MZXSA v Minister for Immigration
[2008] FMCA 1685
•22 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXSA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1685 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – whether the Tribunal’s decision was irrational and illogical – whether there was a failure to deal with an integer of the applicant’s claim – requirement for corroboration – the real chance test – whether the Tribunal failed to deal with elements of the claims – apprehended bias – whether there were unfair assertions as to the applicants truthfulness – whether the Tribunal made incorrect assertions, contradictions and inconsistencies – whether the Tribunal made comments suggesting pre-judgment – the manner of hearing. |
| Migration Act 1958 (Cth) |
| Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Eshetu v Minister for Immigration and Ethnic Affairs (1979) 142 ALR 474 Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Ethnic Affairs v GuoWei Rong (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Minister for Immigration and Multicultural and Indigenous Affairs v W306/01A [2003] FCAFC 208 Re Minister for Immigration and Multicultural Affairs; Ex Parte s20/2002; Appelant s106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30 Re Refugee Tribunal; Ex parte H [2001] HCA 28 SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 |
| Applicant: | MZXSA |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR |
| File Number: | MLG 1075 of 2007 |
| Judgment of: | Burnett FM |
| Hearing date: | 8 May 2008 |
| Date of Last Submission: | 8 May 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 22 December 2008 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: |
| Solicitors for the Respondent: | DLA Phillips Fox Lawyers |
ORDERS
That the application be dismissed.
That subject to the applicant not making application within seven (7) days, the applicant pay the respondent’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1075 of 2007
| MZXSA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR |
Respondent
REASONS FOR JUDGMENT
Introduction
On 2 November 2006 the visa applicant, a Turkish citizen arrived in Australia. He was reportedly a member of the Turkish karate team participating in the 2006 Kyokushan Karate World Cup tournament in Sydney later that month.
The visa applicant says in fact he was not a member of that team but that arrangements were made and he was able to travel to Australia with that team for the purpose of seeking asylum for a Convention reason.
He made application for protection on 1 December 2006. His application for a protection visa was refused on 23 February 2007 and subject to unsuccessful review by the decision of the Refugee Tribunal delivered on 10 July 2007.
The visa applicant claimed a well founded fear of persecution from Turkish authorities for reasons of his actual and imputed political opinion, his ethnicity and his religious beliefs.
In his amended application to this court filed on 8 February 2008 he sought a review of the Tribunal’s decision on the basis that:
a)The Tribunal acted without or in excess of jurisdiction in that it identified a wrong issue, asked a wrong question and/or relied on irrelevant material and in particular that the Tribunal’s decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds or probative material;
b)The Tribunal failed to deal with an essential integer of his claim in that:
i)The Tribunal misstated and/or misunderstood his claims and evidence concerning the circumstances in which his father had received the arrest warrant;
ii)The Tribunal failed to address his claim of fear of persecution based on a political opinion that might have been imputed to him by the authorities as a result of his attendance at demonstrations and protests;
iii)The Tribunal’s decision was based on findings for which there was no evidence in that there was no evidence to support its findings that his statutory declaration as “at odds with (his) claims at hearings” or that the father’s written testimony dated 10 May 2007 “contradicts (his) claims”.
c)The Tribunal erred in law by imposing a requirement that his evidence would not be accepted unless it was corroborated by independent third party evidence or information;
d)The Tribunal erred in law by failing to apply the real chance test in determining whether he had a well founded fear of persecution;
e)The Tribunal acted without or in excess of jurisdiction in that it failed to comply with the requirements of procedural fairness in that there was a reasonable apprehension of bias in the manner in which the proceedings before the Tribunal were conducted.
Irrational and Illogical Decision
The visa applicant contends the decision was illogical in the narrow sense of the term, that is, going beyond “just an emphatic way of expressing disagreement” with the Tribunal’s decision.[1]
[1] Re Minister for Immigration and Multicultural Affairs; Ex Parte s20/2002; Appelant s106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30
The faulty reasoning was alleged to manifest in that:
a)The Tribunal was said to have used evidence which was disbelieved as a premise to undermine other aspects of the visa applicant’s testimony. In particular it was alleged that based on its finding that the arrest warrant was not genuine the Tribunal found the visa applicant had not been transparent about how he got to Australia and why. That is to say, the Tribunal did not accept the visa applicant’s account about paying a person to obtain documents to travel to Australia as a karate player. However in making its finding concerning the arrest warrant the Tribunal had already relied upon the visa applicant’s account about obtaining false documents.
b)The Tribunal relied on its finding the visa applicant had not been transparent about how he got to Australia and why as the basis for rejecting the visa applicant’s claims of past persecution. Further, it then relied on that rejection as a factual premise when addressing the possibility that the visa applicant had not been transparent about how he got to Australia, that is by travelling on false documents. It was contended that in doing so it failed to appreciate that the assumption that the applicant had travelled on false documents was inconsistent with the basis on which it had rejected the claims of past persecution.
c)The Tribunal’s finding that the visa applicant had not been arrested or detained was not supported by probative material or logical grounds. The visa applicant submitted that contrary to the Tribunal’s reasons it did not “follow” from a finding that the arrest warrant was not genuine that the visa applicant had never been arrested, detained or persecuted as he claimed. Nor did it provide any basis for a general adverse credibility finding especially given there was no evidence that the visa applicant himself had not been involved in obtaining the arrest warrant.
