CDK16 v Minister for Immigration
[2018] FCCA 3626
•13 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CDK16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3626 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (1958) (Act) in relation to decision of Administrative Appeals tribunal (Tribunal) affirming decision not to grant protection visa – whether the Tribunal acted unreasonably in the exercise of power available to it to take oral evidence from persons who had provided written statements – whether the Tribunal made irrational or unreasonable findings of fact – whether the Tribunal manifested actual bias or otherwise conducted its review such as to give rise to a reasonable apprehension of bias – whether evidence given at the Tribunal hearing had been misinterpreted and if so whether any misinterpretation denied the applicant a fair hearing – whether by not disclosing to the applicant the existence of a certificate purportedly issued under s.438 of the Act the applicant was denied procedural fairness – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 65, 414, 418(3), 424, 424A, 425, 425A, 425(1), 426, 427(1)(a), 429A, 438, 476 |
| Cases cited: Abebe v Commonwealth [1999] HCA 14 |
| Applicant: | CDK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2073 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 12 October 2017, 27 November 2017 |
| Date of Last Submission: | 27 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms T Wong |
| Solicitors for the Applicant: | Gilbert + Tobin |
| Counsel for the First Respondent: | Ms R Francois |
| Solicitors for the First Respondent: | Minter Ellison Lawyers |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2073 of 2016
| CDK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a national of Ethiopia, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
The Tribunal’s reasons for decision are extensive, reflecting the detailed submissions that were made and the evidence that was provided to it. The grounds on which remedies are sought in this Court are also extensive, as are the submissions made in support of those grounds. It would therefore be useful if I state at the outset how these reasons are organised. I will first set out the claims for protection the applicant made in a statement dated 12 March 2014 (2014 Statement). Second, I will briefly set out the grounds on which the delegate relied for not granting the applicant a Protection visa. Third, I will refer to the course of the proceeding before the Tribunal. That is particularly relevant because one of the grounds on which the applicant relies is that the Tribunal made a jurisdictional error by failing to take oral evidence from one or more of the ten witnesses who had provided written statements in support of the applicant’s claims, three before the hearing, and seven after the hearing before the Tribunal. Fourth, I will set out the Tribunal’s reasons, emphasising those parts of its reasons that are relevant to the grounds and submissions on which the applicant relies before me. Finally, I will consider each of the grounds on which the applicant relies in light of the submissions the parties have made.
Claims for Protection made in the 2014 Statement
The applicant lodged his application for a Protection visa on 26 November 2013. The applicant provided answers in the form of application for a Protection visa in response to the questions stated in the form, noting, however, that “I will provide my full statement of harms I experienced in that country through my legal aid”.[1] The applicant made his full statement in the 2014 Statement as follows:[2]
[1] CB21-23
[2] CB61-67
a)The applicant belongs to the Oromo ethnic group. Although it is the largest ethnic group in Ethiopia, Oromo have been underrepresented in successive national governments of Ethiopia. The Oromo have been struggling for the last four decades to gain greater representation in government. The Oromo Liberation Front (OLF) has been the most coherent in its vision and has received the support of the majority of the Oromo. Successive governments of Ethiopia have been suppressing the Oromo’s struggle.
b)The ruling party of Ethiopia, the Tigrayan People’s Liberation Front (TPLF), uses its puppet organisation, the Oromo People’s Democratic Organisation (OPDO) in Oromia Regional State to arrest, harass, torture, and assassinate innocent Oromo nationalists. The TPLF formed similar puppet organisations in different regional states of Ethiopia.
c)In 2003 one of the applicant’s brothers (TG) was tortured and intimidated because he was affiliated with OLF members. As a consequence TG developed chronic symptoms of renal failure, headache and fever, and he passed away on a day in September 2003 while he was at the Shambu prison centre.
d)A funeral for TG was conducted on the day after TG died. About two hundred and fifty people attended, and the proceedings were observed by three policemen. The applicant gave a speech in which he said: “You were denied medical attention and your life came to pass after years of suffering. The inhuman treatment and persecution you and other innocent Oromos faced will never be forgotten by your family and millions of Oromos. Dictators will pass and time will come when they will be judged for their human violations”.[3]
[3] CB63, [13]
e)About four hours after the applicant gave his speech at TG’s funeral, the three police officers came to TG’s house and took the applicant to the Amuru district police station. The police questioned the applicant about the speech he made at the funeral ceremony. They told the applicant he was not allowed to talk about the circumstances of TG’s death, and the content of the applicant’s speech in public was against the government and had a political motive. The applicant responded that one day “you guys will be judged for treating human being[s] in an inhuman way and for abusing power to threaten lives”. The applicant was then slapped and repeatedly kicked, and he completely lost consciousness. The applicant was detained for two weeks. During that time the applicant was subjected to arm tying, he was forced to sit over a cold concrete floor for extended periods, and repeatedly interrogated about information the applicant had about the OLF.[4]
f)Another brother of the applicant (GG) also suffered political persecution at the hands of the TPLF because of an imputed connection with the OLF. GG was suspected of having a connection with the chief coordinator of the OLF of a particular district, and the police were looking for him. GG fled to Kenya in October 2003 to save his life. The Ethiopian authorities continued to harass the rest of the applicant’s family. After TG’s death the authorities continued to take the applicant’s father to the police station, and intimidated him several times. In December 2003 the applicant’s father, mother, and sister were arrested by security police and detained for about two months in relation to the disappearance of GG.
g)In 2004 when the applicant was working at a college (College), cadres of the OPDO requested the applicant to take part in the 2005 national election campaigns.[5] The applicant was told that if he did so he would get a position, access to further education, and other benefits from the ruling party. The applicant refused. Because he refused, in November 2004 the chairperson of the OPDO cadres at the College called the applicant into his office and interrogated him. The chairperson accused the applicant of having a hidden agenda against the government, and that if the applicant refused membership of the OPDO he would not get a promotion or access to further study, and he would be fired from his job. The applicant became aware from his students that the OPDO cadres were collecting information about what the applicant spoke to his students. Some students informed the applicant the chairperson of the OPDO cadres contacted them and asked questions about the applicant’s political opinions.
h)In June 2005 the applicant participated in a protest that took place at the College in which he worked “over the alleged electoral fraud”. In the evening of that day, the security police came to the applicant’s house. He was handcuffed, blindfolded, and taken away to a detention centre. The applicant was kept at the detention centre for three weeks where he was repeatedly interrogated, beaten, and subjected to starvation.
i)In 2009 the applicant joined a university (University) to study a two year Master’s of Science degree.[6] At that time the applicant was an active member of Oromo People’s Congress (OPC). In February 2010 the OPC held a meeting with its members from the University. The applicant was a member of the organising committee. On the day after the meeting the applicant “was snatched from” his dormitory by two persons wearing federal police uniforms, and taken to the federal police temporary office located at the University. The applicant was continually hit with a long black stick. He was then taken to the police station where he was subjected to interrogations, intimidation, and beatings. The applicant was released on the condition he would appear when summoned by security officials. After that time the OPDO spy at the University placed the applicant under surveillance.
j)In May 2011 the applicant was employed and placed in a particular project at the University (Project).[7] That involved the applicant travelling to remote areas where he would work with rural communities, conduct meetings and consultation workshops with farmers. The applicant frequently travelled for field work, and close contact with farming communities was seen negatively by the OPDO cadres at the University.
k)On 15 August 2013, in an area in which the applicant was conducting a farm survey, a dispute occurred between farmers and government militias due to the farmers being forced to participate in extended government political meetings. The government militias warned the applicant to leave the site. The applicant returned home. The government’s secret police then came and searched everything in the applicant’s house, and threatened to kill the applicant unless he volunteered to tell them he was involved in mobilising farmers against government militias. The applicant was taken away and held in a detention centre for ten days where he was beaten, and told he had two days to tell them the information they were looking for or they would kill him. The applicant begged one of the officers there was nothing the applicant did with the farming community “with regards to political activity”.[8] After failing to find solid proof against him, the applicant was released on the condition that he report to the police daily. The applicant did so, and every time he went the police humiliated him by asking whether it would not be better if the applicant told them the information and forget about the need to come and report.
l)The applicant continued to suffer persecution at his place of work at the University. The OPDO informants continued to come and watch everything the applicant did with the farming community. On 4 September 2013, while travelling by car to a project site where the applicant was working, he was followed by two persons wearing civilian clothes on a motorbike. They remained at a far distance until the applicant finished his consultation with the farmers. On the following day one of the farmers told the applicant that the persons who followed him were from the security forces, and they asked the farmer the contents of the meeting.
m)In September 2012 the applicant submitted an online application for a training program in Australia. At the time of his application the applicant held a passport that had been issued in 2008. In March 2013 the applicant was notified that he was selected for the training program, and he travelled to Australia.
n)In October 2013, after he arrived in Australia, the applicant’s wife informed him that security forces came to the applicant’s house and interrogated her about the applicant’s whereabouts, and the date of the applicant’s return.
[4] CB63, [13]
[5] CB64, [16]
[6] CB65, [22]
[7] CB65, [24]
[8] CB66, [25]
In his interview by the delegate on 26 March 2014 the applicant said his maternal uncle was an OLF fighter which made his family a regular target for Ethiopian authorities after any OLF-related incident.[9]
[9] CB88
Delegate’s reasons
The delegate refused to grant the applicant a Protection visa because the delegate did not accept the applicant’s claims were credible. The delegate relied on three principal matters:
a)The delegate accepted country information which showed that the Ethiopian government is known to harass and disrupt the careers of those it suspects of supporting the OLF, but found that the applicant’s career in Ethiopia was inconsistent with that information. The delegate referred to the applicant holding a Bachelor of Science degree awarded by a particular university in 2003, a Master’s of Science degree awarded in 2012 by another university, in 2006 he was employed as a junior researcher by a particular research centre, and he was employed at the University in an overseas funded project.[10]
b)The delegate did not accept the applicant made the statement he claims he made at TG’s funeral because it was unconvincing and implausible that, even if in a distressed state of mind, the applicant would make politically inflammatory remarks in a public forum, knowing police were present.[11]
c)The applicant had no difficulty departing from Ethiopia, indicating he was not of adverse interest to the Ethiopian authorities.[12] That finding was premised on the delegate’s not being satisfied that the local authorities who had detained the applicant would not have shared intelligence with Ethiopian federal authorities.[13]
[10] CB98
[11] CB100
[12] CB100
[13] CB100
Before the Tribunal
By letter dated 20 January 2016 the Tribunal invited the applicant to appear before it on 8 March 2016 to give evidence and present arguments.[14] On 26 February 2016 the applicant’s representative provided to the Tribunal by email a “Response to hearing invitation – MR Division”.[15] By that form the applicant requested the Tribunal take oral evidence from three persons; ABE, TA, and AVK. Although the document requested the contact details of the persons from whom the applicant requested the Tribunal take evidence, those details were not provided. Instead the words “to be provided on request” were written.
