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Gebeyehu v Minister for Immigration & Multicultural Affairs [1999] FCA 1274

MIGRATION - refugees - decision by Refugee Review Tribunal refusing applicant a protection visa - RRT made findings adverse to applicant's credit - whether RRT failed to "give the applicant an opportunity to appear before it to give evidence" - Migration Act s 425(1)(a) - whether RRT required by Migration Act s 426 to call witness - whether RRT failed to set out reasons for decision as required by Migration Act s 430.

Migration Act 1958 (Cth) ss 425, 426, 430, 476(1)(a), 476(1)(e)

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 referred to

Minister for Immigration and Multicultural Affairs v Cho (1999) 164 ALR 339 at 346-7 and 355-6 applied

Q v Minister for Immigration and Multicultural Affairs [1999] FCA 1202 referred to

Sook Rye Son v Minister for Immigration and Multicultural Affairs (1999) 161 ALR 612 at 625 referred to

Thiagarajah Kandiah v Minister for Immigration and Multicultural Affairs [1998] FCA 1145 at 12-14 applied

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 27 referred to

Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1126 at par 33 referred to

DANIEL MOLLA GEBEYEHU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 28 of 1999

WEINBERG J

14 SEPTEMBER

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 28 OF 1999

BETWEEN:

DANIEL MOLLA GEBEYEHU Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: WEINBERG J

DATE OF ORDER: 14 SEPTEMBER 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal given on 23 December 1998 be set aside.

2. The matter be remitted to the Refugee Review Tribunal, differently constituted, to be dealt with according to law.

3. The respondent pay the costs of this application.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 28 OF 1999

BETWEEN:

DANIEL MOLLA GEBEYEHU Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE: WEINBERG J

DATE: 14 SEPTEMBER 1999

PLACE: MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court an application for review of a decision of the Refugee Review Tribunal ("the RRT") which, on 23 December 1998, affirmed a decision which had been made by the respondent's delegate on 28 April 1998. The delegate had determined that the applicant should be refused a protection visa.

The legislative background

2. Section 486 of the Migration Act 1958 (Cth) ("the Act") confers upon this Court jurisdiction to review "judicially reviewable" decisions. These include decisions of the RRT. The grounds upon which such review may be sought are those set out in s 476 of the Act. Two such grounds in particular are relied upon in this application. They are as follows:

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

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

...

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

..."

3. Subsection 476(2) of the Act provides:

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

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

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

4. The applicant relies upon three distinct procedural requirements which he contends the RRT did not observe in making the decision under review. The requirements were those set out in ss 425, 426 and 430 of the Act, prior to its having been amended by the Migration Legislation Amendment Act (No 1) 1998 No 113. The amendments to ss 425, 426 and 430 did not come into effect until after the RRT made its decision, and it is common ground before me that this application should be dealt with on the basis of the provisions as they stood on 23 December 1998. The relevant provisions were, at that date, as follows:

"425.(1) Where section 424 does not apply, the Tribunal:

(a) must give the applicant an opportunity to appear before it to give evidence; and

(b) may obtain such other evidence as it considers necessary.

(2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.

426.(1) Where section 424 does not apply, the Tribunal must notify the applicant:

(a) that he or she is entitled to appear before the Tribunal to give evidence; and

(b) of the effect of subsection (2) of this section.

(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.

...

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.

(2) The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made.

(3) Where the Tribunal has prepared the written statement, the Tribunal must:

(a) return to the Secretary any document that the Secretary has provided in relation to the review; and

(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based."

5. Section 424 of the Act, to which ss 425 and 426 referred, enabled the RRT to make a decision favourable to the applicant without taking oral evidence. That section was not invoked in the present case, and nothing further need be said about it.

6. It was common ground before me, and is clearly established by the authorities, that each of ss 425, 426 and 430 of the Act can properly be described as setting out "procedures" required by the Act "to be observed in connection with the making of the relevant decision". A breach of any of the requirements of these provisions can, therefore, give rise to a ground for review pursuant to s 476(1)(a).

7. The respondent submitted that these provisions should not be applied so broadly as to circumvent the intention of the legislature, as manifested in s 476(2)(a), that there be no review by this Court based upon a breach of the rules of natural justice.

8. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 the High Court held that s 420 of the Act, by requiring the RRT, in reviewing a decision, to act according to substantial justice and the merits of the case, did not enable this Court to circumvent the limitations upon the grounds of review set out in s 476(2). Similarly, the procedural requirements set out in ss 425, 426 and 430 of the Act cannot be invoked to introduce, under the guise of an application for review based upon s 476(1)(a), what is, in substance, a claim that there was a breach of the rules of natural justice. Nor conformably with s 476(2)(b) can the procedural requirements set out in these provisions be utilised to permit review by this Court upon the basis that the decision involved an exercise of a power that was unreasonable in the Wednesbury sense.

9. The applicant's claim to refugee status required the Minister, after considering a valid application for a visa, to be satisfied that the criteria for a protection visa which are prescribed in the Act or the regulations had been satisfied - see s 65(1)(a)(ii).

10. Protection visas are dealt with in s 36 of the Act. That section 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 the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

11. The Refugees Convention referred to in s 36(2) of the Act is the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Convention"), while the Refugees Protocol referred is to is the Protocol Relating to the Status of Refugees done at New York on 31 January 1967: see the relevant definitions in s 5(1) of the Act.

