A v Minister for Immigration & Multicultural Affairs

[1997] FCA 1527

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 463 of 1997

BETWEEN:	A & B APPLICANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

CORAM:	DAVIES J
DATE:	4 DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an appeal from the decision of a Refugee Review Tribunal (“the Tribunal”) given on 20 May 1997 in which the finding was made that the applicants A and his wife B were not refugees and in which the Tribunal affirmed the primary decision not to grant them protection visas. The matter has been brought to this Court under s 476 of the Migration Act 1958 (Cth) (“the Act”). Section 476(1)(a) is relied upon, which reads:

“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;”

The procedures to which reference has been made are those set out in ss 420 and 425 of the Act which read:

“420.  (1)  The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)     The Tribunal, in reviewing a decision:

(a)is not bound by technicalities, legal forms or rules of evidence; and

(b)must act according to substantial justice and the merits of the case.

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.”

The relationship between ss 420 and 425 and s 476(1)(a) was discussed in the judgments delivered by myself and by Burchett J in Eshetu v Minister for Immigration & Multicultural Affairs (1996) 71 FCR 300. I adopt the reasoning enunciated in that case and I need not elaborate on it.

The first ground of review relied upon by counsel for the applicants is that the Tribunal declined to hear B as to the facts on which the applicants relied, notwithstanding that when the decision was given the reasons disclosed that the Tribunal did not accept the facts put forward by the applicants.

The substance of the claim put by the applicants was stated by the Tribunal as follows:

“The Applicant claimed he assisted his friend, X, who was the son of a former KGB/CIA double agent. This agent was killed by the KGB. X was in dire financial need, so the Applicant helped him to seek material assistance from the US Embassy in Moscow. X was able to gain help and arranged to study music in the USA.

Because of what he did for his friend, the Applicant claimed he was harassed by the KGB. He claimed his telephone was bugged and he was followed. His sister was ‘kidnapped’ by unidentified persons and kept for a short time.

Being a medical student, the Applicant was entitled to defer his military service. However, the KGB threatened to send him to the army. He applied to the US Embassy in Moscow for immigration or other help.”

The Tribunal heard A at length as to the facts.  His evidence was taken over 2½ days.  There is no doubt that the Tribunal gave to A every opportunity to put whatever he wished to say in relation to the matter both orally and in writing.  It is unfortunate that A was a verbose witness who, like some witnesses seen in court, think that when a question is put it is an opportunity given to the witness to talk and discuss.  It is always desirable that witnesses should have their attention drawn to the requirement that their evidence be focused on facts, so that their evidence goes directly to the facts of which they can speak from their own recollection. 

Doubtless the Tribunal would have been dissatisfied with the manner in which A gave his evidence.  In any event, the Tribunal in its reasons rejected that evidence.  The Tribunal said, inter alia:

“The Tribunal found the Applicant’s [A] oral evidence unsatisfactory and not plausible. The Applicant did not impress the Tribunal as a truthful or credible witness for the reasons given below.

At his interview with the Department in June 1994, the Applicant stated his problems started ‘roughly one and a half to two years ago’, ie, some time around June 1992 to December 1992 and he first experienced harassment from the KGB a week or two weeks later after he was in the Embassy. At the interview, he said it was not really harassment, they just tried to scare him and he then described the two incidents with the cars. In his letter to the US Embassy, Moscow which was posted in August 1995, the Applicant stated he visited the US Embassy in August/September 1992. However, in the submission of September 1996 and at the hearing before the Tribunal, the Applicant stated he first visited the US Embassy in May 1992 and that he did not experience any problems until several months later; the two incidents with the cars are said to have occurred in July/August 1993, some 14-15 months after his first visit to the US Embassy in May 1992. Further, the incident on the escalator in March/April 1993, some 10-11 months after he went to the US Embassy, had not been mentioned at all until September 1996 and nor had his claims about his Jewish ancestry or the insults he received because he is Jewish.

As well, in the submission of September 1996, the Applicant stated in two paragraphs that both he and X attended the US Embassy on the first visit, but in a submission dated 3 October 1996, the Applicant stated that he went alone. This discrepancy is said to have occurred due to a misunderstanding between the Applicant and his adviser.

