Inaugural Meeting IARLJ Australia/New Zealand Chapter - 10 March 2000


Peter Nygh, Principal Member, Refugee Review Tribunal

The RRT is Independent

[1] The Refugee Review Tribunal (RRT) is an administrative tribunal established under the Migration Act 1958 (the Act) to conduct external merits review of the Minister's decisions to refuse to grant, or to cancel, a protection visa.

[2] The RRT is independent of the Minister and the Department. Section 415 provides that it exercises the same powers and discretions as the primary decision-maker, and has the power to, affirm, vary or set aside the Minister's decision. Decisions which are varied or set aside are taken to be decisions of the Minister.  The Minister does not have the power to intervene in Tribunal decision-making.  Under s 417 of the Act the Minister may substitute a more favourable decision for that of the Tribunal.

[3] Members are appointed to the Tribunal by the Governor-General on the recommendation of Cabinet for a period not exceeding five years, and are eligible for re-appointment.  The Principal Member makes recommendations to the Minister as to re-appointments, which are based upon member appraisals.  The appraisal process takes place annually, and involves a consultation between the member and the Principal Member where the quality of decision-making and productivity are discussed. There is a limited power, reposed in the Governor-General, to remove members from office under s 468 of the Act.  Grounds for removal are proved misbehaviour, physical or mental incapacity, issues pertaining to bankruptcy, engaging in other work without the permission of the Minister, and failing to disclose a conflict of interest.  There is no power ro remove a member from office in respect of decision which the member has made.

[4] The Principal Member has a restricted power to reconstitute cases under sections 422 and 422A of the Act in the interests of the efficient conduct of the review or where a member is unavailable.

[5] On 1 July 1999 the RRT became a prescribed authority under the Financial Management and Accountability Act, with the consequence that it is financially independent of DIMA.

[6] Suggestions have been made in relation to the independence of tribunals, that they should be attached to the Attorney General's Department rather than as currently occurs, to the portfolio department. This would in my opinion have little impact upon the actual independence of the RRT from the department, as such independence already exists. However it may assist in improving perceptions of independence, which are variable.

[7] In the context of tribunal independence, much has been made of the fact that administrative tribunals are part of the executive branch of government. The report of the Australian Law Reform Commission (ALRC), "Managing Justice: A review of the federal civil justice system" Report No 89 of January 2000 states at paras 2.216 to 2.218, "Review tribunals have an important, complex and ongoing relationship with government agencies whose decisions they review. Agencies can influence (or be perceived to influence) tribunals in subtle ways. Perceptions about the independence of tribunals have contributed to artificial barriers between agencies and tribunals which may be to the detriment of quality decision-making. For example, sensitivity to perceptions of independence may contribute to reluctance to appoint tribunal members with experience of high level primary decision-making....Several of the Commission's recommendations aim to strengthen the relationship between agencies and tribunals...The Commission does not see placing an emphasis on agency and review tribunal cooperation in administrative decision making as threatening independence, if handled with proper sensitivity. Review tribunals should work with agencies in promoting normative change and enhancing the quality of decision-making across the board.

[8] The Commission has recommended the establishment of a Council on Tribunals to provide a national forum on tribunal leadership. On an informal basis there already exists a meeting on a regular basis of the Heads of Tribunals, consisting of the presiding officers of the AAT, the MRT, the RRT, the SSAT and the Veterans Review Board.

[9] Preparations for the new Administrative Review Tribunal (ART), which is to bring together several federal review tribunals into the one organisation, have been underway for around five years. As a consequence of continually changing deadlines for the implementation of this new body, tribunal members have been given a series of short appointments over the last five or so years, and little security as to their future employment. Staff of tribunals have also been subject to the uncertainty of the new arrangements. Short-term appointments send out the wrong message to people in terms of tribunal independence. It is to be hoped that the problems in relation to the ART will be resolved soon so that longer term appointments can again be made for tribunal members.

The Qualifications of Members

[10] Members of the RRT hail from a variety of backgrounds, some but by no means all being legally qualified. It has been commented in the Federal Court that, "We accept that refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia. Ordinarily, the 'knowledge and experience of members of the RRT may be expected to ensure that they are sensitive to these special considerations. The specialist nature of the experience of members of the RRT was recognised by Kirby J in Applicant A v MIMA (1997) 142 ALR 331 at 394."1

