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Thevendram v Minister for Immigration and Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

MIGRATION -whether applicant had well founded fear of political persecution by reason of perceived association with Liberation Tigers of Tamil Eelam - whether Tribunal erred in not making findings in relation to material relied upon as a reason for the applicant's fear of political persecution - duty of the Tribunal to have regard to all the material and evidence before it and to make findings on all the material questions of fact raised by evidence

Migration Act 1958 (Cth) ss 430, 476

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

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

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) FCA 1 - cited

Paramananthan v Minister for Immigration and Multicultural Affairs 160 ALR 24 - cited

Kandiah v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Finn J, 3 September 1998) - applied

Logenthiran v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Wilcox, Lindgren and Merkel JJ, 21 December 1998) - applied

Calado v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Moore, Mansfield, and Emmett JJ, 2 December 1998) - cited

Buljeta v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Katz J, 4 December 1998) - cited

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 - cited

Meadows v The Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Einfeld, von Doussa and Merkel JJ, 23 December 1998) - considered

APPUCUTTY THEVENDRAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 295 of 1998

SPENDER, NORTH AND MERKEL JJ

9 MARCH 1999

MELBOURNE

THE COURT ORDERS THAT:

1.   The appeal be allowed.

2.   The orders made by Finn J on 10 June 1998 be set aside.

3.   Each party bear his own costs of and incidental to the hearing before Finn J.

4.   The decision of the Refugee Review Tribunal dated 29 April 1997 be set aside and the matter be remitted to the Refugee Review Tribunal, differently constituted, for consideration and determination in accordance with law.

5.   The respondent pay the applicant's costs of the appeal and of the proceeding, other than costs of and incidental to the hearing before Finn J.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1 The appellant ("Mr Thevendram") has appealed from a judgment of a judge of the Court by which his Honour dismissed Mr Thevendram's application for an order of review in respect of a decision of the Refugee Review Tribunal ("the RRT") affirming a decision of the delegate of the respondent Minister ("the Minister") not to grant Mr Thevendram a protection visa.

2 Mr Thevendram is a Sri Lankan citizen and was a practising lawyer in that country until his arrival in Australia on 7 September 1996. On 23 September 1996 Mr Thevendram applied for a protection visa. On 16 January 1997 a delegate of the Minister determined that Mr Thevendram was not entitled to the grant of the visa. On 21 January 1997 Mr Thevendram applied to the RRT for the review of that decision. On 29 April 1997 the RRT refused the application on the ground that it was not satisfied that Mr Thevendram was a refugee as defined in Article 1A(2) of the Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees ("the Convention") and therefore was not a person to whom Australia had protection obligations. Accordingly, the RRT affirmed the decision of the delegate of the Minister not to grant a protection visa to Mr Thevendram.

3 On 10 June 1998 the learned primary Judge dismissed Mr Thevendram's application for review of the RRT's decision. Mr Thevendram has appealed to the Full Court on the grounds that his Honour erred in not finding that:

* the RRT failed to act in accordance with the procedures required by the Migration Act 1958 (Cth) ("the Act") to be observed in connection with the making of its decision (s 476(1)(a));

* the decision of the RRT involved an error of law being an incorrect interpretation of the law relating to whether Mr Thevendram had a well founded fear of persecution for a Convention reason (s 476(1)(e)).

Background

The facts were summarised by the primary Judge as follows:

"Mr Thevendram is a Tamil and until February 1991 he practised law in Jaffna. When the Liberation Tigers of Tamil Elam (`the LTTE') took control of the area in which he lived in 1985 that group set up `rural courts' in the villages of the Jaffna region. He accepted a position offered by the LTTE of chairman of his village court. He said he had no choice in the matter.

The central government of Sri Lanka commenced a military offensive in the region resulting in the introduction of the Indian Peace Keeping Force (`the IPKF') to the region. Mr Thevendram was arrested by the IPKF and taken for interrogation because, he claimed, of his alleged involvement with the LTTE.

In 1989 provincial elections were held in the North East province. Three militant groups working alongside the IPKF formed the provincial council. There was conflict between these groups and LTTE sympathisers. One of this group abducted a member of the rural court in Mr Thevendram's village. He went into hiding. His wife then was threatened that she and their children would be killed if he did not surrender. This he did not do and a threat was later repeated leading to the entire family including the applicant moving to Colombo. In January 1990 with the withdrawal of the IPKF the LTTE again took control of the North East province. Mr Thevendram and his family returned there. He was involved in establishing the North East District Rehabilitation Organisation and was nominated by the LTTE to the board of governors of that body. He again stated he had no choice in the matter.

