Eshetu v Minister for Immigration and Multicultural Affairs
[1997] FCA 603
•10 July 1997
CATCHWORDS
IMMIGRATION - Whether s420 of the Migration Act prescribes procedures to be observed - whether a breach of s420 may be a ground of review - whether a misunderstanding of the legal issue may be an error involving an incorrect interpretation of the applicable law - ambit of the exclusions specified in s476(2) - whether the Tribunal erred in its understanding of Article 1 of the Refugee Convention.
STATUTORY INTERPRETATION - clear provisions required if common law rights abrogated - construction which accords with obligations under international treaty to be favoured - privative clause to be strictly construed - Act to be read as a whole - presumption that Parliament has acted in the public interest - explanatory memorandum.
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Adoption of Children Act 1965 (NSW) s46
Judiciary Act 1903 (Cth) s39B
Migration Act 1958 (Cth) ss420, 420(2)(b), 424, 425, 457, 476, 476(1)(a), 476(1)(e), 476(2)(a), 476(2)(b)
Migration Reform Act 1992 (Cth) s166J
A v Veterans’ Review Board (1995) 59 FCR 195
Annetts v McCann (1990) 170 CLR 596
Asrat v Vrachnas (unreported, O'Loughlin J, 23 August 1996)
Associated Provincial Picture Corporation v Wednesbury Corporation [1948] 1 KB 223
Baker v Campbell (1983) 153 CLR 52
Bolton, Re; ex parte Beane (1987) 162 CLR 514
Bouton v Labiche (1994) 33 NSWLR 225
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1
Collins v Repatriation Commission (1988) 8 AAR 184
Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52
Commissioner of Police v Tanos (1958) 98 CLR 383
Commissioner of Taxation v McCabe (1990) 26 FCR 431
Courtney v Peters (1990) 27 FCR 404
Dai Xing Yao v Minister for Immigration & Ethnic Affairs (unreported, 18 September 1996, Black CJ, Davies and Sundberg JJ)
Dai Xing Yao v Minister for Immigration & Ethnic Affairs (1997) 144 ALR 147
Darling Casino Ltd v NSW Casino Control Authority (1997) 143 ALR 55
de Motte v Minister for Immigration & Ethnic Affairs (unreported
Kumar v Immigration Review Tribunal (1992) 36 FCR 544
Li v Minister for Immigration & Multicultural Affairs (1997) 144 ALR 179
- 2 -
Mahon v Air New Zealand Ltd [1984] AC 808
Minister for Immigration & Ethnic Affairs v Guo Wei Rong (unreported, Brennan CJ, Dawson, Toohey, Gaudron, McHugh & Gummow JJ, 13 June 1997)
Minister for Immigration & Ethnic Affairs v Singh (1997) 142 ALR 191
Minister for Immigration & Ethnic Affairs v Tang Jia Xin (1994) 125 ALR 203
Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Moheedin v Minister for Immigration & Ethnic Affairs (unreported, 17 April 1997, Olney J)
Nguyen v Minister for Immigration & Ethnic Affairs (unreported, Goldberg J, 6 May 1997)
Pash and Repatriation Commission; Re (1988) 8 AAR 184
R v Cain [1985] 1 AC 46
R v District Court of Sydney; Ex parte White (1966) 116 CLR 644
R v War Pensions Entitlement Tribunal; Ex parte Bott (1933) 50 CLR 228
Sarbjit Singh v Minister for Immigration & Ethnic Affairs (unreported, 18 October 1996, Lockhart J)
Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (unreported, 6 May 1997, Lindgren J)
Than Phat Ma v Billings (1996) 142 ALR 158
Velmurugu v Minister for Immigration & Ethnic Affairs (unreported, 23 May 1996, Olney J)
Walsh and Johnson, ex parte; Re Yates (1925) 37 CLR 36
Wannakuwattewa v Minister for Immigration & Ethnic Affairs (unreported, 24 June 1996, North J)
Wentworth v New South Wales Bar Association (1992) 176 CLR 239
Zakinov v Minister for Immigration & Ethnic Affairs (unreported, 26 July 1996, North J)
MOGES ESHETU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
No. NG 129 of 1997
Davies, Burchett & Whitlam JJ
10 July 1997
Sydney
)
IN THE FEDERAL COURT OF AUSTRALIA
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 129 of 1997
)
GENERAL DIVISION )On appeal from a judgment of a judge of the
Federal Court of AustraliaBETWEEN: MOGES ESHETU
Appellant
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent
Coram: Davies, Burchett & Whitlam JJ
Date: 10 July 1997
Place: Sydney
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be allowed.
The orders made by the trial judge on 31 January 1997 be set aside and in lieu thereof it be ordered that the subject decision bearing the date 31 November 1995 be set aside and that the matter be remitted to the Refugee Review Tribunal to be heard and decided again.
The respondent pay the costs of this appeal and of the proceedings below.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DISTRIBUTION
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 129 of 1997
)
GENERAL DIVISION )
On appeal from a judgment of a judge of the
Federal Court of Australia
BETWEEN: MOGES ESHETU
Appellant
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent
Coram: Davies, Burchett & Whitlam JJ.
Date: 10 July 1997
Place: Sydney
REASONS FOR JUDGMENT
Davies J: This appeal from a judgment of a judge of the Court raises issues as to the application of s.420 and s.476 of the Migration Act 1958 (Cth) ("the Act") in relation to a decision of the Refugee Review Tribunal ("the Tribunal"). The learned trial Judge concluded that the Tribunal's decision was so unreasonable that no reasonable tribunal could have arrived at it. Nevertheless, he concluded that relief could not be granted because of the limited grounds of review for which s.476 of the Act provides.
The procedural and review provisions of the Act were substantially amended by the Migration Reform Act 1992 (Cth) which received royal assent on 7 December 1992. The general structure and nature of the new provisions were considered by Black CJ, Davies and Sundberg JJ in Dai Xing Yao v Minister for Immigration & Ethnic Affairs (unreported, 18 September 1996), in which the submission was put that the new provisions did not apply to a case in which the application for refugee status had been lodged before the coming into effect of the amending legislation. The contention that there was an "accrued right" which prevailed notwithstanding the amendment of the legislation was rejected by the Court in part because the legislative amendments were not analogous to an ousting of existing rights and jurisdiction. Rather, the new provisions reinforced the procedural elements of decision-making in appropriate sections of the Act. The provisions with respect to judicial review had been adjusted in that light. In my own reasons for decision in Dai's case, I said:-
"What has occurred is not illustrative of the ousting of jurisdiction. The provisions of the Migration Act have been strengthened with a view to ensuring that an applicant will have fair treatment at the level of primary decision-making and will also have the opportunity of internal review and of further review by the Immigration Review Tribunal or the Refugee Review Tribunal. Both the Immigration Review Tribunal and the Refugee Review Tribunal are required to provide a mechanism of review that is fair, just, economical, informal and quick and both are required to act according to substantial justice in the merits of the case. Statutory rights have been provided in place of, indeed additional to, the rights that previously found their basis in the common law. The provisions with respect to judicial review have been adjusted by Parliament in the light of this framework."
Section 420 of the Act now provides:-
"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."
Relevant provisions of s.476 of the Act provide:-
"476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
...
(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;
(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
...
(g)that there was no evidence or other material to justify the making of the decision.
(2)The following are not grounds upon which an application may be made under subsection (1):
(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b)that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.
(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:
...
but not as including a reference to:
(d)taking an irrelevant consideration into account in the exercise of a power; or
(e)failing to take a relevant consideration into account in the exercise of a power; or
...
(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."
The jurisdiction of the Federal Court is limited by these provisions. Section 485 of the Act provides that other laws, such as s.39B of the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), do not apply in relation to judicially-reviewable decisions made under the Act.
In my opinion, s.420 describes procedures with which the Refugee Review Tribunal is bound to comply. A breach of them is a ground of review under s.476(1) of the Act. It is the most general provision, so far as the Refugee Review Tribunal is concerned, of the sections which deal with the procedures to be followed. It specifically provides that the Refugee Review Tribunal is to pursue the objective of providing "a mechanism of review that is fair, just, economical, informal and quick". The section also provides that the Tribunal "must act according to substantial justice and the merits of the case." One of the necessary elements of so acting is the provision of procedures which are fair and just and are directed to ensuring that the application can be decided according to its substantial justice and merits. Of course, the words "act according to substantial justice and the merits of the case" refer to more than matters of procedure. Nevertheless, the procedures must be fair. Otherwise, the Refugee Review Tribunal will not be able to arrive at the justice and merits of the case.
A discussion of the words "substantial justice" in relation to matters of procedure may be seen in cases such as R v War Pensions Entitlement Tribunal; Ex parte Bott (1933) 50 CLR 228 at 249, 256; Courtney v Peters (1990) 27 FCR 404 at 411; Kumar v Immigration Review Tribunal (1992) 36 FCR 544 at 554-5; A v Veterans' Review Board (1995) 59 FCR 195 at 198-200. I respectfully disagree with the view expressed in cases such as Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (unreported, 6 May 1997, Lindgren J) that s.420 does not establish procedures required by the Act to be observed.
This point was made by me in Dai and was also made by Lockhart J in Sarbjit Singh v Minister for Immigration & Ethnic Affairs (unreported, 18 October 1996), where his Honour observed:-
"Section 420 is mandatory in its requirements that the Tribunal in reviewing a decision must act according to substantial justice and the merits of the case (sub-s.(2)) and in directing the Tribunal, in carrying out its functions under the Act, to pursue the objective of providing a review mechanism that is fair, just, economic, informal and quick (s420(1)).
...
If I had been of the contrary view, and found that the Tribunal had acted so unfairly as to deny substantial justice to the applicant, that would in my view be a failure to observe procedures required by the Act for the purposes of s476(1)(a), the procedure being to act according to substantial justice in reviewing a decision."
Those words of his Honour and my own words in Dai were cited by Black CJ, von Doussa, Sundberg & Mansfield JJ in Minister for Immigration & Ethnic Affairs v Singh (1997) 142 ALR 191. Their Honours distinguished observations of Olney J in Velmurugu v Minister for Immigration & Ethnic Affairs (unreported, 23 May 1996) and of North J in Wannakuwattewa v Minister for Immigration & Ethnic Affairs (unreported, 24 June 1996) and Zakinov v Minister for Immigration & Ethnic Affairs (unreported, 26 July 1996) on the ground that those observations were made in cases where the challenge made did not go to the procedures adopted but effectively sought review on the merits. Section 476(1)(a) is of course limited to the procedures adopted.