As well, the Applicant was quite clear at his interview with the Department in June 1994 that he was alone when the first incident involving the car lighting him up occurred and on the second occasion, he was with his girlfriend and both incidents occurred a week or two weeks after he went to the Embassy. However, in the submission of September 1996 and at his hearing, the Applicant maintained that these incidents occurred in reverse order in July/August 1993, some 14 months after his visit inside the US Embassy in May 1992 and one or two months after his visit to the Embassy in June 1993. When asked why he initially said the incidents occurred a week or two weeks after he went to the Embassy, the Applicant said he had no idea. When asked why they were in reverse order in the submission of September 1996 compared with his account at his interview with the Department and why the conversation with the man in the car had not been mentioned before when he was insulted as a Jew, the Applicant said he was unprepared and nervous at the interview.

There was no mention of his invention or of his claims to be a victim of the campaign by the KGB against ‘spies’ who have sold military information to the West until the submission of September 1996 and, although the Applicant claimed his sister was ‘kidnapped’ in May/June 1993, some 12-13 months after his visit to the US Embassy, no ransom was ever asked for and she was not harmed. Although she was told in June 1993 to leave the USSR within one or two months, there is no evidence from the Applicant that she did or that she was harmed in any way for failing to do so or sold into prostitution, as was threatened. Indeed, his application for refugee status which was written in April 1994 indicates that she was still living in Russia.

The Tribunal finds it is not plausible that, based on the Applicant’s evidence, nothing had happened to X, the son of a ‘spy’ for the CIA as late as August/September 1993, when X had told the Applicant about his father’s death at the hands of the KGB, despite being warned by the KGB to remain silent. X had also received $2000-$3000 from the US Embassy and was given an urgent visa to go to the USA, but still lived in Moscow as at August/September 1993. With the Applicant however, he claimed he attended inside the US Embassy once in relation to X’s situation and the KGB were out to get him. The Tribunal finds it is not plausible that, if the Applicant had access to secret information and military secrets and was thought to be a spy by the authorities, they would have let him go and offered to get him a new passport rather than arrest or charge him. Indeed, many newspaper reports and articles presented by the Applicant to the Tribunal indicate that the authorities have arrested and charged those suspected of spying.

The Tribunal finds it is not plausible that the KGB’s successors had over 12 months in which to investigate, arrest and charge the Applicant with spying, or some such charge, or to take other action against him (and it must be recalled that it is claimed that they killed X’s father), and yet they did not do so. Consequently, the Tribunal is not satisfied that the Russian authorities had any special interest in the Applicant’s activities.”

The Tribunal went on to say:

“... the Tribunal finds that he has completely fabricated his claims with respect to the threats and harm he and his sister suffered at the hands of the successors to the KGB.”  

The Tribunal limited its findings of fact to the following findings:

“The Tribunal is prepared to accept that the Applicant spent an enormous amount of time arranging to continue his medical studies overseas; that he had spent many hours searching for overseas universities in the library of the British Consul and the American Study Centre in Moscow; that he had also made searches at the Australian and British Embassies and felt familiar with the structure and operation of embassies. The Tribunal is prepared to accept that the Applicant had a friend, X, and that the Applicant went inside the US Embassy in Moscow once in order to assist him to obtain permission to go to the US. The Tribunal does not accept that X’s father was a double agent who was killed by the KGB. The Tribunal is prepared to accept that the Applicant is Jewish; that his father had involvement in or knowledge of military research; that the Applicant would be called up to military service if he cannot defer such military service because of his studies; and that he may be prosecuted if he cannot defer such military service and refuses to carry out his military service.”

What is unfortunate is that the Tribunal did not hear B on the facts of which she could speak.  Shortly after B had been sworn, these exchanges occurred:

“MS HASKETT:  Now, I’m aware of all of the claims that your husband’s made and all of the incidents that he’s outlined as occurring to him, and I don’t want to hear about that again and I know that you were with him when some of these people were in a car, I’m aware of those incidents, I don’t want to hear about that again, is there anything else that you want to tell me that has happened to you, is there anything that has not been included in the material, the submissions that I’ve got that you want to tell me about?

THE INTERPRETER:  I was there, I was a witness of the - of this incident with the car and I also can testify to the fact tat our phone was bugged and I haven’t been a witness of any other incidents.

MS HASKETT:  Okay. Is there anything else you want to say to me?

THE INTERPRETER:  Would you like me to say something related to any of those incidents or would you like me to relate my personal opinion of what happened?

MS HASKETT:  As I said, I’m aware of, you being ... present at those incidents, I’ve asked you if there’s anything else that you want to tell me that happened and you’ve said you weren’t a witness to any other incidents, unless there’s anything you want to tell me I’ve got nothing further to ask.