With the resumption of hostilities between the central government and the LTTE in 1990 Mr Thevendram again moved with his family to Colombo (in February 1991) and resumed his legal practice there. From February 1991 until he left for Australia in September 1996 he lived in Colombo taking frequent trips abroad. Shortly after returning from a trip to Canada, Mr Thevendram claimed that, on 2 August 1996, he was taken into custody by the police (the CID); was detained for 10 days; and was beaten and denied food for a considerable period. The applicant attributed his arrest to his having been identified as an LTTE supporter in the 1980's to the Sri Lanka army when it took control of the Jaffna Peninsula in late 1995 and early 1996....Mr Thevendram was released, he alleges, as a result of a bribe of approximately A$2500 paid by his wife. After his release he ascertained that an associate from Jaffna had been arrested in Colombo and was killed.

He considered it too dangerous to remain in Sri Lanka. After approaching the Canadian and United States embassies for a visa but without success he obtained a visa to attend a conference in Australia. He then left the country alone. He claims that his wife was subsequently contacted by the police to ascertain his whereabouts."

4 The issue raised by the evidence and material before the RRT was whether Mr Thevendram, owing to a well founded fear of being persecuted for reasons of political opinion, is unable or, owing to such fear, is unwilling to avail himself of the protection of his country of nationality, Sri Lanka. Mr Thevendram claimed that as a consequence of his perceived association with the LTTE in the 1980's, the authorities regard him as a member or supporter of the LTTE.

5 It is well established that it is sufficient for the purposes of the Convention definition that the political opinion referred to in Article 1A(2) be the persecutor's perceived or imputed opinion of the claimant; it matters not that the imputed opinion is not actually held by the claimant: see Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

6 In the present case the RRT accepted that if the authorities in Sri Lanka had identified Mr. Thevendram as a supporter or member of the LTTE there is a real chance that, upon his return, he would be mistreated for that reason and would be entitled to refugee status. It treated as the critical question whether Mr Thevendram's claim that he was arrested in August 1996 and then detained and mistreated for ten days as a result of his involvement with the LTTE in Jaffna in the 1980's, was to be accepted.

The RRT's decision

7 The RRT concluded that Mr Thevendram's claims in relation to his arrest and detention were "far-fetched and implausible". The RRT gave the following reasons for arriving at that conclusion:

* it is highly improbable that Mr Thevendram would be arrested in 1996 as a result of his involvement with the LTTE and, in particular, in relation to his chairmanship of the Rural Court in 1985, 1986 and 1987;

* it was implausible that, given that Mr Thevendram left the Jaffna area in 1991, he would be pointed out as an LTTE supporter by people from that region in the middle of 1996;

* it was implausible that Mr Thevendram would have been of interest to the Sri Lankan authorities in 1996 as a result of his activities in the 1980's;

* the passage of time and the fact that Mr Thevendram had already suffered difficulties with the IPKF and the Eelam People's Revolutionary Liberation Front in 1989-1990, because of his involvement with the LTTE, made it unlikely that the same difficulties would arise in mid 1996;

* if Mr Thevendram did suffer the difficulties he claimed as a result of his LTTE involvement in the late 1980's, it is implausible that he would be able to live in Colombo from 1991 without facing difficulties from the authorities until mid 1996;

* the fact that Mr Thevendram was able to leave Sri Lanka in September 1996 without difficulty confirmed that he was not of any interest to the Sri Lankan police and was not detained in the way he had claimed;

* the RRT did not accept that if Mr Thevendram was of interest to the authorities as a supporter of the LTTE he would have been able to secure his release simply through the use of bribery;

* as Mr Thevendram's town in the Jaffna area fell to the Government forces in December 1995 it was implausible that it would have taken until the middle of 1996 for the security forces "to speak" to Mr Thevendram if they had any interest in him;

* Mr Thevendram had adjusted his story to explain the delay in his arrest and that reflected adversely on his credibility.

8 The RRT concluded that, as it did not find Mr Thevendram's account of his arrest and detention to be plausible and given, that apart from that claim of arrest and detention, he did not claim to have experienced any other difficulties in Colombo, there is not a real chance that he will face persecution for a Convention reason should he return to Sri Lanka.