[14] CB130
[15] CB148
Material provided to the Tribunal before the hearing
By email sent on 29 February 2016 the applicant’s representative provided to the Tribunal statements of AVK, ABE, and TA.[16]
a)In his statement,[17] AVK says he lives in the Netherlands; from 2010 until 2014 he was project manager of the Project which employed staff through third parties, most often through partner universities in Ethiopia; the staff belonged to innovation teams set up at “our” partner universities; those teams would work closely with farmers to raise production in a sustainable way; between 2010 and 2014 he visited the University to interview candidates for the Project; although he does not recall interviewing the applicant, the applicant’s name “rings a bell” and that from his notes AVK talked to the applicant on a particular day in June 2011, and he recalled the applicant received a scholarship to study in Australia. Decisions about whom to employ in the Project were taken together with staff of the University. The employment criteria were based solely on the candidate’s professional skills and experience, personal attitude to the job, and ability to speak the local language. As far as AVK is concerned the government of Ethiopia did not have any influence on who could be employed on the Project.
b)In his statement,[18] ABE said he comes from a politically active family, with both his parents having been members of the OLF. After the Ethiopian People’s Revolutionary Democratic Front (EPRDF) came to power in 1991 ABE’s father was arrested and jailed for having supported the former president, and ABE’s family were persecuted. In 2008 ABE himself was arrested, locked up, and interrogated. ABE has known the applicant since he was a child; and one of the applicant’s brothers is married to ABE’s sister. In 2003, when ABE was fourteen years old and living in Addis Ababa, ABE’s mother told him she attended TG’s funeral; TG had died in prison; at TG’s funeral the applicant had made an angry and emotional speech about TG; and when they were at TG’s house the police arrived, and arrested and took away the applicant. In 2010 ABE, when he was in Australia, had a telephone conversation with a friend in Ethiopia in which the friend told ABE the applicant was studying for a Master’s Degree at the University, and that he had been arrested, although he did not know why he was arrested, but maybe because the applicant was a supporter of the OPC. In 2013, during another of his calls back to Ethiopia, another friend told ABE the applicant was arrested, but no one knew where he was.
c)There is a statement that, I infer, the applicant claimed to be of TA.[19] The statement, however, begins with the sentence “My name is T”. TA said he lives in Addis Ababa. He met the applicant in 2009 at the University where he and the applicant were postgraduate students. He later joined the Project. TA knew the applicant was a member of the OPC. The applicant was involved in the OPC. He helped organise political campaigns and meetings. In 2010 the applicant disappeared for a few days. TA later heard the applicant had been arrested because of his activities with the OPC. When TA saw him again, the applicant told TA he had been arrested and beaten. In 2010 the applicant disappeared again. The applicant’s wife told TA the police had come to their house, conducted a search, and took the applicant away. A week later, after the applicant returned to work, he told TA he had been handcuffed, taken to a police station, and detained. The applicant told TA he had been accused of being involved in anti-government activities while engaging in field work with farmers. TA said he would be happy for the Tribunal to contact him by telephone but “due to the fact that Ethiopian authorities sometimes monitor calls and other communications, I may need to be cautious about the level of detail I provide”.
[16] CB151
[17] CB186-187
[18] CB188-190
[19] CB185
By the email sent on 29 February 2016 the applicant’s representative also provided to the Tribunal a supplementary statement of the applicant (Supplementary Statement) and a letter dated 29 February 2016 from the applicant’s representatives containing submissions.[20] In the Supplementary Statement the applicant says he provides more detail of his claim and “updated information that I have learned about in the 2 years since I made my first statement”.[21] The applicant also gives further details of the death of his brother, TG, the applicant’s first detention in 2003, the applicant’s employment at the College, the applicant’s second detention in 2005, the applicant’s third detention in 2010, and the applicant’s fourth detention in 2013.
[20] CB151
[21] CB172, [2]
The applicant’s representative’s submissions dealt with a number of matters:
a)First, the submissions refer to country information about Oromians which shows that Ethiopia has continued to “ruthlessly target” Oromians for suspected links to the OLF, the killing of persons involved or perceived to be protesters, the targeting of influential Oromo, including prominent Oromo businessmen, teachers, professors, and numerous singers and artists.[22]
b)Second, the submissions addressed the delegate’s not accepting that the applicant made a speech at TG’s funeral. It was submitted the delegate omitted additional information the applicant had given. The submissions set out a passage from the Supplementary Statement in which the applicant says that, at first, he did not see any police but when he did he assumed the police were there “to mourn my brother as we had extended family who were members of the police force”, and he did not turn his mind to the possibility they were police spies.[23] It was submitted that what emerges from the Supplementary Statement is that the applicant was only 20 years of age, not politically active or especially knowledgeable, and he was highly emotional from having observed his brother’s mistreatment.[24] It was submitted that it is “not reasonable or rational to conclude that [the applicant] did not make the speech at the funeral as claimed”.[25]
c)Third, it was submitted the delegate erred in assuming that because the applicant was admitted into a Master’s Degree and was able to find work on a number of occasions, it followed he was not somebody who had come to the attention of the authorities. The submissions referred to a passage from the Supplementary Statement that it was not a requirement of his employment that he join a political party, and that it “is in fact common for people who belong to minority parties to be employed in positions which were backed or affiliated with Government”, but “they faced discrimination in their job”.[26] It was then submitted that country information reveals that a number of highly prominent Oromo political activists have had successful academic and professional careers and have been allowed to travel abroad, but have ultimately been arrested, detained, and tortured. The submissions refer to the examples of Bekele Gerba and Dr Merera Gudina.
d)Fourth, it was submitted there was no reason why local authorities would have shared intelligence with federal authorities because the applicant claimed he was released without any charges having been laid.
[22] CB158-159
[23] CB162
[24] CB162
[25] CB162
[26] CB163
Hearing before the Tribunal
Near the beginning of the hearing the Tribunal referred to two overseas witnesses who had provided statements, and that the applicant’s representative would provide their contact details. The Tribunal said that one of the witnesses expressed concern about calls being monitored, and the Tribunal member was not sure it would be appropriate to contact him. The Tribunal also said it was not sure whether it would contact the other two witnesses.[27]
[27] Affidavit of R Cao, 22.09.2017, pages 4, 6.9
During the hearing the Tribunal raised with the applicant a number of matters, including the following:
a)The applicant did not include in the 2014 Statement any reference to the applicant’s uncle being in the OLF. The applicant’s explanation was he was on his own, and he did not have a legal adviser.[28]
[28] Affidavit of R Cao, 22.09.2017, page 13.7
b)The Tribunal might have difficulty accepting that at an event such as the funeral of TG, a person who had been accused of being a member of the OLF, the applicant would say the sort of things he claims to have said, given there were three police officers present.[29]
c)The Tribunal asked the applicant how he obtained a job in October 2003 as an instructor at a college, given there is country information that the public sector in Ethiopia is highly politicised and party membership can be a factor in appointment, and also when, as the applicant claimed, the applicant’s family members were accused of connections with the OLF. The applicant said that “when it comes to hiring, you will apply for it and go through normal procedures and job interviews, you will get the job”, but “after that, there is discrimination”.[30]
d)The Tribunal said that, given the applicant’s employment history generally, it might have some difficulty in accepting the claims the applicant made that while employed at the College the applicant refused demands made of him to join the OPDO, the applicant was subjected to threats, and he was being monitored.[31]
e)The applicant did not in the form of application for a Protection visa mention he was a member of the OPC. The applicant said he put it in the 2014 Statement, and “on the form there was not enough space for my claims”.[32]
f)That the applicant did not produce an OPC membership card might cause the Tribunal some concerns and doubts about whether the applicant has a genuine membership card.[33]
g)The Tribunal might have some “concerns and doubts” about how the applicant was able to get into a master’s programme given a report the Tribunal had seen which states the Ministry of Education gives preference to students loyal to the EPRDF, and that EPRDF has said that not everyone can study for a master’s degree at government universities without its goodwill.[34]
h)The Tribunal said it might have some doubts that, given the applicant worked in an agricultural institute until 2011, he was involved in activities including meetings and activities associated with the election, and then arrested.[35]
i)The Tribunal said it might have some difficulty accepting the applicant’s evidence about being arrested after meeting with the farmers in August 2013 because the Project was a government project, and after the applicant claimed he was detained and beaten, and he claimed to have feared for his life, the applicant returned to his work.[36]
j)The Tribunal referred to the statement claimed to have been made by TA, noting the statement does not have a name on it, and also noting that the Tribunal did not think it could call him because of TA’s concern about being monitored.[37]
k)After ABE gave evidence, the Tribunal said that ABE is someone related to the applicant, his evidence might seem reasonably vague, he did not know when the applicant was detained, he did not seem to have followed up and find out information about the applicant, and that might seem surprising if he knew about the applicant’s detentions.[38]
[29] Affidavit of R Cao, 22.09.2017, pages
[30] Affidavit of R Cao, 22.09.2017, page 18.2
[31] Affidavit of R Cao, 22.09.2017, page 20.7
[32] Affidavit of R Cao, 22.09.2017, page 22.9
[33] Affidavit of R Cao, 22.09.2017, page 22.4
[34] Affidavit of R Cao, 22.09.2017, page 22.9
[35] Affidavit of R Cao, 22.09.2017, page 25.2
[36] Affidavit of R Cao, 22.09.2017, pages 27.9-30.7
[37] Affidavit of R Cao, 22.09.2017, page 36.3
[38] Affidavit of R Cao, 22.09.2017, page 40.5
Towards the end of the hearing the applicant’s representative made a number of submissions. One related to the applicant’s membership of the OPC. The Tribunal had earlier asked why the applicant had not provided any evidence of his membership with the OPC. The representative said he had received “a membership document” but had omitted to provide it to the Tribunal.[39] In response to the Tribunal’s question whether there is any reason why “it wasn’t provided even at the primary level”, the applicant’s representative said he would “respond to that in written submissions”, although the representative did say there “would be many reasons why it might have been the case”.[40] The Tribunal member said:[41]
Well I’d have to think about how much weight I can give to that. I mean you’re probably aware that there is information which suggests a high rate of document fraud in Ethiopia. Now I haven’t seen the document, I’ll need to look at the document on its merits but I might have some concern about a document that is produced so late in the process and why, if it’s a genuine document, it wasn’t produced earlier.
[39] Affidavit of R Cao, 22.09.2017, page 43.8
[40] Affidavit of R Cao, 22.09.2017, pages 43.10-44.1
[41] Affidavit of R Cao, 22.09.2017, page 24.2
The representative also made submissions in relation to TA. The representative said:[42]
If however your information [sic: perhaps “inclination”] is to say that other evidence outweighs the evidence of that statement, my submission is that that’s a conclusion that can’t be drawn safely or even at all, before that evidence has had an opportunity to be tested and I would ask that you please arrange (and I’m going to have to provide contact details), I ask you to please arrange an interview with him so that that can happen.