The principal grounds of review are those provided by s.476(1)(a) which deals with the procedures that are required by the Act to be observed and s.476(1)(e) which deals with the circumstance where the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts found. The procedural elements prescribed by s.420 may be challenged under s.476(1)(a). Moreover, for the purposes of ground 476(1)(e), the "applicable law" will include not only criteria specified in the Act and Migration Regulations but also the substantive elements of the s.420(2)(b) requirement that the Refugee Review Tribunal act in accordance with the substantial justice and merits of the case. If there were a misinterpretation of this provision or an incorrect application of the law, including this provision, to the facts as found, this Court may correct the error.
The phrase "substantial justice and the merits of the case" does not, of course, empower a tribunal to make a decision otherwise than in accordance with law. See Collins v Repatriation Commission (1980) 48 FLR 198. However, that is not to say that the words have no substantive, as distinct from a procedural, effect. For example, in Kumar v Immigration Review Tribunal at 555, Wilcox J referred to Re Pash and Repatriation Commission (1988) 8 AAR 184, a decision where the Administrative Appeals Tribunal used the reference to "substantial justice" to justify declining to assess incapacity in accordance with a non-statutory guide, as the guide underestimated the applicant's degree of incapacity. In Bouton v Labiche (1994) 33 NSWLR 225, Kirby P, Mahoney & Priestley JJA examined the term "substantial justice" in s.46 of the Adoption of Children Act 1965 (NSW). The judgment of Kirby P, in particular, shows that the term has an ambit wider than that of procedure. His Honour said that, in the context of s.46:-
"it must be assumed that something additional was contemplated beyond procedural fairness. ... fraud in obtaining the order may fall within the ambit of what is contrary to substantial justice: see, eg, Middleton v Middleton [1967] P 62 at 66."
Similarly, in the context of s.420 of the Act, the term has an operation wider than the earlier reference to "fair, just" procedure.
In some decisions, a view has been taken that, if an error has been identified which would amount to a breach of the rules of natural justice, if those were applicable, or which involved the making of a decision that was so unreasonable that no reasonable person could have so exercised the power, which is a basic ground of review in judicial review proceedings, then consideration of that error is precluded by s.476(2). The trial judge expressed that view when he said:-
"So zealously does the Australian Parliament desire to implement its United Nations Treaty obligations to assist refugees, that it has enacted legislation specifically to ensure that it is acceptable for a decision on refugee status to be made by the Tribunal which not merely denies natural justice to an applicant but also is so unreasonable that no reasonable decision-maker could ever make it. At least in this Court, although not in the High Court, the grounds of judicial review are narrowly confined."
To the same effect are observations of Drummond J in Than Phat Ma v Billings (1996) 142 ALR 158 at 166, of Sackville J in Dai Xing Yao v Minister for Immigration & Ethnic Affairs (1997) 144 ALR 147 and of Olney J in Moheedin v Minister for Immigration & Ethnic Affairs (unreported, 17 April 1997).
In my opinion, that approach is wrong. The Migration Act has substituted for the rules developed by the common law and the rules incorporated in the ADJR Act rules of its own. Section 420 provides that the mechanism of review shall be "fair, just, economical, informal and quick" and shall be directed to arriving at the "substantial justice and the merits of the case". If the procedures of the Tribunal have not met that prescription, the decision of the Refugee Review Tribunal may be set aside. It matters not that the breach may also have amounted to a breach of the rules of procedural fairness developed by the common law. The matter is to be determined not by the common law but by the words of the statute. A breach of the statute is not saved by s.476(2).
In a task of interpretation such as this, it is to be recalled that ouster clauses must be construed in their context. Apparently conflicting provisions should be reconciled so as to give to each provision its appropriate operation and so that the objectives which the provisions are designed to achieve are given effect. See, eg, Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 per Brennan J at 194-5. The task of reconciling the provisions of this Act is readily achieved as it plainly appears that the new provisions were designed to substitute statutory law for the common law as reflected in s.39B of the Judiciary Act and in the ADJR Act. Therefore, s.420 and the other procedural sections of the Act are given full force and effect by the operation of s.476(1)(a) of the Act whilst s.476(2) excludes the operation of the nominated common law principles. Each provision achieves an appropriate operation without encroaching on the other.
Similarly, although "unreasonableness" in the sense expounded in Associated Provincial Picture Corporation v Wednesbury Corporation [1948] 1 KB 223 is excluded as a ground of review by s.476(2), the fact that a decision is so unreasonable that no reasonable tribunal should have arrived at it does not exclude examination of the decision to see whether an error of law, being an error involving an incorrect interpretation of the applicable law, has occurred.
This interpretation, which gives appropriate effect to all the provisions of the Act, accords with the maxim Ex antecedentibus et consequentibus fit optima interpretatio. Broom's Legal Maxim's, 6th ed., states at 533, when speaking of the interpretation of deeds and other written instruments:-
"It is a true and important role of construction, that the sense and meaning of the parties to any particular instrument should be collected ex antecedentibus et consequentibus; that is to say, every part of it should be brought into action, in order to collect from the whole one uniform and consistent sense, if that may be done (Per Lord Ellenborough, C.J., Barton v. Fitzgerald, 15 East, 541; Shep. Touch. 87; per Hobart, C.J., Winch. 93. See Micklethwait v. Micklethwait, 4 C.B.N.S. 790, 862); or, in other words, the construction must be made upon the entire instrument and not merely upon disjointed parts of it (Lord North v. Bishop of Ely, cited 1 Bulst. 101; and Judgm., Doe d. Meyrick v. Meyrick, 2 Cr. & J. 230; Maitland v. Mackinnon, 1 H. & C. 607); the whole context must be considered, in endeavouring to collect the intention of the parties, although the immediate object of inquiry be the meaning of an isolated clause (Coles v. Hulme, 8 B. & C. 568; Hobart, 275; cited Gale v. Reed, 8 East, 79)."
The interpretation also accords with the presumption that the Parliament has acted in the public interest. As Lord Reid said, in Inland Revenue Commissioners v Hinchy [1960] AC 748 at 768:-
"One is entitled and indeed bound to assume that Parliament intends to act reasonably, and therefore to prefer a reasonable interpretation of a statutory provision if there is any choice."
Like principles were stated by Savigny whose three aids to interpretation are set out in Gray's The Nature and Sources of the Law, 2nd ed., at 178 as follows:-
"First, the consideration of the law as a whole; Second, the consideration of the reasons of the statutes; Third, the excellence of the result reached by a particular interpretation."
The interpretation gives full effect and enforceability to the terms of s.420 and to the object of the amending legislation, which was to set out in statutory form the procedures required, whilst giving to s.476(2) effect in accordance with its terms, namely, to exclude the operation of the common law rules of natural justice and unreasonableness as grounds for review.
It is common for appellate courts and for courts undertaking the task of ascertaining whether or not an error of law occurred to examine decisions not only by considering the words used but also by comparing the result obtained with the undisputed facts of the case. In R v The District Court of Sydney; Ex parte White (1966) 116 CLR 644, the judges examined the reasons of a magistrate to ascertain whether "a wrong legal standard was being applied", per Menzies J at 654. In Commissioner of Taxation v McCabe (1990) 26 FCR 431, in respect of a decision which was inconsistent with a proper application of the law to the evidence which had been given, I said at 437-8:-
"In making this finding, the Tribunal may unconsciously have transposed the question as to what objectively it was reasonable to expect would happen to the predominantly subjective question whether Dr McCabe was entitled to expect a renewal of her contract. ... If that was the way the Tribunal approached the matter, the Tribunal posed the wrong question, for the test is an objective one."
Had the ground of unreasonableness not been available, I may well have found that the Tribunal adopted the wrong approach, for its decision appeared to be consistent only with the application of a subjective rather than an objective test.
I therefore turn to consider whether, in the present case, the Tribunal erred in law, being an error involving an incorrect interpretation of the applicable law, a ground available under s.476(1)(e) of the Act.
Mr Eshetu was a citizen of Ethiopia. He had grown up in Addis Ababa during a time of considerable repression. In the 1970s, two of his brothers had been involved in the Ethiopian Peoples Revolutionary Party and had been imprisoned for a time and tortured. One of his brothers had died in circumstances which were unclear. As a student in secondary school, Mr Eshetu had himself become involved in political matters. In January 1991, he was detained for a week after attempting to lead students from his school on a march through the city.
In May 1991, the then President, President Mengistu, fled Ethiopia. The Ethiopian Peoples' Revolutionary Democratic Front ("the EPRDF") took control. Persecution and repression continued to occur although conditions improved.
The repressive activity extended to the University of Addis Ababa. On 4 January 1993, students and other members of the University marched out of the gates of the University at a time when Boutros Boutros-Ghali, the Secretary-General of the United Nations, was visiting Ethiopia. Government forces fired on the column of marchers. One student was killed and 13 students were injured. A report of the Ethiopian Human Rights Council shows that thereafter the President and two Vice Presidents of the University were dismissed and the University was closed for three months. Forty-two faculty members were dismissed and, on the reopening of the University, 11 students who had been members of the Provisional Student Council were not allowed to register.
A letter from Amnesty International has described the position during these years as follows:-
"Ethiopia in 1991 was a country in transition, and all reports indicate that the early transition months were extremely tense. It is reasonable to assume that many incidents of arrest and ill-treatment were not reported and did not come to the attention of the human rights organisations. In actual fact, Amnesty International's reports from the time indicate that thousands of people were arrested in mid- to late-1991 by the new authorities, and that demonstrations which occurred in Addis Ababa and other towns throughout the country following the EPRDF takeover were forcibly suppressed, leaving several demonstrators dead. Amnesty International notes that many of the detainees were held without being formally charged, again adding credibility to the incident described by Mr Eshetu. Information available from our International Secretariat notes that students were generally seen as potential opponents by the Ethiopian authorities in late 1991. The situation for students seems to have deteriorated since 1993. For more information on our current concerns in Ethiopia, I refer you to our most recent document Ethiopia: Accountability past and present (AFR 25/06/95). The report notes that the transitional period has seen many new abuses of human rights, including detention without charge or trial of often non-violent critics of the government, secret detention and torture of suspected members of opposition groups, "disappearances" and extrajudicial executions."
Mr Eshetu informed the Tribunal that, in October 1991, he commenced studies at the University of Addis Ababa and was elected shortly thereafter to the Student Council. The Student Council met approximately once a week and discussed, inter alia, political matters. One of the concerns of the members of the Council was that, after the takeover by the EPRDF, the Government was a coalition of ethnic groups excluding the Amharas, to whom Mr Eshetu belonged, but dominated, apparently, by Tigrayans. Mr Eshetu said that the Student Council decided to organise a march to the United States Embassy on 5 December 1991, but, on the day before, officers from the EPRDF Army arrested Mr Eshetu and 24 or so others from the University including all but the one member of the Student Council who was suspected to be a Tigrayan. Mr Eshetu said that the students were taken to Maikelawi Prison where they were held for three days, were given no food and were beaten. During his period there he suffered an injury to his foot. After the three days, the students were released and warned against participating in further anti-Government activities.