In support of his contentions the visa applicant particularly relied upon the observations of Greenwood J in SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 who noted at [29]:
“It therefore seems to me that in exercising judicial review, an examination might properly occur to determine whether the decision making in reaching a state of satisfaction in discharge of the review function and in making his or her determination, displayed, in the s430 reasons, defects of illogical or irrational reasoning upon which the determination rests whether the determination is based on findings or inferences not supported by rational grounds, subject to this. “Inadequacy” in the material is, by itself, not enough (SGLB). Inadequacy may, however, be a circumstance which supports an inference that the Tribunal misconceived the test or was not satisfied in respect of the correct test (s20/222002).
…
A determination of the Tribunal as to a state of satisfaction or otherwise, of the relevant criteria or criterion in question, that is based upon a finding of fact or inferences drawn from facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference; or, if there be some evidence, although inadequate, reliance by the Tribunal upon that inadequate evidence gives rise to an inference that the Tribunal has misconceived the test or is not, in reality, satisfied of the requisite matters, as a result of which there has been only a purported, rather than a real, exercise of the power conferred upon the Tribunal.”
The effect of the visa applicant’s submissions was that the Tribunal’s determination concerning the authenticity and veracity of the arrest warrant grounded findings against him. Critically the findings concerning the arrest warrant were used illogically, he contends, to support other findings against him and demonstrates a flawed reasoning process.
It is true that the Tribunal’s decision is far from clear. The Tribunal’s sixty page decision appears to be largely a restatement of the evidence in the first fifty pages before proceeding to its analysis in the last ten pages. However at page 49 of 60 of the decision (CB376) the Tribunal noted at paragraph 2:
“The Tribunal has serious concerns about the credibility of the visa applicant for several reasons”.
In a discursive manner the Tribunal proceeded to examine the basis for that pre-emptive conclusion on credit. That analysis occurred over the following four pages. The critical finding relied upon particularly by the visa applicant is to be found at page 52 of the decision (CB379). However given the opening comments above I do not accept that the Tribunal was intending such a constrictive view as submitted by the visa applicant in support of its contention that the Tribunal’s approach was illogical. As was noted by Greenwood J. at [32] of the decision in SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824:
“…There is no place for judicial review in simply demonstrating “faulty logic” as “want of logic is not synonymous with error of law. So long as the particular inference is reasonably open even if the inference appears to have been drawn as the result of illogical reasoning”, there is no error of law. That view was adopted by French, Hill and Marshall JJ in Minister for Immigration and Multicultural Affairs v W306/01A [2003] FCAFC 208. In W404/01A of 2002 v Minister for Immigration and Indigenous Affairs [2003] FCAFC 255, French, Lee and Carr JJ concluded that even if the reasoning of the Tribunal…were illogical, the authority shows that this is not, in itself, a ground of review, though it may on occasion manifest other reviewable error” [35].
In NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 [25], Heery, Sundberg and Crennan JJ rejected the suggestion that the Tribunal’s lack of satisfaction rested upon illogical reasoning and observed, in reliance upon NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 [30]:
“…In any event, want of logic is not of itself suffice to constitute an error of law”.[25].
In VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286, Kiefel, Marshall and Downes JJ, also in reliance upon NACB v Minister for Immigration and Multicultural and Indigenous Affairs (supra), agreed that
“[30]…the current state of the law is that want of logic in the reasons of the RRT is not an available ground of review. That statement of principle did not incorporate the qualification “in itself”.
The central matter is this.
A determination of the Tribunal as to a state of satisfaction or otherwise, of the relevant criteria or criterion in question, that is based upon a finding of fact or inferences drawn from facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference; or, if there be some evidence, although inadequate, reliance by the Tribunal upon that inadequate evidence gives rise to an inference that the Tribunal has misconceived the test or is not, in reality, satisfied of the requisite matters, as a result of which there has been only reported, rather than a real, exercise of the power conferred upon the Tribunal.”
In its submissions the first respondent contends that all findings were based on an underlying determination of the visa applicant’s credibility. For the first respondent it was submitted that even if there is a possibility that there may have been some illogicality or unreasonableness on the part of the Tribunal in the fact finding process pursued by it in relation to the applicant’s credibility this does not have the consequence that there has been a reviewable error. See Mashayekhi v Minister for Immigration and Multicultural and Affairs (2000) 97 FCR 381 at [17] and W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 at [64]; Minister for Immigration and Multicultural and Indigenous Affairs v W306/01A [2003] FCAFC 208; NABE v Minister for Immigration and Multicultural and Indigenous Affairs No. 2 [2004] 144 FCR 1.
Unfortunately the Tribunal’s language was not well expressed. This has given rise to the contentions by the visa applicant.
For instance at page 49 of the decision the Tribunal stated it had “serious concerns with the visa applicant for several reasons”. It proceeded to discuss various factual matters. Interspersed with that discussion were various observations which included findings premised upon the Tribunal’s non-acceptance of the visa applicant’s evidence. See for instance at page 50.5 the Tribunal’s observations:
“…The Tribunal does not accept that the visa applicant had ever associated with or sympathised with the causes of the union in Turkey”.
Followed at page 51.5 of the judgment where the Tribunal noted:
“Given this finding (the arrest warrant was issued for the arrest of others) the Tribunal considers that the visa applicant’s credibility is weakened considerably and confirms the Tribunal’s finding that the visa applicant is not being transparent about how he got to Australia and why.”
The Tribunal then proceeded to reject a number of other assertions made by the visa applicant.
What transpires from a reading from those passages collectively is that the Tribunal examined each of the matters included in that part of the judgment and made express findings which involved a rejection by it of the visa applicant’s evidence. Some of those matters, including particularly the visa applicant being a communist sympathiser and having close associations with the union movement were resolved against him by the Tribunal’s consideration principally of his evidence. Other matters involved an assessment of his evidence, such as his evidence concerning how he came to Australia, against the evidence of others and other objective material. Such objective material included the puzzling nature of the issue of the Short Stay Business Visa for a karate tournament in respect of which he was not a contestant.