9 Mr Thevendram's credibility in relation to his account of his arrest and detention was regarded, quite properly, by the RRT as a critical issue. The task of a claimant in challenging, particularly under Pt 8 of the Act, adverse findings of the RRT in relation to credibility is formidable: see Emiantor v The Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635, Kopalapillai v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, O'Connor, Branson and Marshall JJ, 8 September 1998) and Sivalingam v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, O'Connor, Branson and Marshall JJ, 17 September 1998). The task may be even more difficult as a consequence of the recent decision in Minister for Immigration and Multicultural Affairs v Epeabaka (1999) FCA 1 in which the Full Court (Black CJ, von Doussa and Carr JJ) at 13 held that illogicality in reasoning of the RRT will not "of itself" constitute an error of law.

10 Before the primary Judge and the Full Court a substantial part of the appellant's contentions challenged the RRT's adverse credibility findings by impermissibly seeking to have the Court review those findings on the merits. We are satisfied that the primary judge did not err in rejecting those contentions.

11 However, in the course of the hearing before the Full Court an issue emerged as to whether the RRT had erred in not making the findings required by s 430(1) of the Act in relation to three letters which it had before it and which were relied upon by Mr Thevendram to demonstrate that his claimed fear of political persecution, if he returned to Sri Lanka, was well founded. The letters supported Mr Thevendram's claims that during 1996 the authorities had become concerned about his association and involvement with the LTTE. That particular issue had been central to his claimed fear of political persecution if he returned to Sri Lanka.

12 One of the grounds of appeal was that the RRT did not act according to the merits in relation to that issue but the failure of the RRT to refer to or make findings in relation to the letters had not been raised as such, before the primary Judge, although it was relied upon before the Full Court by counsel for Mr Thevendram. That issue was the subject of responding submissions by counsel for the Minister. Counsel for the Minister objected to the raising of new issues on appeal but did not contend that the raising of legal or factual issues concerning the letters for the first time on appeal prejudiced the Minister. In the circumstances and in the interests of justice, it is appropriate to permit the issues to be relied upon by Mr Thevendram in his appeal.

The three letters

13 Two of the three letters (which were translated into English) were written to Mr Thevendram in Tamil by his wife in Sri Lanka. The first letter, which was dated 15 December 1996, was as follows:

"Dear Sweetheart,

Hope you are in good health. We pray to the Almighty for your health.

Received your letter and noted its contents. It is said that your status has not been resolved so far. You have written that no reply was intimated. My request is that you should not return at any cost. If returned, anything can happen. Even last week one Wellawatte Police officer seven army troops and two female soldiers, came and pushed our gate, knocked our door and rang the door bell. I did not open my door in fear. I could not tolerate the sound and opened the window later. I asked, `Who was that? What was the need at that hour?'.

They replied that they were from Wellawatte Police to search our premises. They threatened that they would break open the door, if I did not let their way in. Accordingly I opened the door later. They intruded inside and checked the Police registration of our residence. Thereafter they looked at our son Gopi and said, `Your are a Tiger. Isn't it?' He replied `No'. They asked, `Where is your father? Is he a Tiger?'. They posed these questions with hard tones. Then they started to search the almyrah, rubbish bins and all over the places. They used harsh words simultaneously.

We are living in continuous fear here. What can we do? Everything is in God's hands. It is only God who can lead us our way in future, in these adverse circumstances. Please reply. Even if we go to another place we will come here and get your letters.

Yours loving wife,

Magaluxmy. (Signed)"

14 The second letter, which was dated 23 December 1996, was as follows:

"Dear Sweetheart,

Hope you are in good health. Did you receive the letter I sent you? We are unable to continue our stay in Colombo and have shifted our residence to the house of your relation in Trincomalee. We could not tolerate the continuous harassments aimed at us by the C.I.D. at the earlier residence in Colombo at the I.B.C. road. I was alone there with my children. This was another reason for their atrocities. I relocated here with my children due to the fact that we could not continue our stay there peacefully. We cannot move to any other location from here. For how many days can we lead this life of Nomads? There should be an end to these harassments. Sometimes I think that I should jump into any river with my children once and for all - thus winding up our affairs in this world. Thereafter I console my mind on the basis that I should undergo these terrible experiences until you find out permanent shelter for us. I always think of you in my heart. I do not have any cash in hand. Please find out as to whether there is any possible solution for our plight.