Mr Eshetu informed the Tribunal that he returned to class for a few days but, about four days after his return, he stayed away for one day to seek medical treatment for his foot. In the evening, some members of the Student Council came to his home, told him that four members of the Council had been arrested and warned him that it was not safe for him to remain in Ethiopia. Mr Eshetu said that he did not return to the University but hid in the home of an elder brother and, after obtaining a false passport, he left Ethiopia on 9 June 1992. He went first to Israel where a sister was working but he could not stay there permanently. He came to Australia in September 1993, where he claimed refugee status.
Mr Eshetu said that, on arriving in Australia, he joined a group of Ethiopians in Australia who were active in promoting human rights in Ethiopia. His evidence as to his involvement in these affairs in Australia was supported by witnesses living in Australia who were called before the Tribunal.
It should be noted that there was nothing inherently improbable about Mr Eshetu's story and that, if he were believed, his evidence provided grounds for the grant of refugee status. I should mention, moreover, that Mr Eshetu's evidence appeared to be the evidence of someone who was speaking from recollection and it included details which a person fabricating a story would have been unlikely to include. The following are just a few samples from the evidence:-
"Because you know, among us if we meet and the peoples tell them, there's the Tigrayans among the 12 students, one of them especially you know disappeared, we couldn't see him ...
One of them disappeared ...
We don't know where. I mean during that time when we captured we didn't see him.
...
Especially we were so angry in the United States actions in that time; it was the USA I mean, not the United Nations, and they were the one that allowed them into the countries and especially during that times, you know, there were so many things and even they start to kill people in the street.
...
... in the middle of the night when the cold does in the corridor, it's very cold, it's very cold and I was in barefoot and I was so sick because of that.
...
And I took off then that day they held some of the students name, even they were not sure who had but they barely escaped and they came to inform me it's better not to come and we discussed how we going to do it and how we going to go out from that country and ---
So you all decided to leave?
Yes, that's no one's - no-one are any intention to go back to that."
The Tribunal rejected Mr Eshetu's evidence, but not on the ground that his demeanour showed him to be a person who was not telling the truth. No comment to that effect was made to the Tribunal. The Tribunal rejected Mr Eshetu's evidence on the ground that the arrest of the members of the Student Council and other students was not reported by or recorded by any human rights agency. Throughout the two days of hearings on 23 February 1995 and 21 August 1995, the Tribunal queried whether events as serious as Mr Eshetu had described them to be had ever occurred, as they had not been reported. Thus, on the first day the Tribunal member said:-
"I find it a little strange that the entire student council from the ... (indistinct) ... University could be detained for four days, that most of them had been and left the country and that four of them would have disappeared and that there would be no mention of this anywhere."
An example of Mr Eshetu's response to such queries was as follows:-
"... it is my prison, my imprisonment three days it is nothing. It's very, very easy things when you compare those things which has happened in Ethiopia."
However, such answers did not satisfy the Tribunal.
Not surprisingly, Mr Eshetu had no evidence to back up his case other than evidence as to his activities in Australia. He had lost contact with his fellow students when he went into hiding.
The events of 5 December 1991 occurred at a time just after the Ethiopian Human Rights Council had been established. The first report of that Council was said to have included complaints from 21 October to 27 November 1991 and the second to have included complaints received from 12 December 1991 to 13 February 1992. There was a possible relevant hiatus between these periods. The Tribunal made an enquiry of the Ethiopian Human Rights Council and the following information was conveyed by telephone:-
"Mr Wolfemariam stated that the Ethiopian Human Rights Council was aware that the Addis Ababa University Student Council was planning a march to the US Embassy, the British, the French and German Embassies in early December 1991.
Mr Wolfemariam stated the Human Rights Council was not aware of any members of the Student Council being detained in connection with the planned march. They did not receive any information on detentions in relation to this incident.
Mr Wolfemariam was asked whether it was possible that the detentions occurred without the Human Rights Council's knowledge. Mr Wolfemariam stated that it was possible that members of the Student Council were detained in December without the Human Rights Council's knowledge.
Mr Wolfemariam was asked what treatment he thought someone who was a member of the Student Council, detained for 3 days and tortured in December 1991, and then released and warned not to participate further in politics, would receive if this was their only involvement in anti-government activities and they returned to Ethiopia now. Mr Wolfemariam stated that this question was very difficult to answer as the Government's policy and attitude towards such activities varies over time. However, Mr Wolfemariam did emphasise that there had been animosity between the Government and the Student Council and this had been reflected in the mass media. Mr Wolfemariam stated that members of the Student Council had been killed and it is unlikely that a member of the 1991 Student Council would be greeted by the Government in a friendly manner."
Amnesty International had no information about the incident but wrote to the Tribunal in the following terms:-
"In the first paragraph of the letter to Mr Kessels (Mr Eshetu's solicitor), it is noted that the Member has serious concerns about Mr Eshetu's claim. This doubt is apparently justified in the statement:
`No mention of the incident was found in the reports prepared by human rights organisations monitoring the situation at the time.'
Amnesty International considers that the absence of information on a human rights violation is never to be taken as an indication that it did not occur. Such an inference is unfortunately frequently argued by Delegates of the Minister in rejecting what are often extremely strong claims. What is relevant when assessing a claim is whether an individual's account is consistent with information available about the country situation at the time; and even then, if there is no information available at all, it is not necessary to draw a conclusion that an applicant's story is not credible unless there is reason to doubt the truthfulness of the allegations. This is in keeping with the guidelines for assessing evidence as recommended by the UNHCR in several documents, notably its Handbook on Procedures and Criteria for Determining Refugee Status. I refer you to Section B of the Handbook, on `Establishing the facts, Principles and methods'. This section emphasises the principle of the benefit of the doubt. I note:
196.... cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule ... independent research may not, however, always be successful and there may also be statement that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.
197.The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherence in the special situation in which an applicant for refugee status finds himself.
203.After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to `prove' every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. If is therefore frequently necessary to give the applicant the benefit of the doubt.
It appears that such guidelines have not been followed in this case. It is furthermore noted below that there is evidence to indicate that students were indeed viewed as potential opponents in late 1991 and that there were arrests of anti-government demonstrators, adding weight to Mr Eshetu's claim."
The Tribunal also made an enquiry of Community Aid Abroad about the matter but nothing was known by that organisation.
The crux of the Tribunal's conclusions was set out in the following paragraphs:-
"I accept that Mr Eshetu has a strong subjective fear of returning to Ethiopia based on his conviction that the current government of Ethiopia is conducting a repressive campaign against its opponents in general and Amharas in particular. However, I find the chance that he will face serious harm amounting to persecution either because he opposes the current government or because he is an Amhara to be remote.
...
I do not accept that Mr Eshetu and another 25 students, including all but one of the members of the Student Council from the University of Addis Ababa, were detained and tortured for three days for planning a demonstration in December 1991.
...
While I acknowledge that not all detentions or other human rights abuses will be mentioned in human rights reports or other published materials, for the reasons set out below, I consider that the detention and torture of 25 students, including all but one of the members of the Student Council in Addis Ababa in December 1991 would have been known to at least some of those monitoring the human rights situation and would have been reported in publications produced by these organisations.
...
I accept that Mr Eshetu opposes the current government of Ethiopia and that he has been participating in discussions at the Ethiopian Association at which the government was criticised and has participated in demonstrations against the government. I also accept that he will continue to oppose the government on return to Ethiopia. However, I do not accept that he faces more than a remote chance of detention or other serious harm amounting to persecution in Ethiopia as a result of his opposition to the current government." (emphasis added)
I join with the trial Judge in thinking that the reasons given by the Tribunal for rejecting Mr Eshetu's claim for refugee status were unsatisfactory. The definition appearing in Article I of the Refugee Convention relevantly reads:-
"... 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 ..." (emphasis added)
The question for the Tribunal was not whether 25 students including 11 members of the Student Council had all been arrested on 5 December 1991 and had all been beaten and tortured for three days. The question for the Tribunal was whether Mr Eshetu had left Ethiopia because of fear of persecution for his political opinions, whether he feared to return to Ethiopia for that reason and whether those fears were well-founded. Neither in the Tribunal's questioning of Mr Eshetu during the hearing nor in the Tribunal's lengthy reasons for decision did the Tribunal seriously enter into the question as to why Mr Eshetu had left Ethiopia, whether he had in fact been a student member of the University, whether he had suffered an injury to his foot and if so in what circumstances and whether he had gone into hiding, and if so why.
In Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Mason CJ, Dawson, Toohey, Gaudron & McHugh JJ expressed the view that, for a fear of persecution to be "well-founded", there must be a real chance that the refugee will be persecuted if he returns to his country of nationality. Each of the judges emphasised that, in assessing this question, emphasis should be placed upon the circumstances as they existed at the time of departure which grounded the applicant's fear of persecution. See Mason CJ at 387, Dawson J at 399, Toohey J at 406, Gaudron J at 415 and McHugh J at 433. In his reasons for judgment at 425, McHugh J set out certain of the passages from the "Handbook on Procedures and Criteria for Determining Refugee Status" which I have set out above in the letter from Amnesty International and, in doing so, impliedly accepted that, in a determination of whether or not the applicant has a "well-founded fear of persecution", it is necessary to concentrate on the applicant's story as to why his fear of persecution developed and whether there is a real chance of such persecution occurring if he were returned to his homeland. The same point was made by Brennan CJ, Dawson, Toohey, Gaudron, McHugh & Gummow JJ when in Minister for Immigration & Ethnic Affairs v Guo (unreported, 13 June 1997) their Honours said:-
"In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not `differentially at risk for a Convention reason.' Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC."
The Tribunal was the decision-maker of fact. However, it seems to me that, by failing to identify when Mr Eshetu's "strong subjective fear" developed and by failing to make findings as to whether that fear developed whilst Mr Eshetu was in Ethiopia and whether it was because of that fear that Mr Eshetu left Ethiopia, the Tribunal failed to deal with crucial issues which the definition required to be examined.
The Tribunal concluded that the detention and torture of 25 students had not been reported and was therefore implausible. The tenor of the Tribunal's examination thereafter concerned the identification of objectively proven facts, that is to say, facts proven otherwise than by Mr Eshetu's evidence. To approach the matter in that way was to apply a wrong test. Fear is a subjective, not an objective, matter. Although, for fear to be well-founded, there must be facts which establish that there is a real chance that the persecution feared would occur, the determination of the issue of "real chance" requires, first of all, an identification of the fear and of the circumstances in which it arose. Yet, the Tribunal made no finding as to why Mr Eshetu had left Ethiopia, as to whether he had been a student at the University of Addis Ababa, whether he had been a member of the Student Council and so on.
