Berhane, Yosife v Minister for Immigration and Multicultural Affairs

[1998] FCA 188

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1011  of  1997

BETWEEN:	YOSIFE BERHANE Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE:	5 MARCH 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:  I have before me an application for an order of review of a decision of the Refugee Review Tribunal given on 11 November 1997.  By that decision the Tribunal indicated that it was not satisfied that the present applicant is a refugee and affirmed the decision of the Minister's delegate not to grant a protection visa to the applicant, Mr Yosife Berhane (“Mr Berhane”).

When the matter came on for hearing this morning there was an application for an adjournment which I refused.  I subsequently heard oral submissions from Mr Berhane and considered written submissions which had been prepared and forwarded to me on behalf of the Minister in accordance with the directions which I gave on 6 February 1998.

I then gave to the applicant a brief adjournment to enable him to consider the written submissions although I am told that they had been sent to him yesterday.  He said, however, that he had not seen them.  After that adjournment Mr Berhane indicated that he wished to renew his application for an adjournment to enable him to take legal advice in relation to the written submissions on behalf of the Minister.

Throughout the hearing today Mr Berhane has been assisted by an interpreter and there has been no complaint at all concerning the skill of the interpreter and the assistance which the interpreter has given to Mr Berhane.  I am satisfied therefore that Mr Berhane through the interpreter has understood the nature of the proceedings today.

I then adjourned for a further two hours to enable Mr Berhane to see if it was possible for him to obtain any legal assistance.  Mr Berhane indicated that he had spoken to several people and that he felt that he might be able to get some financial assistance from friends which would enable him to take legal advice.  Accordingly, I have proposed a course which is somewhat unusual but seems to me to be appropriate in the circumstances.

I am not satisfied that Mr Berhane has done everything that ought to have been done in order to get himself ready for the hearing today.  Nevertheless, I am mindful of the fact that Ms Walker, when she appeared this morning, indicated that it was not until yesterday that she was informed that the Bar Association pro bono scheme was not going to be made available for Mr Berhane.

I am not, for the reasons I indicated earlier in the day, satisfied that Mr Berhane is entitled to an adjournment.  However, to ensure that there can be no question but that justice is afforded to Mr Berhane I propose to express my provisional view on the outcome of the proceedings on the basis of the material which is presently before me.  I then propose to have those reasons reduced to writing and made available to the parties.  I then intend to give directions that if Mr Berhane wishes to make any further written submissions in relation to the Minister's submissions or in relation to the reasons which I am about to express, he must do so within seven days of receipt of transcription of the reasons.  I will then stand the proceedings over for final determination several days after that seven day period expires.

Mr Berhane is a 28 year old single man who has said that he comes from Addis Ababa in Ethiopia.  He is a Christian from the Tigrinya tribe and speaks the Amharic language.  Mr Berhane arrived in Australia on 20 February 1997 on a false South African passport.  After it was discovered that his passport was false he was interviewed by a migration inspector with the assistance of a telephone interpreter.

Subsequently on 11 March 1997, Mr Berhane applied for refugee status in this country.  He was interviewed by officers of the Department.  His application was then refused by a delegate of the Minister who indicated in his reasons that he doubted the veracity of Mr Berhane's claims made in the course of those interviews.  The observation was made that there were discrepancies between the statement which Mr Berhane made on arrival in Australia and the evidence which he subsequently provided.

Following the refusal of Mr Berhane’s application for a protection visa, he applied for review by the Refugee Review Tribunal.  The evidence before me indicates that there were two hearings before the Tribunal.  The Tribunal considered Mr Berhane’s claims on the papers and, when it was unable to make a decision favourable to him, offered him the opportunity of attending a hearing.  At the hearing Mr Berhane was represented by a migration agent.