Collectively the consideration of those matters led to the conclusion at page 52 of the decision.
It is apparent that the Tribunal’s decision was not expressed concisely or with precision. The Tribunal’s manner of expression and in particular the structure of its reasoning support the applicant’s contention that it is “illogical”.
However despite the prolix and unstructured nature of the decision I am satisfied the essential findings can be distilled from the reasons to support the Tribunal’s decision. That is particularly so if a broad approach is adopted to assessing the Tribunal’s examination and analysis of the facts.
For instance concerning the applicant’s complaints detailed:
a)At paragraph 20(a) – the issues concerning his arrest and entry into Australia: The Tribunal, after critically examining and considering the applicant’s evidence and the objective material reached an adverse conclusion. That process involved a consideration of apparent contradiction between the applicant’s oral testimony and the documentary evidence (viz. basis of the applicant’s original entry entitlement into Australia); an examination of objective documentary evidence (viz. the arrest warrant); and, in some instances simply acknowledging its inability to make a positive finding (viz. whether the warrant was genuine).
b)At paragraph 20(b) – the Tribunal made adverse credit findings against the applicant: Those findings were based upon evidence before the Tribunal and were open to be made by the Tribunal. They not only included findings premised upon inconsistencies but also were premised upon the applicant’s apparent lack of commitment to the causes that were alleged to have enlivened his basis for fear.
c)At paragraph 21 – the Tribunal drew an adverse inference against the applicant: No doubt the Tribunal could have adopted a more favourable view of the applicant. However given other findings made concerning the applicant, such as his apparent lack of formal association with the offending causes, this matter was just one more to be weighted in the factual mix. This approach undoubtedly led the Tribunal to conclude on the basis of the arrest warrant evidence that “the visa applicant’s credibility is weakened considerably”.[2] In my view that observation by the Tribunal was not the same as a “general adverse credibility finding” as contended for by the applicant at page 21 of his submissions.
[2] Decision page 52 [CB379.5].
On that basis what the visa applicant actually seeks on this ground is a merits review in that it seeks to attack creditability findings made by the Tribunal and which were open on the evidence. That is impermissible. It follows that this ground fails.
Failure to deal with an integer of the applicant’s claim
The visa applicant complains the Tribunal misstated or misunderstood his claim and evidence on a point that was critical to its decision that being the authenticity of the arrest warrant.
In a statutory declaration dated 25 July 2007 the visa applicant stated:
“I did not see the warrant myself as it was provided to my father. I am aware that where my travel arrangements were made to come to Australia this was one of the things that my father paid extra money to still enable me to leave the country. I became aware of this after I had left Turkey.”
The Tribunal noted this evidence was contradicted by the evidence of the father of the visa applicant who reportedly stated to the Tribunal that he was handed the arrest warrant by a police officer.
In his statement to the Tribunal the visa applicant’s father stated:
“(The policeman) handed me a piece of paper and asked me to sign. When I read it, I realised they had taken out a warrant for (the visa applicant’s) arrest for very serious crimes. When I read the TKP-ML name I started to worry even further. I hastened my earlier intention to get him to go overseas. I did not tell (the visa applicant) about the warrant paper…because I did not want my son to be more scared and upset. I had a very close friend. He also had a son who left the country under difficult circumstances…(eventually) I spoke with someone named Ali and he said that he would be able to arrange it…He told me he would handle this as well but that he would take extra money for it.”[3]
[3] [CB261]
At page 58 of its decision the Tribunal stated:
“The Tribunal notes that this statement is at odds with the visa applicant’s claims at hearing that the arrest warrant was not false and that it was not part of the documents that his father had paid for to enable him to travel to Australia.”
The visa applicant says the Tribunal’s finding is wrong and arose by it perversely misconstruing the relevant sentence in the visa applicant’s statutory declaration and ignoring the context in which the statement was made.
In his statutory declaration the visa applicant stated at paragraph 11[4]:
“I recently spoke with my father about how he organised for me to leave the country. My father told me he spoke with a friend who put him in contact with a person named “Ali”. Ali told my father that he could help me get to Australia. Ali told my father that he wanted extra payment because there was an arrest warrant out for me.”
[4] CB249
In his evidence before the Tribunal the following exchange took place.
“Tribunal: So this was in place [the arrest warrant] before you left Turkey? It says he is to be searched country-wide at all land, sea, airports and gates, and be arrested under section 105 and expedited to the Istanbul Criminal Court.
Visa applicant by interpreter: Yes.
Tribunal: You travelled under your own passport?
Visa applicant by interpreter: Yes.
Tribunal: How did you slip through?
Visa applicant by interpreter: I said that before; because you are looking at the paper whether it stated or not…
Tribunal: As you said yesterday, I have to take it from all dimensions. What if this document is real, if it is genuine?
Visa applicant by interpreter: Myself, to my benefit, if I had this one produced to my benefit why would I have to [indistinct]?
Tribunal: I am asking you how did you leave Turkey with this kind of massive search on for you?
Visa applicant by interpreter: I am trying to say to you that there’s a racket arranging all these things.
Tribunal: And a highly sophisticated racket.
Visa applicant through interpreter: Yes they are all criminal smugglers; they’re not only helping me.
Tribunal: So you’re saying that Turkish immigration officers that you passed through against the will of the courts? So all of Turkey is involved in that way?
Visa applicant through interpreter: Apparently people who are organising this exist they have people at airports – their own men.
Tribunal: How much did you father pay?