[11] The experience and background amongst the RRT membership includes experience in working for UNHCR, former migration agents and advisers, employment with DFAT, within the ethnic community, in journalism, and from refugee advisory organisations. In Kopalapillai it was noted in relation to the criterion that a decision-maker be "satisfied" that a person is one to whom Australia owes protection obligations, that, " is not to be overlooked that the criterion reflects a decision to make the satisfaction of an administrative decision-maker, and not the satisfaction of a judge or court, the determinant of eligibility for the grant of a protection visa. That is, it is part of the test of eligibility that such satisfaction be entertained by a decision-maker who may not be legally trained, does not enjoy security of tenure, will not ordinarily conduct a public hearing and may involve himself or herself in the process of obtaining and elucidating evidence .... we wish to make it plain that we do not consider that any, or all, of the above features is or are inimical to fair, and just factual determinations. A number of highly regarded fact finding bodies and tribunals in this country share some or all of the above features."2

[12] In the decision of the Federal Court of Nevistic3 Deane J, when speaking of the Administrative Appeals Tribunal, observed, "The Tribunal, in its decisions, commonly reasons from primary facts to conclusion on factual issues, expounds principles and maxims of experience and identifies considerations, goals and standards which it accepts as of relevance to the particular decision. Again, this does not necessarily mean that any question of law is involved. The process of reasoning, the formulation of principle and maxim, and the weighing of considerations, goals and standards are not the exclusive domain of the lawyer. In themselves, they constitute no more than indicia of an attempt to reach a rational, as distinct from arbitrary, decision."

[13] These judicial observations need to be viewed in the light of the nature of RRT decision-making. The Tribunal operates inquisitorially rather than adversely. Under the Migration Act the Tribunal member is not bound by the rules of evidence, and is required to "act according to substantial justice and the merits of the case".4  In practice the effect of this provision is that applicants are not as a rule required to corroborate every piece of evidence given in support of the case; hearsay evidence can in appropriate circumstances be accepted; a member may initiate enquiries and investigate aspects of a case, and members are sensitive to the special considerations affecting applicants for a protection visa. These are all aspects of inquisitorial review which distinguish administrative decision-making in this jurisdiction from judicial and adversarial decision-making. Members of the RRT are well equipped to undertake determinations under the Refugees Convention.

[14] The Tribunal has a professional development programme in place for members, which is the responsibility of a senior member at the Tribunal. The programme addresses the requirements of members for continuing education on aspects of administrative law and decision-making, and country conditions. The professional development of members is enhanced by the research, papers, bulletins and seminars produced and facilitated by members of the Tribunal's legal research team. The Tribunal's country research team also assists in the professional development of members, by running seminars and bringing in experts cn various aspects of a particular country to address the Tribunal. This programme would appear to satisfy the recommendation of the Australian Law Reform Commission in its report of January 2000, Managing Justice: a Review of the Federal Civil Justice System, that federal review tribunals have an effective professional development programme which includes induction and mentoring programmes, continuing education and training programmes.5

[15] It has been said that members of administrative tribunals can become cynical and experience compassion-fatigue, dealing with cases on a regular basis. In particular this is levelled at single member tribunals. What needs to be borne in mind is that the members of the RRT have a professional approach to their work, and behave ethically when dealing with their caseload. Members are allocated a caseload which is flexible in relation to the country cf origin of applicants. Members are not confined to reviewing a particular type of case, or applications from a particular country, for inordinate periods of time. The professional development programme of the Tribunal provides opportunities for members to convene and discuss work-related issues of common interest. The Tribunal conducts (modest) annual conferences which bring members together, and enhances the collegiate life of the Tribunal.

[16] The quality of member decision making is monitored by the legal section under the guidance of a legally qualified senior member of the Tribunal. Lawyers from this section are on hand to provide guidance and legal advice in relation to aspects of refugee determination in the light of Federal and High Court decisions. This process feeds into the performance management system of the Tribunal, under which members are regularly appraised.

[17] Members of the Tribunal are well qualified to make correct refugee determinations using inquisitorial processes, and remain impartial and independent in the conduct of their work.

Access the documents and information

[18] The following sources of information in the Tribunal's library, or in electronic form, are available for consultation by members of the RRT:

[19] The country research section and the library holdings of the RRT are essential to the Tribunal fulfilling its investigative function and obtaining the requisite country information. The research section maintains links with a wide variety of sources from which information is gained and updated in general, having regard to the overall caseload of the RRT.

[20] It is not uncommon for the RRT to receive requests for material under the Freedom Of Information Act. From June 1999 to September 1999 386 requests were made, ten of which were specifically requests for research material. Section 12 of the FOI Act provides that a person is not entitled to access material that is 'library material' and which is publicly available. However in practice the Tribunal has in the past generally provided copies of material to advisers on request.

