Murill-Nunez v Minister for Immigration and Ethnic Affairs
[1995] FCA 1117
•6 SEPTEMBER 1995
CATCHWORDS
IMMIGRATION - refusal by Minister's delegate of refugee status -judicial review - whether Tribunal biased - actual bias contrasted with apprehended bias - whether decision of Tribunal induced or affected by actual bias - whether decision involved errors of law - acceptance of an expert and adoption of his opinion as Tribunal's - whether applicant's evidence required corroboration.
Migration Act 1958 s 476(1)(e),(f)
Acts Interpretation Act 1901 s15AB(1)(e)
Livesey v NSW Bar Association [1983] 151 CLR 288
Webb v The Queen [1994] 181 CLR 41
R v Maurice [1987] 73 ALR 123
Winningham v The Queen (unreported, High Court, 14 August 1995)
JORGE MURILLO-NUNEZ V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS No. NG 827 of 1994
EINFELD J
SYDNEY
6 SEPTEMBER 1995
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 827 of 1994
GENERAL DIVISION )
Between: JORGE MURILLO-NUNEZ
Applicant
And:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
MINUTE OF ORDERS
The application for review is dismissed.
The applicant is to pay the respondent's costs.
Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.
EINFELD J
SYDNEY
5 SEPTEMBER 1995
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 827 of 1994
GENERAL DIVISION )
Between: JORGE MURILLO-NUNEZ
Applicant
And:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
REASONS FOR JUDGMENT
EINFELD J SYDNEY 6 SEPTEMBER 1995
This is a difficult case but I have formed a firm view about the result that should be pronounced and it seems appropriate in the circumstances, particularly the circumstance of how long the matter has been outstanding as it has gone through the system, that I should give judgment immediately. I shall do so relatively briefly and, if necessary, will expand on the reasons at a later time.
The applicant was born in Managua, Nicaragua, on 5 February either 1966 or 1969. The confusion about the date is not necessary to resolve in this case. In 1979 the dictatorship of General Somosa in Nicaragua was overthrown by the party or group known as the Sandinistas. On 14 February 1981 the applicant's maternal uncle, Narciso Nunez, fled Nicaragua following upon certain events which indicated to him that his and his family's life was at some risk. The view was possibly formed at the time
that because the Nunez family did not support the Sandinistas in Nicaragua, the Sandinistas were against them.
During the period subsequent to his departure the Sandinista authorities came to the applicant's family home in Nicaragua seeking information on the whereabouts of Narciso Nunez. The applicant's family refused to attend what were described as block meetings which were called or organised by Sandinista supporters or authorities. In May 1984 the applicant, his brother Jimmy, and his father were arrested. The applicant and Jimmy were held in custody for a number of weeks, during which time the applicant says that his right hand was broken by the rifle butt of one of his custodians. He also says that he was interrogated and beaten and that his own and his brother's birth dates were altered to make them older than they in fact were. Hence the confusion about his date of birth.
On 14 June 1984 the applicant and his brother were flown to Bulgaria as two of a group of 159 Nicaraguans. The circumstances of this journey are open to some difference of interpretation. The applicant claims that he was taken there involuntarily for labour, presumably cheap labour to the benefit of Bulgaria, in return for goods provided by Bulgaria to the Sandinista regime. The applicant says that one of the group of Nicaraguans was subsequently found dead in his room with torture marks. The applicant says that he was working in a factory in a town called Bolgas, some 500 kilometres from the Bulgarian capital city of Sofia, for at least six days and sometimes seven days a week,
that he lived in premises next to the factory, that the building was locked at night, and that there was very little freedom to move around.
When there was an opportunity for the Nicaraguans to go into town or somewhere away from their place of residence, they were treated in a discriminatory way by Bulgarians. During this time the applicant's brother, Jimmy, was living and working in Sofia such that there was very little contact between them for the five years that they were in Bulgaria. The applicant was only re-united with his brother at the time of their return to Nicaragua in the second half of 1989. While the applicant was working in Bulgaria his parents and younger brother came to Australia and were accepted as refugees. This occurred on 26 November 1986.