12. As well as the criterion for a protection visa appearing in s 36(2) of the Act, additional criteria for such a visa appear in Subclass 866 of Sch 2 to the Migration Regulations 1994 ("the Regulations"). However, for present purposes, the only relevant criterion is that set out in s 36(2) of the Act. That criterion applies of course to decision-making by the RRT, as well as by the Minister.

13. A necessary condition for Australia's having protection obligations under the Convention to a non-citizen in Australia is that the claimant be a "refugee" within the meaning of Art 1A(2) thereof. That provision defines a "refugee" to include a person who, owing to a well-founded of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of that person's nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.

14. Article 1A(2) of the Convention has been the subject of a great deal of judicial scrutiny. Its interpretation is not, however, in issue in the present proceedings.

Factual background

15. The applicant is a citizen of Ethiopia. He was born in 1972 in the Amhara region of that country. He has three brothers and six sisters, all of whom continue to reside in Ethiopia.

16. After completing high school in 1989, the applicant studied nursing at the Jimma Institute of Health Sciences. He graduated in July 1992 with a diploma in nursing.

17. In 1993 the applicant became an active member of the All Amhara Peoples Organisation ("AAPO"), a registered political party which was formed in 1992. AAPO is said to advocate the unity of Ethiopia, opposing Eritrean separatism. It claims to oppose the government through peaceful means. The applicant claims that the Ethiopian Government has failed to protect Amharan minorities from violence by both pro-government and opposition militia.

18. The applicant's case before the delegate and before the RRT was set out in a statutory declaration declared on 13 March 1998. That case was that in September 1995, when he and other AAPO members were discussing various political issues, he was apprehended by plain clothed security men and taken away by soldiers armed with automatic weapons. He said that he had been assaulted, and imprisoned for a period of approximately eight weeks. He maintained that he had been beaten, kicked and punched while being interrogated about his activities within AAPO.

19. The applicant stated that, eventually, his family was able to raise an amount equivalent to about $4,000 Australian. That enabled him to be released on bail on October 28, 1995. He was required, however, to sign an undertaking not to participate in any political activity, and not to leave Addis Ababa without prior permission from the police commissioner.

20. After that time the applicant said that he found work in various private clinics, doing night shift. In November 1996 he received permission to return to Jimma to obtain a release allowing him to work in Addis Ababa. At around the same time, the applicant obtained a passport, though only by bribing immigration officials.

21. The applicant stated that in March 1997 he had proposed to join a demonstration by Amharan farmers who went to Addis Ababa to protest against a land redistribution program. En route to that demonstration, he was stopped by a policeman who had been present at the police station after the applicant's arrest in 1995. That policeman warned him that if he participated in the demonstration, or became involved in any political activity, he would be killed.

22. The applicant further stated that at the end of 1997 a letter had been delivered to his home while he was at work. That letter was, in effect, a summons, informing him that the matter which had led to his arrest and detention in 1995 was ongoing, and that he was required as a matter of urgency to attend at a particular police station. He stated that he feared that if he went to the police station, he would be imprisoned again. He therefore determined to escape. Thereafter, his family sold his parents' house. With the proceeds, the applicant was able to pay to enrol for a course of study in Australia, and to pay the bribe for an exit visa. He arrived in Australia on 17 January 1998 and claimed refugee status within a few weeks of his arrival.

The delegate's decision

23. The delegate concluded that the applicant was not a person to whom Australia has protection obligations under the Convention. His reasons for arriving at that conclusion were as follows:

"3.2.1 I have considered the applicant's claim that in 1995 he was taken to the police station where he was detained for more than three [sic] weeks in September 1995. However, I do not accept that the applicant has acceptable claims to Convention-based persecution based on this short period in detention, given that he returned to his normal life after his release. In assessing this, I give weight to the following:

He got a part time job as a nurse in a private clinic in November 1995, several weeks after his release from the police station.

After he received his clearance from JIHS, he obtained a permanent job in a hospital in December 1996.

His certificate of registration and professional license submitted to the Ministry of Health, Health Professionals Registration and Screening Committee were assessed and recognized at the 750th regular meeting on 16 September 1997 (see folio 30).

He was able to hold on to his employment until just before leaving Ethiopia in January 1998. He was even able to have his salary raised.

After his release he was able to obtain his passport and exit visa and leave the country, albeit with assistance from friends and family.

Given the above findings, 1 find that the applicant has not been denied a livelihood nor has he been subject to ongoing harassment or imprisonment. Therefore 1 do not accept that he was or will be persecuted on Convention grounds should he return to Ethiopia.

3.2.2 I have noted that the applicant's passport was issued in November 1996. However, he made no attempt to leave the country until January 1998, i.e. over one year later. If he had a fear of persecution, it is more likely that he would have immediately taken steps to leave that country as he had a valid passport. His continued residence in Addis Ababa up until his departure indicates that the applicant was not at risk of persecution.

3.2.3 Country Information report states that there is no systematic persecution of the Amharic people in Ethiopia. There is no evidence that the ill-treatment of different ethnic groups or political organisations is the consequence of direct government policy (CX17525, 5 December 1994). Most recent information indicates that the views of opposition groups such as AAPO are expressed in the media and the AAPO has also held government licensed rallies in Addis Ababa. The government has not embarked on systematic persecution of these groups, although some individual members of these groups have been arrested and detained for allegedly advocating violent opposition to the government (CX26531, 19 November 1997).

