedures required to be observed "in connection with the making of the decision" in that:

(a)  the Tribunal failed to prepare such a statement of reasons as complied with s 430(1)(a) of the Act; or

(b)  it failed to act according to substantial justice and the merits of the case as required by s 420(2)(b).

In both instances the failure resulted from its omission to deal with both letters sent to the Tribunal with Mr Kandiah's application to it, but particularly that of Dr Rajakulendran.

The s 430 ground, it should be stated, only emerged during the hearing. To avoid any possible prejudice to the respondent arising from this, I directed that written submissions be made on this issue.

(a) The s 430 ground

Section 430(1) provides:

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

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

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

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

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

The applicant's contentions can be put in the following way:

(i)   the mandatory requirement imposed by s 430(1) is a procedure to be observed "in connection with the making of the decision" for the purposes of s 476(1)(a);

(ii)  the importance of the s 430(1) obligation is heightened because of the significant limitations on judicial review created in s 476(2), (3) and (4) of the Act;

(iii) the s 430(1) obligation must be read in the light of a decision maker's obligation to consider the case before him or her, an obligation which itself includes an obligation "to rationally consider probative evidence"; Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 47 ALD 555;

(iv) a decision maker must, in complying with s 430(1), correctly identify the material questions of fact, consider the evidence relating thereto, and come to rational conclusions on them;

(v)  given the nature of the case put by Mr Kandiah, a vital question of fact for the Tribunal to decide was whether Dr Rajakulendran's letters were genuine and truthful yet it did not advert to them, neither did it mention Mr Kandiah's explanation of Dr Rajakulendran's behaviour when telephoned by the delegate; and

(vi) relatedly, the Tribunal did not advert in its reasons to Mr Kandiah's explanation of why he did not complain to the Human Rights Task Force of his Slave Island detention or to his explanation (not detailed in these reasons) of his delay in departing Sri Lanka after his release from hospital.

Alternatively it is submitted that the s 430(1) obligation requires a decision to be sufficiently transparent as to be capable of review. And for this to be so the reasons must advert to such material questions of fact and findings thereon as are raised in the case put to it.

The respondent's submissions were that:

(i)   the s 430 obligation is not to be elevated to an unreasonably high level having regard to the constitution of the Tribunal; reasons should not be examined with an eye to discerning error; and all that is required of the Tribunal is that it provide adequate reasons on material issues sufficient for a reviewing court to be able to ascertain the substance of the decision: Muralidaharan v Minister for Immigration and Ethnic Affairs (1996) 136 ALR 84 at 94-95;

(ii)  s 430(1)(c) in particular (ie "the findings on any material questions of fact") does not require the Tribunal to advert specifically to every finding or conclusion that it in fact considers: cf Nadesan v Minister for Immigration and Multicultural Affairs, FCA, unreported, 12 March 1998, O'Connor J; Ahmad v Minister for Immigration and Multicultural Affairs, FCA, unreported, 20 May 1997, Sundberg J; Dodds v Comcare Australia (1993) 31 ALD 690.

(iii) the failure to advert to the letter is not significant -

(a)  because the Tribunal was not obliged to refer to each piece of evidence before it;

(b)  the substance of it was discussed at the hearing (in the exchange set out earlier in these reasons) and it should be inferred that no weight was given to it;

(c)  the letter did not form the basis of any material finding of fact and thus there was no s 430(1)(c) need to refer to it;

(d)  the applicant failed before the RRT because his story was not accepted for reasons independent of Dr Rajakulendran's letter.

Additionally the respondent contends that even if there has been a breach of s 430(1)(c) this would not amount to a failure to observe a procedure "in connection with the making of the decision". This is because the s 430(1) requirement only operates after a decision has been made.

To appreciate the significance of the applicant's complaint it is important, in my view, to recognise that both Dr Rajakulendran's letter of 23 December 1996 and that of the Director of the National Hospital of Sri Lanka of 3 September 1996 (sic) were part of the case put before the Tribunal when seeking a review of the delegate's decision. Their clear object was to substantiate (if accepted) his claim to having been hospitalised for injuries.

At the hearing, the Tribunal, while adverting to the evidence of lack of hospital records of Mr Kandiah's admission, did not put either of the above letters to him neither did it call them into question in any way. At best it responded to what Mr Kandiah said was Dr Rajakulendran's explanation for his initial letter when Mr Kandiah rang him for an explanation of it after his second interview with the delegate. Neither the exchange between the Tribunal and Mr Kandiah, nor the Tribunal's reasons betrays any actual appreciation of the existence of the letters themselves let alone an attitude towards them.

It is the case that if the authenticity and credibility of the letters were accepted, they were capable of corroborating in a significant way the factual centrepiece of Mr Kandiah's claim of persecution, and could do so by means untainted by any adverse view that might otherwise be taken of his credibility. They were not, in the circumstances of this particular application to the Tribunal, just another piece of evidence that needed not be dealt with expressly: cf Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621. They were central to Mr Kandiah's application and "common fairness" to him required they be adverted to: Ma v Federal Commissioner of Taxation (1992) 23 ATR 485 at 490.

There is now a considerable body of case law that emphasises variously:

(i)   the importance to the parties, to the public and to review bodies of adequate reasons for decisions;

(ii)  the understanding and restraint that courts should demonstrate when reviewing and construing reasons for administrative decisions; and

(iii) the content in terms of findings and recitation of evidence that properly and reasonably can be expected of administrative decision makers.

Many of the authorities are collected and considered in Muralidharan v Minister for Immigration and Ethnic Affairs, above, at 94-96. I will not repeat here what was said at length there though I would add to it the later admonition of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 at 491 that:

"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."