Please reply to the abovementioned address. If we return back to Jaffna, they will arrest and take us into their camps. Many difficulties prevail there in these circumstances. Even here, we have to live in fear and panic. Two persons committed suicide by taking cyanide when the army attempted to arrest them. Please reply forthwith.

Yours lovingly

T Magaluxmy. (signed)"

15 The third letter, which was dated 17 January 1997, was written by Mr Somasundaram an attorney at law in Colombo who was a director of the Legal Aid Foundation of the Bar Association of Sri Lanka. The relevant portion of the letter, which deals with Mr Thevendram's situation in Sri Lanka after his return from Canada in late July 1996 was as follows:

"This situation worsened after his short holiday visit to Canada. Because, by then the Sri Lanka Army had taken full control of the Jaffna Pennisula (sic). The Army had been visiting bearers residence in Mannipay and were able to trace his association with the Tamil Militants. This resulted in Colombo CID to inquire about him. This has disturbed his stay in Colombo. He was forced to leave Colombo all alone in September 1996. His wife and children in Colombo are also under constant check and survailance (sic).

As such I feel bearer Mr Theivendran (sic) returning to Colombo may have to account for his participation with the Tamil Militants."

Unlike Mrs Thevendram's letters which relate to her experience, Mr Somasundaram does not state the source of his knowledge of the events he describes with the consequence that, on its own, his letter may be of marginal relevance.

16 It is appropriate to consider the timing and the content of the letters in the context of Mr Thevendram's claims. He made an application for his protection visa on 23 September 1996. He was interviewed for the purposes of the determination of his claim by the delegate on 11 November 1996. It appears that on 14 January 1997 he informed the Department about the police visiting his family in Sri Lanka and indicated he would send by facsimile a copy of his wife's letter about the visit. On 16 January 1997 the delegate rejected Mr Thevendram's claim that the security forces were "now looking" for him and did not accept his story that he had been involved with the LTTE or that his arrest and detention in August 1996 was as a consequence of any such involvement. Mr Thevendram applied for the review of the decision by the RRT on 21 January 1997.

17 On 4 April 1997 the solicitors acting for Mr Thevendram requested a hearing before the RRT at which he desired to give evidence. The submission accompanying the request enclosed a copy of the letter from Mr Somasundaram dated 17 January 1997. The hearing before the RRT was held on 4 April 1997. A number of questions were asked by the RRT in relation to the reason why the security forces might have only become interested in Mr Thevendram in the middle of 1996. The substance of his evidence was that the police who arrested and detained him had branded him as being a LTTE supporter and member and that, as a consequence, he was tortured and interrogated over some ten days in relation to his association with the LTTE. He was also accused by the police of being involved with the Rural Court and working against the Sri Lankan government. The Tribunal asked what Mr Thevendram thought would happen if he returned to Colombo. He responded by saying that he would be arrested on his arrival and killed.

18 At the conclusion of the hearing Mr Thevendram's solicitor requested the opportunity to file further material after listening to the tape of the hearing. The RRT indicated it would accept that material if filed by 11 April 1997. On 11 April 1997 a further submission was filed with supporting material.

19 No reference was made to the three letters in the course of the hearing nor were they expressly adverted to in the reasons for decision of the RRT. The evidence does not establish when Mr Thevendram's wife's letters first came to the attention of the RRT. However, it is not disputed that her letters formed part of the material which was accepted by the RRT as material upon which Mr Thevendram relied to support his application for a protection visa. In any event the RRT, in its reasons, referred to the applicant's claim that after he had departed from Sri Lanka his wife was contacted by the police asking his whereabouts. The reference appears to be to the claim to that effect contained in his wife's letter of 15 December 1996. The only finding of the RRT in relation to the claim was that it:

"does not accept that the police would not have been able to ascertain that the Applicant was in Australia."

20 The finding is curious. If the claims of Mr Thevendram's wife as to family harassment by reason of Mr Thevendram's perceived association with the LTTE were to be accepted, it doesn't follow that the harassment would be for the purpose of genuinely ascertaining his whereabouts. Further, whilst the police may have been able to ascertain, without difficulty, that Mr Thevendram left Sri Lanka for Australia in September 1996, it is far from clear how they could be confident as to his whereabouts in December 1996. Nevertheless, counsel for the Minister relied on the finding to support a contention that the RRT had, by that finding, regarded the letters from Mr Thevendram's wife as being contrived to assist the applicant's case.