Visa applicant through interpreter: $4,500 he paid for that warrant – arrest warrant. He’s not going to connect it like that – they’re not going to implement that, you know, that’s going to be discarded. Nobody is going to make that be effective of him just for that – just to protect him from [indistinct] – $4,500. I am trying to explain how a difficult position I am in. I have been giving a struggle against these kinds of things, as I said before.
Tribunal: But you’re happy to use the system – the corruption, when it suits you?
Visa applicant through interpreter: But my life was at risk, that’s why.”
In the Tribunal’s decision at page 21 the Tribunal noted that the issue of the provenance of the arrest warrant was significant. It stated:
“…It would appear that the arrest warrant was already in place when you travelled to Australia and, as such, the Tribunal may not accept that you were wanted by the Turkish authorities given you were able to leave the country freely. You are invited to comment.”
Through the course of the discussion other statements were made. They included particularly observations that the arrest warrant pre-dated the visa applicant’s date of departure; see Decision at page 25.2 and 48.3; and that the Tribunal was alert to the question of its authenticity, that is whether the arrest warrant was genuine or not; see Decision page 28.2, 28.3, 29.9 and 48.3.
It was, or ought to have been apparent to the Tribunal that the effect of the evidence was that the warrant was genuine and that the extra payment was made by the visa applicant’s father to have the corrupt officials ignore the warrant at the immigration checkpoints. It was not to corroborate any contention that the visa applicant was wanted in Turkey and at risk of persecution there in respect of those matters in the event of his repatriation.
In light of the evidence the Tribunal’s decision is puzzling. It seems apparent from the visa applicant’s evidence that he always believed the warrant was valid and it was for that reason that his father had to bribe migration officials to overlook it. It was also patently clear that the visa applicant’s contention was that extra money was paid because the visa applicant’s father had to bribe migration officials to overlook the valid warrant outstanding in respect of the visa applicant. It was not paid to generate a “false” warrant, perhaps to support the applicant’s intended contention that he was a wanted man and possibly subject to persecution.
Likewise the Tribunal’s finding at page 58.9 of the decision was inconsistent with that position. At that point of the decision the Tribunal noted:
“The visa applicant’s testimony in writing dated 10 May 2007, also contradicts the visa applicant’s claims that the arrest warrant was “one of the things that my father paid extra money to still enable me to leave the country” as his father in his statement to the Tribunal states that he was handed the arrest warrant by a “police officer”.”
The clear import of the visa applicant’s evidence was that the arrest warrant was genuine. Evidence of service of the arrest warrant by the police upon the visa applicant’s father is consistent with the genuineness of that document. Likewise the payment of a bribe to immigration officials to permit the visa applicant’s departure from Turkey and the fact that the arrest warrant predates the departure date all suggest the arrest warrant was genuine. This was the import of the visa applicant’s evidence. It was clearly misunderstood by the Tribunal. Indeed the curious aspect of the finding challenged is that the Tribunal seemed to understand the effect of the evidence contended for by the visa applicant. At page 48 of its decision the Tribunal noted:
“The visa applicant asked whether his case was going to come down to the karate document. The Tribunal stated that there were other critical issues such as the arrest warrant and whether or not it was genuine. Moreover, the Tribunal stated that the visa applicant departed Turkey on 2 November 2006 and the warrant appears to have already been in place when he departed. This was in place when he left and the warrant states that he was to be searched for on the air, sea and land. The Tribunal stated that in the circumstances he travelled on his own passport without difficulty and how was it possible that he would have slipped through the system. He stated there was a racket and they organised everything. The Tribunal asked the visa applicant to explain how it was that the Turkish immigration authorities let him pass through the border against the will of the court. The visa applicant stated that there were people at airports who could be paid off. The Tribunal asked the visa applicant how much his father had paid for him to leave Turkey when he was on a wanted list. He stated he paid $4,500 for the arrest warrant to be ignored.”
The Tribunal’s restatement of the visa applicant’s evidence at page 48 of its decision was clearly premised upon both his oral testimony and his statutory declaration. On that basis I accept the Tribunal’s observations at page 58 were clearly wrong. No rational explanation exists for this anomaly except perhaps that the Tribunal’s views against the visa applicant were tainted by bias or ill will as is alleged in the latter part of the visa applicant’s submissions. However for reasons which follow I do not accept this to be the case. It can only be that the Tribunal misunderstood the evidence and confused itself in addressing it. I think that is the explanation. So much is apparent from the transcript of proceedings. From her comments it appears that from an early time in the proceeding the Tribunal had the view that the arrest warrant was fraudulent and was provided as part of the scheme.[5] Her views were fortified by the incapacity of the Department to determine if the warrant was genuine.
[5] See transcript p 26 and 27
In my view the Tribunal’s findings that the visa applicant’s statutory declaration was “at odds with the visa applicant’s claims at hearing” or that the visa applicant’s father’s written evidence “contradicts the visa applicant’s claims” was incorrect. It was submitted for the visa applicant that the misconception of the evidence was serious and led to a decisive credibility finding adverse to the applicant.
The Tribunal’s finding on the issue of the warrant was clearly critical to its determination that there were “…considerable concerns with the visa applicant’s credibility”.[6] Credit was critical to the Tribunal’s determination of at least several points contended by the visa applicant in respect of which he was not accepted.
[6] Decision page 57.
For the applicant reliance was placed upon the Federal Court’s remarks in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[7] where the court noted:
“It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.”
[7] (2004) 144 FCR 1 at [63]
For the respondent it was submitted that this matter did not go to the nature of the applicant’s claim; rather it was not only to the credibility of evidence supporting the claim. It contended the approach in that case was expressed in NABE v Minister for Immigration and Multicultural Affairs(No.2) (2004) 144 FCR 1 where at [53] the Full Court said:
“An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact; Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.”