THE INTERPRETER:  Because I haven’t been an immediate witness of any other incidents, I don’t think there is anything else I can say.

MS HASKETT:  Okay, thank you, you may sit in the back of the hearing room.”

Thereafter, there was a short adjournment while the representative of A and B conferred with his clients.  The representative returned and said that B would like to speak further and then this exchange occurred:

“MR RICKARD:  ... I know she has more evidence to give because she’s instructed me extensively about it and so I’d like her to have the opportunity to speak further if she could.

MS HASKETT:  Right, what’s the nature of her further evidence, she’s made it quite clear that she wasn’t a witness - - -

MR RICKARD:  In relation to her own fears - - -

MS HASKETT:  Right.

MR RICKARD:  - - - following upon arrest specifically.

MS HASKETT:  Right okay.

In the course of the evidence these passages occurred: 

“MS HASKETT:  Is there anything else you would like to tell me?

THE INTERPRETER:  So far, I have not told my family about the situation I am involved in. I do not want my family to have anything to do with it because I do not want them to worry themselves to death because of what is happening to us and at no point in my life would I like to put my family in a situation which is painful to them.

MS HASKETT:  When you say you have not told your family about the situation you are involved in, what do you mean? What are you referring to?

THE INTERPRETER:  I told my family about the incident with A’s sister, but I never told them anything about what happened to me. For my parents, A is just a student here and I live with him. I tried to protect my family from my worries because the situation is very difficult in terms of my parents’ health and in terms of some family problems, and this is the only way I have of preserving any peace in my family. Some events in my life leave no doubt as to what would happen to us if we come back. I am nearly 100 per cent sure that the outcome will be very bad.

MS HASKETT:  Okay, thank you.”

The Tribunal was obliged by s 420 to provide a mechanism of review that was "fair, just, economical informal and quick". It was specifically required by section 425 to give the applicants an opportunity to appear before it and to give evidence. Of the provisions in s 425 Burchett J said in Eshetu at 314-5:

“There was debate about the effect of s 425, but some things are quite plain. Subsection (1)(a) was intended to ensure that the primary rule of natural justice, audi alteram partem, receives a measure of recognition. Of course, it would be a very inadequate recognition if the right ‘to appear ... to give evidence’ did not extend to the provision of the evidence of witnesses who might, in some cases, perhaps in many cases, be able to give more significant information in support of the applicant’s case than he could himself. But there are two answers to this problem: the command in s 420 to ‘act according to substantial justice and the merits of the case’ would not permit the Tribunal to ignore available and relevant evidence; and although par (b) of s 425(1) uses the word ‘may’, it provides a clear instance of the use of that word to confer a power which will often involve an obligation. Once the Tribunal ‘considers [it] necessary’ to obtain evidence, Parliament can hardly have meant that it should nevertheless be free to brush aside that necessity.”

An issue in the case is whether the Tribunal gave to B a fair opportunity to give evidence about the facts of the case.  It has been put by Mr Stephen Gageler, counsel for the respondent, that both applicants were given adequate opportunity to put their case and that facts were put both at length in A’s evidence and at length in writing, including by a long letter from the applicants’ solicitor dated 4 September 1996.  The letter covers 25 pages and sets out in detail the facts alleged.

Many of the facts that were relied upon were not within B’s personal and direct knowledge.  However, it seems to me that her evidence as to the facts of which she had personal and direct knowledge would have been relevant and so also would her evidence of the facts of which she had heard from A and any other relevant persons at the time when the events unfolded.  I am satisfied that such evidence would have been admissible in proceedings before an administrative tribunal such as the Refugee Review Tribunal.  It is clear that B had such evidence which she could have given.  She mentioned in her evidence that she had been an immediate witness to certain events and there have been other events of which she had not been an immediate witness, for example,  that she was aware of the position which had occurred with respect to A's sister and she had at the time spoken to her family about it.

The question I think is whether the Tribunal gave to B a fair opportunity to present evidence about these matters.  Mr Gageler submitted that the Tribunal did not prevent B from giving any evidence that she wished to give.  In my opinion, however, the remarks of the Tribunal were so strong a discouragement that B was effectively precluded from giving evidence about facts which would have been relevant to the Tribunal's consideration.