The issues raised in relation to the letters

21 Ultimately, counsel for Mr Thevendram contended that the RRT failed to observe the procedures that were required by the Act to be observed in connection with the three letters. First, it was said that there was a failure to set out the RRT's findings in respect of the three letters which, on any view, raised material questions of fact (s 430(1)(c)). Secondly, it was said that the failure to refer to or have regard to the matters set out in the three letters resulted in the RRT failing to act "according to substantial justice and the merits of the case" (s 420(1)(b)). Thirdly, it was contended that the RRT had failed to make its decision on the basis of the whole of the material before it and therefore did not carry out its function of reviewing the decision in accordance with the duties imposed upon it under the Act.

22 The Minister disputed the above contentions. Counsel for the Minister contended that although the RRT had not referred in any detail to the letters it was not obliged to do so. Rather, so it was said, the RRT had made findings rejecting the substance of Mr Thevendram's claims concerning his arrest and detention and had therefore implicitly rejected any material, including that contained in the three letters, to the contrary. In any event, it was contended that the RRT had implicitly treated Mr Thevendram's wife's letters as having been contrived to assist Mr Thevendram's case and was entitled to disregard the claims made in them.

23 Finally, the Minister submitted that the RRT is not under an obligation to request a claimant to explain all of the material relied upon by the claimant or to deal with it: see Singh v Minister for Immigration and Multicultural Affairs (1997) 49 ALD 640 at 645-647 per Tamberlin J and Fernando v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Finn J, 5 November 1997) at 12. The final submission of the Minister can be accepted in relation to evidence which is not "material" to the questions of fact required to be determined by the RRT in discharging its functions and duties under the Act. However, ss 430(1)(c) and (d) of the Act provide that the RRT "must" in its written reasons for decision set out the findings on "any material question of fact" and refer to the evidence or other material on which the findings were based. Without endeavouring to state an exhaustive definition of materiality in the context of s 430(1)(c), as we later explain, the past events that have caused the claimant to fear a real chance of persecution for a Convention reason if returned to his or her country of nationality will plainly constitute "material questions of fact" for the purposes of s 430(1)(c). In order to determine the past events which are "material" to that issue, it is necessary to briefly consider the role of the "real chance" test in determining whether the claim of a fear of persecution for a Convention reason is "well founded".

The "real chance" test

24 A fear of persecution for a Convention reason is well founded where there is a "real substantial basis for it"; a substantial basis may be far less than a 50% chance that the object of the fear will eventuate (Guo at 577). In determining that matter consideration will usually be given to the past events relied upon by an applicant as giving rise to the fear of persecution and the probability of the recurrence of those, or similar, events (Guo at 578-579 and 587).

25 In Guo, the High Court explained the process by which the RRT is to make its findings as to those past events. Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ (at 578-579), accepted that:

* when conflicting material relating to some past event is before the tribunal, a finding that one version of events is more probable than another on the balance of probabilities is not inconsistent with the correct application of the "real chance" test;

* the correct application of that test may in some, but not other, circumstances make it appropriate for the tribunal to consider the possibility that any of its findings as to past events were inaccurate.

26 The Court (at 579-580) explained the situation as follows:

"It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred, or have or have not occurred for particular reasons in the past, is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.

In the present case, however, the tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the tribunal was not then bound to consider whether its findings might be wrong." (Emphasis added)

27 In Epeabaka the Full Court of the Federal Court (Black CJ, von Doussa and Carr JJ) at 11, in discussing the risk of error in adopting a fact finding process on the balance of probabilities, referred with approval to the following passage of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) CLR 259 at 293:

"It is not an error of law for such a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, so long as, in the end, he or she performs the function of speculation about the `real chance' of persecution required by Chan.

Secondly, the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: `What if I am wrong?' Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 441, per Einfeld J. Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems `likely' or `entitled to greater weight', the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a `real chance' of persecution."

In the current state of the authorities, and in particular Guo, it can be taken to be established that consideration by the RRT of whether a certain finding of fact was or might be wrong:

* is mandatory in respect of facts found on the basis that they are "slightly more probable than not" if the facts are those relied upon for concluding that an applicant had not been punished or harmed for a Convention reason;

* is unnecessary when it appears that the RRT is of the view that the probability of error in its findings in relation to those facts was insignificant.