[21] A feature of refugee determination which distinguishes it from other administrative decision-making at the external review level is the type and source of information before the Tribunal member. In other jurisdictions a copy of the departmental file, including information from departmental computer databases, will contain almost all the material relevant to the review. Any additional evidence, either oral or in documentary form, is provided by the applicant and is almost always obtained from within Australia.

[22] By contrast, in the RRT the material which has a direct bearing upon any given matter will, in nine out of ten cases, come from the applicant. If that evidence is documentary, it must have either been brought to Australia with the applicant, or will have to be sent for by the applicant once he or she is in Australia. The Tribunal is rarely in a position itself to obtain information specifically about an applicant. For the most part this would be confined to requests from overseas posts for copies of applicant's visa application. For the Tribunal to initiate enquiries specifically about a particular applicant would be extremely rare. As noted by Wilcox J of the Federal Court in the decision of Bhuiyan, "Most applicants for refugee status would be extremely disturbed to think the Tribunal might communicate with their home government, revealing not only their presence in Australia but also that they were seeking refugee status."6 In the Federal Court decision of Ahmed Holy J stated, "There is or may be a question as to whether s 431(2) operates to preclude RRT from making enquiries which would probably involve, directly or indirectly, disclosure of the applicant's identity, at least in circumstances where the applicant consents to the enquiry being made.”7

[23] Although members of the RRT are required to have a thorough understanding of the conditions of the applicant's country of origin, this knowledge and understanding is 'background' information and provides a context for the applicant's account. It is relevant and necessary to obtain, but of itself will rarely be disputed. There are of course notable exceptions to this; Sri Lanka and Somalia being cases in point. In the Federal Court decision of Ntiamoah Davies J stated, "Nevertheless the requirement of s 420(1) of the Act is that procedures be fair, just, economical, informal and quick. In my opinion, it would be inconsistent with the procedure which the parliament has prescribed in s 420 for a tribunal ordinarily to identify and disclose to an applicant all those pieces of general evidence which might be available to the tribunal in its library or from other sources to which the tribunal may have regard. The Tribunal is an expert tribunal. Its members have special expertise in this field, much of which they gain through the handling of cases that come before them. It would be impracticable for a Tribunal to make known to an applicant all the reading and information of a particular country at a nominated time or even to disclose all the information which may be available to the tribunal and which may throw light upon the matter .... What is desirable, however, is that a Refugee Review Tribunal should make known to an applicant, in the course of the hearing before it, the tribunal's general impression of conditions in the country to which the applicant will be returned drawing attention to matters having an adverse effect on the applicant's claim."8

[24] The Tribunal operates under statutory procedures which require it to advise applicants of adverse material which relates specifically to the applicant. In addition the Tribunal refers applicants to country information which is adverse to claims which may have been made.9 Vast quantities of country information will have little direct bearing on the material issues in a case. Country information that is adverse, material and is relied on, is drawn to applicant's attention pursuant to general law principles. This is also an aspect of the procedural fairness requirements set out in s 420 of the Act. In Meadows Merkel J stated that the Tribunal should "plainly and unambiguously raise with the applicant the critical issues on which his or her application might depend."10 In Ntiamoah11 Davies J stated in relation to an immigration tribunal, that members should indicate generally the view they have of the country in question. As indicated, the course of questioning at a hearing will indicate whether the member has taken a particular view of country information, and where that view may be adverse to an applicant, such a conflict would be drawn to the person's attention.

The RRT's procedure

[25] The RRT operates as an inquisitorial tribunal under the Act. It is required under s 420 to provide a mechanism of review that is fair, just, economical, informal and quick. It is not bound by the rules of evidence, and must act according to substantial justice and the merits of the case. This requires the Tribunal to address the central issues raised in a case,12 and to "plainly and unambiguously raise with the applicant the critical issues on which his or her application might depend".13 In Singh Lee J stated: "The obligation: to provide substantial justice in the circumstances requires a broad consideration of the various elements of the case of an applicant to the tribunal for review. For example, the personal experience of persecution by the applicant, events suffered by the applicant's family, and the general history of persecution in the country of nationality of the applicant would be relevant.”14

[26] In reviewing a decision to refuse to grant a protection visa the Tribunal must determine whether or not it is 'satisfied' that Australia owes protection obligations to an applicant before it.  As with other inquisitorial administrative Tribunals, there is in the technical sense no evidentiary onus on applicants appearing before the RRT.15 The RRT has a duty to investigate and collect information.