In my opinion, the Tribunal erred in its understanding of the issues which the definition poses. I think that the trial Judge would not disagree with this analysis, for his Honour was of the clear view that the decision of the Tribunal was wrong.
I do not suggest that attention may not be given by a tribunal to the objective facts or that an applicant's claim may not be rejected as being inconsistent with objectively known facts. Of course, that may occur. There have been many decisions of Refugee Review Tribunals which have come before the Court where a tribunal has rejected an applicant's story as implausible in the light of known facts. In numerous cases, the Court has declined to interfere, taking the view that the facts are for the decision-maker of fact.
The present, however, is a different type of case. Mr Eshetu gave to the Tribunal a detailed individual story which, at least insofar as it affected him, was not inconsistent with known facts at the relevant time. The Tribunal ought not to have rejected Mr Eshetu's claim without coming to a view, if it could, as to whether Mr Eshetu had been a member of the Student Council as he alleged, whether he had suffered an injury to his leg as he said, whether he had left the University in December 1991 as he said, whether he had hidden in his elder brother's house thereafter and whether he had left Ethiopia because of persecution by the Government's forces. The failure to do so discloses an error of approach due to a misunderstanding of the meaning and operation of the term "well-founded fear".
It follows that the Tribunal's decision involved an error of law, being an error involving an incorrect interpretation of the applicable law.
I would allow the appeal. I would set aside the orders below and, in substitution therefor, I would order that the decision of the Tribunal be set aside and that the matter be remitted to the Refugee Review Tribunal to be heard and decided again. Necessarily, in a case such as this, procedural fairness demands that the matter be considered by a tribunal member who comes to the matter with a fresh mind. However, that is so obvious a proposition, it need not be part of the formal order. I would order that the respondent pay the costs of this appeal and of the proceedings below.
I certify that this and the preceding 21 pages
are a true copy of the reasons for judgment of
the Honourable Justice Davies.
Associate:
Date: 10 July 1997
THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 129 of 1997 ) GENERAL DIVISION )
On appeal from a Judge of the Federal Court of Australia
BETWEEN: MOGES ESHETU
ApplicantAND: MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
Respondent
JUDGES: Davies, Burchett and Whitlam JJ. PLACE: Sydney DATED: 10 July 1997
REASONS FOR JUDGMENT
BURCHETT J
An object of the Migration Reform Act 1992, by s 166J of which the Refugee Review Tribunal was established, was to set in place, as the then Minister for Immigration, Local Government and Ethnic Affairs made clear in the explanatory memorandum that accompanied the Bill (at 84), “a codified set of procedures which will provide greater certainty in the decision-making process”, together with “comprehensive merits review”. Unfortunately, a host of conflicting dicta and decisions shows that the stated aim has not been achieved. The first task of the Court, in the present appeal, is to attempt to clarify authoritatively the meaning of provisions which have given rise to so much uncertainty.
Section 457 of the Migration Act 1958 (into which s 166J became translated) establishes the Refugee Review Tribunal, but important provisions governing its operation are to be found in earlier sections. A central provision is s 420, which reads:
“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.”
Sections 423 to 429 then relate to the conduct by the Tribunal of a review. Section 423 provides for evidence and arguments to be furnished in writing. Section 424 enables the Tribunal to make a decision without proceeding to oral evidence, as long as the decision is favourable to the applicant. But where the matter cannot be so simply disposed of, s 425 provides:
“425. (1) Where section 424 does not apply, the Tribunal:
(a) must give the applicant an opportunity to appear before it to give evidence; and
(b) may obtain such other evidence as it considers necessary.
(2) Subject to paragraph (1) (a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.”
Section 426 clarifies the applicant’s right to give evidence, and to seek to have the Tribunal obtain oral evidence from others, although (one might think for obvious reasons) the Tribunal is not required to accede. Sections 427 to 429 deal with the obtaining of evidence and the hearing.
There was debate about the effect of s.425, but some things are quite plain. Subsection (1)(a) was intended to ensure that the primary rule of natural justice, audi alteram partem, receives a measure of recognition. Of course, it would be a very inadequate recognition if the right “to appear ... to give evidence” did not extend to the provision of the evidence of witnesses who might, in some cases, perhaps in many cases, be able to give more significant information in support of the applicant’s case than he could himself. But there are two answers to this problem: the command in s 420 to “act according to substantial justice and the merits of the case” would not permit the Tribunal to ignore available and relevant evidence; and although paragraph (b) of s 425(1) uses the word “may”, it provides a clear instance of the use of that word to confer a power which will often involve an obligation. Once the Tribunal “considers [it] necessary” to obtain evidence, Parliament can hardly have meant that it should nevertheless be free to brush aside that necessity.
I turn from these salient provisions, defining the review on the merits available in the Tribunal, to the provision made by s 476 with respect to the grounds for judicial review by this Court of the Tribunal’s decisions. Section 476 provides:
“476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
(b) that the person who purported to make the decision did not have jurisdiction to make the decision;
(c) that the decision was not authorised by this Act or the regulations;
(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;
(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(f) that the decision was induced or affected by fraud or by actual bias;
(g) that there was no evidence or other material to justify the making of the decision.
(2) The following are not grounds upon which an application may be made under subsection (1):
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.
(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:
(a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and
(b) an exercise of a personal discretionary power at the direction or behest of another person; and
(c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
but not as including a reference to:
(d) taking an irrelevant consideration into account in the exercise of a power; or
(e) failing to take a relevant consideration into account in the exercise of a power; or
(f) an exercise of a discretionary power in bad faith; or
(g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).
(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.”
What has caused particular difficulty about this section is the perceived clash between the grounds specified in subs (1) and the denial of the grounds of natural justice and Wednesbury unreasonableness in subs (2), as well as the narrowing (by subss (3) and (4)) of the grounds expressed in subss (1)(d) and (1)(g). One thing which strikes the eye, immediately s 476 is examined, is that natural justice and Wednesbury unreasonableness are stated to be “not grounds upon which an application may be made under subs (1)”; but several other recognised and important grounds generally available in administrative law that are referred to in subs (3), such as “failing to take a relevant consideration into account in the exercise of a power” (only a ground in administrative law where the decision-maker was bound to take that consideration into account), are just stated to be not included within the ground specified in subs (1)(d). Whatever else this may mean, it seems to me that, upon ordinary principles of construction, the grounds referred to in pars (d) to (g) of subs (3) are not excluded from any of the grounds in subs (1) other than par (d) of that subsection.
But what is the effect of the denial that natural justice or Wednesbury unreasonableness is a ground? It is, of course, a commonplace of administrative law that the general grounds which have been established cover overlapping fields of operation. That is to say, it will frequently be found that if the facts of a case establish one ground, the same facts will also make out another. To multiply instances would be tedious, but a clear illustration of the point is provided by the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41. There, in a discussion of the ground of review embraced by the rubric “Failure To Take Into Account a Relevant Consideration”, which commenced at p 39, Mason J made it clear that the ground could be made out in accordance with “both principle and authority”, in some circumstances where “an administrative decision ... has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance”. But he added:
“The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’.”
Plainly, each of these formulations may involve, to use the language of s 476(1)(e), “an incorrect application of the law to the facts as found by the person who made the decision”, insofar as it is the law which determines relevant and irrelevant considerations, and determines that, to be valid, a decision must not be manifestly unreasonable. But should a case occur under this legislation of the kind envisaged by Mason J, would the unavailability of the ground of manifest unreasonableness prevent a court acting on the ground specified in s 476(1)(e) if it appeared that there had been an incorrect interpretation of the law because an irrelevant consideration had been taken into account, or a relevant consideration the decision-maker was bound to take into account had been ignored?
Consistency suggests that, since both natural justice and Wednesbury unreasonableness are dealt with in the one subsection and by the same verbal formula with which that subsection opens, the effect of the subsection upon these grounds must be the same. So, before attempting to answer the question, I turn to the matter of natural justice. The principle of natural justice embraces several related rules, although the expression is often used to refer simply to the primary rule audi alteram partem. A brief statement of the wider meaning is that contained in Butterworths Australian Legal Dictionary, edited by Profs. P. Nygh and P. Butt (1997):
“The right to be given a fair hearing and the opportunity to present one’s case, the right to have a decision made by an unbiased or disinterested decision maker and the right to have that decision based on logically probative evidence .....”
The first aspect of this definition was plainly intended to be given effect by s 425, and the whole of it, in broad terms, by s 420. Breaches of those provisions would, quite literally, fall within the language of s 476(1)(a) and (e) as fundamental procedural breaches, and also as errors of law. In the case of bias, s 476(1)(f) would also be directly engaged. In my opinion, the most straightforward way to understand the legislation, taken as a whole, is to read it as substituting, for a broad conception of natural justice, a series of specific provisions by one or other, or even several, of which each rule of natural justice is given effect, so that a separate ground expressed in the traditional way would be otiose. It is for this reason that s 476(2)(a) removes a breach of the rules (note the word is in the plural) as a separate ground.
There are powerful considerations that provide support for a construction giving full effect to ss 420 and 425 in conjunction with the clear wording of s 476(1), while giving meaning to s 476(2) in the way I have suggested. To treat s 476(2) as doing more than removing the two separate grounds mentioned in it, so as also to restrict any other ground, although expressly made available by s 476(1), by a kind of surgery that would remove from that ground anything capable of being regarded as a breach of natural justice or an exemplification of Wednesbury unreasonableness, would be to give an extended meaning to a privative clause. That would be contrary to principle. Every word of s 476(2) is given full literal effect by the construction I have put on it, and there is no warrant for an expansion of its effect so as to curtail fundamental rights, especially when those rights are expressly protected by the literal terms of other provisions.
If considerations arising out of the structure and effect of the text merely left the issue uncertain, as I do not think they do, decisive weight would have to be given to important rules of construction. In Baker v Campbell (1983) 153 CLR 52 at 116, Deane J said:
“It is a settled rule of construction that general provisions of a statute should only be read as abrogating common law principles or rights to the extent made necessary by express words or necessary intendment.”
And in Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 252, the joint judgment of Deane, Dawson, Toohey and Gaudron JJ states:
“There are certain matters in relation to which legislative provisions will be construed as effecting no more than is strictly required by clear words or as a matter of necessary implication. They include important common law rights, procedural and other safeguards of individual rights and freedoms and the jurisdiction of superior courts.”