When the applicant returned to Nicaragua, he claims to have been detained by police, had his passport confiscated, and made to report weekly to the police. He was told he was being watched and was questioned about the whereabouts of his parents. In July 1990 the applicant was arrested at his aunt's home and detained in prison for some three months where he claims to have been beaten and interrogated. He was only released when his mother came to Managua on an Australian passport and, as it was said, bribed Nicaraguan officials. On 13 December 1989 the Australian Embassy in Mexico City received a letter from the applicant requesting recognition of his and his brother's refugee status. Some time later, the two brothers attended the Embassy together with their parents, and sought permission to enter Australia as
refugees. On 24 September 1990 the applicant and Jimmy attended the Australian Consulate in Los Angeles and were granted permission for entry into Australia as visitors valid to 31 March 1991. They entered Australia on 26 September 1990 together with their parents and on 30 January 1991 the applicant applied for recognition and protection as a refugee.
Following upon a departmental determination that the applicant's claim had sufficient substance to warrant investigation, the applicant was authorised on 9 April 1991 to work in Australia for one year, later extended to 9 July 1992. On 10 June 1992 the Minister's delegate refused refugee status, a decision of which the applicant was informed two days later. On 29 July 1992 he applied for a review by the Refugee Review Tribunal. This hearing took place on 15 September 1994 and on 24 October 1994 the decision of the Tribunal was handed down adverse to the applicant's application. A month later he applied to the Federal Court for judicial review of that decision and this is the matter before the Court today.
The application for judicial review seeks orders preventing the deportation of the applicant, setting aside the decision of the Tribunal, and remitting the matter to the Tribunal to be redetermined. The grounds of the application are that the Tribunal adopted an inherently unfair procedure, that it based its reasons on conjecture, speculation and guesswork and not on proper evidence, that it took into account matters which could not be tested by the applicant, that it drew inferences that were
not open on the evidence, that it rejected the applicant's evidence without giving adequate reasons, and that it erred in resolving the conflicting evidence.
As a result of amendments to the Migration Act 1958 (the Act) effective from 1 September 1994, judicial review of immigration, deportation and refugee decisions which was previously governed by the Administrative Decisions (Judicial Review) Act 1977 was significantly limited. As a consequence of the insertion of Division 2 of Part VII of the Act, the Federal Court was given a circumscribed jurisdiction to review certain immigration and immigration-type decisions including decisions of the Refugee Review Tribunal. This was not the only amendment effected by the legislation in that the previous method of dealing with refugee applications was also substantially changed.
Section 476(1) listed the grounds upon which such decisions could still be judicially reviewed. Relevantly to this case, it included paragraph (f), namely that the decision was induced or affected by fraud or by actual bias. This is the major ground upon which the applicant's case is based, although it was additionally based also upon paragraph (e), namely
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.
I deal first with the assertions made in relation to actual bias. There has been of course a significant amount of law on the general issue of bias of independent tribunals and courts. Cases such as Livesey v NSW Bar Association [1983] 151 CLR 288, R v Maurice [1987] 73 ALR 123 and others come obviously to mind in this regard, drawing attention to the double headed nature of bias allegations. The distinction has been drawn for some considerable time now between what has been described as actual bias and what is known to lawyers as apprehended bias, namely, whether fairminded people might reasonably apprehend or suspect that the judge or tribunal has prejudged or might prejudge the case. This was most recently given expression in Webb v The Queen [1994] 181 CLR 41 at 47 and in the unreported decision of the High Court in Winningham v The Queen given on 14 August this year.
It is important when considering section 476(1)(f), therefore, to understand what the legislature meant when it said that a decision may be judicially reviewed on the ground that it was induced or affected by actual bias. The explanatory memorandum to the amending legislation stated in this connection:
Where there is an allegation of bias directed against the decision maker or other person involved in the decision making process, it will be necessary to show that the decision maker or that other person was actually biased and not that there was simply a reasonable apprehension of bias.
This statement issued under the authority of the relevant Minister may be taken into account in the interpretation of
section 476(1)(f) to the extent that the provision is susceptible of any ambiguity - see Acts Interpretation Act 1901 section 15AB(1)(e).