[27] The RRT does not make decisions in accordance with any legal or factual presumptions as would occur in crucial decision-making. In the decision of the Full Federal Court of A, B and C it was stated that, "The fact finding and evaluation undertaken by the Refugee Review administrative in character. In consequence it is not appropriate for those decision makers to draw too closely upon the rules of evidence applied in civil is equally inappropriate for the Tribunal to apply curial devices such as presumptions of law or fact. [such presumptions have] no part to play in administrative proceedings which are inquisitorial in their nature"16

[28] The RRT observes procedurally fair practices in its decision-making processes. Applicants are given an opportunity to consider and comment upon any adverse information that is relevant, credible and significant (and therefore able to be taken into account by the Tribunal). Furthermore, under s 424A certain adverse material must be given to an applicant, for comment within a prescribed period.

[29] In the decision of the High Court in Abebe17 it was said of the RRT, "The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor [of a case being made by the applicant]. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out." In Granja Wilcox J observed that, "... it is no part of a tribunal's function to make good a case claimed by an applicant."18

[30] The fact that the RRT operates inquisitorially means that it can reach decisions quickly, and it can act according to substantial justice and the merits of the case.  Applicants, almost alI of whom do not speak English fluently and are unacquainted with Australian legal and cultural norms, are spared the expense of engaging lawyers. Impecunious applicants are not at a disadvantage under the current system.

[31] Under an inquisitorial model, applicants are not subject to formal time consuming procedures, including cross-examination, and the inflexibility of the strict rules of evidence. Hearsay evidence, including uncorroborated verbal and written statements, and evidence from persons not directly affected by the events they describe, can be taken by the Tribunal. By contrast such evidence is generally inadmissable in adversarial bodies. The absence of lengthy adversarial procedures means that applicants in detention are not detained for excessive periods of time whilst they await an outcome from the Tribunal.

[32] Under an inquisitorial mode the Tribunal must inform itself, investigate and inquire. The Tribunal is not dependant upon the lawyers for the two parties identifying the issues and presenting the evidence. The hearing procedure itself is informal and therefore flexible.

[33] Statutory and common law procedures exist to ensure the process is fair, and the member conducting the review is able to tailor the process, including the hearing, to accommodate the particular applicant and his or her cultural background, without sacrificing a proper and thorough consideration of the case.

[34] In the decision of Dharam Raj v MIEA, which dealt with the review of a decision of the Immigration Review Tribunal, Davies J stated that there is no express or implied duty under the Act requiring a tribunal to "go out and make enquiries of its own." He stated, "In this country we do not have examining magistrates such as are common in the administrative law systems of many European countries. We proceed upon the footing that the parties should have a fair chance to put their case. Of course a tribunal does everything it can to assist the parties...and guides witnesses as to matters of fact to which their evidence ought to be directed, to matters in which, in its opinion are important, and which it may perceive have not been dealt with. But beyond that, a tribunal certainly has no duty to go out itself and make enquiries of people who are not before it.19

The assessment of credibility

[35] It has been frequently commented upon that asylum seekers cannot always substantiate their claims, given that their account of persecution has taken place outside Australia. In this context, issues of credibility at the RRT assume some importance. There is no presumption either in favour or against applicants, in relation to credibility. Applicants are not expected to rebut such presumptions before the RRT in order to succeed with their application.

[36] The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status20 makes reference to the 'benefit of the doubt' at paras 203-204, and relevantly states, "The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts."

[37] These paragraphs have been seized upon by some advisers and organisations to suggest that there is a presumption in refugee decision-making, which accords applicants the 'benefit of the doubt’. In fact no such presumption exists, and the Handbook does not advocate the existence of such a presumption. Some advisers have also argued that these paragraphs indicate that the 'benefit of the doubt' is to be given to applicants when considering the "real chance" test. Such arguments are clearly fallacious in the light of High Court authority on the application of the "real chance” test, as set out in Chan21, Guo22, and Wu Shan Liang23.

[38] The Handbook suggests that decision-makers accord the 'benefit of the doubt' to claimants once their credibility has been established. This is a very different proposition from that of assuming until the reverse is proved, that all claimants are credible.

[39] It needs to be said that the Handbook, whilst useful, is not a binding document when it comes to interpreting the Convention and the approach to adopt in assessing claims under the Convention. In Chan Mason CJ stated, "I regard the Handbook as more a practical guide for the use of those who are required to determine whether or not a person is a refugee than as a document purporting to interpret the meaning of the relevant parts of the Convention.24

[40] The most authoritative guidance for members of the RRT in interpreting the Convention is that provided by Australian courts. The RRT is bound by the decisions of the Federal Court and the High Court. The Courts have ruled on the correct approach to assessing credibility in the following ways. In relation to the above cited paragraphs from the Handbook, the Federal Court observed in the decision of Shahzad25, "That really is to say no more than that the judgment of their claims must be made in the light of the difficulties which applicants for refugee status face in proving the matters on which they rely."