It is clear from the above that the government tolerates opposition in the media, that AAPO is a legal opposition party and that someone gets into difficulties with the authorities only if he or she is prominent or has a high profile. Given that the applicant's main claims were to have organised demonstrations and written articles under a false name, I do not consider that he advocated violence or was a recognised high-profile leader subject to adverse attention. Therefore, I assess that his risk of persecution in the future at the hands of the Ethiopian authorities is minimal.

On return to Ethiopia, even if the applicant was to be detained and questioned, it does not follow that he would suffer persecution in terms of the Convention criteria.

3.3 Findings of fact

I find that there is not a real chance of persecution of the applicant for a Convention reason if returned to the country of reference and that the applicant consequently does not have a well-founded fear of persecution."

The application for review of the delegate's decision

24. In his application for review to the RRT the applicant set out the names of two witnesses whom he proposed to call in support of his claim for a protection visa. One was Mr Tamrat Achamyeleh, the Secretary of an organisation known as Ahadu. Ahadu is a support committee of AAPO which was established in Australia in 1995. The applicant foreshadowed in writing that Mr Achamyeleh would provide information about the persecution of AAPO members, the applicant's involvement with AAPO (membership), and what the applicant could fear if he were to return to Ethiopia. In addition, a lengthy submission dated 15 June 1998 from Mr Achamyeleh was filed with the RRT. That document set out in general terms the history of AAPO and the persecution suffered by leading members of that organisation in Ethiopia. Of some significance is the fact that it said nothing about the applicant's personal experiences in Ethiopia. It did, however, highlight violations of human rights by the Ethiopian Government which might be considered to be consistent with the applicant's version of what had befallen him.

25. Also filed with the RRT in support of the applicant's case was a translation of the letter from the police to which the applicant had earlier referred. Hereafter I shall refer to that letter as "the summons", adopting the terminology used by the RRT.

26. That document is as follows:

"Zone 14 Police Commission

Subdistrict 16 Police Station

Number 0313190

Date 26/11/97

To Whom it may Concern

From Subdistrict 16 Police Station

To Mr Daniel Mola

Addis Ababa

Some time in the past, at a demonstration staged in protest of the transitional government, you were detained by the subdistrict 16 police, while distributing leaflets and leading the demonstration. After you were detained, you were released on Ethiopian Birr 20,000 bail subsequent to you providing a guarantor. As the matter has not been closed yet, we require you urgently. We notify you to avail your self as soon as you receive this notice. But if you fail to avail your self, we make it clear that we will take the necessary action.

Words of the Seal "With Greetings"

Zone 14 Police Commission

Subdistrict 16 Police Station signed

Constable Lema Teka"

27. Of particular importance so far as the present application is concerned was a document dated 17 December 1998, the day on which the application before the RRT was in fact heard. The date of the document cannot be correct, as it was faxed to the RRT by the applicant's solicitor on 16 December 1998. It was specifically addressed to the RRT. The document was a "certification" of various matters by Mr Achamyeleh. The relevant parts of the document are as follows:

"17 December 1998

To: The Refugee Review Tribunal Hearing

Melbourne

RE: Daniel Molla Gebeyehu

This is to certify that the above named person is:

An active member of AAPO since 1993

He was actively involved in the AAPO organisational activities in Jimma.

He was imprisoned in 1995 after he was condemned that he has attended a public rally in Jimma and Addis Abeba [sic].

He was a member of the All Amhara People Organisation in Jimma and Addis Ababa.

After two months of his arrival, he contacted us and informed us of his membership at home. Since he did not have any official letter due to his circumstances of leaving the country, we checked our head office to confirm his claim. We have confirmed his membership of Yeka Awraja AAPO in Addis Abeba [sic]. Since then we have the privilege to have a member from home who can tell us his first hand experiences.

...

According to information we obtained from the head office in Addis Abeba [sic], Mr Gebeyehu is targeted by the government for his active involvement in All Amhara people's organisation. He is a victim of his political belief. The only reason for his persecution by the current government of Ethiopia was his ethnicity and political activity. Many of his friends with similar experiences have disappeared and their situation are still unknown. In a country where torture and disappearances are a daily occurrence, we believe Mr Gebeyehu might face the worst if he returns home.

...

Sincerely yours

(signed)

Tamrat Achamyeleh" (emphasis added)

The hearing before the RRT

28. The applicant's case was heard by the RRT on 17 December 1998. He brought with him to the RRT one of the two witnesses whom he proposed to call in support of his case, Mr Terefe Aborete. The applicant was represented by a solicitor, Mr Paul Fisher.

29. The transcript records the following exchange between Mr Fisher and Mr J Vrachnas, the Member who constituted the RRT:

"MR FISHER: There is another witness who ---

MR VRACHNAS: Yes, the guy - I got a fax yesterday, I think.

MR FISHER: Yes. If the Tribunal is happy about this, what I propose to do is call him, you know, half an hour before he is required or something like that, depending on how we are progressing, because he is about 15 minutes away.

MR VRACHNAS: Okay. Well, I might still ask you to wait outside, if you would not mind. Do you mind?

MR ABORETE: It's okay. Thank you."

30. It is clear that the reference to the other witness was, and was understood by the RRT to be, Mr Tamrat Achamyeleh, the author of the "certification" to which I have earlier referred.