The Tribunal twice said in the passage I set out above, "I don't want to hear about that again”, referring to the facts of which A had spoken.  The Tribunal went on to make it clear that the Tribunal did not wish to hear evidence from B about those matters and that unless B wished to speak about other matters, B should resume her seat in the back of the hearing room.  After the short adjournment, the Tribunal member referred to the fact that B had not been a witness to some of the events.  As I say, I am satisfied that her evidence of what she had been told about those events at the time would have been a relevant matter for the Tribunal to take into account.

In that situation it seems to me that the hearing was not a fair and just hearing and that the Tribunal did not give an opportunity to B, who was an applicant, to appear before it and give relevant evidence.  B was discouraged from giving evidence which would have been appropriate. 

This is an unfortunate case because the Tribunal undoubtedly went to a great deal of trouble to provide procedural fairness and heard from A at very great length.  One can see that the Tribunal might well have thought by the time that B gave her evidence that the length of the hearing had been such that the hearing was no longer economical and quick.  Nevertheless, the faults which showed in A's rambling, unstructured answers to many questions were not a fault which was demonstrated in B's evidence, such as she gave.  Her answers were short and clear.  It would not have taken a great deal of time to hear her evidence. 

I regret that I have come to this conclusion because obviously the Tribunal did give so much time to and put so much effort into the hearing and into the decision.  However, it seems to me that in the end the hearing was not a fair one so far as the applicants were concerned because B's evidence was not heard.  Therefore the decision must be set aside and the matter must be remitted to the Tribunal.

There were other matters raised and I will only mention them briefly.  It has been submitted that the Tribunal did not make an inquiry in relation to some of A's allegations.  The Tribunal in fact did go to a good deal of trouble to make inquiry of the US Embassy in Canberra.  However, the Tribunal declined to write directly to the US Embassy in Moscow. In my opinion it was appropriate that the Tribunal should not do so.  Counsel for the applicant, Mr Craig Colborne, has conceded that the Tribunal itself would have been unlikely to obtain any information from the US Embassy in Moscow but submitted that the Tribunal could have written to the Department of Foreign Affairs and Trade and that that Department, if it saw fit, could through contact between diplomats in Moscow have obtained relevant evidence.  It seems to me that such channels of communication are unlikely to be effective and would be very slow and certainly inappropriate.  In my view that ground has not been established. 

It has further been submitted that the Tribunal erred in relation to the likelihood of imprisonment of objectors to conscription in Russia when the Tribunal said:

“The country information indicates that conscription still occurs, that young men risk imprisonment for refusal to serve, and that some prosecution proceedings have been taken against people who have refused to serve. The more recent Amnesty International Report 1996 refers to two deserters who may have been detained. The information about them is inconclusive and in any event, their situation as serving conscripts who have deserted is distinguishable from the Applicant’s situation. In the end result, the independent information is to the effect that no objectors are known to have been imprisoned.”

Mr Colborne pointed out that there was some evidence in Amnesty reports that objectors had been imprisoned in Russia for refusal to serve in the armed forces.

In my opinion, the overall statement that the Tribunal made, that "young men risk imprisonment for refusal to serve", was a correct statement of the facts.  The last report of Amnesty had shown that an objector had been arrested and, after a complaint by Amnesty, had been released. 

I am not satisfied in this case that the provisions of s 476 with respect to “no evidence” have been satisfied. They require of course three elements: one, that there be no evidence for a finding; two, that the decision was based on that finding and three, that the finding was wrong. It seems to me that, if one were to look into the matter, the evidence would show that the position was very much as the Tribunal put it, namely that people risked imprisonment for refusal to serve.

Finally, there was a complaint that the Tribunal did not refer to a report given by a Professor Gill and a report given by a Mr Matthew Zagor, Refugee Coordinator at Amnesty International Australia.  These reports of course did not deal with the particular circumstances of the applicants, but rather with the question whether matters such as A alleged could occur.  In my opinion, as the Tribunal rejected A's evidence as to what had occurred, the Tribunal was not bound to go on to refer to the reports which, in the end, dealt rather with the conditions which existed in Russia.

I am of the view that the first ground relied upon must be upheld.  Accordingly, the decision of the Tribunal will be set aside and the matter will be remitted to the Refugee Review Tribunal differently constituted to be heard and decided again according to law.  The respondents must pay the costs of the proceedings.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Dated:               4 December 1997

Counsel for the Applicant:	C. Colborne
Solicitor for the Applicant:	Legal Aid Commission
Counsel for the Respondent:	S.J. Gageler
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 December 1997
Date of Judgment:	4 December 1997