Halim, Tamer v Minister for Immigration and Multicultural Affairs Halim, Nader v Minister for Immigration and Multicultural Affairs
[1998] FCA 1771
•13 AUGUST 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION – refugee – nationals of Egypt – Coptic Christians – refusal of protection visas – whether Refugee Review Tribunal should have exercised the power under section 427(1)(d) to authorise the making of medical examinations at Government expense – purpose of the power to authorise medical examinations – error of law – whether decision to not exercise the power is reviewable
Migration Act 1958 (Cth) ss5(1), 36(2), 240(2)(b), 425(1)(b), 427(1)(d), 475(1), 476(1)(a) & (e)
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179
Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621
Shofi v Minister for Immigration and Multicultural Affairs, unreported, 19 July 1998, Einfeld J
TAMER HALIM V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NADER HALIM V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 329 & 330 of 1997
EINFELD J
SYDNEY
13 AUGUST 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 329 & 330
BETWEEN:
TAMER HALIM
FIRST APPLICANTNADER HALIM
SECOND APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULITICULTURAL AFFAIRS
RESPONDENTJUDGE:
EINFELD J
DATE OF ORDER:
13 AUGUST 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
the applications be dismissed
the applicants pay the respondent’s costs of the proceedings
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 329 & 330 of 1997
BETWEEN:
TAMER HALIM
FIRST APPLICANTNADER HALIM
SECOND APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULITICULTURAL AFFAIRS
RESPONDENT
JUDGE:
EINFELD J
DATE:
13 AUGUST 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
FACTUAL BACKGROUND
The applicants, Nader and Tamer Halim, are twin brothers and nationals of Egypt who arrived in Australia on 14 April 1990 on visitors’ visas valid for 3 months. The visas were presumably extended from time to time because the applicants remained in Australia. They then made separate applications for refugee status on 22 December 1993 which were refused on 20 January 1995. On 16 February 1995 they applied to the Refugee Review Tribunal (the Tribunal) for review. The hearing took place on 6 November 1996 and on 26 March 1997 the Tribunal affirmed the decisions not to grant protection visas and the applicants now seek review by this Court of the Tribunal’s decisions. The cases of both applicants are substantially similar and the decisions of the Tribunal on the issues in question are also substantially the same. For this reason the matters can be dealt with simultaneously.
The mother of the applicants and two siblings live in Egypt. Their father died in about 1980. Since arriving in Australia, Tamer Halim has married and had a child. The applicants’ religion is Coptic Christian, also known as Catholic. Before leaving for Australia, the applicants were in their final stages of secondary school education. They intended to continue their education with university studies after which they would be available for national service.
THE REFUGEE DEFINITION
Pursuant to sections 5(1) and 36(2) of the Migration Act 1958 (the Act), Australia has protection obligations under Article 1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (the Geneva Convention) to any person who:
owing to a 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
THE GROUNDS OF REVIEW
The applicants rely on the jurisdiction of the Court pursuant to Part 8 of the Act, which by section 475(1) authorises this Court to review decisions of the Refugee Review Tribunal. The grounds upon which a person aggrieved by a decision of the Tribunal may seek a review of the decision are found in section 476:
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.
…
(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).
In Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 a Full Court of this Court held by majority (Davies and Burchett JJ, Whitlam J dissenting) that a failure to comply with the requirement in section 420(2)(b) to act according to substantial justice and the merits of the case is a failure to observe procedures required by the Act to be observed in connection with the making of a decision for the purposes of section 476(1)(a) of the Act.
Although the applicants originally submitted four grounds of review, no particulars were supplied for the grounds in paragraphs (d) and (g) of section 476(1) and they were not referred to during the hearing. The grounds relied on were paragraphs (a) and (e) of subsection (1).