In distinguishing between failure to consider the claim and a fact finding error the Court continued at [57]:
“The nature of the review function was described by Allsop J (with whom Spender J agreed) in HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244;
The requirement to review the decision under section 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatory relevant by the Act for consideration…. It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act…make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.”
In this case it is apparent the Tribunal considered each element of the claim. Although the Tribunal’s decision was factually in error that error in fact did not infect the Tribunal’s statutorily imposed duty to examine and deal with all the claims for asylum made by the applicant. The Tribunal considered the applicant’s claims he had suffered past persecution particularly because of his sympathies for the TKP and the union movement. However the issues concerning the indictment and the arrest warrant were merely part of the evidence provided by the applicant in support of his claim. Other evidence such as that concerning the extent of the applicant’s sympathies for the TKP and the union as manifested by his involvement with those organisations were also important to the Tribunal’s determination. That evidence did not impress the Tribunal.[8]
[8] Tribunal’s decision at page 57 [CB384].
Despite it appearing that the Tribunal’s decision on the issue of the warrant was in error the ultimate finding was open on other evidence. The Tribunal did proceed to consider the other matters required to be considered in the context of the application. It clearly understood the question it had to decide although it may have erred on its finding in one matter of fact it did consider the claim and all its component integers.
It follows that although there was an error in fact finding along the way that error was not jurisdictional. The Tribunal clearly understood the question it had to decide. It addressed all the component integers of the applicant’s claim. It fulfilled its statutory duty and considered the applicant’s claim. Irrespective of the Tribunal’s error in fact finding the decision of the Tribunal was open to it on the facts as found. Accordingly this ground fails.
Requirement for Corroboration
The visa applicant contents that the Tribunal adopted an approach in respect of the visa applicant’s evidence that his evidence would not be accepted in the absence of independent corroboration. It was submitted that it would be an error of law amounting to jurisdictional error for the Tribunal to adopt an approach whereby evidence given by an applicant for a protection visa would not be accepted in the absence of independent corroboration, at least in the circumstances where the applicant’s evidence was not inherently unreliable.[9]
[9] Eshetu v Minister for Immigration and Ethnic Affairs (1979) 142 ALR 474 at 485 (Hill J); cf. Warner Warnakulasuriya v Minister for Immigration and Multicultural Affairs [1998] FCA 336 (Finkelstein J).
It was submitted that this principle is reflected in the Tribunal’s credibility guidelines which state:
“2.1…Applicants for refugee status are often unable to support claims by documentary or other proof.
2.2…There is no requirement in law that evidence must be independently corroborated before it can be accepted by the Tribunal.”
The visa applicant submitted that it can be inferred the Tribunal impermissibly insisted upon independent corroboration of his claims. In doing so it was contended that the Tribunal imposed an unreasonably high threshold or standard of satisfaction and failed to take into account the visa applicant’s written and oral evidence as primary evidence of the claimed events. In particular it was claimed that during the hearing the Tribunal member repeatedly expressed a need for “independent information to corroborate the applicant’s claims” and suggested the applicant’s evidence was not sufficient on its own.[10]
[10] See transcript 9, pp.9-10, 15, 16, 17, 48-49, 93-94, 154-155, 156, 159-160.
For instance the visa applicant pointed to observations made by the Tribunal member that “…to establish that you are a refugee is a very serious and difficult thing to do and that is why I need third party independent evidence.” The applicant submitted that of greater significance were the observations, for instance, made by the Tribunal member in this regard at pages 154 to 155 concerning the validity of the search warrant. It was submitted that the Tribunal’s attitude to the requirement for corroborative evidence was clearly a matter which gave rise to the adverse inference. In particular the applicant pointed to page 51 of the Tribunal’s decision where it noted:
“The visa applicant would not provide information or details that would indicate he had any awareness about how he came to Australia except to say that his father did not organise the whole operation. He simply paid someone to organise all the papers.”
It was submitted that observation of the Tribunal was significant in terms of the Tribunal’s ultimate assessment of the visa applicant’s credibility.
Further it was submitted that the Tribunal’s attitude to the visa applicant’s need for corroborative evidence was highlighted in a letter of 23 April 2007 forwarded by the Tribunal to the visa applicant’s solicitor. It requested the provision of additional information and in particular independent third party information concerning how the visa applicant’s father was able to ensure that the visa applicant was able to leave the Turkish immigration zone without detection given an alleged arrest warrant was in place in September 2006.[11] The visa applicant was not able to provide evidence in respect of that matter beyond that which had been provided earlier and his oral testimony at the Tribunal hearing.
[11] CB186.
In Eshetu v Minister for Immigration and Ethnic Affairs (1979) 142 ALR 474 Hill J noted that he could not “emphasise too strongly that the Tribunal must not approach its task of merit review on the basis that it will not accept an applicant for refugee status says unless there is some independent corroboration. To do so would involve a gross error of law. It would entitle an applicant…to have the Tribunal’s decision set aside….”
That general principle was explained in Warnakulasuriya v Minister for Immigration and Multicultural Affairs [1998] FCA 336 where Finkelstein J noted:
“Next it is alleged that the Tribunal erred in requiring the first applicant to prove aspects of his case by a process of corroboration or supporting evidence. Here the submission was that the requirement that an applicant demonstrate his or her genuine fear of persecution is founded on a “real chance” of persecution for one of the reasons stated in the definition of “refugee” requires rational speculation and denies the necessity of the proof of affirmative certainty; see Minister for Immigration & Ethnic Affairs v Guowei Rong (1996-1997) 144 ALR 567 at 596-597 per Kirby J. It followed, so it was said, that this required the Tribunal to accept or at least not deny the possibility of the existence of the facts asserted by the first applicant notwithstanding that there was no corroboration of the evidence that was said to have been wrongly rejected was the alleged massacre of ANP supporters.
