Djalal v Minister for Immigration and Multicultural Affairs

[1998] FCA 627

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 567  of   1997

BETWEEN:	HAMDI DJALAL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		O'CONNOR J
DATE OF ORDER:		10 JUNE 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal made on 19 June 1997 be set aside.

1. The matter be remitted to the Refugee Review Tribunal for further consideration according to law.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 567 of 1997

BETWEEN:	HAMDI DJALAL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	O'CONNOR J
DATE:	10 JUNE 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application to review the decision of the Refugee Review Tribunal (“RRT”) given on 19 June 1998 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.

The grounds of the application (amended to add grounds 4 and 5 on the day of the hearing) are:

1. That the RRT erred in that it failed to cause enquiries to be made into the validity of the arrest warrant in the applicant’s name and thereby the RRT:

   (a)failed to provide a mechanism of review that was fair and just;

   (b)failed to act according to substantial justice and the merits of the case; and

   (c)failed to consider and properly exercise its discretionary powers provided in s 427(1)(d) of the Migration Act 1958 (“the Migration Act”);

   which matters constitute a ground of review within s 476(1)(a) of the Migration Act.

1. That the RRT erred in that having rejected the evidence of a particular witness it thereby held that the said arrest warrant was not a genuine document which finding was not in law open to RRT on the materials before it which error constitutes a ground of review within sections 476(1)(e) and 476(4)(a) and (b) of the Migration Act.

1. That the RRT ought to have directed itself that by rejecting the evidence of the witness mentioned above it was entitled to hold that the evidence of that witness did not support the authenticity of the warrant but that this did not entitle the RRT to find that the warrant was not genuine, which direction the RRT failed to make thereby causing it to err by failing to properly consider whether the aforesaid warrant was authentic on the materials before it, this being a ground of review within sections 476(1)(e) and 476(4)(a) and (b) of the Migration Act.

1. The RRT found that the applicant had in his possession a copy of the arrest warrant at the time he lodged his first primary application whereas

   (a)there being no evidence upon which such a finding could be made the RRT erred in that it failed to act in accordance with s 420(2)(b) of the Migration Act; and

   (b)the finding being a fact upon which the RRT’s decision was based, did not exist and thereby the RRT erred with s 476(1)(g) and s 476(4)(b) of the Migration Act.

1. The RRT erred in that it failed to pursue proper enquiries into the overseas travel of the witness during the course of 1992 and thereby the RRT acted contrary to the provisions of s 420(2)(b) of the Migration Act.

The applicant seeks an order that the decision of the RRT made on 19 June 1997 be set aside, and that the matter be remitted back to the RRT for further consideration according to law.

Legislative Context
The relevant provisions of the Migration Act in respect of this application are as follows:

“Refugee Review Tribunal’s way of operating

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

(2)  The Tribunal, in reviewing a decision:
(a)      is not bound by technicalities, legal forms or rules of evidence; and
(b)      must act according to substantial justice and the merits of the case.

...

Powers of the Refugee Review Tribunal etc.

427.(1)  For the purpose of the review of a decision, the Tribunal may:

...

(d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.

...

Application for review

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

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

...

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

...

(g)that there was no evidence or other material to justify the making of the decision.

...

(4)  The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

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

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

A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is a person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ....”.

Factual Background

The applicant is an Indonesian national who has made several applications to the Department of Immigration and Ethnic Affairs for refugee status and a protection visa.  The applicant entered Australia on 25 December 1987.

In the applicant’s first application (April 1991) he claimed he met an Indonesian Muslim preacher (Amir Biki) and attended his public speeches on many occasions but was not involved in the Tanjung Priok incident in 1984.  When he became aware that authorities were looking for associates and friends of  Amir Biki he fled Jakarta and went into hiding in Surabaya claiming that his personal experience gave rise to a real threat to his personal security should he return to Indonesia.  The application was rejected and on review the applicant claimed economic discrimination for refusing to join the Golkar Party and fears of personal security as a consequence of his relationship with Amir Biki.  The application for review was rejected.

In the applicant’s second application (April 1994) he claimed that he had been a member of a Muslim political movement groups Darul Islam (DI) and Palajar Islam Indonesia (PII) since 1980 and went to many meetings and carried and distributed brochures for them.  This group was also involved in the Tanjung Priok incident and has since been banned by the authorities.  After he left Indonesia he claims the authorities took his sister to the police station for questioning and interrogation as to the applicant’s whereabouts.  The applicant claims he was introduced to Amir Biki in 1970, and through this connection met other Muslim activists including Mawardi who warned the applicant that his name was on a list of wanted men in connection with DI and Tanjung Priok incident.  The applicant submitted a copy of a warrant for his arrest claiming he was involved in “subversive activity and criminal acts against the State” and “was associated with a prohibited public movement”.  The applicant claimed that although he had earlier believed the authorities had no interest in him because he was not a high profile activist, after he received a copy of the arrest warrant he was concerned the authorities were more interested in him and he would suffer prosecution if he returned to Indonesia.  This application was rejected and the applicant did not lodge an application for review.