THE POWER TO REQUIRE A MEDICAL EXAMINATION
Section 427(1) of the Act sets out a number of powers of the Tribunal:
427 (1)For the purpose of the review of a decision, the Tribunal may:
(a) take evidence on oath or affirmation; or
(b) adjourn the review from time to time; or
(c)subject to sections 438 and 440, give information to the applicant and to the Secretary; or
(d)require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
Essentially these applications hinge on the decision of the Tribunal not to exercise its power under section 427(1)(d) to require the Secretary of the Department of Immigration to arrange for medical examinations of the applicants and the making of reports on the examinations to the Tribunal. This power is designed to be exercised in situations where it appears to the Tribunal that an examination would provide necessary information for its review and where it is unlikely that the applicant is able to obtain an examination without financial assistance from the department. It is established that in cases where the circumstances warrant consideration of this power, the legislation imposes an obligation on the Tribunal to consider whether to exercise it. In Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179, Justice Foster commented on the obligations of the Tribunal under sections 425(1)(b) and 427(1)(d) to consider whether it is necessary to obtain further evidence for the review. (Section 425(1)(b) also authorises the Tribunal, where review “on the papers” is not available, to “obtain such other evidence as it considers necessary”.) His Honour stated at 192-3:
The legislation… imposes upon the tribunal (at least where circumstances so dictate) an obligation to consider whether it is necessary to obtain further evidence for the proper conduct of the review. A failure to enter upon this consideration would be reviewable error [sic]. It may be, and I express no concluded view, that the section does not impose the obligation of consideration in all circumstances. However, in a case such as the present, where information of obvious significance is provided for the first time to the tribunal then, in my view, the statutory obligation arises. The tribunal must consider whether it wishes to obtain further relevant material. The decision either to seek or not to seek such further material is probably not a reviewable decision for the reasons I have already given. However, a failure to consider the question, at least where consideration was obviously called for, would, in my opinion, be an error capable of vitiating the review process and would be reviewable by this court under s 476(1)(a) of the Act.
Although Eshetu is currently on appeal to the High Court, as a single judge of the Court, I am bound to follow it. Accordingly, to establish what is required of the Tribunal when it “considers” whether to exercise the power, attention must be given to the requirement that the Tribunal act in accordance with substantial justice and the merits of the case. Clearly enough, this obligation will in some circumstances require it to initiate the power in section 427(1)(d): this proposition was accepted by a Full Court prior to Eshetu in Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284 per Black CJ, von Doussa, Sundberg and Mansfield JJ at 197 (Lee J substantially agreeing in a separate judgment). For example, it would not be in accordance with substantial justice and the merits of the case if the Tribunal were to misconceive the purpose of evidence obtained under the power and make its decision not to exercise the power on that basis, thus preventing the consideration of material which, if used for the purposes intended by the legislation, may have been necessary to the review of the case.
THE TRIBUNAL PROCEEDINGS
The issue of obtaining medical reports arose in regard to the claims by the applicants that in February 1990 they had been kidnapped, assaulted and sexually assaulted by Islamic fundamentalists. This claim was first raised by the applicants in a joint statement of 25 October 1996 which they presented to the Tribunal prior to its hearing. The applicants had already made a number of oral and written submissions to the Tribunal. During interviews with the Department on 12 September 1994, in separate written statements lodged on 11 March 1994 and 2 September 1994, and in their original applications for refugee status, the applicants claimed that they had left Egypt to escape the harassment and discrimination they suffered daily by reason of religion and to escape compulsory military service which they feared would involve serious levels of harassment. The applicants explained to the Tribunal that they had not presented the claims of kidnapping and assaults earlier because they feared for the safety of their family in Egypt. Nader Halim in particular expressed the fear that the department would not keep the information confidential and his family in Egypt would then be in jeopardy from Islamic groups.
In substance, the applicants explained the purpose of their requests for medical examinations as:
to ascertain the nature, and degree or extent, of the physical, mental and emotional injury or ill-effects of rape and torture which they suffered.
to assist the Tribunal in determining, in their favour, the veracity of the applicants’ claims regarding rape and torture by constituting corroborative evidence in support of their claims.
I would add another purpose of providing evidence to assist in the assessment of the nature, gravity and genuineness of the applicant’s fear of persecution. The applicant’s subjective fear of persecution is a recognised and integral part of the Convention definition of a refugee, and medical evidence, particularly psychological evidence, could assist in the determination of this element.
The Tribunal found that there were inconsistencies within the claims made by the brothers to the department and between the evidence of Nader and Tamer at the Tribunal hearing. The Tribunal regarded the inconsistencies in the account of the claims to be significant and on that basis found that the applicants had not given credible evidence of being assaulted and kidnapped by Islamic fundamentalists. In view of the earlier omission of these claims in the application to the department and the inconsistencies in the account of the kidnapping, the Tribunal found that these claims were recent inventions, presented after the refusal of the refugee applications to enhance the applicants’ claims.
In evidence to the Tribunal, the migration agent representing the applicants stated that he had investigated whether his clients could obtain medical evidence to support the claim of kidnapping. In its decision on Tamer’s case, the Tribunal recorded that:
[The migration agent] said that his clients had financial difficulties which might prevent them obtaining expert evidence. The Tribunal provided a 10 day period in which the agent could report to the Tribunal whether a medical opinion would be forthcoming.