On the first hearing on 2 June 1997, the matter was adjourned apparently because the interpreter then available was not satisfactory.  In his request for a hearing of 16 May 1997 Mr Berhane said that he would like the Tribunal to take oral evidence from himself and from Ghenet Waldu.  He said that he required an interpreter and that his language was Amharic.  He also indicated that he would like Jeanette Krongold, a migration consultant, to accompany him at the hearing.

The hearing on 2 June 1997, was adjourned to 27 June 1997.  On that day Mr Berhane was again assisted by Jeanette Krongold and also by an interpreter.  There is no indication in the Tribunal's record of any dissatisfaction with the interpreter on that occasion. 

In his application for an order of review, Mr Berhane states his grounds as follows:

1.  RRT natural justice is not take inside my account my evidence under the UN how political convention and is not take inside my account I am from ETHIOPIA. 

Section 476(1)(g) (A)-(B) supported by sections 414(1) and (1), 412(A)-(B) to be made for decision. 

Under that sections I did not agree with the RRT natural justice and I would like my cause to be heard by real justice.

2.  The decision involved an error of law, being an error of law involving an incorrect interpretation of application law or an improper application of the law to the fact as found by the decision maker.

That language is less than satisfactory but some allowance must be made for the fact that it was handwritten and prepared by Mr Berhane himself.  He said in evidence that it was prepared with another inmate of the Villawood Detention Centre.

I have jurisdiction to review the Tribunal's decision only the grounds set out in section 476(1) of the Migration Act 1958 (Cth) (“the Act”). The only grounds that are identified in the application are those in paragraphs (e) and (g) although the order of dealing with them is reversed. The ground in paragraph (e) is 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. There is nothing in the application, and nothing has been said by Mr Berhane, to suggest that this ground is likely to be attracted. I have read the reasons of the Tribunal and nothing strikes me as giving rise to an error of law of the nature described in paragraph (e). Indeed nothing strikes me as giving rise to an error of law of any nature.

The other ground identified in the application is paragraph (g), namely that there was no evidence or other material to justify the making of the decision.  That ground must be understood in the light of section 476(4) which provides that that ground is not to be taken to have been made out unless one of two pre-requisites is satisfied.  They are as follows:

(a)The person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material ... from which the person could reasonably be satisfied that the matter was established; or

(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

Before dealing with those grounds, it is necessary to observe that what seems to be Mr Berhane’s concern is that in some way he was denied procedural fairness.  As I have indicated above, the grounds of the application refer to "RRT natural justice."  In the course of oral submissions Mr Berhane also referred to two matters.  The first was that he was denied an appropriate interpreter.  The other was that in some way the inquisitorial function of the Tribunal miscarried because it relied upon material which was inappropriate.

Section 476(2) provides that a breach of the rules of natural justice is not a ground upon which an application may be made under subsection 476(1). On the other hand I am mindful of the terms of section 476(1)(a) as that ground has been construed by this Court. Section 476(1)(a) provides that one of the grounds upon which an application may be made for review is that procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed.

The Full Court of this Court has indicated by a majority that a failure to comply with the terms of section 420 may give rise to a ground under section 476(1)(a) (see Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300). Section 420 of the Act provides that the Tribunal, in carrying out its functions under the Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. However, the Tribunal in reviewing a decision is not bound by technicalities, legal forms or rules of evidence but must act according to substantial justice and the merits of the case.

The Full Court has indicated that a failure to act according to substantial justice and the merits of the case is a failure to observe procedures required by the Act. There has been some disputation amongst members of this Court as to the effect of section 420 in relation to section 476(1)(a). However, for the purposes of this application I consider myself bound by the determination of the Full Court that a failure to review a decision according to substantial justice is capable of constituting the grounds set out in section 476(1)(a). It may be that the two matters to which I have referred could, if made out, satisfy that ground.

I will now deal with each of the three grounds.  The first is that in paragraph (g).  The reference in the application to sections 412 and 414 appears to be somewhat nonsensical insofar as it is designed to identify any ground of review.  Section 412 simply provides that an application for review must be made in the approved form.  There is no doubt that an application has been made and that any time requirements have been satisfied.