31. The applicant was sworn, and gave evidence before the RRT. In substance, he gave an account of his involvement with AAPO in Ethiopia which was consistent with his earlier statutory declaration, and with various other written accounts concerning these matters. He reiterated that he had been detained in custody by the Ethiopian police for a period of approximately eight weeks in September/October 1995 (not the three weeks which the delegate had erroneously understood his claim to be). He said that he had received the summons from the police referred to above shortly before leaving Ethiopia for Australia. Mr Vrachnas, it is fair to say, made it clear to the applicant throughout that he had serious reservations concerning the genuineness and provenance of the summons. He also expressed some scepticism early on in the proceedings concerning other aspects of the applicant's story including, it seems, the applicant's account of having been imprisoned in 1995.

32. After the applicant had completed giving evidence the following exchange occurred:

"MR VRACHNAS: Okay. I haven't got any more questions. Is there anything else you want to say for the moment before I call your witness?

MR GEBEYEHU: There's nothing to save my life. I don't want to go back to that country.

MR VRACHNAS: Actually we might have a break now.

MR FISHER: Sure. Perhaps I'll call the next witness and ask him to make his way down here.

MR VRACHNAS: Do I need him?

MR FISHER: I believe so, but - - -

MR VRACHNAS: What do I need him for?

MR FISHER: He can give more detail about AAPO, about Ahadu.

MR VRACHNAS: What is my understanding of the group you're involved with, it's a social cultural group that's [sic] doesn't have a political profile.

MR FISHER: Well, Daniel's explained that they don't - - -

MR GEBEYEHU: I think it will be well fully explained by him.

MR FISHER: Daniel's explained that they don't engage in any political activities here. It's not clear to me that they don't have links with AAPO in - obviously they do have links with AAPO in Ethiopia and there are possible implications that might flow from that. The activities, for example activities and involvement in that group here might be perceived in Ethiopia in a certain way.

MR VRACHNAS: Why is this not in the statement?

MR FISHER: Well, the statement is an outline of his evidence, or the proposed evidence. I mean, if you're prepared to accept that statement on face value.

MR VRACHNAS: Which statement?

MR FISHER: The one I faxed through late yesterday that was an outline of his own, have you got that?

MR VRACHNAS: What, accept his opinion as well as the fact?

MR FISHER: Well, he's in a pretty good position to offer an opinion I'd suggest.

MR VRACHNAS: Well, if you want him to come along, you call him. But I'll accept the facts in it but not the opinions. When I say that, I don't feel bound to accept any of the opinions, but I'm happy to accept the factual things that he's - - -

MR FISHER: Perhaps I can discuss that with Daniel when we have a break and proceed from there." (emphasis added)

33. The reference to the "next witness" was, of course, to Mr Achamyeleh, whom the applicant had proposed to call in support of his claim to refugee status.

34. After a short adjournment the witness who had accompanied the applicant to the hearing before the RRT, Mr Aborete, was called. He gave evidence in support of the applicant's general case challenging much of the material emanating from United States sources which suggested that conditions in Ethiopia were not nearly as bad as the applicant claimed. After Mr Aborete had completed giving his evidence, the following discussion took place:

"MR VRACHNAS: Okay. Did you want your other - did you call your other witness?

MR FISHER: No, look, we're happy to proceed on the basis of the information he was already provided.

MR VRACHNAS: Did you want to say anything else?

MR GEBEYEHU: I'm just a bit surprised that you don't believe me and - - -

MR VRACHNAS: I said I had doubts about the summons." (emphasis added)

35. At the conclusion of the hearing, Mr Fisher addressed Mr Vrachnas concerning the remarks which he had made about the summons:

"MR FISHER: The final point I'd make is that if the Tribunal has concern for that, the summons, then perhaps that would be an appropriate point to make further investigations - - -

MR VRACHNAS: In case I'm wrong. But I've just got doubts about it, you know, I haven't formed a view on it yet.

MR FISHER: Well, that's of course the Tribunal's prerogative, but I mean, I know in the past for example there's been inquiries made of the Document Examination Unit who will invariably say we have no reliable original.

MR VRACHNAS: Yes, that's so. Usually I don't bother because they don't help.

MR FISHER: I don't know whether any help might be possible from the Ethiopian government itself. As a, obviously as a general inquiry rather than a specific one. It would be most inappropriate to make inquiries specifically about this case, but considering how determinative it could be of the - than it is of the issue, that it should be accepted unless there's evidence to demonstrate that it's fraudulent or forged or something of that nature.

MR VRACHNAS: I've never found those inquiries to be helpful because - either you do it here and they tell you that haven't got an original, or you get an original and it looks the same, you know. It's pretty easy to get originals and fill them in yourself or get someone else to make them or pay a bribe to get them made or - so I haven't found them very helpful. You would have seen this lots in this jurisdiction."

36. Significantly, Mr Fisher did not address Mr Vrachnas in relation to the issue of the applicant's having been imprisoned in 1995.

37. Some days later, Mr Fisher wrote to the RRT in order to address a series of particular concerns which he regarded Mr Vrachnas as having expressed during the course of the hearing. Again, significantly, his letter did not deal with the issue of whether the applicant had been imprisoned in Ethiopia in 1995. It would seem that Mr Fisher, at least, did not regard the RRT as having any doubts about this most important aspect of the applicant's case.

The reasons for decision of the RRT

38. After summarising in considerable detail the nature of the applicant's case, the RRT set out its findings. It noted that the applicant had sought to present himself as a political activist who had espoused the causes of AAPO. While the applicant had expressly stated that he was not a high profile activist, his claims displayed some contradictions. They did not sit comfortably with his personal history of study and employment in Ethiopia and the opportunity to study overseas.