The submission fails to recognise that one of the functions of the Tribunal is to make determinations of fact based on the evidence that is before it. In Guo, in the majority judgment at 570 it was said that “the Tribunal (is) entitled to weigh the material before it and make findings before it engaged in the consideration of whether or not (the applicant’s) fear of persecution on a convention ground was well founded”; see also Wu Shan Liang at 293 per Kirby J. This must admit of the possibility that the Tribunal will not accept the accuracy of certain “facts” unless they are corroborated in some way. The acceptance or rejection of “facts” is a matter for the Tribunal and no error of law will be demonstrated merely because the Tribunal has decided that certain evidence will not be accepted unless it is corroborated. Some “facts” may be so implausible that they should be accepted. An applicant may appear to lack credibility and in that circumstance the Tribunal may not be disposed to accept his or her evidence unless that evidence is corroborated by some independent source. If the Tribunal forms a view, for one reason or another, that evidence is unreliable and should be rejected unless corroborated that does not amount to an error of law. On the contrary, it suggests the Tribunal is taking seriously its obligation to evaluate the evidence that is before it.”
Accordingly the issue for determination in this case is whether or not the Tribunal did indeed proceed on the impermissible premise that it would not accept what the visa applicant said unless there was some independent corroboration.
It is clear from the transcript of proceedings that the Tribunal member indicated on many occasions that a third party or corroborative evidence was desirable.
At page 51 of the decision the Tribunal noted “there are serious contradictions in the visa applicant’s testimony about how he came to Australia”. One of the principle factors which appears to have led the Tribunal to that conclusion was the existence of objective material relating to the arrest warrant and its bearing upon the applicant’s capacity to be processed through immigration before departure from Turkey. It is apparent from the transcript of the proceedings before the Tribunal particularly at pages 154-155 that the Tribunal desired objective support for those allegations. For instance at page 155 line 8 of the transcript the Tribunal noted:
“I will certainly take your claims of having been threatened and so forth seriously but at this stage there is very limited information that those things happened to you.”
On other occasions referred to in footnote 7 above the record reveals the Tribunal did repeatedly express a wish for “independent information”. The Tribunal member’s expression was not unequivocal. However it is clear from the transcript that the member looked for the comfort of objective material as is apparent from the transcript of proceedings. In the result the absence of objective material appears to have been critical in her determination of the matter concerning the arrest warrant. In turn that matter gave rise to the adverse inference as to credit stated at page 49 of the decision.
It follows that I do not accept the Tribunal maintained an insistence that the evidence of the applicant required independent corroboration. There were clearly instances where the Tribunal indicated the desirability of independent corroborating evidence. However in doing so it did not suggest evidence would be rejected in the absence of corroboration. At best, for the applicant, the matters complained of support the respondent’s contention that the Tribunal embarked upon a critical review of the evidence as it ought to have done.
Accordingly I do not find for the applicant on this ground.
Real Chance Test
In order to demonstrate a well founded fear of persecution it is sufficient that there is a “real chance” that the applicant might be persecuted if he were to return to turkey; Chan Yee Kin v Minister for Immigration and Ethnic Affairs[12]. Further it is well settled that even a minor possibility of persecution can be sufficient to constitute a real chance of persecution.
[12] (1989) 169 CLR 379
It has been stated as correct that an applicant for refugee status may have a well founded fear of persecution even though there is only a ten percent chance that he may be so persecuted.[13]
[13] Chan Yee Kin v Minister for Immigration and Ethnic Affairs (supra ) at 429 (per McHugh J).
It follows from the approach prescribed in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (supra) that unless the Tribunal has no real doubt about the correctness of its findings it must take into account the possibility that its findings are wrong when assessing whether or not there is a real chance of future persecution for a convention reason; Minister for Immigration and Ethnic Affairs v Woo Chan Liang[14]; Minister for Immigration and Ethnic Affairs v Guo[15].
[14] (1996) 185 CLR 259 at 281, 293.
[15] (1997) 191 CLR 559 at 574-575, 576, 592.
In this case the Tribunal did not express an absence of doubt about the correctness of its findings about whether the applicant travelled to Australia on false documents or about the validity of the arrest warrant. In fact the Tribunal noted that it could neither confirm nor disprove that the applicant was a karate player (decision page 52) and noted that in respect of the arrest warrant the material was inconclusive and incapable of disproving its authenticity (decision page 52). It follows that consistent with the principle expressed in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (supra) the Tribunal was required to take into account the possibility that the visa applicant was not a karate player and that the arrest warrant might have been genuine.
In its decision at page 53 the Tribunal did give consideration to and apply the “what if I am wrong?” test insofar as it concerned the visa applicant being a karate player. However the applicant submits it failed to properly apply the test because it did not consider the effect of that assumption on the questions of whether the visa applicant had been persecuted by Turkish authorities in the past and whether the arrest warrant was genuine.
In its decision from pages 55 to 57 the Tribunal examined the country information relevant to the visa applicant’s claim. Relevantly it concluded:
“The above information would suggest that the Turkish authorities might be vigilant against communist based organisations, particularly the TKP/ML and other terrorist linked organisations. However, there is limited evidence that would suggest that the visa applicant would be persecuted on the basis of his claimed union affiliations or leftist sympathies.”