[41] In Mohamed Dahir Mohamed26 Hill J stated, "There is no requirement in law that the evidence of an applicant...requires corroboration before it is accepted. Of course, there is no principle in law either that the Tribunal must accept what a witness says."  In Randhawa27 the court stated, “ the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for, since it is a well-known fact that a person who claims to be a refugee may have difficulties in proving his allegations....This should not, however, lead to 'an uncritical acceptance of any and all allegations made by suppliants'."

[42] In Chen28 RD Nicholson J stated, "It is not the case ... that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal."

[43] The assessment of credit can be based upon a variety of factors; in Goonewaradana29 the court ruled that, "In forming its views as to the reliability of the complaints of the applicant, the Tribunal is entitled to have regard to other external matters available to it in evidence and other material, the manner of presentation of the applicant in the course of his evidence, the history of events including the stage in the process of his application or applications at which certain allegations first emerged, and inherent probabilities and improbabilities."  Inconsistencies and late claims have properly formed the basis of adverse credibility findings,30 as have the late emergence of new claims,31 inconsistencies with known conditions in the applicant's country of origin,32 and material discrepancies between an applicant's account on arrival at the airport and later accounts.33

[44] The Tribunal must base credit findings, as with any other finding, upon rational grounds and in consideration of matters winch are logically probative of the credit issue.34 Adverse credit findings cannot properly be made where they are based upon speculation.35

[45] As can be seen from this small selection of Federal Court authority on the assessment of credit, the RRT must approach the issue with care, and exercise due skill and diligence in its assessments. Whilst consistency in evidence is obviously of some significance, it would be wrong to say that the demeanor of the applicant carries much weight in assessing credit.

Legal Representation

[46] Under an inquisitorial or investigative model, the process of review commences from the time the applicant lodges his or her application. There is provision under the Act for a decision in a particular case to be made by the Tribunal 'on the papers'. This can occur where the member, having reviewed the file, forms the view that further information is unnecessary in order to make a favourable determination. However it can also occur where an applicant does not respond to a written invitation to provide further information to the Tribunal.36

[47] Under an inquisitorial mode the Tribunal must inform itself, investigate and inquire. It is not intended that a hearing be viewed as the applicant's "day in court". The Tribunal is not dependant upon the lawyers for the two parties identifying the issues and presenting the evidence. The hearing procedure itself is informal and therefore flexible. Statutory and common law procedures exist to ensure the process is fair, and the member conducting the review is able to tailor the process, including the hearing, to accommodate the particular applicant and his or her cultural background, without sacrificing a proper and thorough consideration of the case. In the decision of Paramanathan37 Merkel J stated, “Representation can be relevant to the content of a duty to act according to 'substantial justice' or fairly in a particular case, but cannot affect the fundamental duty of the RRT, acting inquisitorially, to review the decision before it according to the 'merits of the case'."

[48] Under the Act applicants are not entitled to be represented at the hearing before the RRT, or to examine or cross-examine witnesses38. However, applicants are entitled to have an adviser present, and are given the opportunity to provide legal or other submissions prior to, during and following the hearing.

[49] The RRT is greatly assisted in those cases where an adviser prepares careful submissions which address the issues in the particular case, and where country information that is directly relevant to the facts in a particular case is provided. Of course where this material is provided early in the review process the Tribunal can reach a decision more quickly. Advisers and applicants have the benefit of the written statement of the primary decision-maker which sets out reasons for an adverse decision. This means that when a case reaches the Tribunal applicants and advisers are in a good position to address the area of dispute.

[50] Any information which can assist to resolve issues raised in the primary decision should be provided at the earliest possible time.

[51] Unfortunately in some cases applicants and advisers do not provide information to the Tribunal.  An application for review may refer to extra information, submissions or documents in support of the case, but often none of this material is forwarded to the Tribunal, or it is made available just before a hearing.

[52] The ALRC report No 89 Recommendation 123 advocates that the legislation under which the RRT operates should be amended to allow tribunals to exercise a discretion to permit representative participation where it is considered that this would be useful and appropriate. Notwithstanding the comments made by the ALRC, I am of the view that where a representative was permitted to examine an applicant, this would in effect, still place the tribunal member in the invidious position of cross examiner. The only logical solution to this would be to move to an adversarial system, and that would disadvantage applicants who were unable to afford legal representation. It would place those applicants with greater financial resources at an advantage over those without such resources.