On 11 December 1996, the Tribunal convened a conference with the migration agent to discuss the issue of a medical report. The agent told the Tribunal that the [applicants] were granted Medicare cards and he had found a psychiatrist who was willing to examine his clients and provide a medical report addressing matters related to the alleged sexual assaults in Egypt. The agent said that this doctor was not, however, willing accept [sic] payment for his services through Medicare payment and required $400 per client. The agent sent the Tribunal a written submission dated 13 December 1996 requesting the Tribunal apply [sic] section 427(1)(d) of the Act requiring the Department to arrange and pay for the medical examination of his clients.
In a letter dated 30 January 1997, the Tribunal advised the migration agent for the applicants that it did not consider medical reports would be of assistance in determining the matters before it and that it would not apply section 427(1)(a) [this I believe should be section 427(1)(d)] of the Act requiring the Department to provide medical reports. The Tribunal notified the agent that it would consider medical reports independently obtained.
The [applicants] did not submit medical reports in support of [their] claim that [they were] sexually assaulted.
In the Tribunal’s decision in Nader’s case, the only substantial difference was that the migration agent had stated that the applicants “had financial difficulties which would need to be overcome to obtain that evidence”.
In regard to its decision not to exercise the power provided by section 427(1)(d) of the Act, the Tribunal stated:
With respect to medical reports to support the claim that the [Applicants] have been subjected to sexual assaults, the Tribunal invited the Applicant[s] to provide such reports but did not consider it necessary to require the Department to pay for such reports. The Tribunal refused the request from the Applicant[s] to invoke section 427(1)(d) of the Act …
The Tribunal was prepared to consider medical reports independently obtained by the Applicant[s], but does not consider such evidence to be necessary to its decision. If such reports were available from a medical expert in Australia, it would not be contemporaneous to the alleged incident and would not therefore be of assistance in determining when such assault occurred and in what circumstances. Further, such medical evidence would not be necessary, or relevant to, the Tribunal’s assessment of whether there is a real chance of persecution if the Applicant[s] returned to Egypt. Evidence of past sexual assaults, does not mean that there is a real chance of future persecution. The Tribunal is satisfied that there is sufficient information before it to assess whether the Applicant[s have] a real chance of suffering persecution in Egypt.
In view of the omission of the claims of the expulsion from school, of the assault at the fruit shop and of the kidnapping in the application to the Department and the inconsistencies in the account of the kidnapping, the Tribunal finds that these claims are not credible and that they are recent invention presented after the Department refused the refugee application[s] to enhance the Applicant[s’] claims.
ERROR OF LAW
The applicants’ first ground was that both reasons given by the Tribunal — lack of contemporaneity and irrelevance — manifested errors of law under section 476(1)(a), as the Tribunal misconceived the purpose and nature of the power to order medical examinations.
Lack of contemporaneity
The applicants submitted that a refusal to order a medical report on this basis misconstrues the power or the purpose of the power. It is obvious that a medical report obtained by the Tribunal pursuant to section 427(1)(d) will hardly ever be even remotely contemporaneous with any incident(s) of persecution personally suffered by an applicant. The persecution will ordinarily have occurred before the applicant arrived in Australia. As in this case, refugee applications are not always made immediately. The nature of the refugee review process is such that it can be months and sometimes years between the making of the initial refugee application and the consideration by the Tribunal of whether to require a medical examination. Section 427(1)(d) thus clearly envisages that the medical examinations may be undertaken by a doctor in Australia long after the relevant events and therefore that the reports will not be contemporaneous with the events in question.
A medical examination could reveal evidence of physical scarring or permanent injuries and provide evidence of the possible cause or method of infliction. It could also identify emotional injuries, stress, anxiety, or mental illnesses such as depression which are common amongst victims of torture. Especially where a case falls to be decided on the credibility of an applicant’s claims, this evidence or lack of evidence could assist the Tribunal in assessing this issue and also in establishing the genuineness of the subjective fear of persecution. Medical evidence can thus constitute corroborative evidence in support of an applicant’s claims or it may help to establish their falsity. It may not establish when the harm was committed but it may help to identify the type of harm and could assist in establishing that at some time in the past harm was done to the applicant. In this case it was suggested that medical examinations of the applicants could reveal evidence of scarring from rape, shock treatment to the head, other physical maltreatment and evidence of emotional trauma. In my opinion the Tribunal’s finding that because the proposed medical reports would not be contemporaneous, they would not be helpful in determining when and in what circumstances the alleged torture occurred, was an error of interpretation of the power in section 427(1)(d).
Irrelevance
The Tribunal’s second reason for not requiring medical examinations was that the reports could not assist to establish a real chance of persecution. Aside from the question of medical examinations, the Tribunal’s use of the phrase “real chance of persecution” instead of “well-founded fear of persecution” is itself problematic: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567; Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621. However, at the beginning of its decision, the Tribunal set out its understanding of “a well-founded fear”, adequately summarised the authorities, and recognised both the subjective and objective elements of the test.