There have been some number of decisions of this court on the burden of the obligation imposed by s 430(1) and by relevantly similar provisions in other statutes, eg the Administrative Appeals Tribunal Act 1975 (Cth), s 43(2B). For present purposes I would merely note the following propositions.

(i)   A breach of the obligation is not necessarily shown by pointing to matters which might, with advantage have been the subject of further or more detailed discussion or to possible issues which have not been mentioned: Commissioner of Taxation v Osborne (1990) 26 FCR 63 at 65; the Tribunal member, no less than a judge, is not required to deal expressly with "every consideration which passes through his mind": Steed v Minister for Immigration and Ethnic Affairs, above, at 621; Mifoud v Campbell (1991) 21 NSWLR 725 at 728;

(ii)  The Tribunal's reasons should expose the logic of its decision and should contain findings on those matters that are essential to that logic: Dodds v Comcare Australia, above, at 691; where a matter significant to the decision is in issue and material is advanced by a party to support his or her version of it, that party is entitled to know whether it has been accepted or rejected by the Tribunal: "without this knowledge the parties will have but an incomplete idea of the tribunal's process of reasoning and a lessened respect for the tribunal's decision-making process": Copperart Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1993) 30 ALD 377. In the case of an unsuccessful applicant, it is that "incomplete idea" of why the decision went as it did that differentiates the "disturbed" from the "disappointed" applicant (to adapt the description used in Connell v Auckland City Council [1977] 1 NZLR 630 at 634.

In the present case where the applicant has, primarily for reasons of credibility, been disbelieved in his claims to have been detained at Slave Island and then hospitalised, but where he has put what purports to be information from his treating doctor before the Tribunal for the purpose of substantiating his claim to hospitalisation, he was entitled to have a finding made as to whether or not that evidence was accepted or rejected. Absent that finding he was not provided with a determination of a matter that, by his own case, he sought to establish independently of his own evidence. It was open to the Tribunal to reject the evidence attributed to Dr Rajakulendran. But if it did so, it was obliged to make this known to Mr Kandiah; it was obliged to inform him why, notwithstanding this new material he put before the Tribunal, his story still was not accepted. His hospitalisation was a "key element" in his case: cf Muralidharan's case, above, at 96.

It may well be the case that the Tribunal in fact took a view as to the authenticity and/or credibility of the letters in question. If it did so, it was required to disclose that view because of the significance of the letters to Mr Kandiah's case. If it did not have such a view, then it has not made a finding on what in the circumstances was a material question of fact on which it was required to make a finding because of the case put: cf the possibilities considered in Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 402-403.

I am, then, of the view that a breach of the requirements of s 430(1)(c) has been made out. It is clear from Muralidharan's case, above, at 97 that such a breach involves a failure to observe the procedures required by the Act to be observed "in connection with the making of the decision". It need hardly be said that there is no reason to treat s 476(1) of the Act differently for this purpose from s 5(1)(b) of the Administrative Decisions (Judicial Review) Act, 1977 (Cth) that was considered by Sackville J (Beazley J agreeing) in Muralidharan. I should add even without the authoritative view in Muralidharan's case, I am unable to see why a statutory requirement to prepare a statement of reasons for a decision is not a procedure to be observed in connection with its making. It is immaterial in my view whether a prescribed procedure predates or postdates a decision provided it is nonetheless connected to its making as is the case with the s 430(1) requirement.

In reaching the above conclusion I should indicate that I have not overlooked that the Tribunal did take account of Mr Kandiah's failure to complain to the Human Rights Task Force of the Slave Island incident and of the evidence of absence of records of his hospitalisation. These may well have provided strong grounds for questioning his credibility if his explanation of them was not accepted. But a conclusion that his claim was to be disbelieved because of an adverse credibility finding nonetheless could not satisfactorily be arrived at absent disclosed findings as to the letters proffered by Mr Kandiah.

I should also add that it is not of present significance that the breach I have found may as well be characterised as an error of law that would not be reviewable as such under the Act: see s 476(1)(e) and see for a discussion of the issue of inadequacy of reasons and error of law see Comcare Australia v Lees, FCA unreported 10 December 1997, Finkelstein J. Likewise it is immaterial that the breach found may itself disclose what, for the purposes of the Act, may be an unreviewable failure to take a relevant consideration into account: see the Act, s 476(3)(e) and, apart from the Act, Sullivan v Department of Transport (1978) 20 ALR 323 at 348-349.

(b) The s 420(2)(b) ground

Given the conclusion at which I have arrived, it is unnecessary to express a view on this ground and I refrain from doing so. I would, though, indicate that the issue raised here again relates primarily to the Tribunal's apparent failure to deal with the letters already mentioned, that failure resulting so it is claimed in a neglect to act according to "substantial justice" for s 420(2)(b) purposes. That neglect in turn is said to have occasioned the non-observance of a statutorily mandated procedure for s 476(1)(a) purposes: see Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 at 198; Velmurugu v Minister for Immigration and Ethnic Affairs (1997) 48 ALD 193 esp at 196.

I would also add that, in the distinctive circumstances of this case, I do not consider that this ground differs in substance from that already considered. The one is merely a more particular expression of the other.

Relief

The respondent has contended that even if I was to find a reviewable failure to observe a procedure it would be futile to remit this matter to the Tribunal for reconsideration given the bases of its decision. I cannot accept this given the vice of the reasons for decision.

The appropriate orders to make are first to set aside the Tribunal's decision and to remit the matter for further consideration by the Tribunal. I will hear the parties on the directions that should be given in relation to that reconsideration.

I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn

Dated: 2 September 1998

Counsel for the Applicant: Mr A Bonnici and Mr A Krohn

Solicitor for the Applicant: Mr K Satkunanathan

Counsel for the Respondent: Mr P Booth

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 23 July 1998

Date of Judgment: 3 September 1998