28 However, a problem arises in cases lying between the two situations stipulated above. In Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635 at 650, and again in his reasons for judgment in Paramananthan v Minister for Immigration and Multicultural Affairs 160 ALR 24 at 21-22, Merkel J observed that the `What if I am wrong?' approach has a varying applicability in cases lying between the two situations discussed in Guo. In such cases, in determining whether the claimed fear of persecution is well founded, the decision maker must take into account the chance that the alleged past punishment or harm for a Convention reason had occurred but the weight to be given to that chance is a matter for the decision maker. The "varying applicability" refers to the weight to be given by the decision maker to the possibility of error rather than to whether the decision maker is excused from considering that possibility. The weight to be given by the decision maker to the possibility of error will, no doubt, be influenced by the degree of confidence he or she has as to the correctness of the findings made as to the particular past event.

29 This problem has also been considered by other judges of the Court. See for example: Mr A v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Hely J, 17 November 1998) at 9-11 and Zuway v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Katz J, 31 December 1998) at 7-13. The proper application of the real chance test in the manner explained above, as was observed by the Full Court in Epeabaka, ensures that although findings as to past events may be made on the balance of the probabilities, the determination of a real chance of persecution is made on an evaluation of all of the findings, including the possibility of error, when that possibility is required to be taken into account.

30 In the present case it is apparent that the RRT had no real doubt as to the correctness of its findings rejecting Mr Thevendram's claims in relation to his arrest and detention. However, those findings were primarily based on the RRT's conclusion that it was implausible that the Sri Lankan authorities arrested and detained Mr Thevendram because they perceived him to be a supporter or member of the LTTE.

The significance of the letters

31 The material question of fact raised by the letters, particularly by the letter of Mr Thevendram's wife dated 15 December 1996, was whether, since Mr Thevendram's departure from Sri Lanka, the authorities have been harassing his family by reason of a perceived association with the LTTE. If the veracity of that claim, which we hereafter refer to as "the family harassment claim", is accepted, it plainly supports Mr Thevendram's account of his arrest and detention and also provides an additional reason for his present fear of political persecution if he returns to Sri Lanka. The claim would also be material to the level of confidence the RRT might have in making findings adverse to Mr Thevendram in relation to his account of his arrest and detention.

Section 430(1)(c)

32 The authorities in relation to the operation of s 430(1)(c) were considered in Kandiah v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Finn J, 3 September 1998) at 9-13, in circumstances that are analogous to those in the present case.

33 Mr Kandiah a Sri Lankan national and a Tamil, claimed that his fear of persecution for a Convention reason arose from his detention and torture at an army camp. He claimed that he was so badly beaten by army personnel that on his release he went to Colombo General Hospital where he remained for more than a month. Mr Kandiah relied on letters from his treating doctor confirming his treatment. Finn J found that, given the nature of the case put by Mr Kandiah, a vital question of fact for the Tribunal was whether the treating doctor's letters were genuine and truthful. Finn J (at 11-12) said:

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

There is now a considerable body of case law that emphasises variously: (i) the importance to the parties, to the public and to review bodies of adequate reasons for decisions; (ii) the understanding and restraint that courts should demonstrate when reviewing and construing reasons for administrative decisions; and (iii) the content in terms of findings and recitation of evidence that properly and reasonably can be expected of administrative decision makers."

After referring to authorities on these issues his Honour (at 13) concluded:

"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'."

34 A similar approach can be taken in the present case. For the reasons explained above, if the authenticity and credibility of the family harassment claim as outlined in the letters was accepted, that claim was capable of supporting in a significant way "the factual centrepiece" of Mr Thevendram's claim of feared political persecution and thus was a material question of fact for the purposes of s 430(1)(c).

35 In Logenthiran v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Wilcox, Lindgren and Merkel JJ, 21 December 1998) a Full Court concluded that there was a breach of s 430(1)(c) by reason of the failure of the RRT to deal with claims made by the refugee claimant of two instances of arrest, detention, interrogation and torture shortly before his departure from Sri Lanka. The breach of s 430(1)(c) arose by reason of the obvious relevance of those claims to the issue of whether the RRT was satisfied that the claimant's fear of persecution was well founded. As was pointed out in the judgment of Wilcox and Lindgren JJ (at 13), whilst it may have been open to the RRT, as Tribunal of fact, to reject material which was directly relevant to the issue of whether a fear was well founded, it was not open to it to do so without setting out its own findings in respect of the matters the subject of the material.