[42] Affidavit of R Cao, 22.09.2017, page 44.8
The Tribunal said its inclination “at this stage” was that it did not “intend to do that”.[43]
[43] Affidavit of R Cao, 22.09.2017, page 44.8
Post-hearing submissions and events
On 9 March 2016 the applicant’s representative sent an email to the Tribunal attaching “PDF copies of the OPC documents referred at the hearing”.[44] That was a reference to two documents. One is a document dated 25 November 2014 purportedly written by a person who describes himself as a “founder and Chairman of the Oromo Federalist Congress (OFC), an organization [sic] created out of a merger of the former Oromo National Congress (ONC)/Oromo People’s Congress (OPC) and the Oromo Federalist Democratic Movement (OFDM)” (OFC Letter). The document states the applicant “became our member in 2008” at the College, and that he continued his association with OPC after he joined the University. The other document is an untranslated membership card for OPC (Purported OPC Membership Card).[45] The email stated that “[s]usbmissions will be made about the evidentiary weight and the authenticity of these documents in due course”, and that the representative is “arranging to receive originals so that they are available to the Tribunal for forensic testing if required”.
[44] CB196
[45] CB199. A translation is at CB204
By email sent on 5 April 2016 the applicant’s representative provided detailed submissions (5 April Submissions) together with additional evidence.[46] That consisted of a second supplementary statement of the applicant which addressed the “dob-in letter”.[47] It also consisted of the following statements:
a)A statement from BD stating he was born in 1981 in Ethiopia; he knew the applicant and TG; in 2000 BD fled to Kenya and in 2003 left Kenya and moved to Canada; after moving to Canada he used to have telephone calls with his family in Ethiopia in one of which he heard TG had been tortured by government security forces and died in a particular prison; in 2010 BD returned to Ethiopia and met the applicant in Addis Ababa; the applicant told BD he was organising students to support Oromo rights and freedom in Ethiopia, and that he had been arrested and imprisoned; after the applicant arrived in Australia he told BD that he had been involved in the OPC, and the applicant did not tell BD when he was in Addis Ababa because BD believes the applicant feared for his safety.[48] The statement is contained in what appears to be an email sent on 5 April 2015 and bears the printed words “signed” followed by the name of BD. The document does not, however, bear any handwritten signature.
b)An unsigned statement from BN stating he was born in 1978; BN knew the applicant, TG, and their family because BN and the applicant’s family lived in the same town in Ethiopia; he attended the same school as the applicant and TG, and he was in the same year as TG; BN heard from “the small local community – either through family or friends” that TG was arrested and imprisoned; people said TG was arrested because he had links to or was a member of the OLF; BN visited TG in prison a couple of times, recalling one occasion in 2002 when TG told BN he had been beaten by police while they interrogated him about whether he knew people working for the OLF; TG passed away in 2003 and travelled to attend the funeral but by the time he got there the funeral “was nearly over”; BN’s family were at the funeral and they told him , “I think”, the applicant made a speech about TG’s history, about the fact he was jailed, how he suffered and died; later BN heard “from friends in the community” the applicant had been in trouble from government security forces and had been jailed.[49]
c)A signed statement from RO stating he knows the applicant and his deceased brother, TG, because “we are members of the same extended family”, although he is considerably older than both. He says that he left Ethiopia in 1997 and went to the United States of America. A few years after he went there he heard “during one of my telephone calls to Ethiopia” that TG had been imprisoned because he was believed to be a political activist in support of the Oromo people. In 2003 “in calls with my family and friends in Ethiopia”, RO heard TG had been killed in jail by government security forces.[50]
d)An unsigned statement from JA stating he was born in 1980 in Ethiopia; he knows the applicant and TG because “we grew up in the same town”; JA moved to the United States in 2006; and while working in Ethiopia he heard from his parents the applicant was jailed because he was suspected of being involved in his brother’s political activities.[51]
[46] CB207-251
[47] CB227
[48] CB229-230
[49] CB231
[50] CB232
[51] CB233
The 5 April Submissions also referred to the “OPC documents” that were provided to the Tribunal on 9 March 2016.[52] The submissions refer to the Tribunal’s having asked the applicant at the hearing whether he held an OPC membership card, and, when the applicant responded that he did, the Tribunal referred to the high rate of document fraud in Ethiopia; and that the applicant had by that stage already explained to the Tribunal why he had not previously produced the document, namely, that “he had not wanted to carry his OPC membership card with him when he left Ethiopia in case he was searched at the airport”, that the “card was sent to him from Ethiopia sometime after he made his primary application”. After suggesting that the Tribunal might not be “bringing an open mind to the question of the authenticity of the OPC membership card”, the 5 April Submissions refer to the provision to the Tribunal on 9 March 2016 of “a copy of the OPC membership card” and the letter from the OFC dated 25 November 2014. The 5 April 2016 Submissions stated:[53]
The Tribunal asked questions about the late submission of this letter. As mentioned at the hearing, this letter was provided to us by [the applicant] when we were first engaged by him in early 2015 but was, by reason of oversight on our part, omitted from the material we provided with our submissions dated 29 February 2016. No adverse inference can be drawn against [the applicant] in relation to this oversight, which was entirely ours.
[52] CB212
[53] CB212
By further emails the applicant’s representative provided the following additional statements:
a)A signed statement of AJ stating he was born in 1956; AJ knew the applicant and TG because “I am friends with their father and we lived in the same district in Ethiopia”; AJ left Ethiopia in 1976, moving to Canada in 1983; and in 2008 JA went back to Ethiopia and met the applicant briefly who told him that the government arrested TG for political reasons, that TG died in prison in 2003, having been mistreated and beaten there, and the “police were constantly watching his house and family”.[54]
b)A signed statement from the applicant’s brother (GG) stating he was born in 1984 and is the younger brother of the applicant and TG; in 2000 TG was sent to prison “because of his supposed connections to” the OLF; the applicant used to visit TG in jail; an uncle also had OLF connections who joined the OLF in 1998 “and never came home back since then”; GG was questioned by police “quite often” about his uncle and also about TG; in 2003 TG died while in prison and GG attended TG’s funeral where the applicant made a funeral speech and made remarks about how TG had been badly treated in prison; there were a couple of policemen, “[w]e had thought they were there to share in our grief”, but they turned out to be police informants; when they returned to TG’s house the police came and took the applicant to the police station to be interrogated; GG feared it would be his turn to be detained and he fled Ethiopia after he heard from friends that the police had come to his parents’ home looking for GG; GG spent ten years in a UNCHR camp in Kenya, assessed to be a refugee, and in 2014 he resettled in the Netherlands; and GG had no contact with his family before he resettled in the Netherlands .[55]
c)A signed statement by HB stating he was born in 1978; he knows the applicant and TG because they lived in the same town in Ethiopia; in around 1999 or 2000 TG was arrested by government security forces and imprisoned; he knows this because he heard what happened from members of his family and from other people within the community; TG was arrested because the government accused him of supporting the OLF; HB left Ethiopia and stayed at a UNHCR refugee camp for a number of years before he settled in Canada in 2009; HB used to call his family from the UNHCR camp from time to time and during one of those calls he was told of TG’s death.[56]
d)A signed statement by GG2 stating he was born in 1977 in Ethiopia; he knows the applicant and his family because they grew up in the same area; in 2003 he was living away from home but he would come back and visit from time to time; on one of these visits GG2’s brother told him TG had died in prison and that GG2’s family had gone to the funeral, and that members of TG’s family had made speeches about how TG was killed; during that visit GG2 heard “either from my family or from others within the community” that the applicant had been accused of being anti-government and had been arrested because of what he had said about TG’s death in jail; and the applicant’s family, including his brothers and cousins, were suspected of being OLF supporters.[57]
[54] CB238
[55] CB241-243
[56] CB245-246
[57] CB251
Tribunal’s reasons
The Tribunal considered that the applicant’s evidence about the difficulties he experienced in Ethiopia “is lacking in credibility in a number of regards”. The Tribunal found “aspects of the evidence to be at odds with independent evidence about the treatment of people suspected of involvement in organisations such as the OLF”, and that there “are other aspects of [the applicant’s] evidence which further undermine the credibility of his claims”.[58]
[58] CB409-410, [95]
Claimed events of 2003
The Tribunal found the applicant’s claims and evidence about the events in 2003, and the matters concerning the OLF, to be lacking in credibility.[59] The Tribunal did not accept that the applicant’s uncle was involved in the OLF; that members of the applicant’s family were harassed or detained in relation to suspected involvement with the OLF; that the applicant’s brother, TG, was detained in 2000 or died in prison; the applicant gave a speech at TG’s funeral or was subsequently detained, as claimed; that the applicant’s brother, GG, left Ethiopia in the circumstances claimed, or that members of the applicant’s family were in any way harassed; or that the applicant was suspected of being associated with the OLF from around 2003, as claimed, or other members of his family were, or suspected to be, members or supporters of the OLF. [60]
[59] CB422, [127]
[60] CB422, [125]
The Tribunal referred to or relied on a number of matters. First, the Tribunal found that country information it identified about how Ethiopian authorities deal with persons who are or who are imputed to be associated with the OLF “does not appear to sit comfortably with the applicant’s ability to obtain a higher degree and maintain public sector employment over a lengthy period in spite of his claimed difficulties, including suspicions of OLF links and difficulties associated with involvement in the OPC”.[61] The Tribunal noted the applicant’s evidence indicated he had been able to obtain a high level of education in Ethiopia, and work in a number of jobs, including jobs in the public sector.[62] The Tribunal referred to, and accepted, the applicant’s evidence that he studied at a university from October 1999 to July 2003, receiving a Bachelor of Science; the applicant studied at the University from October 2009 to November 2011, obtaining a Master’s of Science; the applicant was an instructor at the College from 2006 to 2009; the applicant was an assistant researcher at an institute (Institute) from 2006 to 2011;[63] and the applicant worked at the Project from May 2011 to September 2013.[64]
[61] CB411, [100]
[62] CB409, [94]
[63] The Tribunal noted that the applicant “later sought to correct this evidence to indicate that he was at the . . . Centre [sic] from 2006 to 2009.” CB409, [94]
[64] CB409, [94]
The country information to which the Tribunal referred, and which it considered did not sit comfortably with the applicant’s education and employment history, included the following:
a)A Human Rights Watch report published in 2005 which referred to “thousands of Oromo on charges of plotting armed insurrection on behalf of the OLF”, and noting the report included information on the government’s use of arbitrary detention against those accused of supporting or being members of the OLF, and torture and other forms of mistreatment against individuals who are arrested on suspicion of OLF-related activities.[65]
b)The US Department of State Country Report on Human Rights Practices of 2003 indicated the Ethiopian government continued to arrest and detain persons arbitrarily, particularly those suspected of sympathising with or being members of the OLF.[66]
c)An International Crisis Group Report of 2009 reported that if a person is believed by the authorities to be associated with the OLF that person’s family members often also fall under suspicion of being associated with the OLF, and that harassment of family members can continue after the death of the first family member suspected of association with the OLF.[67]
d)The UK Home Office Operational Guidance Notice: Ethiopia, issued in November 2013 which found that “OLF members and sympathisers and those specifically perceived by the authorities to be such members or sympathisers, will in general be at real risk if they have been previously arrested or detained on suspicion of OLF involvement”, and so “too will those who have a significant history, known to the authorities, of OLF membership or sympathy”.[68] The “Operation Guidance Notice” also stated that the government administered tight control of the entire state, and in general internal relocation to escape that persecution will not be an option.[69]
e)A report contained in “Stiftung’s Transformation Index 2014” that the civil service in Ethiopia is highly politicised, that attaining employment is closely linked with membership of the EPRDF, and that employment in a public sector job is associated with being a member of, or close to, the ruling party.[70]
f)A US Department of State Report of 2013 referring to reports of teachers and other government workers having their employment terminated if they belonged to opposition parties, although also noting that members of Medrek and its constituent parties were able to teach.[71]
g)A report of the International Crisis Group that selection for state-sponsored education requires being a member of, or being close to, the party.[72]
h)A US Department of State Report of 2013 reporting that the ruling party gives preference to students loyal to the EPRDF in assignments to postgraduate programs.[73]
i)A report from the Daily Monitor stating: “One thing the [EPRDF] has said openly: not everyone can study for a master’s degree at government universities without its goodwill. This is bolstered by the recruiters who go around telling students, “let alone a second degree, you will not even find a job unless you are a member.””[74]
[65] CB410, [96]
[66] CB410, [96]
[67] CB410, [96]
[68] CB410, [97]
[69] CB410-411, [97]
[70] CB411, [98]
[71] CB411, [98]
[72] CB411, [99]
[73] CB411, [99]
[74] CB411, [99]
In finding that the applicant’s employment history did not sit comfortably with the country information to which it referred the Tribunal addressed the cases of Mr Gerba and Mr Gudina. In the case of Mr Gerba the Tribunal noted that when he was imprisoned his wife, a high school teacher, lost her job; and Mr Gerba was dismissed from his post as a teacher in 2005. Although the Tribunal said it may be that Mr Gerba was able to teach at two private universities, “the information indicates that the accusation of suspected association with the banned OLF led Mr Gerba to be imprisoned for four years and he was subsequently rearrested later in 2015”.[75] The Tribunal also referred to Mr Gudina holding a role until 2015. The Tribunal said:[76]
However, this is not inconsistent with information such as that from the US Department of State which indicates that, at university level, members of parties such as Medrek were able to teach. Nevertheless, the US Department of State refers to the dismissal of other government workers, including teachers in other contexts, and indicates that both public sector employment and access to postgraduate opportunities are highly politicised.