Because lawyers sometimes become almost imprisoned by their own words, it has always seemed to me that what has really always been talked about in this connection were not different types of bias, but bias in different forms. That is to say, bias may be found by evidence or proof that the body or individual concerned has allowed itself to become affected by prejudgment, preconception or prejudice, a difficult event to prove, or it may be deemed to have been proved where there is found a perception of bias according to the earlier stated formula such that the need for justice not only to be done but to appear to be done was in danger of being forgotten.
There are very few reported cases of actual bias and I have been referred in this case to none. It was put in argument that if there is a perception of bias to the requisite standard, bias is established and it is unnecessary to go to the point of proving that a judge or tribunal was actually biased. I think that this is what the legislation had in mind. It should be noted that actual bias in paragraph (f) is linked with the words "by fraud", indicating that what the legislature had in mind was a serious case of bias, not one that was remote or required a series of difficult inferences or the construction of a series of disparate facts. At the same time it appears to me that the legislature is likely to have meant that what needs to be established in this
context is that the actions of the tribunal under consideration were so tainted by provable events that a conclusion should be drawn that the decision was affected by bias.
It is important to stress the introductory words of paragraph
(f) --
that the decision was induced or affected....
by the bias. That means that there is to be a clear connection between the proven bias and the decision, in other words that the bias procured or assisted to procure the decision.
The respondent claimed in these proceedings that when the serious assertion is made that bias is the factor or one of the factors that procured the decision, the provisions of rule 43 of order 54 of Federal Court rules should apply so as to require particulars to be given of the assertion. The respondent said that the application itself does not even mention bias let alone supply particulars of the allegation.
It is certainly true that the application does not make clear that any bias was intended to be alleged, still less actual bias in the context of fraud inducing the decision concerned. However, in accordance with my usual practice, I ordered the parties to supply a written outline of their submissions prior to the hearing. The applicant's submissions were transmitted to me on 4 September, two days ago, when no doubt they were also
supplied to the respondent. These submissions made perfectly clear that actual bias was being alleged and gave detailed particulars; indeed the particular allegations were replied to by the respondent's written submissions this morning. I think that in the circumstances the applicant should not be precluded from proceeding with his argument particularly where the respondent does not claim to have been prejudiced or after last Wednesday caught by surprise.
The Refugee Review Tribunal established by the 1992 amendments that came into effect in 1994 is a quite new body in the Australian legal scene. It is not only new in name, it is a very different type of tribunal to its predecessor bodies which considered applications for refugee status. It has been described in the course of argument today and in the application for judicial review as an inquisitorial body, quite uncommon in the common law system but more common in the Roman-Dutch or Napoleonic system that operates in most parts of Europe and elsewhere. The argument has been put that such a body ought to have imposed upon it fairly high standards of fairness. The emphasis has been placed upon the need for this Court to scrutinise with care the activities of such a body to ensure that long-standing and well recognised standards of fairness and justice for both citizens and non-citizens alike accessing Australian judicial or curial facilities, are observed. The applicant's case is that the Tribunal departed from such standards in such a way as to establish bias.
The circumstances were these. At some time during the course of its consideration of the matter in hand, the Tribunal sought an external opinion about the claims made by the applicant. The essential factor considered important was whether any Nicaraguans were recruited for forced labour outside their country during the Sandinista period of government in Nicaragua between 1979 and 1990. In particular an opinion was sought on the applicant's claim that he was forced to work in Bulgaria for five years.
What the Tribunal did was to obtain a written opinion about the applicant's assertions in this regard from Dr Peter Ross, a lecturer in the School of Spanish and Latin American Studies at the University of New South Wales. The opinion was supplied to the Tribunal by letter dated 21 September 1994 and was therefore received after the Tribunal's hearing of the applicant's evidence and its consideration of the documentation and other materials placed before it at that time. Dr Ross' letter is in evidence as part of exhibit A1 and is quoted at some length by the Tribunal in its determination. Dr Ross stated that he was not aware of any Nicaraguans being forced to do labour in Bulgaria or any other countries of what was then the Eastern or Soviet Bloc. He said that there were various barter arrangements between Nicaragua and other countries and that under such arrangements workers or trainees may have gone to Bulgaria. He said that he is extremely doubtful that anyone would have been forced to go. On the contrary, such service would have been viewed as a privilege, particularly if it served as an alternative to military conscription which became compulsory in
Nicaragua in the period and was quite unpopular amongst many people since it carried with it the possibility of being killed or maimed fighting the Contra forces opposed to the Sandinista regime.