Multi-member panels

[53] There is a place in the refugee jurisdiction for multi-member tribunals to operate. Their value would lie in assisting the Tribunal to maintain consistent approaches to contentious issues in refugee law, and in relation to countries where the conditions are controversial. Until a year ago the Federal Court was divided in its treatment of applicants from Sri Lanka. Such divisions in the Court over how the Convention is to be interpreted can lead to divisions within the Tribunal.

[54] The Principal Member should have the discretion to constitute multi-member panels. Currently the Migration Act 1958 does not allow for this. The ARC Recommendation 119 states that the new ART should be permitted to use multi-member panels as appropriate, in all jurisdictions. They "should be used at the discretion of the president or divisional executive member, as required, for cases which are particularly complex or require specialist member expertise, or where there are significant benefits for the continuing professional development of tribunal members."

[55] Section 443 of the Migration Act allows the Principal Member of the RRT to refer a RRT-reviewable decision to the President of the Administrative Appeals Tribunal, if the Principal Member considers that it involves "an important principle, or issue, of general application". If that referral is accepted by the President of the AAT, it will be heard by a special panel of the AAT consisting of a presidential member of the AAT who is a judge, the Principal Member of the RRT and one other member of the AAT not being a judge. This provision has not previously been invoked. However, lately I have referred a matter involving an issue of public interest to the president of the AAT.

The RRT and the Federal Court

[56] The decisions of the RRT are subject to judicial review by the Federal Court in accordance with Part 8 of the Migration Act 1958, and by the High Court in accordance with the Constitution. Part 8 of the Migration Act 1958 defines the scope of judicial review in the Federal Court in a restrictive manner. Section 476(1) specifies the grounds on which the Court may review a decision of the RRT. They include such grounds as: failure to observe prescribed procedures, lack of jurisdiction, improper exercise of power (in the literal rather than the technical sense of deciding on the wrong considerations), error of law, fraud and actual bias (but not apprehended bias) and lack of evidence to justify the making of the decision. It can be seen that s 476 is designed to prevent the Federal Court from retrying the application on the merits. Section 476(2) specifically excludes grounds such as the general law rules of natural justice, and Wednesbury unreasonableness. Under s 481 the Federal Court may set aside the decision made by the RRT and remit the matter to the RRT for further consideration.

[57] Section 485 of the Act restricts the jurisdiction of the Federal Court in RRT matters to that set out under Part 8 of the Act. This means that grounds pursuant to s 39B of the Judiciary Act 1901 and under the Administrative Decisions (Judicial Review) Act 1977 are excluded.

[58] The High Court has provided significant guidance to the Tribunal in the interpretation of the Convention, and in related matters. The refugee jurisdiction of the Federal Court is kept busy with a constant stream of appeals from those seeking to exercise all of their rights. In the decision of Wu Shan Liang39 the High Court ruled that the reasons of the RRT are: “...meant to 'reform 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 Applicant A40 Kirby J observed that, "The development and expression of [Convention] categories, at least in the first instance, is the province of administrators and review tribunals with experience of refugee claims. It is not the task of appellate courts to whom these cases are but occasional visitors."

[59] J. McMillian41 refers to notable instances where the High Court has been critical of "overzealous judicial review" by the Federal Court of RRT decisions, in cases where the High Court has overruled the Federal Court and given "landmark" judgments in the interpretation of the Convention. He also cites examples of the Full Federal Court's criticism of the Court "intrude[ing] impermissably into the merits of the RRT's decision."42

[60] Recently the High Court ruled that the scope of judicial review in the Federal Court under s 476 did not extend to a consideration of a breach of s 420 of the Act. It will be recalled that s 420 sets out the Tribunals' objectives to provide a mechanism of review that is fair, just, informal, economical and quick. It provides that the Tribunal is to "act according to substantial justice and the merits of the case". In the decision of Eshetu the High Court ruled that, “The effect of s 476(2) is not to relieve the Tribunal from observance of the rules of natural justice or to authorise the making of unreasonable decisions. Rather, it is to forbid the Federal Court from reviewing a decision on those grounds. A person who wishes to rely on those grounds can do so only in proceedings under s 75(v) of the Constitution which confers jurisdiction on this court in all matters "in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The validity of the scheme of judicial review thus mandated was upheld by this court in Abebe v The Commonwealth."43

[61] The review of refugee decisions can produce conflicting authority in the Federal Court. Some of the reasons for this are perhaps alluded to in a passage from a recent decision of the court:

[62] The effect of conflicting Federal Court authority is of course felt in the RRT, where members must comply with the principles handed down by the Federal Court. It had an impact in the Tribunal in the assessment of applicants from Sri Lanka, where until December 1998 the Federal Court remained divided on the correct approach to take with these cases. The differing approaches taken by members was only resolved when the Federal Court spoke as it were with one voice, and handed down the decision of Paramanathan,45 which was subsequently approved of by another, differently constituted Full Federal Court in Nagaratnam.46

[63] Currently a controversy is being waged over the requirements, and the reviewability by the Federal Court, of s 430 of the Act. Section 430(1) requires that the Tribunal prepare a written statement of its decision that, inter alia, sets out "the findings on any material questions of fact". Does that provision provide a vehicle whereby the Court can review the findings of fact made by the Tribunal? In particular, should any allegation of fact made by the applicant be addressed and reasons given for its acceptance or rejection? Two differently constituted Full Federal Courts have recently made conflicting decisions dealing expressly with the requirements and reviewability of s 430. In this context, J McMillan notes that the decision in Paramanathan47 was reached after the Court undertook a detailed examination of the country information, and was critical of the weight given by the RRT to certain evidence and the findings ultimately made by the RRT. The RRT was criticised for not making findings which addressed material supportive of the existence of a well-founded fear of persecution.48 After a review of the authorities on the requirements of s 430, J McMillan has concluded that, "The standard of exactness and comprehensiveness that is now required of the immigration tribunals is not applied in other areas, not even to courts. It is common in judgments for judges to observe that they have not found it necessary to deal with all the evidence and arguments presented in the case in order to reach a decision."49

[64] It seems that an authoritative decision by the High Court will be required to resolve the s 430 issues. Currently there are three views in this area. The extreme view on s 430, as perhaps exemplified in Paramanathan50, holds that s 430 is a procedure the application of which is subject to judicial review under s 476(1)(a). Further, that a material fact is any fact which either the RRT member considers material, or is raised by the applicant. A court can properly examine all of the country information in order to satisfy itself that the RRT has identified all material facts, and has properly weighed the evidence. Making findings on material facts involves addressing all the evidence related to that fact, both supportive of the finding and that which does not support the finding. The decision of the Full Federal Court in Yusuf 51 affirms the reviewability of s 430 by the Federal Court.

[65] The more moderate view is perhaps best represented by the decision in Addo52, where the Full Federal Court held that s 430 is properly the subject of review under s 476(1)(a), but that "Section 430(1) does not impose an obligation to do anything more than to refer to the evidence in which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made."53

[66] In Xu54 the Full Federal Court stated in what were obiter comments that s 430 is not reviewable by the Federal Court, and in addition that s 430 requires only findings to be made only in relation to facts which are material in the context of the Act. This is restricted to those deemed necessary by the member m order to make a determination applying ss 36, 65 of the Act, the Regulations, and the relevant articles of the Convention. An applicant cannot, by raising an argument or evidence, make a fact a material fact.

[67] McHugh J in Durairajasingam55 supported Xu on the reviewability issue, and Addo regarding what s 430 requires. McHugh J was of the view that s 430(1)(b) "will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings....But, that said, it is not necessary for the Tribunal to give a line by line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act that: (1) the Tribunal...pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

Second-Tier Review

[68] Currently there is only one level of external merits review in immigration matters. This is in contrast with other jurisdictions eg matters under the Social Security Act 1991 are reviewable by the Social Security Appeals Tribunal, and there is a further right of review to the Administrative Appeals Tribunal. Thereafter an appeal may be lodged in the Federal Court on an error of law.

[69] There is some merit in having second tier merits review in the new Administrative Review Tribunal for refugee matters. However the real value of two tier review would be best realised where any appeal from that second tier to the Federal Court was severely restricted. J. McMillan57 has referred to the fact that the introduction of Part 8 of the Migration Act 1958, which restricts judicial review of RRT decisions, has had little impact upon judicial review in the Federal Court. He argues that external review of administrative decision-making should be undertaken principally by administrative tribunals rather than the courts, and opines that "...the current direction and tone of judicial review of immigration decision-making by the Federal Court is inappropriate." There is a blurring of the line between the supervisory role of the Court and a merit review of the Tribunal. He advocates structural change to the tribunal framework, and the adoption of the two tier form of review as foreshadowed in the Administrative Review Council report of 1995, "Better Decisions". The first tier would provide speedy and informal review, whilst the second tier "...can undertake more formal and reflective analysis of complex issues of law, policy and procedure”.58  J McMillan argues that, in conjunction with a restricted right of review by the Federal Court, this would restore tribunals to the leadership role in administrative review that was envisaged by the Kerr Committee. The existence of two-tier review may also lead to a greater judicial acceptance of Tribunal decisions, and obviate the need for the introduction of a privative clause as a method of restricting judicial review.