[75] CB413, [105]
[76] CB413-414, [105]
Second, the Tribunal found that the applicant’s evidence about his claimed connection with the OLF and his family’s connection with the OLF “appears to have expanded greatly over time”.[77] The Tribunal referred to the applicant claiming at the hearing that ever since his maternal uncle joined the OLF, the government soldiers intensified their suspicions in relation to his family; they used to come at any time to search his family’s home, and they searched his house countless times. The Tribunal also referred to the applicant’s not having referred to these visits in his 2014 Statement. After referring to the submissions the applicant’s representative made about the applicant’s not including in the 2014 Statement a reference to his maternal uncle joining the OLF the Tribunal said:[78]
However, the applicant is an educated person who, particularly in the statement of 12 March 2014, set out his claims at some considerable length, including in a section headed “Persecution of my Family”. He referred in his statement to matters affecting other members of his family and related them to himself. In this context, he described his brother, [TG], as becoming “the first victim in our family in . . . 2003.” If his uncle had been involved in the OLF, this would have been a matter of very obvious relevance in terms of the risk to him and other family members. Indeed, on the applicant’s evidence, this is a matter at the very core of his claims as it was his uncle’s involvement that generated the interest in his family and that he claims led to the targeting of his brothers and ultimately himself.
[77] CB416, [110]
[78] CB416-417, [112]
Later in its reasons the Tribunal referred to GG’s statement,[79] noting that it referred to the uncle’s connection with the OLF, the harassment and questioning from police, and GG’s having fled Ethiopia to Kenya following the applicant’s funeral speech because he feared he would be the next member of the family to be arrested. The Tribunal, however, did not find GG’s statement to be reliable because there was no satisfactory explanation why, in the circumstances set out in GG’s statement, the applicant was able to take up employment at the College, work there until 2006, obtain employment at the Institute, and complete a Master’s Degree at the University.[80]
[79] CB241
[80] CB419, [118]
Third, the Tribunal found “aspects of the applicant’s claims in relation to the events at his brother’s funeral are on their face difficult to accept”,[81] and lacking in credibility.[82] Although the Tribunal did not consider it decisive, the Tribunal found it would have been obvious even to a young man without political experience that there would have been an extremely high level of risk associated with making a speech of the type the applicant said he made at a public funeral, given that (as claimed) TG had been detained by the Ethiopian authorities for three years and died in prison because of mistreatment.[83] The Tribunal found the explanations given by the applicant for making the speech “to be even more problematic”. The Tribunal found that, given TG died at the hands of Ethiopian authorities, the presence of three police officers would have aroused suspicion. Further, the Tribunal found “very much lacking in credibility the suggestion that people at such a funeral would regard uniformed police at such an occasion as being mourners or would not appreciate the possible consequences of making such a speech in front of police”.[84]
[81] CB417, [113]
[82] CB422, [127]
[83] CB417-418, [114]
[84] CB418, [114]
In finding the applicant’s claim about the events of 2003 lacked credibility, the Tribunal considered the statements on which the applicant relied, but it did “not accept this material to be reliable”.[85] In this context it made the general finding that the “Tribunal is unable to reconcile the matters referred to in the witness evidence with the applicant’s own subsequent experience in relation to matters such as education and employment”.[86] The Tribunal made additional findings in relation to particular statements.
a)In relation to the statement of BN,[87] the Tribunal noted that he stated that although he could not remember TG’s age when he was imprisoned, he said TG was “at most aged in his early twenties when this happened”.[88] BN further said that he was born in 1978 and also says that he was in the same year at school as TG. The Tribunal found this to be at odds with the applicant’s evidence that TG was 30 years of age when he was detained in 2000.[89]
b)In his statement,[90] Mr BD said he was born in 1981 and he and TG were one year apart. The Tribunal found that to be inconsistent with the applicant’s evidence that TG was 30 years of age in 2000 when he was imprisoned, which meant that TG would have been born in 1970.[91]
c)The Tribunal found the statements made by GG2,[92] RO,[93] and AJ,[94] to the extent they state the applicant’s family faced harassment and surveillance from the police, difficult to reconcile with the employment and educational circumstances of the applicant.[95]
d)The statements of BD and JA are not signed. In the case of BD, no explanation had been given why, if BD was living in the United States and was apparently able to organise a statement to be emailed, he would be unable to arrange for a signed statement to be provided to the applicant or his representative; nor was there any explanation why JA, who also claimed to be living in the United States, would be unable to arrange to provide a signed statement.[96]
[85] CB419, [117]
[86] CB419, [117]
[87] Being the statement at CB231
[88] CB231, [5]
[89] CB418, [115]
[90] CB229
[91] CB418, [115]
[92] CB251,
[93] CB232
[94] CB238
[95] CB418-419, [116]
[96] CB419, [116]
In finding the applicant’s claim about the events of 2003 lacked credibility, the Tribunal also considered the evidence ABE had given at the hearing before it. It found ABE “to be a most unimpressive and unconvincing witness”.[97] The Tribunal particularly relied on what it considered to be an incongruity between, on the one hand, ABE claiming he had such an interest in the applicant that he would recall what ABE’s mother told him about what the applicant did at a funeral over 12 years ago when ABE was 12 years old, and, on the other, ABE providing “only the vaguest evidence about the applicant’s claimed subsequent detentions”.[98] The Tribunal noted that ABE’s “evidence suggests that he did not follow up or find out further detail about the applicant’s detentions”, and it did not accept the applicant’s representatives explanation of “why, if such events had occurred, [ABE] would know so little about them and do so little to find out about the applicant’s circumstances”.[99]
[97] CB421, [125]
[98] CB421, [125]
[99] CB422, [125]
Claimed events at College
The Tribunal did not accept as credible the applicant’s claims about the difficulties he experienced at the College. In particular, it did not accept the applicant refused demands to join the OPDO, or that he was threatened or otherwise harmed as a result of such a refusal, or that he was discriminated against in relation to such matters as further studies, scholarships, promotions, salary increases, or wages, or that he took part in a protest in 2005, or that he was arrested and mistreated for having taken part in any protest, or that he was monitored, or that he was asked about his teaching, or that he was harmed by OPDO members, Ethiopian authorities or anyone else.[100] The Tribunal relied on country information that “those suspected of involvement in the OLF are particularly harshly dealt with”. The Tribunal continued:[101]
Notwithstanding that there is some evidence that, at the university level, members of Medrek and its constituent parties have been able to teach, the evidence nevertheless indicates that the civil service generally is highly politicised and that people such as teachers have been dismissed simply for failure to join the OPDO. The Tribunal considers that the applicant’s ability to teach at the [College] until July 2006, gain further public sector employment and then undertake a Master degree at [the University] is at odds with his claims about his history as someone suspected of involvement in the OLF and his claimed difficulties while at [the] . . . College.