These pronouncements apply with particular strength to rules as fundamental as those of natural justice, which have been recognised - as Dixon CJ and Webb J indicated by their reference to Seneca’s Medea in The Commissioner of Police v Tanos (1958) 98 CLR 383 at 395 - for some 2,000 years, and are considered indispensable in both of the main systems of law of the modern world. The effect of what Seneca wrote will be found by those modern readers of Tanos whose Latin is limited in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 71. As regards the civil law system, Professors Brown and Bell in their French Administrative Law (4th ed, 1993) at 217 state, under the heading “Audi alteram partem”:
“The necessity to hear both sides - the right to a hearing or ‘due process’ before a decision is arrived at - is recognized by droit administratif as it is in English administrative law. Clearly all procedural requirements laid down in statutes or regulations must be observed, but also a decision will be annulled whenever the aggrieved party has not been advised in advance of the case he has to meet and given an adequate opportunity of presenting his views.”
A leading modern member of the French Conseil d’Etat, Guy Braibant, in his LE DROIT ADMINISTRATIF FRANÇAIS (2nd ed., 1988) at 221 describes the principle which we call by the name “natural justice” as “a principle which is universally recognised in the world at the present time”. See also my article Administrative Law - The French Comparison (1995) 69 ALJ 977 at 981. In this situation, I think the words of Isaacs J. in Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 93 are peculiarly applicable:
“[T]he full and literal intention will not ordinarily be ascribed to general words where that would conflict with recognized principles that Parliament would be prima facie expected to respect. Something unequivocal must be found, either in the context or the circumstances to overcome the presumption.”
There is a further principle of construction applicable to legislation having an impact on Australia’s treaty obligations. As Foster J pointed out in Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 at 195-196, Australia “has undertaken solemn treaty obligations to afford sanctuary to refugees seeking to escape or avoid persecution on Convention grounds. The relevant sections of the Act are our legislative response to those obligations and, broadly speaking, provide mechanisms for the determination whether the obligations exist in particular cases and for the fulfilment of those obligations where they are found to exist.” It cannot have been the intention, when these international obligations were incurred, that their actual implementation should be devoid of adherence to standards universally accepted, which have been recognised as far back as 2,000 years ago. Nor that administrators should be entitled with impunity to make decisions with respect to the rights guaranteed by treaty which were so unreasonable that no reasonable person could have made them. Therefore, the principle of construction stated by Brennan, Deane and Dawson JJ in Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 also applies:
“We accept the proposition that the courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty.”
This principle was reiterated by Mason CJ and Deane J in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 287-288:
“It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia’s international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations.”
(Footnotes omitted.)
There is yet another principle of construction which offers guidance in the present situation. If s 476(2) deprives the Court of jurisdiction to deal with breaches of procedures required by the Act, or with decisions not authorised by the Act, or with errors of law involved in the making of decisions, wherever any of those matters would constitute, but for subs (2), a breach of the rules of natural justice or Wednesbury unreasonableness, then the subsection is truly a privative provision. In relation to such a provision, there is a well recognised rule, which has recently been restated by Gaudron and Gummow JJ in Darling Casino Ltd v New South Wales Casino Control Authority (1997) 143 ALR 55 at 75:
“However, privative clauses, whether in State or Commonwealth legislation, are construed ‘by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied’ (Public Service Association (SA) v Federated Clerks’ Union of Australia (SA Branch) (1991) 173 CLR 132 at 160: 102 ALR 161 at 181 per Dawson and Gaudron JJ).”
In R v Cain [1985] AC 46, the legislation in question expressly provided that “[n]o appeal shall lie” against the making of certain orders. A unanimous House of Lords nevertheless affirmed, in the words of Lord Scarman (at 56):
“In the absence of express indication to the contrary, it would be unthinkable that Parliament could intend to deprive the subject of his right to appeal against a sentence which the court had no power to pass. Further, there are very good, though differing, reasons for excluding an appeal on the merits none of which apply to exclusion of appeal for lack of power to make the order.”
Accordingly, it was held that appeals were only excluded subject to an implication preserving appeals on the ground of excess of the power conferred by Parliament.
Here, each of these rules of construction reinforces the meaning conveyed by the language, considered as disclosing a consistent scheme. Indeed, where Parliament has carefully formulated express rules to replace (and fulfil) the implicit principle of natural justice, it would be an extraordinary construction of the subsequent provision in s 476(2)(a), which actually refers only to the replaced implicit principle, to treat it as throwing out the new statutory baby together with the now unnecessary common law bathwater. It has long been understood that provisions excluding the implicit principle must do so plainly and unequivocally: Annetts v McCann (1990) 170 CLR 596 at 598, citing Commissioner of Police v Tanos (supra). There would have to be a complete reversal of the law’s approach before express statutory rules conferring rights to natural justice could be excluded more easily and by a less certain provision.
In my opinion, it is unnecessary to refer to the explanatory memorandum (previously mentioned) to resolve any ambiguity in respect of the matter under discussion. The language of ss 420 and 425, together with s 476(1), is sufficient to confer enforceable statutory rights equivalent to those provided at common law by the principle of natural justice, and s 476(2)(a) does not take those rights away. However, if an ambiguity should be seen in the juxtaposition of s 476(2) with the other provisions, the explanatory memorandum confirms the legislature’s intention to provide for, rather than to deny, the substance of the rules of natural justice. The memorandum explains, with reference to the provision which became s 476(1)(a), that it -
“is complementary to the new sub-section [the provision which became s 476(2)(a)], which provides that an application for judicial review of a decision may not be made for a breach of the rules of natural justice, or as it is now called, procedural fairness. The Scheme of decision-making under the amendments made in this Bill will set out with greater certainty the procedural requirements to be followed to ensure that applicants are provided with the protection necessary to receive a fair consideration when decisions are made affecting their right to enter or remain in Australia. The procedural requirements under the existing regime have been governed by the common law rules of natural justice and these rules have not provided the certainty needed for effective administration of the migration program. Accordingly, these common law rules will be replaced by a codified set of procedures which will afford the same level [of] protection to individuals but will have the additional advantage of greater certainty in the decision-making process. ..... The Bill provides for an application for review of a decision where procedures such as these are not observed.”
The whole of this note refers to s 476(1)(a), and thus the statement in the final sentence, which picks up the very language of that provision, referring to “procedures” being “not observed”, makes it very clear that the intention was to provide, under this ground at least, for review of a decision which denied natural justice to the applicant in any respect covered by the “codified set of procedures” which were said to “afford the same level [of] protection” as the common law principle.
It is interesting too to note that the explanatory memorandum (at 81) expressly recognised:
“While each ground of review stands separately, they are not mutually exclusive and there may be overlap between some of the grounds”.
Finally, the explanatory memorandum also contains (at 8-9) general statements about the Bill’s provisions for judicial review, including the following:
“In acknowledgment of the special nature of immigration decisions and as a result of the widened availability of merits review the Reform Bill amends the Act to set down reformulated grounds for judicial review. To ensure procedural fairness, procedures for decision making which embody the principles of natural justice have been set out in the Reform Bill .... The specific codified procedures in the Reform Bill, and those to be set out in the Migration Regulations, replace the current uncertain rules with regard to natural justice and statutory criteria for decision-making will clarify the matters which must be considered in making a decision. An applicant will be able to appeal to the Federal Court if the codified procedures and criteria have not been followed by decision-makers but a Court appeal will only be permitted where the appellant has first pursued all merits review rights.”
The intention that the substance of natural justice should be enforceable by review procedures could hardly have been made clearer. That those who formulated the explanatory memorandum seem not to have understood the extent to which the principle of natural justice, as it applies to any given situation, has become a settled and clear set of rules in the modern law, in no way detracts from this point. Nor does the fact that the attempt to express the rules of natural justice, and to provide for their application, has been so demonstrably lacking in reasonable clarity.
However, it has been suggested, as an answer to the impact of the explanatory memorandum, that the Minister not only misunderstood the general law; he also misread his own legislation. (See Li v The Minister (supra, at 196).) The proposition is that the reference to “codified procedures and criteria” does not relate to ss 420, 424 and 425, but to procedural provisions with respect to the earlier decision the subject of the proceeding in the Refugee Review Tribunal. If that be right, Parliament was misled by the statement that an “applicant will be able to appeal to the Federal Court” on such a ground, since the procedures would be inapplicable to a decision of the Tribunal. But all this is to miss the point. What the explanatory memorandum indubitably shows is that Parliament did not intend s 476(2)(a) to exclude an application under s 476(1)(a) on any such basis as that the application referred to “procedures that were required .. to be observed” which actually would have implemented the principle of natural justice. Because those procedures were designed to “replace” the principle of natural justice, the ground of appeal was to be a failure to observe them, not a failure to act in accordance with natural justice. That, the explanatory memorandum clearly shows, was the only effect s 476(2)(a) was intended to have. It was not meant to trespass at all on s 476(1)(a); and therefore, the actual language of ss 420 and 425 being apt to raise a case under s 476(1)(a), there could be nothing in the intended effect of s 476(2)(a) to interfere with such a case. If the explanatory memorandum does indeed reveal a misunderstanding as to the effect of the provisions of the legislation, it should be remembered that such a misunderstanding does not make the law, but only the enactment itself, properly construed: Re Bolton; Ex parte Beane (1987) 162 CLR 514; Minister for Immigration and Ethnic Affairs v Tang Jia Xin (1994) 125 ALR 203 at 207.
It is desirable to say something about some of the many conflicting decisions. In Minister for Immigration and Ethnic Affairs v Surjit Singh (Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ, 7 May 1997, unreported), the joint majority judgment of Black CJ, von Doussa, Sundberg and Mansfield JJ reached a conclusion which made it “not necessary for us to decide whether, in a case where the Tribunal’s omission to make inquiries constitutes a failure to act according to substantial justice for the purposes of s 420(2)(b), this amounts to failing to observe procedures required by the Act to be observed for the purposes of s 476(1)(a). Nor is it necessary to determine whether, in such a case, s 476(2) precludes a review by this Court ..... .” However, their Honours did refer to a dictum of Davies J in Dai v Minister for Immigration and Ethnic Affairs (unreported, 18 September 1996), where his Honour said:
“Although s 420(1) specifies only an objective, the Migration Act intends the procedures adopted by the Refugee Review Tribunal will be fair and just. If this has not occurred in the present case, the applicant will be entitled to seek relief under s 476(1) of the Migration Act on the ground that the procedures required by the Migration Act to be observed in connection with the making of the decision have not been observed.”