In the applicant’s third application (8 August 1994) he claimed he was afraid to return to his home country because he was involved in the Islamic movement against the government and the Tanjung Priok incident.  He claimed he was afraid of arrest without a fair trial and interrogation with torture.  He repeated his claim that the authorities were still looking for DI members and those involved in the Tanjung Priok incident and referred again to the arrest warrant and statement from Mawardi that the applicant  was “definitely involved in the Tanjung Priok incident and that he would be in danger if he returned to Indonesia”.  The applicant also claimed that he had a friend who had just come back from Indonesia and informed him that the authorities were still searching for people on the run and that he would be in danger if he returned.

The applicant claims that he has a political profile due to the assistance he gave to the leaders of the Islamic movement, being in the company of the leaders and as a result of his participation in various anti-government activities.

The application for review was rejected by the RRT and his application for a protection visa refused on 19 June 1997.

RRT’s Decision
The RRT’s task was to determine whether there was a real chance the applicant would face persecution upon to Indonesia arising out of one of the Convention reasons.  However, given numerous inconsistencies in the applicant’s evidence and his inability to provide reasonable explanations for such inconsistencies, the RRT expressed serious concerns about the credibility of the applicant in relation to the claims made.  It found the chance that the applicant would face Convention-related persecution was remote and insubstantial.

In the RRT’s view, one of the more significant factors leading to serious adverse credibility findings arose from the failure of the applicant to include in the first application made specific claims which the applicant made in his later applications.  The applicant failed to include any mention of the additional crackdown by authorities in his first application, when he later claimed he knew of such a crackdown and the reason for it prior to making the application.

In addition, despite initially claiming he was associated with Amir Biki, in subsequent applications the applicant changed his account to claim that he was closely associated with the political religious activities of Mawardi.  The RRT did not accept that the applicant had a significant role with Mawardi as one of his ten assistants as Mawardi did not mention this in his letter of support.  The RRT concluded that the applicant had greatly exaggerated any involvement he had in religious and political activities in Indonesia.

In relation to the applicant’s claim of membership of the DI or PII, the RRT concluded that he was never a formal member of either group.  The PII group was aimed at primarily secondary students and was not banned until 1987.  The applicant was aged thirty-five at the time he claimed he first became involved in the PII and he attended a course run by PII but dropped out without completing the course.

The RRT did not accept that the applicant’s role in Islamic religious activities was of such significance that it led him to be of any ongoing interest to the authorities or that there was a real chance that he would be of significant adverse interest to the authorities should he now return to Indonesia.  Had the applicant been of any significant adverse interest to the authorities to the degree that an arrest warrant would be issued against him in 1989, the RRT concluded, he would not have been able to remain living and working in Indonesia as he did without significant difficulties from the authorities.

In relation to the arrest warrant, the RRT specifically found that it was not a copy of a genuine document.  Given the evidence of one of the applicant’s witnesses, Muchlis Basinar, that his role was not to provide documents to assist with protection visa claims, but to help people decide whether or not to return to Indonesia and given Mr Basinar’s evasiveness in relation to the location of people he tried to help, the number he helped, the reasons he helped them and the level of secrecy he adopted, the RRT found Mr Basinar’s evidence in relation to his motivation to obtain such documents for the applicant to be of no assistance to the applicant’s case.  Because of the adverse findings relating to the credibility of the applicant and the unsatisfactory aspects of Mr Basinar’s evidence, at a later point in the decision the RRT said it placed “little weight” on the document purporting to be an arrest warrant, (having previously made a finding as to its genuineness).

The RRT concluded that:

“In all the circumstances, assessing the applicant’s claims individually and cumulatively, given the adverse credibility findings, the Tribunal is satisfied that the chance the applicant would face persecution for Convention related reasons is remote and insubstantial”. (RRT Decision, p 31)

Submissions of the Parties
In support of the grounds of review the applicant made the following submissions:

A critical factual issue for the RRT to determine in deciding this matter was whether an arrest warrant had been issued by the Indonesian authorities authorising the arrest of the applicant.  The applicant had tendered to the RRT a copy of a document dated 27.12.89 which it asserted was a copy of an arrest warrant.  The RRT found that this document was not a copy of genuine document for two reasons;

(a)that the applicant did not submit it to the authorities when he first made an application for a Protection Visa; and

(b)that it did not accept the evidence of a witness called on behalf of the applicant, Mr Basinar.  (This witness had given evidence that he obtained the copy of the document clandestinely in Indonesia).