In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 the Full Court of the Federal Court explained the correct approach to the “real chance” test in the context of an application where a Tribunal rejects most or all of the facts in support of an applicant’s application. It said (at 140):
“There is, however nothing, in the judgments of the majority in Guo or Wushan Liang to require the RRT to address the specific question “What if I am wrong?” after it has made findings of fact and in the course of determining whether it is satisfied that the applicant has a well founded fear of persecution. Indeed, I doubt that Kirby J intended to be understood as requiring that; see Wushan Liang at 293. In deciding whether it has a relevant satisfaction for grant of a protection visa, the Tribunal is required to bear in mind the totality of the case. That, as we have seen, includes any relevant uncertainty that it entertains as to whether claimed events in the applicant’s past may ground a fear of persecution for a convention reason. In that respect, the Tribunal is required to do no more than satisfy itself in accordance with commonsense and the ordinary experience of mankind.”
Although the Tribunal had earlier determined that it did not accept the visa applicant ever associated or sympathised with the causes of the union in Turkey (decision at page 50) or that he was a sympathiser with the TKP (decision page 51) it did, in my view, give overall consideration to the question of whether or not there was a reasonable basis or good reason for a well founded fear. Those factors appear to have given rise to its view expressed at page 56 of the decision that “the applicant would not face a real chance of serious harm if he returned to Turkey now or in the reasonably foreseeable future” because of his Alevif ethnicity and religion and also its conclusion at page 57 of the decision that he would not be at risk because of his alleged union affiliations or leftist sympathies.
In follows that insofar as the applicant says the Tribunal failed to properly apply the test it really means the Tribunal did not apply the test premised upon an acceptance of the applicant’s case. The weight it placed on the applicant’s evidence in applying the real chance test was a matter for the Tribunal. See NAHI v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13]. It gave it that weight it considered appropriate, but ultimately correctly considered the matter.
In my view the Tribunal’s decision did address the “what if I am wrong?” test and is not amenable to review on this ground.
Failure to Deal with Claims
The applicant contended that the Tribunal failed to consider and deal with all the elements of his claims. In particular he claims, the Tribunal, by focusing on the membership of and commitment to the union and the TKP and the degree of the applicant’s subject knowledge about political ideology it failed to address his claimed fear of persecution based on a political opinion that might have been imputed to him by the authorities as a result of his attendance at numerous demonstrations and protests both in relation to atrocities committed against the Alevies and in relation to the labour movement.
The applicant contends that this failure constituted a constructive failure to exercise jurisdiction and a failure to take into account relevant considerations.
The respondent says that any failing by the Tribunal to deal directly with that complaint was clearly covered under the umbrella of the Tribunal’s treatment of the applicant’s evidence concerning association with the TKP and the union movement together with the allegations of the industrial action taken in respect thereof. That matter was addressed by reference to the Tribunal’s examination of the two headline issues concerning the TKP and union membership.
In its decision the Tribunal recited at length the background facts concerning those issues in its section of the decision entitled “Future risk of persecution”.[16] Given the detailed recital of the evidence I am satisfied the Tribunal did consider the applicant’s claimed fear of persecution based on political opinion that might have been imputed to him by reason of his association with others. That matter is confirmed by similar references in the opening paragraph of the decision under the heading “Findings and Reasoning”.
[16] Decision page 18 [CB345]
In my view the matter was considered by the Tribunal. Its determination not to include detailed discussion concerning that matter in its reasons was ultimately a question for it but as an issue was not overlooked. I do not consider the Tribunal erred on this ground.
Apprehended Bias
The applicant contends the Tribunal’s decision is vitiated by bias on the part of the Tribunal in the conduct of the application. In his outline the applicant contended that a reasonable apprehension of bias would constitute a denial of procedural fairness and jurisdictional error. He submitted that it was well settled that apprehended bias will exist in circumstances where a fair minded and informed observer might reasonably apprehend that the decision maker might not bring or have brought an impartial mind to the resolution of the question to be decided.[17] It was submitted bias is demonstrated if there is a reasonable apprehension of a possibility that the Tribunal was predisposed towards the result other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question.[18]
[17] NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [13] – [14]; VFAB v Minister for Immigration and multicultural and Indigenous Affairs [2003] FCA 872 at [25] – [27]; Re Refugee Tribunal; Ex parte H [2001] HCA 28.