That view, as their Honours noted, received support from Lockhart J in Sarbjit Singh v Minister for Immigration and Ethnic Affairs (unreported, 18 October 1996). To the contrary were the decision at first instance in the present case, and certain observations of Drummond J in Thanh Phat Ma v Billings (1996) 142 ALR 158, of Sackville J in Dai v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 147, and of Olney J in Mohideen v Minister for Immigration and Ethnic Affairs (unreported, 17 April 1997). However, although the majority had no need to reach a conclusion, Lee J in his dissenting judgment, suggested that s 420 was concerned with “the steps required to produce substantial justice to an applicant having regard to the particular circumstances”, and that the section could give rise to a ground for review under s 476(1)(a). He considered that “[s]ections 476(2)(a) and (b) are discrete exclusionary provisions, not qualifications upon the content of s 476(1), and he drew attention to the contrast provided by the formulation of subs (2) with that of subss (3) and (4) “which qualify expressly the terms of ss 476(1)(d) and 476(1)(g).” While not finding it necessary for the purposes of the cases with which they had to deal, to adopt the penetrating analysis (if I may respectfully so call it) of Lee J, O’Loughlin J in Asrat v Vrachnas (unreported, 23 August 1996) and Foster J in Li v The Minister (supra) both treated breaches of s 420 as affording grounds of review pursuant to s 476(1). Cf de Motte v Minister for Immigration and Ethnic Affairs (Tamberlin J, unreported, 8 May 1997) at 16-17; Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (Lindgren J, unreported, 6 May 1997) at 47-48; Nguyen Do Vinh v Minister for Immigration and Ethnic Affairs (Goldberg J, unreported, 6 May 1997) at 29-31.
But Drummond J in Thanh Phat Ma v Billings (supra, at 165), having held that ss 420 and 425 were concerned with procedures fulfilling the requirements of natural justice, concluded (at 166) that s 476(2)(a) prevented correction of a failure of the Tribunal to comply with s 420, so that Parliament had provided an obligation “without any remedy” for its breach. This is a view which was accepted by Olney J in Mohideen. In Dai v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 147, Sackville J discussed the decision in Thanh Phat Ma v Billings at some length. His Honour concluded (at 154):
“In my view, it is not open to the applicant to seek relief under either s 476(1)(a) or s 476(1)(e) of the Migration Act on the grounds pressed on his behalf by Mr Clarke. Those grounds amount to claims that the RRT breached the rules of natural justice. Section 476(2)(a) of the Migration Act prevents the court granting the relief sought by the applicant. His application must therefore be dismissed.”
With respect, I cannot agree with this conclusion. It was reached without any detailed analysis of the provisions, or any advertence to the principles of construction to which I have referred. Indeed, it reverses those principles, giving a provision which would deprive the individual of fundamental rights protecting him against arbitrary executive action a wider operation than that provision actually expresses. For s 476(2)(a) simply says that a breach of natural justice is not a ground under s 476(1). The passage quoted would go further, and deny a ground that is specified in s 476(1) any effect if it happens to overlap with an aspect of the principle of natural justice.
Turning now to the particular grounds for judicial review of the decision in this case, upon which the appeal is based, I find myself in complete agreement with Davies J. There are, however, some further comments which I think should be made. In a lengthy set of reasons, in which numerous matters that might form the foundation of relevant fears find mention, there is no statement of the Tribunal’s understanding of its task, no analysis of how the Convention relating to the Status of Refugees might apply to the appellant, either as a member of a particular social group or for reasons of race (it being accepted that he belonged to a minority group within Ethiopia known as the Amharas), or by reason of political opinion (it being accepted that he was opposed to the Government), and no analysis of what the Tribunal understood by a “well-founded fear” in the context of the facts which it did find established, involving numerous breaches of human rights (including killings) in which Amhara ethnicity, student status and anti-Government political beliefs were enmeshed. The Tribunal’s reasons accept “that Mr Eshetu has a strong subjective fear of returning to Ethiopia based on his conviction that the current Government of Ethiopia is conducting a repressive campaign against its opponents in general and Amharas in particular.” But the reasons continue: “However I find the chance that he will face serious harm amounting to persecution either because he opposes the current Government or because he is an Amhara to be remote.”
The US Human Rights Report for 1992 states that "people spoke freely in 1992", that "popular demonstrations became routine around the country, including those protesting TG policies" and that “there was a proliferation of political organisations (over 130) from a wide spectrum of political opinions”.
The Human Rights World Report Watch for 1993, which covers the previous 12 months states that:
Ethiopia under the EPRDF has witnessed a flourishing of numerous political parties, representing an unprecedented variety of opinions and platforms. These range from monarchists to separatists representing small ethnic groups. All parties can produce their own literature, and can organise public demonstrations.
Despite these changes, Ethiopia continued to face major problems in the year following the change of government. The EPRDF victory did not mean an end to inter‑ethnic violence and militias from different groups continued to clash with each other, mostly in areas outside the major cities, resulting in many deaths.
According to most observers, all groups involved in this conflict were guilty of arbitrary actions and human rights abuses. Africa Watch report that the Islamic Front for the Liberation of Oromia, the Sidama Liberation Front and the Ogaden National Liberation Front all claim that leading members of their organisations have been killed or arbitrarily detained by EPRDF soldiers and adds that there are credible reports that more than 250 members of the Oromo Liberation Front (OLF) have been arbitrarily detained. According to Africa Watch, some of these actions were taken after considerable provocation on the part of the groups concerned. Their report notes that other political organisations, notably the OLF, violated military agreements and frequently ambushed or attacked EPRDF soldiers serving in rural areas in the south and east. Members of other groups where [sic] also responsible for arbitrary killings, often on an ethnic or religious basis, during the period in question. (Ethiopia: Waiting for Justice, 8 May 8 May [sic] 1992 p. 6 & 8).
The US Human Rights Report 1991 describes the inter‑ethnic conflict in the following terms:
After the TG came to power in July there were dozens of instances of violent clashes between local elements of political parties within the TG. In a number of instances, rival groups repeatedly engaged in politically or ethnically motivated killings...[In many cases] the national leadership of the political groups intervened to mediate and investigate. When wrongdoing was uncovered, the EPRDF appeared more likely to discipline its members than members of other political groups (p. 119).
In the first year of the TG, crime was also a major problem. Immediately after taking power the EPRDF began dismantling the extensive military and security apparatus of the former government, which resulted in the demobilisation of 400,000 men, many of whom retained or sold their weapons. With no programs to assist them to re‑integrate into civilian life, they contributed to a large pool of unemployed, often frustrated armed young men some of whom turned to crime. In addition, when the EPRDF entered Addis Ababa and other main towns, the prisons were opened and many convicted criminals escaped. In the absence of a functioning police force, policing functions were given to the EPRDF forces and locally elected Peace and Stability Committees were established in June 1991, who often proved inadequate for the tasks required of them. According to Africa Watch:
In the early days after the EPRDF takeover of Addis Ababa and the south of the country, "frontier justice" was enforced. Looting suspects were liable to be shot on sight, and alleged thieves were sometimes subject to summary execution...Such cases have now become rarer...Most of the actions are taken against alleged criminals (op cit. 8 May 1992 p. 5; see also p. 3‑4 & 9 ‑10).
Thousands of soldiers and former officials of the Mengistu government and the Workers Party of Ethiopia were detained and held without charge in 1991. While some were believed to have been involved in corruption and violations of humanitarian law, others appear to have been detained purely because of the positions they held. While many of these people were released in 1992, others remained in detention despite the fact that they had not been formally charged with any crimes (see for example, US Human Rights Reports for 1991 and 1992 p.121; Human Rights Watch World Report 1992 p.14 and Amnesty International Annual Report 1993 p. 128).
The WPE was banned and its former members stripped of certain political and civil rights, but most of these were reinstated in 1992. The first two Reports of the EHRC report that employees of government organisations and institutions were dismissed for alleged maladministration and corruption without any due process by the grievance committees established within these institutions. The second report notes that the Prime Minister has issued a directive that grievance committees are no longer to have the power to dismiss employees.
As noted above, members of groups involved in continuing conflict with the EPRDF were also detained during this period. However, the reports available to the Tribunal mention only one incident in which opponents of the government were detained for a prolonged period in Addis Ababa during the first year of the TG. Three leaders of the National Democratic Union (NDU) who were detained following a legal demonstration which turned violent when demonstrator permit began pelting EPRDF guards with stones. The EPRLF guards did not respond with force, but the leaders of the group were subsequently , detained, apparently because, in accordance with provisions on their demonstration permit they were held responsible for the behaviour of the demonstrators (Africa Watch op cit 8 May 1992 p. 7).
From the evidence before the Tribunal, it is clear that widespread crime and ethnic violence continued in Ethiopia following the EPRDF takeover in 1991 and that many people were detained for prolonged periods without being charged, including some members of some groups opposed to the EPRDF. However, the evidence does not suggest that those who criticised or demonstrated peacefully against the government in Addis Ababa were generally at risk of detention or serious harm. On the contrary, the evidence suggests that individuals and groups were able to speak out against the government and many demonstrations were held without the participants experiencing serious problems. Of course, this does not mean that the possibility that some people were detained for planning or involvement in peaceful anti‑government demonstrations can be completely discounted and I would not have rejected Mr Eshetu's claims regarding his alleged detention in December 1991 merely because it appeared to be an uncommon occurrence at the time. However, after considering the evidence before the Tribunal on the period in question, I do not accept his claim that such occurrences were common or that the EPRDF suppressed all opposition to its rule during the period he remained in Ethiopia.
Involvement with the Student Council and detention
I do not accept that Mr Eshetu and another 25 students, including all but one of the members of the Student Council from the University of Addis Ababa, were detained and tortured for three days for planning a demonstration in December 1991.
None of the reports before the Tribunal published by those monitoring the human rights situation in Ethiopia at the time mention this particular incident in which Mr Eshetu claims to have been involved, nor were those contacted by the Tribunal regarding the claim aware of the alleged arrests. Searches of Reuters and Nexis data bases, which hold media reports from a number of international newspapers and magazines, conducted by the Department, revealed no mention of these arrests.
While I acknowledge that not all detentions or other human rights abuses will be mentioned in human rights reports or other published materials, for the reasons set out below, I consider that the detention and torture of 25 students, including all but one of the members of the Student Council in Addis Ababa in December 1991 would have been known to at least some of those monitoring the human rights situation and would have been reported in publications produced by these organisations.
During the time in question the human rights situation in Ethiopia was being monitored by both national and international human rights organisations and the evidence before the Tribunal clearly indicates that groups opposing the EPRDF both in Ethiopia and overseas made public allegations regarding alleged human rights abuses at the time. The US Human Rights Report for 1991 states that:
Since the TG came to power in Addis Ababa, there have been charges and countercharges among its various political parties of politically motivated violence in the countryside, including some disappearances of party workers (p. 120).