The applicant submitted that the RRT had erred in coming to both of those conclusions.  In respect of the first conclusion, the applicant submitted that the RRT had a duty to properly investigate the issue of the arrest warrant by making further enquiries.  The uncertainty of the evidence before the RRT made it unsafe to act upon it without further investigation and clarification.  In relation to the second conclusion, once the RRT rejected the evidence of Mr Basinar as to the source of the document, the applicant submitted that the RRT was not able to make a finding as to its genuineness because there was no evidence as to its source or provenance, the basis on which such finding could be made.  As the RRT made no findings as to how this document came into existence and there was no basis to draw an inference that the document was not genuine simply from the non acceptance of the evidence of Mr Basinar, it could not make findings as to its genuineness.

The respondent has submitted that there is no legal error in the RRT failing to cause enquiries to be made into the validity of the arrest warrant because the RRT is under no duty to make enquiry.  The respondent further submitted that the arrest warrant that was tendered was only a photocopy.  Its validity depended entirely on its provenance.  The RRT had formed an adverse view of the credibility of the applicant and was thus entitled to form conclusions about the genuineness of the document without being obliged to take steps to investigate itself as to its authenticity or, indeed, its provenance.

The respondent also submitted that the RRT did not make a specific finding that the arrest warrant was a forgery but was obliged to concede that it had found that it was not a copy of a genuine document.  The respondent said that the Court should view the subsequent statements of the RRT that it places “little weight” on the document purporting to be an arrest warrant as “supporting” this conclusion.  Conclusions about the likely authenticity of the document were made, the respondent submitted, based upon the other inferences which could have been drawn from the evidence before the Tribunal, namely that by January 1985 the arrests in Indonesia had stopped and that the applicant had been living and working in Jakarta without significant difficulties from 1985 until he left the country.  The RRT also had the conflicting statements of the applicant and Mr Basinar as to how and when the applicant received the copy of the arrest warrant to consider and it was open to the RRT to find, as it did, that the evidence of the applicant was unreliable generally and that the applicant had the obligation to place credible evidence before the RRT to base an assessment of the authenticity of the arrest warrant and failed to do so.

Decision
Before dealing with the grounds of review in this case it is useful to consider the proper role for the Court in conducting such a review.  In Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 the High Court said that a reviewing court is required to give the language of the decision maker a beneficial construction, without concern for looseness in language, unhappy phrasing or a verbal slip. The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. These propositions:

“recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. ... any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision”. (at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ)

The approach of Kirby J to this task of review is considered at pp 291-293 of this judgement, where his Honour relevantly makes the following observations:

• The reasons under challenge must be read as a whole.  They must be considered fairly.  It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.

• The reviewing judge must be careful to avoid turning an examination of the reasons of the decision-maker into a reconsideration of the merits of the decision where the judge is limited to the usual grounds of judicial review.

• The weight to be given to the material before the decision-maker is reserved to the decision-maker so long as (s)he applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review.  The decision maker will usually have advantages over the reviewing judge in evaluating evidence and submissions.

In this case the reasons for decision read as a whole showed that the decision maker has formed an adverse view as to the credibility of the witnesses that were called before it to give oral evidence.  However, the decision is not merely discursive and difficult to follow, there are parts of the decision which appear on an ordinary reading to be contradictory.  At page 29 of the decision the RRT says:

“In relation to the arrest warrant, the Tribunal resoundingly rejects that it is a copy of a genuine document.”

Yet at page 30 the RRT says:

“Given the adverse findings relating to the credibility of the applicant an unsatisfactory aspect of Mr Basinar’s evidence, the Tribunal places little weight on the document purporting to be an arrest warrant.”

The first of these findings could only be construed as a finding as to the genuineness of the document.  The second seems to consider that the document is able to be considered but places little weight upon it.  If one concludes that this finding as to the genuineness of the document was made then, in my view, this amounts to an error of law.  The only evidence available to the RRT as to the genuineness of the document was provided by Mr Basinar and the RRT, as it was able to do, had rejected this man’s evidence as to the source of the document.  The RRT made no finding as to how this document came into existence and the inference that it was not genuine could not be drawn on the material that was available to the RRT at the time the decision was made.

Although the respondent says that no finding that the document was a forgery was made, in my view there is no other interpretation that can be put on the finding reproduced above in this decision.  It is true, as has been submitted by the respondent, that this finding need not have been made by the decision maker in order to come to the conclusions that it did in relation to the Convention reasons.  However the RRT member did choose to make this finding and based a substantial part of its reasoning for rejection of the applicant’s application upon it.  Having come to the view that this amounts to an error of law there is no need to express a view as to whether a failure to conduct independent enquiries amounted to an error of law in this case, nor to consider the other issues raised by the applicant.

The Court orders that the decision of the RRT made on 19 June 1997 be set aside and the matter be remitted to the RRT for further consideration according to law.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor

Associate:

Dated:  10 June 1998

Counsel for the Applicant:	R.B. Wilson
Solicitor for the Applicant:	Janice Vu & Associates
Counsel for the Respondent:	V. Harstein, R. Cooley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 March 1998
Date of Judgment:	10 June 1998