[100] CB424, [132]
[101] CB424, [130]
Claimed membership of OPC
The Tribunal did not accept the applicant has ever been a member of the OPC, or that he had been involved in any activity with the OPC, including through engagement with committees or involvement in meetings, or that he became involved in any organising committee in 2010, or that he was arrested or mistreated at that time, or that he had ever come to the adverse interest of the Ethiopian authorities or been targeted or harmed by them or by anyone else due to membership of, or involvement with the OPC. The Tribunal found that the applicant’s claims about these matters “to be lacking in credibility”.[102] The Tribunal relied on a number of matters.
a) First, although the evidence the applicant gave at the hearing suggested he regarded his membership of the OPC as a very serious matter, the applicant did not mention his membership of the OPC in his form of application for a Protection visa he lodged in November 2013. The Tribunal did not accept the applicant’s explanations for not having referred to his membership of the OPC in his form of application, those explanations being that there was not enough space for his claims, and the applicant stated his membership of the OPC when he provided the first detailed statement of his claim. The Tribunal accepted the applicant did not have legal representation at the time he prepared the Protection visa application, and that he indicated in that form of application that he would be providing a detailed statement of his claim. The Tribunal noted, however, that in the form of application the applicant “referred specifically to the . . . OLF and to being suspected of being a supporter of the OLF”.[103]
b) Second, the statement of BD[104] is unsigned; no explanation had been given why, if BD was living in the United States and was apparently able to organise a statement to be emailed, he would be unable to arrange for a signed statement to be provided to the applicant or his representative; and the information BD’s statement contains tends to raise further concerns. BD states he visited Ethiopia in 2010 but does not state precisely when that occurred, and it was not until the applicant came to Australia that the applicant told BD that he had been involved in the OPC.[105]
c) Third, the Tribunal did not accept the Purported OPC Membership Card is genuine.[106] The Tribunal referred to the applicant’s representative stating at the hearing that he had omitted to provide a “membership document”. The Tribunal noted it understood this to be a reference to a membership card, but the “OPC documents” that were provided to the Tribunal on 9 March 2016 after the hearing consisted of two documents, the Purported OPC Membership Card and the OFC Letter, and “it was not clear to the Tribunal at the hearing that it was even being claimed that such a statement [that is, the OFC Letter] from an OPC representative existed”.[107] The Tribunal then noted that the “post-hearing submissions do not clearly indicate that the applicant provided a membership card at the time and instead provide another explanation as to why the card had not been provided at an earlier time”.[108] The Tribunal also referred to the applicant’s representative having provided to the Tribunal at the hearing with an indexed folder containing documents, but the materials did not refer to a membership card or to a letter from an OPC official.[109] The Tribunal did not accept the applicant’s explanation for not having produced an OPC membership card until after the hearing.[110]
d) Fourth, the Tribunal considered the OFC Letter but was not satisfied it supported the applicant’s claims. Although the document refers to the applicant having become a member while working at the College, the applicant continued his association after he joined the University, and that he served the party by coordinating various committees, it provided no details of the nature of those committees, and no further details about the nature of the applicant’s involvement. Further, although the OFC Letter refers in general terms to the targeting of members and of particularly young members being at risk, “it provides no information about the events that the applicant claims affected him”.[111]
[102] CB430, [149]
[103] CB426, [138]
[104] CB229-230
[105] CB426-427, [139]
[106] CB429, [145]
[107] CB429, [144]
[108] CB429, [144]
[109] CB429, [144]
[110] CB429, [145]
[111] CB430, [148]
Claimed incident of 2013
The Tribunal found the applicant’s evidence about the claimed incidents of 2013 “to be very much lacking in credibility”.[112] First, the Tribunal found that the applicant failed to maintain a consistent account in relation to key aspects of his claims.[113] In the Supplementary Statement the applicant said the police took him to some kind of court where he was made to sign each page of a three page document, yet the applicant did not mention these “in his written statement to the Department” (which I infer to be a reference to the 2014 Statement). Further, at the hearing before the Tribunal, the applicant said he did not mention that he had been taken to a court because now he did not believe it was a court because it did not look like a court.[114] Second, there is no satisfactory explanation why, if the claimed events occurred, the applicant would go back into the field and do similar work.[115]
[112] CB433, [159]
[113] CB433, [160]
[114] CB434, [160]
[115] CB434, [162]
Ground 1 – unreasonable exercise of power to take oral evidence
The applicant relies on the five grounds of application contained in the further amended application. Ground 1 is as follows (emphasis in original):
The Tribunal’s decision to refuse to exercise its power under s 426(3), 427(1)(a) and 429A of the Migration Act 1958 (Migration Act) to take evidence on oath or affirmation from one or more of ten witnesses who had given statements in support of the applicant’s claims was unreasonable and irrational, unfair and unjust in breach of s 422B(3) of the Migration Act and/or constituted a constructive failure by the Tribunal to exercise its jurisdiction.
Particulars
a.In support of his claims, the applicant provided to the Tribunal eleven witness statements corroborating critical aspects of his evidence in support of his claims, inter alia:
ithe applicant’s brother’s detention in 2000;
ii.the death of the applicant’s brother in 2003;
iii.the applicant’s speech at his brother’s funeral; and
iv.the applicant’s own detention on four occasions.
b.The Tribunal took evidence only from one of those witnesses, Mr [ABE].
c.The applicant offered to provide the Tribunal with the contact details of each of the other ten witnesses, to enable the Tribunal to exercise its power to take evidence on oath of [sic] affirmation from these witnesses.
d.Nine witnesses confirmed, in their written statements, their willingness to give oral evidence to the Tribunal.
e.The applicant advised the Tribunal that it would be procedurally unfair for the Tribunal to reject the evidence of the witnesses without providing them with an opportunity to give oral evidence.
f.In circumstances where the proposed oral evidence of the ten witnesses was highly relevant to the Tribunal’s assessment of the applicant’s credibility, and the Tribunal determined that it would reject the evidence of the applicant in respect of issues addressed by the statements provided by the ten witnesses, it was unreasonable and irrational for the Tribunal to determine that it would not seek to obtain evidence from any one or more of these witnesses.
g.Further or in the alternative, the following factors relied upon by the Tribunal in making its decision were illogical and unreasonable and did not constitute an evident or intelligible justification for its refusal to exercise its power to obtain evidence:
i.in relation to two of the witnesses, alleged discrepancies regarding the age of the applicant’s brother and timing of schooling, which neither the applicant nor the witnesses had an opportunity to comment upon;
ii.in relation to two of the witnesses, the fact that the statements were unsigned;
iii.in relation to one of the witnesses, the fact that the witnesses was concerned about the monitoring of his calls by the Ethiopian authorities, even though the witness had still indicated that he was prepared to be interviewed but subject to safety precautions;
iv.in relation to all of the witnesses, alleged inconsistency between the statements and an unrelated circumstance, namely the education and employment achieved by the applicant;
v.in relation to all of the witnesses, the fact that their contact details were not provided on their statement, even though the applicant’s legal representative indicated on more than one occasion that he possessed such information and was willing to provide it to the Tribunal, and eight of the witnesses stated they had given their contact details to the applicant’s legal representative who was authorised to provide it to the Tribunal; and
vi.in relation to all of the witnesses, the fact that the applicant had himself provided evidence at length at the hearing.
Parties’ submissions
In her written submissions counsel for the applicant submitted as follows:
a)Subsection 426(2) of the Act provides a procedure for an applicant to request the Tribunal to take oral evidence; and when an applicant makes such request, the Tribunal is required to exercise its power to call oral evidence reasonably.[116]
[116] Applicant’s Outline of Submissions, [26]
b)The Tribunal has power under s.427(1)(a) and s.429A of the Act to take oral evidence, and that power, too, must be exercised reasonably.[117]
[117] Applicant’s Outline of Submissions, [27], citing BTF15 v Minister for Immigration and Border Protection [2016] FCA 647, at [39]
c)The obligation to exercise the power to take oral evidence arose under s.426(3) of the Act in relation to ABE, AVK, and TA. That obligation arose from the applicant’s representative having made that request by completing and submitting to the Tribunal the “Response to hearing invitation – MR Division”; and the power to take oral evidence in relation to the other witnesses – BD, BN, RO, JA, AJ, GG, HB, and GG2 – arose under s.429A of the Act.[118]
[118] Applicant’s Outline of Submissions, [29]
d)The applicant’s representative informed the Tribunal that he had the contact details of each of the witnesses, and that the Tribunal should not reject the evidence of the applicant without taking the opportunity available to it to interview JA and “test his credibility”.[119]
[119] Applicant’s Outline of Submissions, [30]
e)The Tribunal decided not to examine any of the witnesses (except ABE) because, although they indicated a willingness to discuss the matters contained in their statements, they had not provided any contact details, the applicant himself had provided evidence at length at the hearing, the applicant brought with him to the hearing a witness who gave evidence, subsequent to the hearing the applicant provided additional statements which the Tribunal weighed with all other material, and in all the circumstances the Tribunal did not consider it to be necessary to initiate inquiries to seek to contact the authors of the witness statements.[120]
[120] Applicant’s Outline of Submissions, [31]
f)The reasons the Tribunal gave were “arbitrary, capricious and unreasonable”.[121]
[121] Applicant’s Outline of Submissions, [33]
i)The “statements given by these ten witnesses went to the heart of the Applicant’s claims”.[122]
[122] Applicant’s Outline of Submissions, [32]
ii)The Tribunal made no finding that the applicant’s credibility had been so compromised that hearing the oral evidence of a corroborating witness could not affect the outcome.[123] Rather, in relation to eight of the witnesses the Tribunal pointed to a single finding to justify its refusal to accept the statements as reliable, that finding being the applicant’s not having given any satisfactory explanation why he was able to maintain his employment and obtain university qualifications in light of his having been accused of involvement with the OLF.[124]
iii)The finding on which the Tribunal relied was not reasonable “in the absence of any glaring or improbable evidence from the Applicant’s witnesses”.[125]
g)Other explanations the Tribunal gave for rejecting the reliability of the statements “were similarly capricious and arbitrary”:[126]
i)in the case of GG2,[127] RO,[128] and AJ,[129] that they were inconsistent with the applicant’s employment and educational history, even though none of GG2, RO, or AJ suggested that any suspected association with the OLF would prevent the applicant from holding the employment or attaining the education he did;[130]
ii)in the case of BD and JA, on the basis that their statements were unsigned, even though the applicant’s representative informed the Tribunal that neither BD nor JA had ready access to a printer and scanner, and the Tribunal had not informed the applicant the statements would be rejected unless they were signed;[131]
iii)in the case of TA, the witness was concerned about the monitoring of his calls by Ethiopian authorities, even though the witness had still indicated he was prepared to be interviewed “subject to safety precautions”, and the applicant’s representative “reiterated that they would assist with making necessary arrangements should the Tribunal wish to speak with” TA;[132]
iv)in the case of BH and BD, on the basis of “alleged discrepancies regarding the age of the Applicant’s brother and timing of schooling, which neither the Applicant nor the witness had an opportunity to comment upon”;[133] and
v)in the case of AVK, the Tribunal purported to accept his evidence, but the Tribunal in fact rejected it.[134]
[123] Applicant’s Outline of Submissions, [35]
[124] Applicant’s Outline of Submissions, [36]
[125] Applicant’s Outline of Submissions, [37]
[126] Applicant’s Outline of Submissions, [41]
[127] CB251
[128] CB232
[129] CB238
[130] Applicant’s Outline of Submissions, [41(a)]
[131] Applicant’s Outline of Submissions, [41(b)]
[132] Applicant’s Outline of Submissions, [41(c)]
[133] Applicant’s Outline of Submissions, [41(d)]
[134] Applicant’s Outline of Submissions, [41(e)]
Counsel for the applicant expanded on some of these submissions during oral address and took me to a number of authorities.