36 In the present case whilst it may have been open to the RRT to reject, or to give little or no weight to, the family harassment claim a failure to make a finding in relation to it is a breach of the requirements of s 430(1)(c).

37 In one sense a failure by the RRT to comply with s 430(1)(c) and (d) may be said to be a technical breach. However, that approach misunderstands the significance of the section. In Paramananthan at 25-28 Merkel J considered the duties of the RRT under the Act. His Honour concluded that the inquisitorial and non-adversarial function of the RRT and the combined effect of the provisions governing the exercise of its inquisitorial powers (ss 414(1), 420, 425, 426, 427, 428 and 430) are such that the RRT is required to determine the merits of the case and in doing so each of the material issues raised by the material and evidence before it. That duty, in our view, is a fundamental incident of the statutory function of the RRT. In determining those issues the RRT must make findings on the questions which are central to the case raised on the material and evidence before it: see also Calado v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Moore, Mansfield and Emmett JJ, 2 December 1998) at 21-22; Buljeta v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Katz J, 4 December 1998) at 13-14; and Logenthiran at 13 per Wilcox and Lindgren JJ and 1-2 per Merkel J. The cumulative effect of the statutory provisions to which we have referred is that the RRT is under a duty to review the decision of the delegate on the merits and in doing so must have regard to all of the material and evidence before it and make findings on all of the material questions of fact raised by that material and evidence.

38 For the reasons set out above, the family harassment claim had obvious relevance to whether the RRT was satisfied that Mr Thevendram's claimed fear of persecution was well founded and was a "substantial issue" on which the case might turn: see Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414. We have proceeded, thus far, on the basis that we do not accept the contention of the Minister that as the RRT had treated the letters as having been contrived to assist Mr Thevendram's case it implicitly rejected the family harassment claim. Plainly, the implication of the submission is that Mr Thevendram had procured his wife and, presumably, Mr Somasundaram to fabricate the family harassment claim to assist his application for a protection visa.

39 The Minister's submission runs into the problem that arose in Meadows v The Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Einfeld, von Doussa and Merkel JJ, 23 December 1998). In that case, letters were presented in support of the claimants' alleged fear of political persecution if they returned to Sri Lanka. The RRT raised the issue of the authenticity of the letters at the hearing but not in a manner that suggested that it was considering making a finding that the letters were contrived or fabricated for the purpose of assisting the claimants' case. Yet, such a finding was made by the RRT. In separate judgments each member of the Full Court concluded that the RRT had failed to observe the procedures required by the Act by not affording the applicants an adequate opportunity to meet the assertion of fabrication.

40 Whilst we do not accept the Minister's contention that the RRT made a "contrivance" finding in the present case, if, as was contended by the Minister's counsel, such a finding was implicit, in our view the finding would suffer from the vice which led to the Full Court to set aside the decision of the RRT in Meadows. Further, if any such finding was made in respect of the family harassment claim, it failed to meet the requirements of s 430(1)(d) by not referring to the evidence or the material on which the finding was based: see Logenthiran at 13 (Wilcox and Lindgren JJ).

Conclusion

41 Accordingly, for the above reasons we are of the view that the appellant is entitled to succeed on his appeal. As the precise basis upon which he has succeeded only emerged in the course of the appeal and had not been argued before the primary judge it is appropriate that the parties bear their own costs of the hearing before the primary judge. In those circumstances the orders that are appropriate are that the appeal be allowed, the orders made by the primary judge be set aside and, in lieu thereof, it be ordered that the decision of the RRT dated 29 April 1997 be set aside and the matter be remitted to the RRT, differently constituted, for consideration and determination in accordance with law. We would also order that the Minister pay Mr Thevendram's costs of the appeal and of the proceeding other than costs of or incidental to the hearing before the primary judge.

42 An issue was also raised by the parties as to whether the RRT had wrongly failed to disclose to the appellant the details of an anonymous letter written to it making adverse allegations against the appellant. In view of the conclusions we have reached on the other issues raised in the appeal, it is unnecessary to consider that issue.