The Tribunal came to rely upon Dr Ross' letter as:
....the expert opinion of the academic and commentator on Nicaraguan politics, Dr Peter Ross, whose credentials as an independent expert with a wide knowledge of Nicaraguan affairs was accepted by the Tribunal.
This opinion was no doubt based Dr Ross' statement in his letter that his knowledge of events in Nicaragua during the period of the Sandinistas is quite extensive. He described his qualifications thus:
I carried out research in Nicaragua during 1988 and was involved in solidarity work from 1979 to 1990. I have written extensively about Nicaragua including articles critical of the Sandinistas. I was always attuned to criticisms of Sandinismo which is the theory or ideology of the Sandinistas and canvassed such critiques both in Nicaragua and via reports emanating from the United States in Nicaragua including those propagated by La Prensa the major Nicaraguan newspaper which was extremely opposed to the Sandinistas.
Dr Ross said that he recalled no reports at that time that suggested that people were forced to undertake work abroad and invited the Tribunal to research the matter further from United States newspapers which were held in the library of the University of New South Wales.
The Tribunal provided Dr Ross' letter to the applicant's solicitor seeking a response. The reply came in a letter from the solicitor on 4 October 1994 which pulled no punches at all in assaulting the credibility and reliability of Dr Ross. He was described as:
....obviously a sympathiser and fellow traveller of the Sandinista regime.
This allegation was said to be supported by the fact that he had:
....ceased his active involvement and support of the country since the Chamorro election in 1990.
The applicant's solicitor invited the Tribunal to regard Dr Ross' reasoning that because he was not aware of any forced labour other perhaps than as an alternative to military conscription, and had not heard of such a system, it did not occur as being:
....fallacious and should be rejected in light of historical experience.
The solicitor's letter went on:
History teaches us that totalitarian regimes when brutally suppressing individual human rights never admit to such activities and authorise and conduct them in secret. The secrecy is reinforced by the nomenclature used to describe the activity which reinforces the ability of a totalitarian regime to mislead, disinform, misinform and obscure the true facts.
A number of examples were given of events and places in Nazi Germany, the Soviet Union, mainland China and Vietnam. The letter went on:
Furthermore, it is trite to assert that because no regime, totalitarian or democratic, publishes or readily makes available to public scrutiny the worst excesses of human rights abuses in its own countries including forced labour, resettlement, etcetera, then those abuses did not occur.
The solicitor submitted that
....the Tribunal in any case should not be searching, especially amongst people sympathetic to the Sandinista regime, for pieces of information or opinions which in fact contradict the sworn and uncontradicted evidence of the applicant.
The letter noted that:
The applicant was subjected to sustained and detailed cross-examination by the Tribunal over a lengthy period of hours but yet consistently maintained his assertion of forced labour.
It was submitted that the applicant's assertion and description of his conscription to Bulgaria satisfied the various definitions of persecution as outlined by McHugh J in Chan v Minister for Immigration & Ethnic Affairs [1989] 169 CLR 379 at 430. The letter drew the attention of the Tribunal to two places where at least anecdotal evidence would be available of the use by Eastern Bloc countries of the forced labour of Nicaraguan citizens and seemingly invited the Tribunal to consult the sources. It might
also be inferred that the solicitor was suggesting that it was beyond his means, at any rate in the time frame that was operating at the time, to do so himself but that it would be responsible of the Tribunal to broaden its access to facts beyond what was submitted as being the tainted views of Dr Ross.
There can be little doubt about the correctness of a number of the assertions made by the applicant's solicitor in this regard concerning other totalitarian regimes, and about the difficulty, if not impossibility, of proving many assertions of human rights abuses in countries that at the time were operating under ruthlessly enforced secrecy. On the other hand, it must be acknowledged that sophistication in these regards has improved immensely over the last 10 years or so and that there are now regular reports of such bodies as Amnesty International, the United States State Department and other "human rights watch" organisations, not to forget media outlets, which discover and reveal, even sometimes retrospectively, what was occurring in very many countries in these regards.