Counsel for the Minister, in her written submissions, submitted that ground 1 proceeds on a misunderstanding of the evidence, and on misstatements of the Tribunal’s reasoning.[135] Counsel submitted that the most critical evidence in the applicant’s claims was his being highly educated, and his having held positions of increasing responsibility and remuneration with government organisations or government affiliated organisations.[136] Further, this is not a case where the Tribunal refused to take evidence from people who had not put forward any evidence. Each of the witnesses from whom the applicant claims the Tribunal unreasonably declined to obtain oral evidence had provided statements, and the Tribunal considered each of those statements.[137]
[135] First Respondent’s Outline of Submissions, [4]
[136] First Respondent’s Outline of Submissions, [5]
[137] First Respondent’s Outline of Submissions, [8]
Issues
The applicant’s submissions are or appear to be based on a number of premises. One is that the powers conferred by s.426(1), s.427(1)(a), and s.429A of the Act had been engaged in the circumstances of this case such as to give rise to an obligation on the part of the Tribunal to consider whether it should obtain oral evidence from each of the ten witnesses who had prepared statements. A second premise is that where the Tribunal proposes not to accept the evidence contained in a written statement that relates to a critical aspect of an applicant’s claim, the Tribunal must consider whether the person who gave the evidence should be permitted to give the evidence orally so that the statement given in writing could be “tested” by the Tribunal asking that person questions. That premise is apparent in the submissions the representative for the applicant made at the hearing before the Tribunal,[138] and which was repeated in the representative’s letter to the Tribunal dated 5 April 2016:[139]
[The applicant] has put forward Mr [TA]’s statement as evidence to be taken into account in his application. . . . If the Tribunal accepts the truth of Mr [TA]’s evidence then there is no need for it to speak with him. However, in our submission, it would be quite wrong for the Tribunal to reject Mr [TA]’s evidence – as it does [sic] to the heart of [the applicant]’s claims – without taking the opportunity available to it to interview Mr [TA] and test his credibility. To reject Mr [TA]’s evidence without testing it, despite Mr [TA]’s preparedness to speak with the Tribunal, and despite the significance and centrality of his evidence to [the applicant]’s claims, could give rise to a perception that the Tribunal has prejudged the claims. It would be a denial of [the applicant]’s right to a hearing of his claims under Sections 424 and 425 of the Migration Act 1958 (Cth).
[138] Affidavit of R Cao, 22.09.2017, page 44.8
[139] CB207, at CB210
The premise is also apparent in the following submission made by counsel for the applicant at the hearing before me:[140]
[140] T9.45-T10.5
HIS HONOUR: . . . are you saying the tribunal ought to have called them and what – examined them?
MS WONG: Provided them with an opportunity to give evidence in support of their statement and to test the credibility of their evidence. I’m not suggesting for one moment, your Honour, that every single one of the nine witnesses had to be called in this instance.
A third premise on which the applicant relies is that it was not reasonably open to the Tribunal not to accept the evidence contained in statements on the basis of other evidence without the Tribunal giving the witnesses an opportunity to comment on such evidence. That premise is stated in paragraph (e) of the particulars to ground 1.
In light of the submissions the parties have made, and the premises on which the applicant’s submissions are based, the following issues arise:
a)Did the Tribunal come under an obligation to consider whether it should exercise the powers conferred by s.426(1), s.427(1)(a), and s.429A of the Act?
b)Assuming (a) is answered in the affirmative, and accepting the Tribunal was under an obligation to exercise those powers reasonably,[141] what is the subject matter, scope and purpose of s.426 and s.429A of the Act? That question is relevant because the “task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making”.[142]
c)Having identified the subject matter, scope, and purpose of s.426(1), s.427(1)(a), and s.429A of the Act, how is it to be determined whether in the circumstances of this case the Tribunal reasonably exercised its powers under those sections?
d)Did the Tribunal act unreasonably in deciding not to take oral evidence from any of the persons who had provided written statements?
[141] There is no dispute that to the extent the powers conferred by s.426 and s.429A of the Act were engaged, the Tribunal was required to exercise those powers reasonably. The absence of any dispute reflect the principle that the “legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably” (Minister for Immigration and Citizenship v Li [2013] HCA 18, at [63])
[142] Minister for Immigration and Border Protection v Eden [2016] FCAFC 28, at [63] (Allsop CJ, Griffiths and Wigney JJ)
Were s.426, s.427(1), or s.429A of the Act engaged?
The starting point is the text of these two provisions. I begin with s.426 of the Act, which is as follows:
(1)In the notice under s.425A [being the notice required to be given of the time and day on which an applicant is invited pursuant to s.425(1) of the Act to appear before the Tribunal to give evidence and present arguments] the Tribunal must notify the applicant:
(a)that he or she is invited to appear before the Tribunal to give evidence; and
(b)the effect of subsection (2) of this section.
(2)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3)If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.
It is apparent that the power to consider a request under s.426 of the Act is engaged if an applicant makes a request under s.426(3) within seven days after an applicant received a notice given under s.425A of the Act. That did not occur in the circumstances of this case.
By letter dated 20 January 2016 the Tribunal invited the applicant to appear before it at 10.30 am on 8 March 2018 for the purpose of giving evidence and presenting arguments.[143] The letter dated 20 January 2016 appears to have been intended by the Tribunal to constitute the notice it was required to give under s.425A of the Act. The letter was sent by fax to the legal representative on 20 January 2016.[144] That meant that the applicant is taken to have been notified of the hearing by the end of 20 January 2016 which, in turn means that the applicant was required to make a request for the taking of oral evidence by 27 January 2016. That did not occur. As I have already noted, the applicant’s legal representative completed the “Response to hearing invitation – MR Division” (Response) in which it requested that the Tribunal take oral evidence from AVK and JA. The Response was sent by email to the Tribunal on 26 February 2016.[145]
[143] CB130
[144] CB128
[145] CB147
Counsel for the applicant has submitted, however, that although the power conferred on the Tribunal under s.426 of the Act to take oral evidence may not be engaged in any given case, the Tribunal has such power under s.429A of the Act. That section provides:
For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a)telephone; or
(b)closed-circuit television; or
(c)any other means of communication.
Counsel for the applicant relied on the judgment of Katzmann J in BTF15 v Minister for Immigration and Border Protection where her Honour said that the discretion to call oral evidence “is conferred by s 429A of the Migration Act and it is independent of the regime in s 426”.[146]
[146] [2016] FCA 647, at [39].
Also relevant, however, is s.427(1)(a) of the Act which provides that “[f]or the purpose of the review of a decision, the Tribunal may . . . take evidence on oath or affirmation”. In AYX17 v Minister for Immigration and Border Protection, the Full Federal Court held that the “clearer location of the power” of the Tribunal to obtain oral evidence is s.427(1)(a) of the Act.[147] The Full Court further said:[148]
We accept that some authorities have referred to other provisions (cf VJAF at [23] and BTF15 at [39]), however there does not appear to have been any particular argument raised in those cases about the source of the Tribunal’s power. No different analysis is required if s 427(1)(a) is identified, and if anything, this analysis supports the Minister’s submissions that the Tribunal has a wide discretion, consistent with its inquisitorial function, to determine whether or not to hear from witnesses proposed by an applicant. The breadth of the discretion is also apparent from other parts of s 427.
[147] [2018] FCAFC 103, at [49]
[148] [2018] FCAFC 103, at [49]
Section 427(1)(a) of the Act refers to the taking of evidence. That suggests that it only applies in the context of a hearing before the Tribunal. The use of the words “allow the appearance” in s.429A of the Act suggests that s.429A also only applies in the context of a hearing before the Tribunal. The only hearing before the Tribunal that is provided for by Part 7 of the Act is one that takes place in response to an invitation given under s.425 of the Act. In the circumstances of the case before me, it is reasonable to infer that by submitting the Response the applicant intended to request that the Tribunal take evidence from AVK and TA by telephone at the hearing on 8 March 2016. The same, however, cannot be said about the other statements.
As I have already noted, the hearing before the Tribunal occurred on 8 March 2016. At the conclusion of the hearing the applicant’s representative requested four weeks to provide written submissions.[149] Towards the end of the hearing the Tribunal informed the applicant that he had “until 5 April to provide any further submissions and I can make a decision any time after that”.[150] The additional written statements were provided after the hearing. The Tribunal held no further hearing; and the applicant did not request that there be any further hearing. In those circumstances, there is a real doubt in my mind that s.427(1)(a) or s.429A of the Act applied to the statements that were provided after the hearing. It may be that by submitting the statements it could be taken that the applicant impliedly requested the Tribunal hold a further hearing and that in substance the applicant had requested that the Tribunal adjourn the review to enable it to take oral evidence from the persons who gave post-hearing statements. I do not propose, however, to consider these questions any further because the Minister did not submit that s.429A of the Act did not apply to the witnesses, or that the Tribunal did not come under an obligation to consider whether it should take oral evidence from those witnesses, or that it was not required to act reasonably when considering whether to take oral evidence from those witnesses.
[149] Affidavit of R Cao, 22.09.2017, page 46.41
[150] Affidavit of R Cao, 22.09.2017, page 47.3
Subject matter, scope and purpose of s.426, s.427(1)(a), and s.429A of the Act
The starting point is s.414 of the Act which provides that the Tribunal must “review” the decision of the application before it. That requires the Tribunal to inquire into the existence or non-existence of facts relevant to the Tribunal determining whether to affirm or set aside the decision under review. As noted by the plurality in Minister for Immigration and Citizenship v SZIAI, however, the extent of the Tribunal’s duty to inquire into the existence of facts is qualified:[151]
[P]roceedings before the tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word “inquisitorial” has been used to indicate that the Tribunal, which can exercise all the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the Tribunal as a contradictor. The relevant ordinary meaning of “inquisitorial” is “having or exercising the function of an inquisitor”, that is to say “one whose official duty it is to inquire, examine or investigate”. As applied to the Tribunal “inquisitorial” does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal’s functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to “review the decision” which is the subject of a valid application made to the tribunal under s 412 of the Act.
[151] [2009] HCA 39 at [18]. The plurality were speaking of the Refugee Review Tribunal.
The nature and extent of the qualification of the duty to inquire has been stated in a number of ways. It has been said that “it is for the applicant for a protection visa to establish the claims that are made”;[152] it is “for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason”, and that the “Tribunal must then decide whether that claim is made out”;[153] the “function of the Tribunal . . . is to respond to the case that the applicant advances”;[154] and the Refugee Review Tribunal (RRT) “is required to deal with the case raised by the material or evidence before it”.[155]
[152] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40]
[153] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576 (Gummow and Hayne JJ)
[154] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [78] (Kirby J)
[155] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 at [58]; (Black CJ, French and Selway JJ)
The following questions arise:
a)What was the meaning conveyed by the English into which Mr Kufi interpreted the applicant’s evidence?
b)What was the meaning conveyed by the English into which the interpreter interpreted the applicant’s evidence?
c)Is there a difference between the meanings referred to in (a) and (b)?
d)How did the Tribunal rely on the meaning conveyed by the English into which the interpreter interpreted the applicant’s evidence? In particular, did the Tribunal proceed on the basis that the applicant continued to organise meetings with farmers after 4 September 2013?