In October a group of private citizens organised Ethiopia's first independent human rights monitoring body: the Ethiopian Human Rights Council (EHRCO), headed by a prominent academic and frequent critic of the TG. Also in October, two other private groups formed to further political dialog and promote respect for democratic rights: the Ethiopian Congress for Democracy (ECD) and Forum‑84. All three groups have been allowed to operate freely and have access to the state controlled media to broadcast information about their activities
The...TG has generally been willing to discuss human rights concerns with diplomatic missions and international and non‑government organisations. Amnesty International representative had their first free and unrestricted visit to Ethiopia in July and visited again in December to investigate alleged violations of human rights. An Africa Watch delegation visited Ethiopia in October. Both groups were received by high‑level TG officials and given prominent coverage in the state-controlled media (p. 129).
The 1992 US Human Rights Reports for 1992 makes similar comments and adds that the three local human rights groups formed in 1991 "were allowed to operate freely and at times voiced vociferous opposition to TG policies without repercussions"(p 90).
According to the first report produced by the EHRC on 12 December 1991:
Even before the announcement [of the formation of the EHRC on 29 October 1991] was made complaints were submitted to the EHRC, and after October 29 there was a continuous flow of complaints from many parts of the country.
The letter dated 5 June 1992 from the Ethiopian People's Revolutionary Party in Paris which brings to the attention of UNHCR, Amnesty International and Africa Watch the disappearance of a number of Ethiopian refugees in the Sudan is a further indication that opposition groups were involved in bringing human rights abuses to the attention of human rights groups.
According to Mr Eshetu's own evidence the university students in general and the Student Council in particular were regarded as an important political group in Ethiopia.
According to the Human Rights World Watch Report for 1993 (p 14), the University of Addis Ababa remained an independent body in where political issue were vigorously debated throughout 1992. The university was granted a new charter securing its academic freedom in 1992, and appointed its own President (a professor known to be wholly independent of the government).
As discussed above, the detention and torture of 25 students for planning a demonstration during this period would have been an unusual occurrence.
In these circumstances, I find the claim that 25 students, including all but one the Student Council, were arrested in their classrooms and detained and tortured for three days without anyone making the incident public or reporting it to the human rights organisations monitoring the situation in Ethiopia at this time to be implausible.
The fate of Mr Eshetu's friends and colleagues
I do not accept that a large number of Mr Eshetu's friends and colleagues from university have been detained, disappeared or killed since his departure from Ethiopia because of their political views or activities.
When the present circumstances of his university friends and colleagues was discussed at the second hearing of the Tribunal, Mr Eshetu was unable to provide any specific information on the fate of these people. His claims regarding the disappearance or death of these people was [sic] based on rumours circulating in the capital which were passed from friends and relatives in Ethiopia to his sister in Israel and finally on to him in Australia. I accept that Mr Eshetu may believe many of these rumours to be true. However, his statement that many people probably believe he is dead or in detention indicates that such rumours are often based on nothing more than speculation.
The only specific information that Mr Eshetu provided regarding the fate of his friends following his departure from Ethiopia is the claim that a number of them had been summarily executed during a student demonstration in January 1993. As pointed out to Mr Eshetu, it is now generally agreed that only one person, a first year student, was killed during this demonstration (see for example, Amnesty International, Ethiopia Accountability past and present: Human rights in transition, April 1995, p. 43).”
The Tribunal stated its conclusion:
“I accept that Mr Eshetu fears returning to Ethiopia. However, I find the chance that he will experience persecution for any of the reasons contained in the Convention to be remote. His fear of persecution is therefore not well‑founded. He is thus not a refugee, not someone to whom Australia has protection obligations and not entitled to a protection visa”.
Criticism of the Tribunal’s Fact-Finding
Hill J noted (Eshetu at 479-480) that at first instance it was agreed by the parties that a successful challenge to the Tribunal’s conclusion that the December 1991 incident did not occur would result in the matter being referred to the Tribunal for further consideration. His Honour also said: “It is also implicit in the submissions on behalf of [Mr Eshetu] that it is conceded that the only matter in contention before me concerns the December 1991 incident.” The Tribunal’s conclusion was, of course, that which Hill J later described as unreasonable.
Hill J said (at 476): “There was no reason for [Mr Eshetu] to believe that the Tribunal thought he was lying.” His Honour said (at 478) that Mr Zagor’s “expressed concern that the Tribunal might take the absence of information about the incident as an indication that it did not occur” was “well justified”. Later, after referring to the Tribunal’s finding in the last paragraph of its reasons under the heading “Involvement with the Student Council and detention”, his Honour said (at 479):
“The tribunal also did not accept that a large number of the applicant’s friends and colleagues, despite the comments which might be thought to have lent some support in the answers of Mr Wolfemariam, had been detained, “disappeared” or killed. In so doing, the tribunal did not reject any evidence of the applicant, for his knowledge or views on this matter depended very much on third hand accounts. Having regard to the EHRC response, to which I have made reference earlier, the rejection of the idea that student leaders had been killed was clearly beyond the weight of the evidence and was unreasonable.”
In the final section of his judgment, Hill J said (at 486):
“There is little doubt that the tribunal was greatly, perhaps almost exclusively, influenced in its conclusion by the view it took of the significance of the fact that the reports before it did not refer to the December 1991 incident.
It will be apparent from the passages quoted earlier from the tribunal’s reasons, that the tribunal took the view that, had the December 1991 incident occurred, it would necessarily have come to the notice of at least some of those monitoring human rights in Ethiopia. The tribunal was aware of the fact that the student body was the elite of the country and had considerable political influence. It discounted what the applicant said about the situation in Addis Ababa at the time and wholly ignored the view of the EHRC representative that it was quite possible that the event would not have come to the notice of that organisation.
The tribunal’s conclusion totally lacks logic. The tribunal’s decision as reached was so unreasonable that no reasonable tribunal could reach it.”
I am unable to agree with any part of Hill J’s criticism.
The Minister’s delegate quite plainly did not accept Mr Eshetu’s claims that he had been detained and tortured in December 1991 (paragraphs 5.1.2-5.1.5 of the decision record). (Interestingly, she refers to an Amnesty International Report 1992, which was not in evidence before the Court at first instance or on appeal.) Further, in his initial submission to the Tribunal dated 17 February 1995, Mr Kessels said that the delegate found that Mr Eshetu “was lying”. The delegate had, in fact, not used such language. But the important point is that it was clear from the outset of the Tribunal’s review that the delegate had not accepted Mr Eshetu’s veracity in relation to his alleged detention in December 1991.
On the occasion of Mr Eshetu first giving evidence before the Tribunal, the second respondent said to him:
“... I certainly appreciate the fact that Amnesty and the United States State Department and other bodies that monitor human rights situations, or the situation in Ethiopia particularly I recognise that they are not going to know about all the arrests all the disappearances and all of the clashes that occur in the country, obviously they are not going to know everything. But I have to say that I find it a little strange that none of these bodies, and not the Ethiopia Human Rights Council which operates inside Ethiopia and to which I understand many people take complaints, I find it a little strange that the entire Student Council from the ...(indistinct)... University could be detained for four days, that most of them had been and left the country and that four of them would have disappeared and there would be no mention of this anywhere.”
This passage immediately followed Mr Eshetu’s account of the alleged events in December 1991. It is obviously not perfectly transcribed, but the rest of the transcript shows that Mr Eshetu was under no illusion that his story of those events had been accepted by the Tribunal. There is, in the context, nothing equivocal about the second respondent’s statement towards the end of the evidence - “nobody doubts that you are a fine person” (noted by Hill J at 476). That was a compassionate statement in response to Mr Eshetu’s pathetically irrelevant, yet no doubt quite heart-wrenching, tender of a Red Cross report on the health of his son who was only 15 days old when Mr Eshetu left Ethiopia. The review is not an adversarial process. The Tribunal is not required to “put” an allegation of mendacity to an applicant in the manner of a cross-examiner. That would set an entirely inappropriate tone to the hearing, especially where there is no real issue as to the genuiness of an applicant’s fear of persecution, but only as to whether such fear is well-founded.
What else is significant about this excerpt from the transcript is that it shows that, from the beginning of its review, the Tribunal was quite alert to the possibility that not all detentions will come to the attention of human rights monitors. The Tribunal did not need any of the gratuitous instruction subsequently offered by Mr Zagor as to what inferences may be drawn from the absence of independent information about an alleged human rights violation.
In any event, it is apparent from the correspondence that commenced that very day (which is why I have set it out in extenso) and from the transcript of Mr Eshetu’s later testimony that both he and his solicitor knew that his credibility was the issue in relation to the alleged detention in December 1991.
The documents enclosed with the submissions from Mr Kessels dated 17 February 1995 are (save for items 27 and 28) in evidence before the Court. The clippings from the newspapers (New York Times, The Independent, International Herald Tribune, Washington Post) and from magazines and newsletters (Africa Confidential, New African) show the high quality and detail of reporting from Ethiopia. But it will be apparent from their dates that these clippings do not relate to the period in question, namely December 1991.
The material from Amnesty International covered specific appeals relating to (1) the arrest in Addis Ababa in December 1993 of exiles returning for a conference, (2) the arrest in Addis Ababa in January/February 1994 of journalists detained at Maikelawi prison, and (3) the detention in different towns in south-eastern Ethiopia in late January 1994 of members or supporters of the Ogaden National Liberation Front. Again, this material casts no light on events in and around Addis Ababa University in December 1991, but what is striking is the detail of the reporting. Amnesty International quite obviously has excellent sources, and the information would seem to be expertly collated by its researchers in London. (It also appears from the decision record of the Minister’s delegate (paragraph 3.2.19) that at least the material in the first two categories had earlier been provided by Mr Eshetu.)
The documents from EHRCO are most revealing. Its first report is dated 12 December 1991 and covers “complaints ... submitted to the Secretariat of EHRCO from October 21 to November 27, 1991”. In its second report dated 13 February 1992, EHRCO says that: “For the most part the present report covers the complaints received since December 12, 1992 [scil. 1991].” Hill J suggests (at 477) that the report thus leaves “on its face some hiatus” in respect of “the period in which the events narrated by the applicant occurred”. However, upon close examination there is no lacuna at all. Dates must be attended to with particular care in the EHRCO reports since they use in different places the dates of the European or Ethiopian calendars. (Unfortunately both dates are not put together in the style commonly employed in the early eighteenth century in England when both the Julian and Gregorian calendars were used.) EHRCO’s second report addresses for the first time incidents on “Tahisas 19, 1984”, “Hidar 27, 1984” and “Tahisas 8, 1984”. These are dates towards the middle of 1991. The second report also covers freshly reported incidents said to have occurred on 10 November 1991 and 11 December 1991. It is quite plain that EHRCO intends its reports to be a cumulative and continuing account of the situation in respect of detentions and other human rights violations. The fourth report expressly says so (in section 7) by reference to the third report, which is not in evidence. Again, the detail of the reports is extraordinary - names, categories of detainees, numbers in individual prisons, licence plates of motor vehicles and so on. Whether they are accurate is another matter, but they do provide a mass of information for assessment. In particular, the second report notes the movement of detainees during the relevant period at “Addis Abeba’s famous Ma’ikelawi prison on Mesfine Harer road.” EHRCO’s preliminary statement dated 21 January 1993 on the student demonstration of 4 January 1993 is also most illuminating. Its language is quite flowery, but this contemporaneous document does not suggest that student demonstrators were individually targeted. On the contrary, it suggests that the violence was randomly inflicted.