39. The RRT referred specifically to the written statement provided by Mr Achamyeleh in May 1998 concerning AAPO. It referred also to the conflict between the claims made by members of AAPO, and various Department of Foreign Affairs and Trade cables which suggested that Amharic ethnicity, of itself, did not lead to a real chance of being persecuted.

40. The RRT concluded that it preferred the information from Australian and United States government sources to that provided by AAPO and various Ethiopian human rights organisations. The RRT observed:

"The information before the Tribunal demonstrates that leaders and active members of organisations that are committed to violence in pursuing their aim of overthrowing the incumbent government, may be at risk of harsh treatment. None of the evidence supports a conclusion that ordinary members of AAPO or Amharic people in general face a real chance of persecution for reason of their political opinion and/or ethnicity."

41. To this point in its reasons for decision, the RRT had adopted an approach which was similar to that taken by the respondent's delegate. The RRT then turned to the applicant's account of his past life in Ethiopia. In stark contrast with the conclusions of the delegate, the RRT did not accept a number of the applicant's claims concerning his working conditions and general lifestyle in that country. The RRT then addressed what it now described as the "warrant" allegedly sent to the applicant's home some six weeks before his departure. The RRT stated:

"In considering the circumstances and evidence surrounding the Applicant's core claim, that he was detained for a lengthy period and then released on bail, the Tribunal is satisfied that the incident has been fabricated by the Applicant in an effort to establish a claim for recognition as a refugee. It is also satisfied that he has attempted to strengthen that claim by contriving a warrant. Even allowing for translation difficulties and cultural differences, the Tribunal finds that the warrant is a fraudulent document. When it suggested that the document was suspicious at the hearing, the Applicant's adviser requested that it be sent for examination to a document specialist in Australia or to the relevant overseas post of DFAT. However, the Tribunal is of the view that such an exercise is unnecessary as it is satisfied that the document has been contrived and the event on which it is predicated never occurred." (emphasis added)

42. The RRT concluded its reasons for decision by stating that it was satisfied that the applicant was Amharic and that he sympathised with the policies of AAPO. It did not accept that he had been detained and mistreated in Addis Ababa, nor that he had ever been conditionally released on bail, nor that he was the subject of a warrant issued by police. Rather, it was satisfied that the applicant remained in Addis Ababa because he had obtained more lucrative employment and professional recognition and that he left Ethiopia to pursue his education and career prospects in Australia. It followed that the RRT did not accept that the applicant's departure from Ethiopia had been motivated by a fear of persecution.

Did the RRT fail to observe procedures required by the Act?

43. The RRT described the applicant's claim that he had been detained for a lengthy period in 1995, and then released on bail, as his "core claim". In my opinion, that is an apt description of the importance of that claim to the applicant's case for refugee status. Without being able to satisfy the RRT of the truth of that central fact, his prospects of meeting the requirements of Art 1A(2) of the Convention were remote.

44. The genuineness, or otherwise, of the summons was of course significant. It was plainly open to the RRT to conclude that the document was fraudulent and contrived. The application for review before this Court does not involve merits review. It matters not in the slightest whether or not, on the basis of the material before the RRT, I would have arrived at the same conclusion in relation to this issue.

45. What is significant, however, is the process of reasoning adopted by the RRT. Even if it were the case that the summons had been forged by, or at the behest of, the applicant, that would not of itself demonstrate that he had not been imprisoned in 1995, as he claimed. A possible hypothesis is that the applicant sought to bolster his claim to refugee status by producing the summons in order to make it seem as though he was still in danger in 1998.

46. A critical question, it seems to me, was whether or not the applicant's political activities had led to his being detained, and physically abused, in the manner which he had described. The RRT was satisfied that this entire incident had been fabricated. The issue before the Court is whether, in arriving at that conclusion, the RRT failed to comply with the requirements of s 476(1)(a), or s 476(1)(e), of the Act.

47. I have given careful consideration to what the transcript of the proceedings before the RRT reveals regarding this matter. Regrettably, the issue of the applicant's claim to have been imprisoned seems to me to have been dealt with in a most unsatisfactory way.

48. It is true that the applicant was almost certainly well aware of the fact that the RRT hearing was a rehearing de novo, and that he could not assume that the approach taken by the delegate would also find favour with the RRT. Nevertheless, it is clear that the delegate, who had initially refused the applicant a protection visa, had been prepared to assume that the account of the applicant's 1995 detention was true. By implication the delegate had accepted that the summons relating to the incident which gave rise to that detention was a genuine document.

49. The applicant was put on notice throughout the hearing by the RRT that it entertained serious reservations concerning the genuineness of the summons. He addressed the RRT's concerns in that regard, through submissions by his solicitor.

50. However, the position taken by the RRT concerning the applicant's claim to have been imprisoned in 1995 was by no means clear. The transcript of the hearing before the RRT, and in particular the dialogue which took place between the applicant, his solicitor, and the RRT leaves me uncertain as to what the RRT was intending to convey to the applicant in relation to this issue.