Section 414 requires that if a valid application is made the Tribunal must review the decision.  There cannot be any doubt but that the Tribunal has reviewed the decision and has made the decision below.  I have indicated that insofar as Mr Berhane seeks to raise some breach of the rules of procedural fairness or natural justice as a ground of review, he has to contend with section 476(2)(a).

The only basis upon which the matters to which he has referred could justify any review would be if they can be brought to account under section 476(1)(a) and I shall deal with that shortly. I have referred to section 476(4)(a) and 476(4)(b). Mr Berhane has not identified any particular matter which the Tribunal was required by law to establish to reach its decision and of which it is asserted that there is no evidence or other material.

The Tribunal has canvassed a range of factual issues and has decided those issues.  There is nothing in the reasons to suggest that any particular matter was required by law to be established in order to reach a decision that Mr Berhane is not entitled to refugee status.  Further, Mr Berhane has not identified any particular fact within section 476(4)(b) upon which the Tribunal based its decision which is asserted not to exist.  The Tribunal considered all of the claims made by Mr Berhane and provided reasons for the findings which it made in relation to them.  The Tribunal rejected the contentions as to findings which ought to be made rather than make any particular findings of facts upon which the decision was based.  Accordingly, the ground in section 476(1)(g) is not established.

It may be, as is often the case in applications brought by applicants in person, that Mr Berhane does not understand the nature of the review which this Court is authorised to undertake. As I have said already this Court is not authorised to review a decision otherwise than on the grounds set out in section 476(1). In particular, there is no review on the merits by this Court and more specifically it is not open to this Court to review the Tribunal's findings of fact, except to the limited extent to which in making findings of fact the Tribunal acted erroneously as a matter of law.

Nothing has been advanced in support of the ground based on paragraph 476(1)(e) that there has been some error of law.  Even so, of course, the error of law contemplated in paragraph (e) is a narrow one involving incorrect interpretation of the applicable law or incorrect application of the law to the facts as found.  On the material which I have seen, I accept the submission on behalf of the Minister that the Tribunal's findings of fact are sufficiently confident to have satisfied any onus that might arise in determining whether Mr Berhane had a well founded fear of persecution if he returned to Ethiopia.

In that regard it is useful to consider the findings which the Tribunal made.  The Tribunal's reasons record that during the hearing and in letters written following the hearing, the Tribunal informed Mr Berhane that there were a number of problems with the claims which he had made and his comments were sought.  The Tribunal asked Mr Berhane to comment on the discrepancies between the claims made when he first arrived in Australia and those made in his protection visa application as they raise questions regarding the credibility of his claims.  Mr Berhane said that he had been very upset when he was interviewed on arrival and he denied that he had said that his parents had been killed on a train or that he had been followed after his release from jail.  They were the assertions which he is said to have made in his original interview.  He also added that he had had difficulties communicating through the telephone interpreter who was available in connection with that interview.

The Tribunal observed in its reasons that when determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims they have made.  That may involve an assessment of the credibility of an applicant.  When assessing such credibility the Tribunal must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those who are generally credible but who are unable to substantiate all of their claims.  However, the Tribunal said that a decision maker is not required to accept uncritically any and all allegations made by an applicant.  It is not necessary to have rebutting evidence available to the Tribunal before it can find that a particular factual assertion by an applicant has not been made out nor must it accept claims which are inconsistent with independent evidence regarding the situation in the applicant’s country of nationality.  Authorities were cited for those propositions including Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 per Beaumont J at page 278, Selvadurai v Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal (1994) 34 ALD 347. Reference is also made to Shu Min Pan v MIMA, an unreported decision of Nicholson J of 23 January 1997 and to Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 per McHugh J at page 428.