In Shofi v Minister for Immigration and Multicultural Affairs, (unreported, 19 July 1998) at 13, I commented on the problems of defining the meaning of “well-founded” as used in the Convention definition of a refugee. I concluded that given the extreme difficulty of reconciling Chan and Guo, tribunals must be given some latitude in the expression of their reasons as to an applicant’s fear of persecution. Nevertheless, it is clear to me in this case that the Tribunal focussed too heavily on the relevance of the medical reports to the likelihood of future persecution. Generally neglecting their relevance to the applicants’ subjective fears based on the alleged acts of past persecution, the Tribunal failed to recognise that one purpose of medical reports is to provide evidence to assist in ascertaining whether the subjective fear of persecution based on past events is genuine. Once again, in my opinion, the Tribunal erred in its interpretation of the legislation.
FAILURE TO FOLLOW PROCEDURES
The second ground submitted by the applicants was that the Tribunal failed to consider whether or not to exercise the power in section 427(1)(d). As a procedure required by the Act, such a failure would have amounted to a breach of section 476(1)(a). Although it is clear from the Tribunal’s decision that it did consider exercising the power, the applicants submitted that the Tribunal’s consideration did not satisfy the duty to inquire and the duty in section 420(2)(b) to act according to substantial justice and the merits of the case. They argued that because the Tribunal misconstrued the purpose and nature of the power in section 427(1)(d), there was in fact no meaningful consideration of their request.
Justice Foster was of the view in Li that ‘the decision either to seek or not to seek such further material is probably not a reviewable decision’. Although this proposition has been affected by the later cases of Singh and Eshetu, I am of the view that complete review of the Tribunal’s decision not to exercise the power to order medical reports is neither possible nor even desirable. Nevertheless, in accordance with the principle in Eshetu, where the Tribunal has misconstrued the purpose of a power, it is open to the Court to find that the decision has not been made in accordance with substantial justice and the merits of the case. In my view, such a finding should be made where the Tribunal may have decided to exercise the power to require medical examinations if it had not misconstrued the power’s purpose.
However, even if the Tribunal had correctly understood the purpose of the power in this case, it would still have declined to exercise it to obtain medical examinations of the applicants. Despite its findings of recent invention (to which the medical evidence may have been relevant), the Tribunal also considered the applicants’ claims on the assumption that their allegations of kidnapping and assault were true. Basing its decision on the applicants’ accounts of the incidents and information from independent sources, the Tribunal concluded that if the applicants were to face such a threat, they would be able to avail themselves of state protection from religion-based persecution. This is a finding of fact which is not open to judicial review. Therefore, despite the errors in the Tribunal’s reasoning with respect to the meaning of the power, by addressing the possibility that the applicants might face the threat of persecution, the Tribunal in effect cured the defect in its approach and acted in accordance with substantial justice and merits of the case.
The applicants also submitted that the Tribunal’s reasoning for refusing the evidence was inconsistent with its assertion that it was willing to receive reports obtained independently by the applicants, and established that there was no meaningful consideration of the applicants’ request. In my view, the willingness of the Tribunal to consider independently obtained reports was merely an affirmation that it would receive and consider any material that the applicants wished to submit. It was not a comment on the relevance of such material and cannot be taken as invalidating the Tribunal’s consideration of the power under section 427(1)(d).
CONCLUSION
I find that the Tribunal erred in law in reasoning why it should not exercise its powers under section 427(1)(d). If the medical examinations had been carried out, the best possible result for the applicants would have been the emergence of material supporting their claims of assault and sexual assault. If so, it is possible that the medical evidence would have altered the Tribunal’s finding that these claims were recent inventions. However, the applicants have failed to show that the Tribunal’s failure to order medical examinations amounted to a failure to act in accordance with substantial justice and the merits of the case because the Tribunal went on to consider the applicants’ claims on the assumption that the allegations of kidnapping and assault by Islamic fundamentalists were true and that there was a real threat of future similar persecution. Its conclusion that if such persecution were to be possible, Egypt would offer protection to the applicants meant that, should the case be returned to the Tribunal and medical examinations of the applicants ordered, any findings from the examinations supporting the applicants’ claims would not impact on the Tribunal’s decision that the applicants’ fears of persecution were not well-founded.
Accordingly the applications will be dismissed.
I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Einfeld
Associate:
Dated: 13 August 1998
Counsel for the Applicant: Mr Mark Robinson Solicitor for the Applicant: Barlow & Company Counsel for the Respondent: Miss Rhonda M. Henderson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 2 December 1997 Date of Judgment: 13 August 1998
0
11
0