51. It will be recalled that Mr Achamyeleh in his letter dated 17 December 1998 had "certified" that the applicant, after being condemned for having attended a public rally in Jimma and in Addis Ababa, had been imprisoned in 1995. Moreover, Mr Achamyeleh had stated that his organisation, Ahadu, had checked with its head office in Ethiopia to confirm the applicant's claim. It had confirmed his membership of AAPO in Addis Ababa. According to the information Ahadu had obtained, the applicant was "targeted" by the government for his active involvement in AAPO. The only reason for his "persecution" by the Ethiopian government "was his ethnicity and political activity".

52. Mr Achamyeleh's letter dated 17 December 1998 was expressed in terms which were vague and uncertain. One interpretation of that letter, relied upon by the respondent, was that when Mr Achamyeleh certified that the applicant had been imprisoned in 1995 he was merely repeating what the applicant had told him. Another possible interpretation of that letter, however, is that inquiries which had been made of its head office by Ahadu confirmed all of the applicant's claims, including his claim to have been imprisoned in 1995. The fact that the source of this information was not identified, and that it was hearsay, would go to the weight which should be accorded to this information, but would not prevent it from being taken into account.

53. It is clear that the applicant proposed to call Mr Achamyeleh, who was only fifteen minutes away, to give evidence in support of his claim. There is no doubt that he would have given evidence but for the RRT's intervention, asking whether it was necessary for him to be called. Mr Fisher responded by saying that Mr Achamyeleh could give "more detail" about AAPO. He reminded the RRT, as was the case, that the statement dated 17 December 1998 was merely an outline of Mr Achamyeleh's proposed evidence.

54. Mr Fisher indicated that if the RRT was prepared to accept Mr Achamyeleh's statement "on face value" he would not find it necessary to call him. The RRT cavilled at accepting what it described as Mr Achamyeleh's "opinion" as well as "the fact". The RRT made it plain that if Mr Fisher wanted Mr Achamyeleh to come along, he should call him. However, the RRT was prepared to accept the facts in the statement but not the opinions. This was stated by the RRT not once, but twice.

55. After the RRT had offered to deal with Mr Achamyeleh's statement in this way, Mr Fisher discussed the matter with the applicant. Mr Fisher decided that it was unnecessary to have the witness called. He stated that the applicant was happy to proceed on the basis of the information Mr Achamyeleh had already provided.

56. Regrettably, the distinction which the RRT drew between "the facts" and "the opinions" contained in Mr Achamyeleh's letter is far from clear. The language used by the RRT in formulating its position with regard to that letter was, at best, obscure.

57. A possible interpretation of the language of Mr Vrachnas in the dialogue between himself and Mr Fisher concerning Mr Achamyeleh is that Mr Vrachnas was prepared to accept, as a fact, Mr Achamyeleh's certification that the applicant had been imprisoned in 1995, in the circumstances outlined earlier in this judgment. On one interpretation of that dialogue, Mr Vrachnas was prepared to accept that the applicant's claim in this regard had been confirmed by inquiries made of AAPO in Addis Ababa.

58. I do not accept the submission made on behalf of the respondent that when the RRT stated that it would accept the facts set out in Mr Achamyeleh's letter, but not the opinions, it somehow conveyed to the applicant, and to his solicitor, that it would not accept the certification that the applicant had been imprisoned in 1995. I do not see how that "certification" can be described as a matter of "opinion".

59. There were, of course, opinions expressed in the letter. It is likely, in my view, that the applicant would have understood the Member to be saying that he was prepared to deal with the applicant's case upon the footing that he had been imprisoned in 1995, and that he did not need to call additional evidence, or to make further submissions, to substantiate that part of his claim. At the very least, it would have been reasonable for the applicant to have understood the Member's comments in that way.

60. When the RRT ultimately came to give its reasons for decision, it did not accept the applicant's claim to have been imprisoned in 1995. It found this claim to have been fabricated. In effect, the applicant was denied the opportunity to call Mr Achamyeleh to explain the basis upon which he had certified that the applicant had been imprisoned in 1995, and possibly to persuade the RRT of that fact. The applicant was also denied the opportunity to consider giving further evidence himself, calling further evidence, or making further submissions on this issue which, as I have already indicated, the RRT correctly regarded as a "core claim".

61. Counsel for the respondent properly conceded that there would be circumstances, albeit rare, where it might be said that an applicant, having been misled by the RRT, albeit inadvertently, had been denied his entitlement to compliance with procedures required by the Act to be observed in connection with the making of the decision. That concession seems to me not only to be correct, but also to reflect accurately those principles which apply in accordance with the decision of the High Court in Eshetu (supra).

62. Recently, in Minister for Immigration and Multicultural Affairs v Cho (1999) 164 ALR 339, a Full Court of this Court comprising Tamberlin, Sackville and Katz JJ dealt with the operation of s 425 of the Act. The context in which that case arose was a complaint by the applicant that the RRT had disbelieved her on a critical matter without informing her that her claim was seriously doubted, and why. In a joint judgment, Tamberlin and Katz JJ stated at 346-7:

"In considering the extent of the requirements imposed by s 425 it is important to keep in mind that the exercise is essentially one of statutory interpretation. The present case is not one where a question as to the extent of the requirements of the audi alteram partem rule is in issue. Care must be taken not to confuse the question of the interpretation of s 425 according to its language with a question as to whether the full range of natural justice requirements should be injected into s 425 under the guise of giving content to an obligation to afford an "opportunity to give evidence". The exercise for the court in this matter is to give content to the language of s 425 in its statutory context.