In its reasons the Tribunal recorded that Mr Berhane was not found to be an entirely credible witness.  The reasons disclose that there are serious discrepancies between the claims made by Mr Berhane when he first arrived in Australia and the claims made in his application for a protection visa.  The Tribunal did not accept that errors on the part of the interviewing officer or the interpreter can account for the serious discrepancies between the information provided by Mr Berhane on arrival and later.  The Tribunal noted that during his interview with the Department officer, Mr Berhane interrupted the interpreter on several occasions to correct some details.  Those interruptions indicate that Mr Berhane speaks passable English.  The Tribunal did not accept that Mr Berhane would not have been able to ensure that the substance of his statements was conveyed correctly.

The Tribunal also recorded that Mr Berhane had given different accounts of his father's participation in the Eritrean Liberation Front (“ELF”), a group which was formed in 1961.  Mr Berhane had said that he and his father were members of the ELF Revolutionary Council.  The Tribunal concluded that Mr Berhane's claim that the revolutionary council had a large well-organised underground presence involving hundreds of members in Addis Ababa in the latter half of the 1980s is at odds with other evidence before the Tribunal regarding the situation of the revolutionary council during that period.  The Tribunal also referred to evidence which it had obtained from Dr Ruth Ayob, an academic from the Centre for International Studies in Missouri.  She said that she doubted that the ELF would have had significant presence in Ethiopia following its defeat by the Eritrean People's Liberation Front in Eritrea in 1981 when most members fled to the Sudan.

Material such as that was the subject of a complaint by Mr Berhane to which I will return shortly.  The Tribunal concluded that while it was accepted that it is possible that the revolutionary council may have had some underground presence in Addis Ababa in the late 1980s the Tribunal found that the claim that it was a large well-organised group which held relatively regular meetings involving more than 100 people in private houses was implausible.  The Tribunal also found that the claim that Mr Berhane was able to transport hundreds of Eritreans from Addis Ababa to the north western provinces so that they could cross into the Sudan and fight against the Ethiopian government over a period of several years, without ever experiencing any problems with the authorities by paying bribes, was implausible.

Mr Berhane also gave evidence concerning his arrest and the arrest of his parents.  Again the Tribunal found that that evidence was unconvincing and implausible.  The Tribunal did not accept that Mr Berhane and his parents would have been arrested in mid-1993 or that his parents would have subsequently disappeared merely because they were members of the revolutionary council.  The Tribunal also found to be implausible Mr Berhane's claim that he continued to assist members of the organisation to leave Ethiopia until the end of 1991.  Mr Berhane also claimed that a number of people disappeared while in Kerachele Prison in circumstances which indicated that they were killed.  The Tribunal considered that the claim was at odds with other evidence before the Tribunal.

The conclusion of the Tribunal was that, while individually some of the problems with Mr Berhane's evidence may appear relatively minor, others were more serious.  The Tribunal concluded that the overall pattern of the evidence indicated that Mr Berhane was not a credible witness and had fabricated or greatly embellished the claims on which he had based his application for refugee status. The Tribunal refused to accept that Mr Berhane had fled Ethiopia after escaping from prison in 1995.  Ultimately the Tribunal concluded that Mr Berhane did not have a well founded fear of persecution because of his alleged involvement with the revolutionary council if he returned to Ethiopia.

Those findings are findings of fact based upon the credibility of Mr Berhane assessed in light of all of the evidence which was before the Tribunal.  As I have said, in making adverse findings the Tribunal acknowledged the difficulties facing an applicant for refugee status.  Nevertheless, after taking into account those considerations, the conclusions to which I have referred were reached.  Nothing has been advanced to me so far to indicate that those conclusions were misfounded or were not supported by the evidence which was before the Tribunal.  In the circumstances, on the material presently before me, I do not consider that the ground in section 476(1)(e) has been established.