The applicant submits that the meaning conveyed by Mr Kufi’s interpretation is that the applicant said his work did not involve him organising meetings with farmers. The applicant principally relies on the applicant’s stating his work did not connect him with farmers, that his job was “related to organising data and related studies”, and that the applicant did “not have to communicate with people for this particular job”. There are two difficulties in accepting that submission. One is that, as noted by counsel for the Minister, the translation does not purport to be a translation of everything the applicant said in Oromo; and that is because the text of Mr Kufi’s translation of what the applicant said contains the words: “Note: words unclear in between here”. The second difficulty is that, on Mr Kufi’s interpretation, the applicant did not only say his job was “related to organising data and related studies”, and that the applicant did “not have to communicate with people for this particular job”. According to Mr Kufi, after the uttering of words that Mr Kufi found to be unclear, the applicant also said: “I was gathering/collating evidence and writing reports in the office and I was working in related areas”. The word “gathering” suggests some activity out of the office. That suggestion is strengthened by what the applicant said in answer to an earlier question that he “did not go regularly back to the area for work after that”, the word “that” being a reference to the incident the applicant said occurred on 4 September 2013 in [G] district. That, implies: first, that the applicant did go back to [G] district after 4 September 2013, although less frequently than before; second, that at least one purpose of his going back to [G] district was to gather evidence; third, the gathering of evidence involved interaction with persons; and, fourth, given the applicant’s work involved farmers, the applicant gathered evidence by meeting farmers. In those circumstances, I am not prepared to accept that the applicant did not give evidence to the effect that after 4 September 2013, the applicant’s work involved him returning to [G] district and meeting with farmers in connection with his gathering evidence.
The next question is the meaning conveyed by the interpreter. The determination of that question, too, is not without difficulty; and this arises from two things. The first is there is inserted in square brackets in the text of what the interpreter said the question “I was worried about?” That raises some doubt about what the interpreter said. The second thing is that there is also inserted in square brackets the word “unclear”. There is other evidence, however, from which inferences may be drawn about what the interpreter said, and that is the Tribunal’s record of the applicant’s evidence (emphasis added):[306]:
The Tribunal put to the applicant that it might have difficulty accepting what he had said about this. It put to him that he claimed that he had been detained and accused of things to do with the OLF and mobilising farmers and that he was detained for a period and beaten. He claimed that this had made him fearful for his life. But after he was released he went back to [G] and did the same sort of work that he claimed caused him the problems in the first place in spite of being fearful for his life. The applicant stated that when he was sent to [G] his pay was quite good. He did not want to give up the job in spite of the difficulties. When he went there and found out the magnitude of the monitoring he did not continue for long. The Tribunal asked how he was able to do the work from 4 to 30 September if that work had caused such great problems previously. The applicant stated that his job was meetings with local farmers collecting information for research, coming back to the office and making reports for the project.
[306] CB432, [155]
In my opinion, the last sentence of this passage represents the effect of the meaning the interpreter conveyed.
Next, the question is whether what the interpreter conveyed is different from what the applicant said. Counsel for the applicant submits it is incorrect because it incorrectly conveyed that the applicant organised meetings with farmers. For reasons I have already given, I am not prepared to accept the applicant did not give evidence to the effect that after 4 September 2013 the applicant’s work involved him returning to [G] district and meeting with farmers in connection with his gathering evidence. Thus, I am not prepared to accept the Tribunal misunderstood the applicant’s evidence to the extent it understood the applicant to have stated that after 4 September 2013 his job consisted of meetings with local farmers collecting information for research, coming back to the office, and making reports for the Project. The interpreter, however, did not convey to the Tribunal the applicant’s apparently inconsistent evidence that his work did not connect him with the farmers; that his job was related to organising data and related studies, and that the applicant did not “have to communicate with people for this particular job”. The consequence of this is that the interpreter made an error by omitting to convey this evidence (Omitted Evidence).
The next set of questions is whether the Tribunal relied on the mistranslation and, if so, how. As I have already noted, counsel for the applicant submits the Tribunal relied on the mistranslation by proceeding on the basis that the applicant continued to organise meetings with local farmers in circumstances where the applicant said that his work did not connect him with farmers and that his job was related to organising data and related studies, and that the applicant did not “have to communicate with people for this particular job”. Counsel relies on the following passage from the Tribunal’s reasons: (emphasis that of counsel for the applicant):[307]
[T]he Tribunal considers that there is no satisfactory explanation as to why, if the claimed events had occurred, the applicant would go back into the field and do similar work and how he would in fact be able to do so until 30 September. The applicant’s evidence suggested that, in August 2013, while he was doing his work in [G], his activities angered the government and he was chased out of that area. He returned to his home. On 15 August, he was detained and his house was searched. He was detained for ten days and accused of being an OLF supporter and mobilising the farmers. He was afraid for his life after this. The Tribunal notes that he has claimed that he was asked to sign something and was required to report. However, the Tribunal does not accept that there is any satisfactory explanation as to why, if these events had occurred and he was fearful for his life, he went back to [G] and continued his work there. Nor is there any satisfactory explanation as to how, if the applicant’s work had aroused such interest, caused him to be chased out and caused him to be accused of links with the OLF and involvement of mobilising farmers, the applicant then returned to work in [G] and worked until 30 September. The Tribunal finds the applicant’s claims and the evidence about this matter to be very much lacking in credibility.
[307] Applicant’s Outline of Submissions, [87]. The passage from the Tribunal’s reasons is at CB434, [162] I have quoted the portions counsel omitted to include in her quotation.
This passage was premised on the view that the applicant’s evidence was that when the applicant returned to [G] district after he had been detained for ten days, the applicant resumed the work he had been doing before 15 August 2013. The applicant does not dispute that this was the effect of the applicant’s evidence. Given my finding that the there was an interpretation error that consisted of the interpreter not conveying to the Tribunal the Omitted Evidence, the premise was incorrect, but only for the period after 4 September 2013. Given that the Tribunal made a finding in ignorance of the Omitted Evidence, the question arises whether that error “can be seen [to have led] to a material and adverse finding relevant” to the Tribunal’s decision affirming the delegate’s decision. Given that the interpretation error is one of omission, the question becomes whether, had the Tribunal been aware of the Omitted Evidence, that could have made any difference to what the Tribunal found or decided. That requires me to identify the finding to which the Omitted Evidence could have been relevant, and the reasoning on which the Tribunal relied for making that finding.
The relevant finding relates to the applicant’s claim that he was arrested in 15 August 2013, detained for ten days during which he was accused of being an OLF supporter and mobilising farmers, and, as a consequence of these events, fearing for his life. The Tribunal found that the applicant’s returning to his work after these claimed events and resuming the activities he had performed before his claimed arrest was inconsistent with the claims that the events did occur and that the applicant feared for his life as a consequence of those events. The implied generalisation on which the Tribunal relied is that a person who, because of the nature of the work that he or she performed, had been arrested, detained, and put in fear of his or her life, would not immediately on release from detention return to the place of work and resume the very activities that led to that person being arrested, detained, and placed in fear of his or her life. The strength of that generalisation would not depend on whether, some days or weeks after the person resumed the activities that induced the arrest and detention, the person decided to leave his or her employment, or decided to perform his or her employment in a manner that might eliminate the risk of harm. In these circumstances, even if the Omitted Evidence had been conveyed to the Tribunal, and even if the Tribunal were to have accepted it and find the applicant did alter the nature of the work so that, after 4 September 2013, he no longer undertook the tasks that had exposed him to arrest and detention in the first place, it could not reasonably have diminished or materially diminished the strength of the adverse inference that was available to be drawn from the fact that, on the applicant’s evidence, immediately after his release from ten days of detention he returned to his place of work and resumed the activities that led to his being arrested and detained in the first place. For these reasons alone, the Tribunal’s being made aware of the Omitted Evidence could have made no difference to the Tribunal’s finding that the applicant’s claim that he had been detained on 15 August 2013 was not credible.
What I say in the previous paragraph assumes the Tribunal would have accepted the truth of the Omitted Evidence. In my opinion, it is outside the realm of reasonable possibility that the Tribunal would have accepted the Omitted Evidence. That is so because Tribunal would have had to assess the Omitted Evidence by reference to the evidence the applicant had given. According to Mr Kufi, the applicant told the Tribunal that “I did not go regularly back to the area for work after that. I did not frequently go back for work. I stopped on September (Voice unclear here) 2013”, implying that the applicant did return to [G] district. The applicant also told the Tribunal that he “went there though I was under huge fear” because “the project paid me good money” and because if he did not “go to work I lose my job”; and that when “I went there I realised they were following me” but that “[a]fter that I did not work there long. I left the area”, indicating that the applicant stayed in the [G] district until he left his employment which, according to the applicant, occurred on 30 September 2013. This evidence is unmistakably to the effect that the applicant returned to [G] district, and the applicant remained there until he realised he was being followed. There is no suggestion in this evidence that the applicant altered his work practices. In those circumstances, it is inevitable the Tribunal would have considered the Omitted Evidence, uttered once, to be inconsistent with the applicant’s evidence that he had returned to the [G] district and stayed there after 4 September 2013 until he left.
For these reasons, although there was an interpretation error, it is not one that denied or might reasonably be considered to have denied the applicant the entitlement provided for by s.425 of the Act to present his case, or to have produced any other unfairness to the applicant.
The third asserted error – the OFC Letter
The third asserted interpretation error is said to consist of the interpreter using the words “as well as the membership [card?], I have a document, an ID card signed by the leader, shows that I am a member” when, according to Mr Kufi’s translation, the applicant said “I have a letter from a leader office that confirms my membership of the OPC”. Whether this constitutes a mistranslation and, if so, what consequences attaches to it, requires that this be placed in the broader context in which the translation occurred. First, it is necessary to refer to a part of the transcript which the applicant does not submit there was any translation error where the Tribunal asked the applicant about an OPC membership card (emphasis added):[308]
[308] Affidavit of R Cao, 22.09.2017, pages 21.7-22.4
MemberI am not clear about how you became a member of the party. I have asked you that twice and you don’t seem to give me a clear answer about how it is you became a member. How did you join?
ApplicantAt the end of the meeting, everyone made up their mind who wants to join the party and I said I really want to join the party so they gave me an ID card.
MemberDid you pay a membership fee?
ApplicantSorry?
MemberDid you pay a membership fee to join the party?
ApplicantYes there was a membership fee and also now I am paying
MemberWhere is your membership card?
ApplicantI have it but I don’t have in [sic] my wallet now, but I have this yes
MemberMm? Well you have been … quite some time ago that you made this claim and you have not produced that membership card why have you not produced that membership card if you have had that card all along?
ApplicantYou can’t take ?? to the national [airport] in my country so I leave it behind. Only after I came here did I ask my relative to send them to me.
MemberWell you made your application in November 2013, the Immigration department did not make their decision until September 2014. You made a statement in March 2014 you did not produce documentation like a membership card and that might cause me some concerns and doubts about whether you have a genuine membership card
ApplicantI did receive the document before the decision was made, before I received the result of my application from the department, but after I lodge the application they sent me.
The asserted interpretation error was made later during the hearing, and it is the evidence given in that part of the hearing that is set out in annexure “D” to Mr Kufi’s affidavit as follows:
Person
Transcript
Mr Kufi’s translation
Applicant
[In Oromo]
Interpreter
First of all, as well as the membership [card?], I have a document, an ID card signed by the leader, shows that I am a member.