It is necessary in so doing, of course, for the RRT to bear in mind that s 420 of the Act requires it to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. As the cases point out, these considerations are to some extent in tension but nevertheless they must be considered by the RRT when it is performing its functions. Section 420(2) frees the RRT from technicalities, legal forms or the rules of evidence, as is appropriate in the case of an administrative tribunal, and it directs the RRT to proceed according to substantial justice and the merits of the case.

On behalf of Ms Cho it is submitted that the effect of s 425 is to require the RRT to afford a "genuine" opportunity to appear before the RRT to give evidence. Such an opportunity, it is said, calls for a questioning by the decision-maker and the disclosure of material and views which the decision-maker may consider to be adverse to the applicant. The authority cited in support of the requirement for a "genuine" opportunity is the High Court decision in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577. In that case the court decided that s 476(2) of the Act made clear the intention of the legislature to exclude, as a ground of review by the Federal Court, a breach of the rules of natural justice, and that, when read in context, s 420 does not provide a foundation on which to overcome the effect of that exclusion. The court also decided that the provisions of s 420 describe objectives to be pursued and do not establish a procedure under the Act of the kind referred to in s 476(1)(a) of the Act.

In Eshetu, four judges of the court, Gleeson CJ and McHugh J (at [49]), Gummow J (at [109]) and Callinan J (at [178]), refer with approval to the observations of Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324; rev (1997) 81 FCR 71; 151 ALR 505, where he said at 59-60:

"There is another argument based on s 476(2)(a) that leads to the same result. The general law notion of natural justice comprises the `impartial tribunal' requirement (the `bias rule') and the `fair hearing requirement' (the `hearing rule').... While s 476(2)(a) makes clear that these requirements do not provide the basis of a ground of review, s 476(1)(f) provides that actual bias is such a ground, while s 476(1)(a) and s 425(1)(a), taken together, have the effect that a failure to give a genuine opportunity to appear before the [tribunal] to give evidence, is also such a ground. This suggests that the legislature turned its mind to the twin requirements of natural justice and intended that s 476(1)(f) and s 425(1)(a) should occupy the field that would otherwise be occupied by the rules of natural justice. It will be clear that I do not agree that the expression in s 426(2)(a), `the rules of natural justice', is to be read down in some way so that it refers to those rules only in so far as they depend on the general law, and does not detract from any generally expressed requirement of the Act which might otherwise be thought to have the effect of mandating observance of those rules [emphasis added]."

We do not consider that there is any special significance in the reference to the word "genuine" which would expand the content of s 425 beyond the ordinary and natural meaning of the language used. According to its terms the section simply requires that an opportunity be given to the applicant to appear and give evidence. Obviously if there is no real opportunity given then the section has not been complied with. This could arise, for example, where relevant evidence is not admitted or misleading statements are made by the decision-maker which discourage an applicant from calling or proceeding with a particular line of evidence. It should also be noted that the above quoted observations of Lindgren J support the proposition that a failure to comply with s 425(1)(a) may amount to a failure to observe a "procedure" within the meaning of s 476(1)(a) of the Act, although the objectives expressed in s 420 do not." (emphasis added)

63. Sackville J, after referring to a number of the authorities which deal with ss 425 and 426 of the Act stated at 355-6:

"These cases illustrate that s 425(1)(a) is primarily directed to the requirement that the RRT ensures that the applicant not only knows of his or her entitlement to give evidence (see s 426(1)(a)), but receives adequate notice of the hearing and is not unfairly impeded by the RRT from taking advantage of the statutory entitlement. Ordinarily, the RRT complies with s 425(1)(a) if the applicant receives timely notification of his or her statutory entitlement and of the hearing at which that entitlement may be exercised. If the applicant does not appear, otherwise than through reasons beyond his or her control and of which the RRT is aware, there will generally be no breach of s 425(1)(a). If the applicant does appear in response to the timely notification, and gives evidence before the RRT, there will likewise generally be no breach of s 425(1)(a).

It does not necessarily follow that the effect of s 425(1)(a) is exhausted once the RRT actually commences to hear the applicant's evidence, adequate notice of the hearing having been given. There may be circumstances - although I think that they are likely to be rare - where the RRT conducts the hearing itself in a manner which denies the applicant the genuine opportunity contemplated by s 425(1)(a). To take a hypothetical example, the RRT, having given the applicant timely notification of the statutory entitlement and the hearing, might inform the applicant at the hearing itself that he or she will not be permitted to give evidence on a particular claim within the applicant's own knowledge. If the RRT were to reject the application on the ground that it had not been satisfied of the particular claim, it would not be difficult to conclude that the applicant had been denied the opportunity contemplated by s 425(1)(a). The applicant, although permitted to appear before the RRT and to give evidence, would have been denied the opportunity to appear and give evidence on an issue the RRT itself considered to be critical to the outcome of the case." (emphasis added)

64. In my opinion the statements made by the Member concerning his willingness to accept "the facts" set out in the letter of 17 December 1998, but not "the opinions" contained therein were reasonably capable of misleading the applicant into assuming that the certification by Mr Achamyeleh of his imprisonment in 1995 had been accepted, and would be acted upon. That belief on the part of the applicant would have discouraged him "from calling or proceeding with a particular line of evidence", as discussed by Tamberlin and Katz JJ in Cho. The position might well be different if all that the applicant had sought to do was to make further oral submissions - Q v Minister for Immigration and Multicultural Affairs [1999] FCA 1202 per Lehane J at par 24. I note that their Honours Tamberlin and Katz JJ in Cho did not confine the scope of s 425(1)(a) to evidence which might be given by the applicant himself. I adopt, with respect, their Honours' reasoning on this point.