Moreover, since Bulgaria and the other countries of the former Soviet or Eastern Bloc have emerged from their previous totalitarian dictatorships, many things have been revealed, by both media outlets and people, of the previous activities and records of the countries concerned which were previously hidden from outside investigation and knowledge. Indeed, many documents and records have become available that were previously not
available to establish many of the excesses of some of these regimes.
The Tribunal said in its judgment or determination:
The Tribunal rejects the submission of the applicant that Dr Ross is biased in favour of the Sandinista regime. The Tribunal accepts Dr Ross's credentials as an independent expert with a wide knowledge of Nicaraguan political affairs.
It was not submitted here that Dr Ross was biased against the applicant but that his views were so tainted by his own political stances that it was unsafe for the Tribunal to proceed upon the basis that his views and his views alone should become the determining factor in the consideration of the applicant's assertions. It was pointed out that unlike the applicant Dr Ross was not subjected to interrogation or any form of testing of his views, or his capacity to speak from an unbiased point of view. It was said that the Court should not permit the views of an inquisitorial tribunal to stand uncorrected in such circumstances because it offended basic Australian standards of fairness and the integrity of the judicial system. The applicant submitted that the legislature could not have intended to give to the Refugee Tribunal power "to act in a manner that is so fundamentally prohibited to other decision makers". This contention was said to be strengthened by consideration of the other wide powers and flexibility that the legislature clearly intended the Tribunal to have.
It was put that section 420 does not give the Refugee Review Tribunal carte blanche to come to a decision. This section provides that:
The Tribunal in carrying out its functions under the act is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
The Tribunal was given the power to review a decision --
not bound by technicalities, legal forms or rules of evidence but [it] must act according to substantial justice and the merits of the case.
Thus the applicant submitted that considerations of economy, informality and speed are balanced by considerations of fairness. The argument was that the procedure adopted by the Tribunal of obtaining and receiving Dr Ross' letter after the hearing was not in accordance with the sentiments expressed in section 420, and that fairness was not helped or saved by inviting the applicant to respond in writing to the letter.
It seems clear that the Tribunal did not seek to balance Dr Ross' views by accessing either of the other agencies referred to in the solicitor's letter. Nor is there any explanation of how Dr Ross was chosen in the first place or of the basis for accepting his expertness and independence. I agree that the letter does not provide evidence of his independence though it does appear to provide a basis for his expressing at least one expert view.
As I see it, the problem for the applicant in this analysis is that the Tribunal was not attacked for being biased in this regard. That is to say, it has not been put that the Tribunal was tainted with the concept of prejudgment or prejudice but that its procedures were faulty in that it only gained access to the views of someone who was, in that respect, tainted and prejudiced.
For the decision to be induced or affected by basis, the bias must be in the Tribunal, not in one of its witnesses or sources of information. However, much more important even than that is the fact that a reading of the Tribunal's decision makes clear that it did consider a considerable range of other material than the views of Dr Ross in determining whether there was any support at all for the assertion by the applicant that he was transported as a political prisoner from Nicaragua to Bulgaria and required, not so much by the Bulgarians but by the Nicaraguans, to work in conditions of forced labour.
Amongst the other material to which the Tribunal had access was a report from the office of the United Nations High Commissioner for Refugees (UNHCR) based in Nicaragua. This material, apparently issued in 1991, stated that there were work and study programs for young Nicaraguans in Bulgaria during the time of the Sandinista regime and that some 1000 Nicaraguans were involved in this work. The UNHCR declared that this was a voluntary involvement and that no force was needed or exercised.
When a regime such as the Sandinistas is in government, such assertions need to be considered very closely. It is the experience of the last 50 years that totalitarian regimes rarely conduct activities that can be described as beneficent or benevolent towards their citizens, but rather that the citizens must subjugate their lives and selfish interests to the interests of the State as seen and defined by the ruling clique. Someone has to pay for the programs, travel and work concerned. Yet, if they were not forced or compelled to do so, no explanation is given, there is not even any speculation, as to why Nicaraguans would go from their own hot country where the language is Spanish to a cold place like Bulgaria where the language is Bulgarian for many years of work and absence from their families. There is no explanation as to who paid the salaries and expenses, what was earned and what was done with the money earned, where and with whom and how the workers lived, and what freedom was given them while they were living in the new country.