I have a letter from leader office that confirms my membership of the OPC.
Member
Well, as I said you have not provided that at any stage. And I might wonder why you have not done so if you’ve had a genuine membership card in your possession and if you’re genuinely a member.
Interpreter
[In Oromo]
(Unclear at the beginning …) You did not provide this letter. If you have really had it why did you not submit this letter before?
Applicant
[In Oromo]
Interpreter
I have it.
I have it.
Member
Is there a reason you haven’t done so? I’m not clear about that.
Interpreter
[In Oromo]
Why did you not submit it before?
Applicant
[In Oromo]
The ID … I submitted the letter.
Interpreter
[In Oromo]
What did you say?
Applicant
[In Oromo]
Interpreter
I thought I’ve sent a copy or something.
I thought a copy of the letter reached you.
Member
Well I asked you about that before I don’t think you told me that you thought you sent a copy.
Interpreter
[In Oromo]
When I asked you previously you said, no, I did not submit it you said.
Member
Look I haven’t made up my mind but I might be concerned that some of the evidence about this seems to have changed and I might have some concern about the credibility of your evidence about whether I can rely on what you’re saying including about your party membership.
Interpreter
[In Oromo]
You see, it is hard to decide this. What you said is very very doubtful. It is hard to believe.
Paragraph (f) of the particulars claims that, correctly interpreted, the applicant said “he possessed a letter of support from the Oromo Federalist Congress confirming his membership with the OPC”. I do not accept that claim. The applicant said “I have a letter from leader office that confirms my membership of the OPC”. This does not refer to the OFC, nor to the contents of the letter as being one of support. The applicant’s evidence is there is a letter from “leader office” that confirms his membership.
Counsel for the applicant in her written submissions says something slightly different: counsel submits “the Applicant did make specific reference to the OFC Letter at the hearing”.[309] The question, however, is not whether the Applicant made specific reference to the OFC Letter. The question is whether, correctly interpreted, the applicant used language that would have conveyed to a person in the position of the Tribunal member that he was referring to a document that answers the description of the OFC Letter. There is nothing in the language the applicant used, correctly interpreted, that could reasonably have conveyed the existence of the OFC Letter. As I have already noted, the applicant did not name the OFC. He only referred to a letter from the “leader office” that confirmed the applicant’s membership with the OPC. Thus, the interpreter made no interpretation error to the extent he failed to use language that revealed the existence of the OFC Letter, because the applicant gave no evidence that conveyed that information.
[309] Applicant’s Outline of Submissions, [99]
I will now assume that, in some way, by the interpreter not conveying the words the applicant said, as interpreted by Mr Kufi, the interpreter made an error. The question is how this influenced the Tribunal. Counsel for the applicant submits that, as a consequence of the interpretation error, the Tribunal incorrectly found that “it was not clear to the Tribunal at the hearing that it was even being claimed that such a statement from an OPC representative existed”.[310] Counsel, however, does not elaborate on how the failure by the interpreter to convey the words spoken by the applicant, as interpreted by Mr Kufi, contributed to the Tribunal’s being unclear at the hearing that it was being suggested that a document like the OFC Letter existed. The Tribunal made this observation after the applicant’s representative provided the OFC Letter to it. The OFC Letter contains information about the OFC, its constituent organisations, the date on which the applicant joined the OPC, the applicant’s continued association with the OPC after he joined the University, and information about the role of the OFC in a larger coalition that is devoted to the peaceful struggle for human rights. Even if the interpreter had correctly conveyed what the applicant said, I find the Tribunal would still have been unclear that “such a statement from an OPC representative existed”.
[310] Applicant’s Outline of Submissions, [97], referring to CB429 [144]
Counsel also appears to submit that because of the translation error the Tribunal, at the hearing, expressed the view that it might have concerns that the applicant’s evidence seems to have changed and that the Tribunal might have concerns about the applicant’s evidence that he was a member of the OPC.[311] There are two things that may be said. First, even on Mr Kufi’s translation it would have been reasonably open to the Tribunal to find the applicant’s evidence was changing. It is the applicant who volunteered the information that he had an “ID Card”, but he did not at that point refer to what he later referred, namely, the applicant having “a letter from leader office that confirms my membership of the OPC”. Second, although as I have set out earlier in these reasons, the Tribunal relied on a number of matters for not accepting the applicant’s claim that he was a member of the OPC, a finding that the applicant changed his evidence about the OFC letter or the existence of any OPC membership card was not one of those reasons.
[311] Applicant’s Outline of Submissions, [99]
It follows that even if there were a translation error in relation to the applicant having said he had a “letter from leader office that confirms my membership of the OPC”, it is not one that denied or might reasonably be considered to have denied the applicant the entitlement provided for by s.425 of the Act to present his case, or to have produced any other unfairness to the applicant.
Cumulative effect of the interpretation error
Given I have concluded there was only one interpretation error, there is no need to consider the cumulative effect of two or more errors. I have concluded, however, that, assuming the interpreter made the third of the asserted interpretation errors, no unfairness resulted in the applicant. I should, therefore, ask whether, assuming the third asserted error was made, the first and third asserted errors when considered together resulted in any unfairness to the applicant. That question is to be answered in the negative.
Conclusion on ground 4
For these reasons, ground 4 fails.
Ground 5 – failure to disclose s.438 certificate
This ground arises out of the issuing on 30 September 2014 of a certificate purportedly pursuant to s.438(1)(b) of the Act (Certificate) in relation to documents identified in particular folios from a particular file. The ground is as follows:
The Tribunal’s failure to disclose the certificate issued under s 438 of the Migration Act, or alternatively, the existence of such a certificate to the applicant resulted in a denial of procedural fairness
Particulars
a.On 30 September 2014, a certificate was issued under s 438(1)(b) of the Migration Act by a delegate of the Minister in relation to information in “folios 70 to 78 of the file number CLF2013/291735” [Court Book, 105].
b.Neither the existence of the 438 certificate, nor the s 438 certificate itself, were disclosed to the applicant at the Tribunal hearing or in subsequent correspondence from the Tribunal.
c.The applicant was not afforded an opportunity to make submissions to the Tribunal to challenge the s 438 certificate’s validity, enquire of the Tribunal how it was going to use the material or to seek a favourable exercise of the Tribunal’s discretion under s 438(3)(b) of the Migration Act.
The documents covered by the Certificate have been identified and admitted into evidence. There are two classes of documents. The first are the documents that form part of exhibit JLS1 to the affidavit of Ms Strugnell. These documents contain information that had been provided by the “dob-in letter”, and there is no need for me to describe each document. The second class of documents relate to the granting of a student visa to the applicant.
Counsel for the applicant relies on the judgments of Beach J in MFAFZ v Minister for Immigration and Border Protection[312] and the judgment of the Full Federal Court in Minister for Immigration and Border Protection v Singh.[313] Counsel submits the applicant was denied procedural fairness because the Tribunal did not disclose to the applicant the existence of the Certificate, the Tribunal did not give the applicant an opportunity to make submissions about the validity of the Certificate, the Tribunal did not disclose to the applicant all relevant information covered by the Certificate, in circumstances where the Tribunal “did in fact rely upon the information contained within the Dob-In Letter in reaching conclusions adverse to the Applicant (despite its protestations to the contrary)”, and in circumstances where the “Dob-In Letter also contained information which was potentially helpful to the Applicant, and might have enabled him to present his case more thoroughly”, and the applicant was denied the opportunity to make submissions about the favourable exercise of the discretion conferred by s.438(3)(b) of the Act.[314]
[312] [2016] FCA 1081
[313] [2016] FCAFC 183
[314] Applicant’s Outline of Submissions, [107]
Counsel for the Minister submits that despite bearing the onus to demonstrate unfairness from the non-disclosure of the Certificate, the applicant makes only a bare assertion that he was not provided all the material particulars, and he does not identify the aspect of the letter that ought to have been disclosed to him. Further, unlike the facts in MZAFZ and Singh, the Tribunal in the case before me expressly said it did not take into account the contents of the “dob-in letter”.[315]
[315] First Respondent’s Outline of Submissions, [50], [52]
That the Tribunal did not disclose the Certificate to the applicant does not by itself suggest a denial of procedural fairness. That point was made by the Full Federal Court in Minister for Immigration and Border Protection v BJN16:[316]
It may be accepted that the non-disclosure by the Tribunal of the existence of a certificate, given under s 438 of the Act, may give rise to a denial of procedural fairness. It does not follow that this will always be the case. It will be necessary, in each case, for all the circumstances and the consequences for the applicant of the omission to be examined.
[316] [2017] FCAFC 197, at [63]
Although counsel has asserted a number of consequences flowed from the Tribunal’s not disclosing the Certificate, no attempt has been made to substantiate them or to explain how the applicant was denied procedural fairness.
a)It is submitted the applicant was denied the opportunity to deny the validity of the Certificate, but nothing is said about how the denial of that right by itself denied the applicant procedural fairness.
b)It is accepted the Tribunal disclosed the existence of the “dob-in letter”, but it is it submitted the Tribunal did not disclose “all relevant information covered by the Certificate”. The applicant does not, however, identify the relevant information the Tribunal did not disclose.
c)It is accepted the Tribunal stated it did not rely on the contents of the “dob-in letter”; yet, in a parenthetical aside (“despite its protestations to the contrary”), the grave imputations of lying or bad faith are levelled against the Tribunal member without any apparent basis other than the Tribunal’s reasons for decision.[317]
d)It is submitted the information covered by the Certificate contained information potentially helpful to the applicant, and might have enabled him to present his case more thoroughly; yet no such information is identified.
e)It is submitted the applicant was denied the opportunity to request the Tribunal to exercise the power conferred by s.438(3)(b) of the Act to disclose information covered by the Certificate; yet the applicant does not identify what information the applicant would have been able to obtain had the Tribunal been asked to disclose information under s.438(3)(b) that had not already been disclosed by the Tribunal.
[317] “[A]n allegation of bad faith is a serious matter involving personal fault on the part of the decision maker”, and “the allegation is not to be lightly made and must be clearly alleged and proved.”- SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361, at [43]
The applicant was not denied procedural fairness by the Tribunal’s not disclosing the existence of the s.438 Certificate. The Tribunal disclosed to the applicant the existence and contents of the “dob-in letter”; the Tribunal gave particulars of the information contained in the “dob-in letter” pursuant to s.424A of the Act; the applicant responded to those particulars and otherwise made submissions and provided evidence in relation to the “dob-in letter”; and the Tribunal did not in any event rely on the contents of the “dob-in letter”.
Ground 5, therefore, also fails.
Conclusion and disposition
The applicant has succeeded on none of the grounds on which he relies. I propose to order that the application be dismissed. I will invite submissions on the question of costs when I pronounce my order dismissing the proceeding.
I certify that the preceding two hundred and nineteen (219) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 13 December 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Standing
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Statutory Construction
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Remedies
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