EHRCO’s fifth report was dated 3 June 1993. It noted for the first time extrajudicial killings of detainees in the South Gonder Administrative Region alleged to have occurred as long ago as February 1992. More importantly, section 15 of this report is devoted to events at Addis Ababa University following the demonstration on 4 January 1993. It states: that after the demonstration the university was closed for an indefinite period; that it re-opened for registration on 5 and 6 April 1993; that during this period eleven students who were members of the “provisional student council” were not allowed to register; that on 14 April 1993 the students presented a petition to the newly appointed president of the university demanding (inter alia) that the members of the student council be allowed to register; that, when these demands were not met, students demonstrating in the science faculty were “not allowed to get out of ... the campus for about three days”, and that “[over] 100 students were arrested and taken to Sandafa and to the Criminal Investigation Department in Addis Abeba”. (Interestingly, Amnesty International’s urgent action appeal dated 25 February 1994 dealing with the journalists’ detention mentioned above refers to “Maikelawi Central Investigation Department prison” as a police station in Addis Ababa.)
In his initial submissions to the Tribunal dated 17 February 1995, Mr Kessels drew attention, by underlining, to this item in EHRCO’s fifth report as ‘[independent] evidence of the existence of [the Student] Council”. What is, of course, once more far more striking, is the way in which EHRCO purported to be able to monitor and report in great detail events at the university soon after they occurred.
Hill J says (at 477) that EHRCO’s first report was not discussed directly in the Tribunal’s reasons. His Honour also remarks (at 477) that it is interesting to contrast what EHRCO’s second report says in an excerpt about the killing of persons allegedly involved in stealing with “some comments” by the Tribunal. It is not clear to me whether these observations are meant as criticism. I do not see how they could be. The Tribunal expressly refers to EHRCO’s first two reports and notes that none of the reports before it mentions the alleged incident in December 1991. This is surely what is significant about EHRCO’s second report in particular. The Tribunal had also earlier recorded Mr Eshetu’s evidence on 21 August 1995 that he did not believe people shot dead in Addis Ababa were looters as claimed by the authorities.
I have set out earlier the passage in his judgment where Hill J says that, “[having] regard to the EHRC response”, the rejection of the idea that student leaders had been killed was “beyond the weight of the evidence and unreasonable”. It should be borne in mind that the record of the telephone conversation made by the Tribunal’s research officer was not confirmed by Mr Melaku Wolfe Mariam or anyone else at EHRCO. The statement that “members of the Student Council had been killed” was quite unspecific and evidently volunteered in answer to a hypothetical question about how someone who had been detained in the circumstances described by Mr Eshetu might be treated, were he to return to Ethiopia. What is clear is that Mr Melaku was not referring to the sequel to the detention of any such members in December 1991 because he denied any knowledge of such an event. In those circumstances, the Tribunal apparently attached such little significance to that part of the information provided by Mr Melaku that it did not refer to it at all in its letter dated 9 June 1995 to Mr Kessels. The Tribunal also omitted any reference to it in its decision statement.
In his response of 6 July 1995 Mr Kessels questioned Mr Melaku’s credentials. This “shoot the messenger” approach had disappeared by 21 August 1995 when the transcript clearly shows Mr Eshetu accepted that Mr Melaku had said EHRCO had no knowledge of the alleged detention in December 1991. This acknowledgment is recorded in the Tribunal’s decision statement.
I am puzzled by Hill J’s final statement (at 486) that it “discounted what the applicant said about the situation in Addis Ababa”. If his Honour meant that the Tribunal totally ignored what Mr Eshetu said, I respectfully disagree. The Tribunal’s statement contains a comprehensive and fair summary of anything vaguely relevant that Mr Eshetu said. On the other hand, if what is meant is that the Tribunal did not accept the truth of everything that he said, then this was, of course, as his Honour earlier acknowledged, a matter for the Tribunal.
This leaves the last element of Hill J’s final observation namely, that the Tribunal “wholly ignored the view of the EHRC representative that it was quite possible that the event would not have come to the notice of that organisation”. The Tribunal’s statement does, in fact, clearly record that view and ascribes it specifically to Mr Melaku. Indeed, it may be noted that, after the receipt of Mr Melaku’s information, the second respondent commenced the hearing on 21 August 1995 by saying:
“I am certainly well aware that not all incidents or arrests or disappearances that occur in a country would be reported.”
The Tribunal remained alert to that possibility throughout its review and said so in its decision statement.
There is, in my view, nothing illogical about the Tribunal’s finding that the events described by Mr Eshetu did not happen. The likelihood that such events would be noticed and reported is plainly something that may be considered in assessing the plausibility of Mr Eshetu’s story. The Tribunal also had available to it material that was not before Hill J or this Court on the appeal. In particular, the Tribunal relied on the Africa Watch report of 8 May 1992 mentioned in its reasons and the fact that no mention of the arrests was revealed by the searches of the Reuters and Nexis data bases. I have mentioned earlier the quality and detail of the reporting from Ethiopia at this time. Mr Eshetu’s story did not involve the detention of a single individual which it may be readily accepted could well escape attention. It involved the detention of twenty-five students, including the whole Student Council save for the Tigrean spy, on the eve of a big demonstration at the Addis Abba University which was a hotbed of political activity. It borders on the fantastic to think that such an occurrence would escape the attention of human rights monitors at the time, especially EHRCO which was at a later time astute to record the registration difficulties of the then provisional Student Council.
Members of the tribunal do not have to be lawyers, and I have no idea why Hill J described the second respondent as “learned”. Judges, of course, recall with comfort what Lord Diplock said in Mahon v Air New Zealand Ltd [1984] AC 808 at 838 about any criticism in a particular case that they may have failed to observe a rule of natural justice. A lay person may not be so sanguine about criticism that her fact-finding lacked logic. Here the labelling of the Tribunal’s decision as unreasonable in a Wednesbury sense was, in my opinion, wrong. For my own part, on the limited materials available to the Court, I would regard a contrary conclusion to that arrived at by the Tribunal on what Mr Kessel’s described as the “crucial incident” as bordering on perverse. I have set out the course of the review in far more detail than usual to show the painstaking way the Tribunal went about its task. I have read carefully too the transcripts of Mr Eshetu’s evidence and they reveal a conscientious and considerate treatment of a distressed man living in a world of emigres swirling with rumours about their native country.
The Judgment at First Instance
However, the fact-finding covering Mr Eshetu’s claims is not a matter for the Court. Hill J said so (at 480) and I respectfully agree. The High Court has recently re-affirmed that it is for the Tribunal to make findings about such past events: Minister for Immigration and Ethnic Affairs v Guo (unreported, 13 June 1997). His Honour then went on to consider (at 485-487) whether the case fell within s 476(1)(a) of the Act as involving a breach of the Tribunal’s obligation to be fair or just. As I have mentioned, despite criticizing the Tribunal’s fact-finding, Hill J dismissed the application.
The Appeal
I have had the advantage of reading in draft the judgments of Davies J and
Burchett J, each of whom holds that the decision of the Tribunal involves an error of law. Davies J (with whom Burchett J agrees) is of the opinion that the Tribunal erred in its understanding of the issues which the definition in the Refugees Convention poses. This is said to be “an error involving an incorrect interpretation of the applicable law” within the meaning of s 476(1)(e) of the Act. Whilst I have the misfortune to disagree with my colleagues on this point, it was not pressed at first instance (as appears from the judgment of Hill J at 480) and I do not see how on any basis Mr Eshetu could, therefore, be entitled to his costs of the proceedings below.
With respect, I can see the force of what Davies J says about first identifying in the usual case the facts that give rise to the subjective fear. However, that need not always be the case. There is always the possibility that a genuine fear is completely irrational. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Brennan CJ, Toohey, McHugh and Gummow JJ refer (at 274 and 275) to the true nature of the Minister’s decision-making function as involving satisfaction that a “person has a genuine fear founded upon a real risk of persecution”. This does not suggest that the subjective element of the mixed test must always be considered ahead of the objective element.
In Guo Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ explain (pamphlet pp 16-17) how findings about past events are ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future. Davies J says that the Tribunal did not seriously enter into a number of questions. With respect, I do no see how any of these matters can have any significance unless the Tribunal took the view that the detention of the twenty-five students took place in December 1991 in the circumstances described by Mr Eshetu. This is the only event propounded by Mr Eshetu that can possibly give him what is termed in Guo a political profile showing that he has come under adverse attention from the Transitional Government. Mr Kessels plainly accepted that a favourable finding on this allegation was crucial to Mr Eshetu’s fear being regarded as well-founded. The review is not an adversarial process and issues are, of course, not defined in any sense by an applicant’s legal advisers. Nevertheless, in the present case I am quite unable to discern any error in approach taken by the Tribunal to the past events about which it had to make findings in order to discharge its function.
Burchett J also holds that the Tribunal incorrectly applied the law to the facts as found by it because it used the word “remote” as a substitution for the “well-founded” test. (This too was not a point argued before Hill J.) Again with respect, I am unable to agree with Burchett J. I have read again what the majority said in Guo (pamphlet pp 13-14) about the additional objective requirement. They emphasize that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate. Like the majority in Wu (at 278), I can discern nothing in the use of word “remote” in the present case to suggest that the Tribunal “abandoned the process of looking to the future which is the essence of the Chan test”.
Section 420 of the Migration Act
Strictly speaking, the observations of my colleagues on the construction of s 420 of the Act and its relationship to s 476(1)(a) and (e) of the Act would appear to be obiter. I notice that in Guo Kirby J does not instance s 420 as providing a procedure of the Tribunal (pamphlet p 30). In the circumstances, I will say no more on this question than I am, with respect, unable to agree with my colleagues and that I agree with the opinion of Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (unreported, 6 May 1997).
Conclusion
The appeal should be dismissed with costs.
I certify that this and the preceding fifty-three (53) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam
Associate:
Dated: 10 July 1997
Counsel for the appellant: T.A. Game SC with
E.A. Wilkins and G.P. CraddockSolicitors for the appellant: Kessels & Associates Counsel for the respondents: R.T. Beech-Jones Solicitor for the respondents: Australian Government Solicitor Date of hearing: 14 May 1997 Date of judgment: 10 July 1997
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