The Tribunal said that it gave:
greater weight to the opinion of the office of UNHCR in Nicaragua because it is an impartial, independent and reliable source of information. This organisation has detailed knowledge of the programs in place at the time the applicant alleges he was persecuted.
There is no doubt that the UNHCR is impartial, independent and entirely reliable, but whether the office or the officer who supplied the information in November 1991 could be described as a "reliable source of information" of what happened between 1984
and 1989 is quite another matter. No basis for this expertise was supplied and the gaps in the information given, to which I have made brief reference, indicate that it raises as many questions as it seeks to answer.
The applicant said in evidence to the Tribunal, which he had not previously provided to the Immigration Department, that his mother and other parents of involuntary participants in the Bulgarian labour program protested publicly in front of government buildings in Managua against the program soon after the applicant had gone to Bulgaria in 1984. The Tribunal noted that the UNHCR had no knowledge of such a protest or of public allegations at the time that the work programs were being used for punishing political prisoners. Once again, the absence of knowledge by the UNHCR of these matters in 1991 does not seem to me to advance the resolution of the problem very far.
However, the Tribunal gave attention to a large number of annual reports of Amnesty International between 1980 and 1990, to two specific international reports of Amnesty on the human rights record of the Sandinista government respectively dated March 1986 and October 1989, and the well known annual document "Country Reports on Human Rights Practices" issued by the State Department of the United States of America between 1987 and 1990. None of this material, the Tribunal said, reported that political prisoners were sent from Nicaragua to Bulgaria by the Sandinista regime.
It seems to me that this fact which has not been challenged in the present proceedings must be of considerable importance in the resolution of the matter before the Court. The Tribunal noted, and it is in any event quite without challenge, that the reports of the U.S. State Department and of Amnesty International are very critical of human rights abuses by many countries around the world, and that the State Department was particularly critical of the human rights record of the Sandinista government which the United States was strongly opposing. It will be remembered, of course, that the United States gave very extensive support to the Contras in their battle against the Sandinistas in Nicaragua.
The fact that none of these reports reported the abuses alleged by the applicant must be very significant in this matter. They also give considerably reduced importance to the report of Dr Ross to the extent that he is really corroborating the Amnesty International and State Department reports rather than the other way round. Even if no attention or weight was given to Dr Ross' report at all, it would have been very difficult for the Tribunal to accept the applicant's account and conclude that such appalling conduct escaped the attention of Amnesty International and the State Department.
The Tribunal also carried out what it called a Lexis search which I understand to be some form of computerised search of collected material. This is said to have revealed that Nicaraguan pilots were sent to Bulgaria for training, but there was no information on involuntary workers or political prisoners or targets being
sent to Bulgaria. Searches were also made of other data bases and information systems in the relevant period which mention a visit by the then Nicaraguan President, Daniel Ortega, to Bulgaria and the use of Bulgarian ships to transport military equipment to Nicaragua, but nothing about forced labour of Nicaraguans in Bulgaria.
The possibility that the work program described by the applicant was an alternative to military conscription in the Sandinista army in its confrontation with the Contras may have represented a way of marrying the evidence of the applicant with the other material to which I have referred, except that the applicant specifically denied in his evidence that he had participated in this work program as such an alternative. However, in the letter of the applicant's solicitor to the Tribunal, from which I earlier quoted, there is an argument that being offered compulsory work as an alternative to compulsory military service is tantamount to forced labour. I think there must be very considerable doubt about the correctness of that assertion. Many democratic countries have or have had conscription into the armed forces. To my knowledge many offer, at least to conscientious objectors or other excluded people, an alternative form of civilian service. Moreover, it has long been held that compulsory conscription into military service for a country by whatever unpleasant government it might happen to be ruled at the time, does not represent persecution within the meaning of the term in the Geneva Convention on Refugees: Sasa Stoljkovic v The Minister for Immigration and Ethnic Affairs (Olney J, unreported
26 August 1993); UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, para 167.
In the circumstances it is very difficult to draw a conclusion that the offer of compulsory work as an alternative to compulsory military service can also be forced labour or persecution. When Australia last conscripted young men to its military forces for service in Vietnam, the alternative was gaol. However unpleasant such alternatives actually are, I am not aware that any persons who left Australia rather than be forced into such alternatives ever claimed that they were being persecuted such as might entitle them to the status of refugees from Australia.