As I have said, the references to natural justice in the application and the oral submissions made by Mr Berhane may be construed as an assertion of failure to comply with section 420 so as to attract section 476(1)(a). I have described briefly above the manner in which the Tribunal considered Mr Berhane's application. The two matters upon which his oral submissions were based concerned the alleged unsatisfactory interpreter and the decision of the Tribunal to have regard to material which was said by Mr Berhane to be unsatisfactory. There is no statutory entitlement to an interpreter. Section 427(7) of the Act provides that if a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.

If it were apparent to the Tribunal that an applicant did not understand English it may well be incumbent upon the Tribunal to ensure that an interpreter is made available.  I emphasise that it may be incumbent, without having to decide the matter in this case.  Alternatively, if it appeared to a Tribunal that, although an interpreter was present, the interpreter was unable to communicate adequately with the witness or Mr Berhane, that also could be a reason for the Tribunal to intervene to ensure that an appropriate and competent interpreter be available.

However, the only evidence before me indicates that there could be no finding other than that the Tribunal acted with complete propriety in the present case.  There is no evidence before me of any inadequacy of interpretation before the Tribunal other than the assertion from the bar table by Mr Berhane in person.  On the other hand, there is the evidence to which I have referred comprising the Tribunal's file containing hearing information indicating that, when it was apparent that interpretation was not satisfactory, the Tribunal adjourned the hearing until a satisfactory interpreter was available.

I have already referred to the observations made by the Tribunal in its reasons that it had formed the view, as a result of the evidence of the interview with the Department, that Mr Berhane spoke passable English because he was able to correct an interpreter on that occasion. I do not consider that any complaint in relation to inadequacy of interpreters would justify a conclusion that section 420 had not been complied with.

Secondly, it was suggested by Mr Berhane in oral submissions that it was inappropriate for the Tribunal to rely upon the evidence of Dr Ayob.  It was also said that the Tribunal ought to have had regard to information provided by Amnesty International.  Following the hearing, further material was in fact accepted by the Tribunal from Mr Berhane.  Further, additional material obtained by the Tribunal was forwarded to Mr Berhane for his comment.  In addition, there is an indication in the reasons of the Tribunal that regard was in fact had to material made available from Amnesty International.  In the reasons of the Tribunal, reference was made to the fact that the Mengistu government which was in power during the 1980s was an extremely repressive regime which was at war with separatist and anti-government movements and had built up an extensive security apparatus to control the population by the use of surveillance and informers.  Those suspected of being anti-government faced detention, torture, disappearance and possibly death.  Reference was made in relation to those propositions to Amnesty International's “Ethiopia: End of an era of brutal repression - a new chance for human rights”, 30 May 1991.

The Tribunal recorded that, according to the Amnesty International report, Eritreans in Addis Ababa were particularly at risk of being picked up the security police and thousands of Eritreans in Addis Ababa and elsewhere were detained or disappeared due to suspicion that they were involved in anti-government or secessionist movements.  That material was in fact relied upon by the Tribunal for reaching the conclusion to which I have referred above that Mr Berhane's claim that the revolutionary council was a large, well organised group was implausible.

In those circumstances I do not consider that there is any material before me which would support a conclusion that there has been a failure to observe any of the procedures required by the Act to be observed. In particular, I do not consider that anything has been put forward which would suggest that the Tribunal acted otherwise than according to substantial justice and the merits of the case in obtaining evidence, assessing the evidence and reaching the conclusion which it reached. Accordingly, insofar as the ground in section 476(1)(a) is relied upon, I reject it.

On the material presently available to me I would be disposed to conclude that the application should be dismissed with costs.  However, as I have intimated, I will not yet finally dispose of the matter.  The order which I propose to make is to stand the proceedings over part heard before me at 10.15 am. on Monday, 23 March.  I direct that Mr Berhane file and serve no later than 18 March 1998 any further submissions which he wishes to make either in answer to the written submissions of the Minister of 4 March 1998 or by way of response to the provisional views which I have just expressed and I reserve any questions of the costs of the proceedings to date.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:

Dated:             5 March 1998

Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 March 1998
Date of Judgment:	5 March 1998