65. I note that Sackville J observed that the circumstances in which the RRT conducts a hearing in a manner which denies the applicant the genuine opportunity contemplated by s 425(1)(a) are likely to be "rare". However, the present case seems to me an example of such an instance.

66. Having concluded that the statements made by the RRT to the applicant concerning its proposed method of dealing with Mr Achamyeleh's letter were misleading, albeit inadvertently misleading, and that the applicant was not given a full opportunity, in accordance with s 425(1)(a), to "give evidence" (which includes giving evidence that is "argumentative" - Sook Rye Son v Minister for Immigration and Multicultural Affairs (1999) 161 ALR 612 at 625 per Moore J at par 36) it is not strictly necessary to consider the other limbs of the applicant's argument.

67. I should say, however, that I do not accept the applicant's contention that the RRT was itself required to call Mr Achamyeleh by reason of s 426 of the Act, and by reason of the inquisitorial nature of the proceedings before that body. Had the applicant's case rested upon that ground alone, I would not have allowed this application.

68. I should also deal briefly with the applicant's third limb of the argument directed to s 476(1)(a) of the Act. The applicant relied upon the RRT's failure to record its decision in accordance with the requirements of s 430(1) of the Act.

69. There are many authorities which deal with the proper construction of s 430(1). They are usefully discussed by Finn J in Thiagarajah Kandiah v Minister for Immigration and Multicultural Affairs [1998] FCA 1145. His Honour observed at pages 12-14:

"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."

70. In Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24, Wilcox J observed at 27:

"I accept the submission of counsel for the minister that this section does not impose on the tribunal an obligation to make findings about every factual matter mentioned in an applicant's claim. Paragraph (c) of subs (1) refers to `findings on any material questions of fact'. Findings need be stated only in relation to questions that are material to the ultimate decision. I also accept that such findings as the tribunal does make should not be construed in an over-critical way, `with an eye keenly attuned to the perception of error' ... On the other hand it is important that a reader be able to discern what conclusions the tribunal reached about the issues relevant to the ultimate decision. One of the purposes of s 430 is to ensure that unsuccessful applicants for a protection visa are told why their application has failed; if the reason, or one of the reasons, was that the Tribunal rejected a significant factual claim, the tribunal must say so and indicate the factual material on which the adverse finding was based." (emphasis added)

71. In Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1126 per Drummond J at pars 16-32 his Honour comprehensively reviewed the authorities dealing with s 430 of the Act. His Honour stated at par 33:

"These authorities show that s 430, in requiring the Tribunal to set out its findings on material matters, is not directed to matters which the Tribunal considers material: it is directed instead, to matters that are objectively material to whether a person is in truth a refugee. They also show that s 430 imposes a more stringent fetter on the Tribunal's freedom of decision-making than does the existence of error of law constituted by a want of evidence to support the decision, as a ground for review. This only exposes an administrative decision to review if there is no evidence to support a critical finding: see Collins v Minister for Immigration (1981) 58 FLR 407 at 410 - 411. These authorities also show that, while it is not permissible to subject the Tribunal's reasons to over meticulous scrutiny for possible error, once an issue favouring an applicant for refugee status is identified as a material one, the Tribunal must explain why it finds against the applicant on that issue, if it is not to breach s 430. In such a case, the Tribunal's decision cannot be supported on appeal because there is material, even an abundance of material, which the Tribunal was entitled to accept and which is sufficient to justify the decision against the applicant."

72. The RRT's reasons for decision in the present case are, if I may say so, extremely comprehensive when dealing with matters of a general nature. They are, however, sparse when dealing with, and rejecting, the "core claim" that the applicant was imprisoned in 1995. In essence, there is simply a bald assertion that the incident had been fabricated.

73. It is possible that the RRT reasoned back from its finding that the summons was a fraudulent and contrived document to a conclusion that the earlier incident to which that document related had not occurred. If that had been the RRT's reasoning, it would have been a matter for debate as to whether or not that reasoning was fallacious. However, the applicant would at least have known why his claim to have been so imprisoned had been rejected. He was entitled to know that much.

74. The RRT did not refer in its reasons for decision to Mr Achamyeleh's statement in his letter dated 17 December 1998 "certifying" that the applicant had been imprisoned. It provided no reasons for rejecting that "certification". There may well have been sound reasons for doing so. That does not, in my view, absolve the RRT from complying with its statutory responsibility, under s 430(1) of the Act, to set out those reasons. The applicant's prior imprisonment in 1995 was, after all, a critical issue. Had it been necessary to do so, I would have allowed this application upon this ground as well.

75. It is unnecessary for me to deal with the question whether the applicant has made good also his contention that there was a breach of s 476(1)(e) of the Act. It cannot be assumed that a breach of s 476(1)(a) will necessarily constitute a breach of s 476(1)(e). It is fair to say that counsel for the applicant in the proceedings before me placed little reliance upon s 476(1)(e) in the course of his submissions.

76. For the reasons set out above, the decision of the RRT must be set aside, and the matter remitted to that body to be dealt with according to law. It is obvious that the RRT should be differently constituted when it reconsiders the applicant's claim. The respondent must pay the costs of this application.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:

Counsel for the Applicant: Mr RA Niall

Solicitor for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Mr D Murphy

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 19 August 1999

Date of Judgment: 14 September 1999