Nor, so the Tribunal found, did the evidence suggest that the Sandinista Government implemented conscription or work alternatives in a discriminatory manner such that the human rights of the applicant were violated because of his opposition to the regime. If this could have been proved, it might have indicated that the applicant was a political prisoner or was persecuted on the ground of his political opinion.
With regard to the applicant's treatment in Nicaragua after his return from Bulgaria in 1989, there seems to be some inconsistency in the material supplied by the applicant in the course of this matter. In his primary application for refugee status he stated that he was detained for three weeks in July 1990 but he did not report that he had been detained by police for two weeks immediately upon his return in June 1989 as he told
the Australian Embassy in a letter in December of that year. I agree with the Tribunal that it is unlikely that two weeks detention by the police on his return without charge or trial would not have been remembered in his primary application. I personally would not draw from that anomaly that nothing else the applicant says should thereby be treated as reliable, but it certainly gives cause to pause before accepting each and every allegation which the applicant makes about his actual or potential persecution.
If the applicant is to succeed in a claim for refugee status -- and that is not a matter on which this Court has to pronounce -- he would have to show that he has a real chance of suffering political persecution if he were returned to Nicaragua. Before the Tribunal, the matter was argued in this way. It was said that despite the defeat of the Sandinistas by President Chamorro in an election some years ago, former Sandinista forces remain in positions of power in the Chamorro Government, and that these persons would be likely to submit him to persecution if he returned. The Tribunal did not doubt, and I see no reason at all to differ, that the applicant actually fears such persecution but the question which the Tribunal had to determine was whether, on all of the evidence and tested objectively, this fear was well founded. Again, this decision is not for me to review or even express a view about. In the way in which the Tribunal dealt with this matter, there was absolutely no sign to me that this decision was approached in a biased or unfair or prejudiced way.
There was some hearsay evidence submitted that the applicant's brother, Jimmy, is suffering persecution by former Sandinista Government authorities in Nicaragua at the present time but this was delivered by way of conversations between his mother and his brother reported to the applicant. It seems that the applicant's mother did not corroborate these conversations before the Tribunal. Whilst this matter has nothing to do with the exercise on which I am embarked, it demonstrates even further that the Tribunal's approach to the matter does not manifest any taint of bias.
In the circumstances I find myself unable to conclude that the decision of the Tribunal was induced or affected by actual bias. So that the matter is clear, I am treating actual bias as embracing all forms of bias by independent tribunals which have found expression in the authorities.
In a distinctly subsidiary argument the applicant said that the decision involved errors of law. These were identified as:
(a)the acceptance of Dr Ross as an expert, and the adoption of his opinion as conclusive, on the central issue of whether the applicant was subjected to forced labour in Bulgaria during his five years there; and
(b)that the Tribunal required that the evidence of the applicant be corroborated before it could be accepted.
It seems to me that neither of these errors was committed. The Tribunal did accept Dr Ross as an expert and it seems to me that it was open to the Tribunal to consider that Dr Ross came to his opinions as a person who had the requisite experience of Nicaraguan affairs to be at least one person entitled to express expert views on the subject. No one was called or submitted a statement to put a different view. I do not think that the Tribunal, however, adopted Dr Ross' opinion as conclusive on the relevant issue. On the contrary, it seems to me that what the Tribunal did was to use Dr Ross as corroborating the absence of any other evidence supportive of the applicant's assertions. I do not think that the Tribunal required corroboration of Dr Ross' view in the strict sense as it is used in relation to certain areas of the criminal law.