[70] In its Report No 89 the ALRC states (p632), “Issues relating to the structure of the ART and the breadth, type, coverage and nature of decisions in merits review are beyond the Commission's terms of reference." Thus it makes no recommendations on issues such as whether the new ART should have two tiers, or just the one.

1. MIMA v Kopalapillai (1998) 86 FCR 5d7 at 558 per O'Connor, Branson, & Marshall JJ
2. Kopalapillai op cit
3. Nevistic unreported, 16 Apri1 1981
4. s420(2)(b) of the Migration Act 1958
5. Recommendation 9 of Chapter 2 "Education, training and accountability". p179.
6. Unreported 14 October 1998.
7. Unreported 31 March 1999.
8. Ntiamoah v MIMA (1997) 29 ALD 524
9. Section 424A of the Migration Act 1958, and the general law
10. Meadows v MIMA, unreported, 23 December 1998
11. op cit
12. Sun Zhan Qui v MIEA (1997) 81 FCR 71
13. Meadows op cit
14. (1997) 74 FCR 553, at 566
15. see McDonald v Director-General of Social Security (1984) 1 FCR 354, and Nagalingham v MIEA, unreported, 22 September 1992, Olney J.
16. A, B & C v MIMA [1999] FCA 116, French, Merkel & Finkelstein JJ
17. Abebe v Commonwealth (1999) 162 ALR 1, per Gummow and Hayne ?
18. Granja v MIMA [2000] FCA 85, Wilcox J, 11 February 2000, at para 13
19. Unreported, 18 July 1996 Geneva.
20. January 1992
21. Chan v MIEA 169 CLR 379
22. MIEA v Guo (1997)] 191 CLR 559
23. MIEA v Wu Shan Liang (1996) 185 CLR 259
24. Chan op cit
25. Shahzad Gull Awan v MIMA, unreported, Davies J, 9 April 1998
26. Mohaned Dahir Mohamed v MIMA, unreported, Hill J, 11 May
27. Randhava v MILGEA, (1994) 52 FCR 437, Beaumont J
28. Chen Xin He v MIEA, unreported, RD Nicholson J, 23 November 1995
29. Goonewaradana v MIMA, unreported, Carr J, 24 April 1996
30. see for example A & Ors v MIMA, unreported, Lindgren J, 23 April  1998
31. see for example Navaratne v MIMA & Ors, unreported, Tamberlin J, 1 August 1997
32. see Chan op cit, per McHugh at 428
33. see Selliah v MIMA op cit
34. See Kathiresan v MIMA, unreported, Gray J, 4 March 1998
35. Shahzad, op cit
36. Division 4 of Part 7 of the Migration Act 1958
37. Paramanthahan v MIMA; MIMA v Sivarasa (1998) 160 ALR 24
38. S 427(6) Migration Act 1958
39. MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272
40. Applicant A v MIEA (1997) 190 CLR 225
41. McMillan J, 'Federal Court v The Minister for Immigration', Australian Institute of Administrative Law Forum No 22, 1999, p2 In this regard, the author at p11 refers to the Full Federal Court decision in Sun Zhan Qui v MIEA (1997) 151 ALR 505, which proceeded on the basis that s 420 set out procedures which were reviewable by the court under s 476(I)(a), and in which the trial judge's decision  was overturned and the RRT member severley criticised. In the later decision of Eshetu which established that s 420 does not contain reviewable procedures, the careful and lengthy judgment of the trial judge in Sun, upholding the RRT's decision, was referred to with approval as having adopted the correct approach.
42. ibid p3
43. MIMA v Eshetu (1999) 162 ALR 577, per Gaudron and Kirby JJ at para 64
44. Jama v MIMA [1999] FCA 977
45. Paramanathan op cit
46. Nagaratnam v MIMA (1999) 164 ALR 119
47. Paramanathan op cit
48. J McMillan, op cit, p6
49. J McMillan, op cit, p8
50. op cit
51. MIMA v Yusuf [1999] I:CA 1681, Heerey, Merkel & Goldberg JJ
52. Addo v MIMA [1999] FCA 940, Spender, O'Connor & Emmett JJ
53. ibid, para 24
54. Xu v MIMA [1999] FCA 1741, Whitman, RD Nicholson & Gyles JJ
55. Re The MIMA; Ex parte Durairajasingham [2000] HCA 1 (21 January 2000)
56. op cit para 65
57. McMillan J, op cit, p4
58. J McMillan, op cit p16