Obviously the Tribunal went looking for some support for the applicant's assertions and presumably would or ought to have been satisfied, in the political circumstances to which I have earlier adverted, with a minimum of support for the applicant's assertions. What it found in fact was that the applicant's assertions were not supported at all in circumstances where support might have been expected. If it had put aside altogether the views of Dr Ross, it would still have been led to the view that the applicant was the only person who made the assertion, and that where support might have been anticipated it was distinctly and expressly lacking.
Even if the argument of the applicant was accepted that the Tribunal selected an expert who was biased and was therefore not independent or objective, it seems to me to fall very far short of proving that the Tribunal was tainted by bias. As I have tried to demonstrate, the Tribunal went to some pains to get as much information on the subject as could reasonably be obtained. When it did so, it found that there was no support for the assertions, not even one affirmative suggestion that the assertions had any truth to them at all.
Some evidence was presented to this Court at the hearing today, by consent or at least not objected to, which was not before the Tribunal. One piece of this fresh evidence was an affidavit from the applicant's uncle, Narciso Nunez. He deposed that after the installation of the Ortega Government he worked in security for the government. By 1981, some two years later, he had become very unhappy with the political situation in Nicaragua and decided to leave the country with his wife and child if he could. He managed to get himself to Costa Rica as a student where he successfully applied for refugee status. Later he obtained permission to come to Australia from Costa Rica, and he and his family, he said, were admitted to this country as refugees on 25 August 1984. He pointed out that his brother, Pedro, also came to Australia with his family and was granted refugee status. Narciso's sister, with her husband, who are the parents of the applicant, migrated here with his sister's son, Wilmer, and they have also been granted refugee status and become Australian citizens. These circumstances show that the refusal of the application of the
applicant for refugee status is very sad indeed. No doubt he wishes to be here with his family and they wish him to be here.
It is in the circumstances surprising to me that there is no other way in which his application to remain in Australia can be considered. If there is another way, arising perhaps from the residence now of virtually his whole family here apart from his brother and perhaps a few other more remote relatives, I believe that it should be considered now and would urge its consideration. However, on the basis on which the matter has been placed before the Court, there is simply no legal way in which the application of the applicant can be granted.
There is one other matter to which I should refer. The applicant also presented today an affidavit by his solicitor. This indicated that his solicitor made considerable efforts to obtain support for the applicant's assertion of his forced labour in Bulgaria as a political prisoner. I have carefully read this material which consists of some information from an organisation called the Human Rights Documentation Exchange in Austin, Texas -- which is one of the bodies the applicant's solicitor had referred to in the earlier letter to the respondent's department responding to Dr Ross' report . I have also seen some newspaper articles, some extracts from newspaper stories, and a number of pages of a book entitled Life is Hard, subtitled Machismo, Danger and the Intimacy of Power in Nicaragua, written by Dr Roger N. Lancaster in 1992 and published by the University of California
Press. In a chapter headed rather perceptively "Elvis" who, according to the book is not, I should hasten to add, alive and well in Nicaragua or Bulgaria, there are references to some terrible violations of the human rights of young Nicaraguans during the Sandinista regime.
Even if for present purposes, I accepted these allegations as true, none of this material gives any true support to the assertion that there was forced Nicaraguan labour in Bulgaria. It is difficult to know what use I could have made of this material even if it had established support for the applicant's assertions, and it should be noted that the evidence was all objected to as irrelevant. Had the information established in any distinctive way that there was renown or knowledge of forced labour in Bulgaria, I think that the Court might have been able to take some steps to ensure that overall justice was done to the applicant. But in fact, the information establishes, if anything, a further complete absence of anything suggestive that there was in fact known to anybody, or is known even today, any program of forced labour of Nicaraguans in Eastern Bloc countries at all, let alone on the basis of their political unacceptability to the Sandinista regime.
In those circumstances the only conclusion that can flow is that the application for review be dismissed.
[After discussion]
I shall make an order that the applicant pay the respondent's costs.
For the applicant: Mr P Skinner instructed by
Andrews Solicitors
For the respondent: Mr R Beech-Jones instructed
by Australian Government
Solicitor
Date of hearing: 6 September 1995
Date of judgment: 6 September 1995
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