[18] NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs supra at [20]
The applicant particularly relied upon the observations of Kenny J in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (supra) where in that case Her Honour determined that the Tribunal had “overstepped the boundary” such that “a fair minded observer might well infer there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim”.[19]
[19] Supra at [82]
In that case the matters that gave rise to the reasonable apprehension of bias included:
a)The Tribunal member’s aggressive style of questioning, and repeated expression of disbelief in the applicant and his evidence (in tone of voice, by innuendo and express statements);
b)The Tribunal member’s repetitive style and adverse commentary on the applicant’s evidence, which conveyed the expression that she was disposed to regard him as untruthful and fabricating his claim;[20]
c)The Tribunal member asked questions and made comments about the applicant’s evidence which were misleading and put maters to the applicant that were incorrect;[21]
d)The Tribunal member appeared over-keen to detect inconsistencies in the applicant’s evidence and, when it became apparent there was no such inconsistency, failed to acknowledge her mistake;[22]
e)The Tribunal member displayed a lack of sensitivity to the applicant;[23]
f)The Tribunal member turned virtually all the applicant said against him.[24]
[20] Supra at [51]
[21] Supra at [52], [59]
[22] Supra [60]
[23] Supra [62]
[24] Supra [60] and [64]
In addition to overt evidence indicating bias the applicant also contends that such a finding might be open on the basis of unreasonable findings of fact. In support of that contention the applicants relied upon the observations of Allsop J in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (supra) and in particular his remarks that:
“The existence in any given case of arbitrary unreasoned conclusions made without a scintilla of evidence may lay a foundation for an argument that the decision maker moulded his or her fact finding to reach a particular result. Such may also lay the foundation for argument that the decision reached was capricious, arbitrary, made according to humour or private opinion rather than reason and justice, or that it was unavailable.”[25]
[25] Supra at [12]
His Honour continued:
“Where fact finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.”[26]
[26] Supra at [115]
For the applicant it was submitted that in this case a fair minded observer could reasonably apprehend that the Tribunal member might have had a closed mind (or a mind not open to persuasion) because it is alleged that during the hearing:
- the Tribunal member made repeated unfair assertions and suggestions that the applicant was not being candid and truthful;
- the Tribunal member attempted to impune the applicant’s truthfulness by reference to the manner in which he escaped Turkey and came to Australia;
- the Tribunal member insisted on getting the applicant to accept “a possibility” that the arrest warrant could have been fabricated;
- the Tribunal allegedly often made incorrect assertions of contradictions and inconsistencies in the applicant’s evidence;
- the Tribunal member allegedly made comments during the hearing that suggested pre-judgment and that the hearing was a formality;
- the Tribunal’s alleged illogical and unreasonable findings, misstatement of evidence and insistence of corroboration of the applicant’s oral evidence by third party information and failure to deal with the applicant’s claims;
- the Tribunal’s manner and tone of examination of the applicant.
Assertions of Truthfulness
Two instances are alleged whereby the Tribunal is said to have made repeated unfair assertions and suggestions that the applicant was not being candid or truthful. The respondent submits that those instances were merely indicative of the frustration experienced by the Tribunal. It submitted that occurred because the applicant was evading questions.
I am not necessarily persuaded that the applicant was evading questions. However there were clearly difficulties in the translation of the applicant’s evidence. This was exacerbated by the change in translators (three in all) during the course of the two day hearing.
In my view the questions were not inappropriate and the manner of delivery was not inappropriate. In fact the applicant’s complaint at paragraph (45) of his submissions (viz. that the Tribunal attempted to impune the applicant’s truthfulness by reference to the manner in which he escaped Turkey and came to Australia because if his life was at risk the veracity of his claims should not have been affected by the nature of the arrangements he was forced to resort to in order to leave the country) highlights undue sensitivity on the part of the applicant. Clearly before any right could be determined the Tribunal first had to first determine if there was a “Convention” reason. That is to say, a belief on the part of the applicant that his life was endangered. It was only after a determination of that issue in the applicant’s favour that he would then have grounds for complaint.
I do not agree with the applicant’s submission on this point.
The arrest warrant was fraudulent
The Tribunal as an inquisitorial body acted correctly in its examination of the applicant; ReRefugee Review Tribunal; Ex parte H [2001] HCA 28 at [28]-[33]. It follows that given its obligations there was nothing improper about it putting to the applicant the possibility that the arrest warrant could be false. The issue was an important issue and the Tribunal necessarily had to investigate these matters by enquiry of the applicant in order to resolve them. In the ordinary course that would have required some testing of the applicant and an assessment of his reliability.
Likewise I accept the respondent’s submissions that it was important for the Tribunal to enquire of the applicant about his visa status despite him not being a karate player.
Ultimately the Tribunal was required to assess the evidence and form a view concerning facts that were contentious or required a positive determination in the context of the application. The criticism made by the applicant in his submission that, for instance, concerning the arrest warrant the Tribunal’s response was obsessive ignores the fact that the Tribunal believed the determination of this matter would have been helpful to its assessment of the applicant’s overall credibility. Ultimately the Tribunal saw this issue as a means to assisting it in its resolution of credibility. I accept the respondent’s submission that its focus on this issue was directed to credibility and did not reflect “obsession” as alleged by the applicant.
Tribunal made incorrect assertions, contradictions and inconsistencies
The applicant’s principle complaints here were particularly that in the Tribunal’s reasons it reported the evidence given at the hearing inaccurately and/or was unfairly partial and laced with unjustified adverse comments or observations. Four instances were alleged by way of illustration. Dealing with each:
a)The contrast between the decision at page 28 and 36 [Casebook 355.2 and 363.5] and transcript pages 20, 27-28 and 77. At decision page 28 and 36 the Tribunal was merely reciting the evidence received by it on this point. The transcript references are to some parts of the examination of the applicant on this issue. However there are other references to this issue in the transcript. Any inconsistencies between the summary of the evidence provided in the decision and the transcript are not of such significance that they support the applicant’s contention on this matter. In that regard I am mindful that the Tribunal appears to have principally relied upon notes rather than transcript for the purpose of the preparation of its decision and that accordingly there might be minor discrepancies between the Tribunal’s interpretation of the evidence as represented in the decision and the actual transcript itself.
b)The applicant has identified the distinction between his evidence as is transcribed at page 45 of the transcript and its reported summary at page 33 of the decision (Casebook 360]. Clearly the decision seeks to report the Tribunal’s interpretation of the applicant’s evidence. I do not agree with the applicant’s contention that the Tribunal’s observations in that regard were unfairly partial or laced with unjustified or adverse comments. Clearly any matter of emphasis was the product of the Tribunal’s impression of the witnesses’ evidence as delivered.
c)The applicant complains that the Tribunal, at page 34 of its decision, misreported the applicant’s evidence concerning whether the applicant had been directly involved at Ortex in closing down machinery and in confronting management about unfair working conditions. The Tribunal noted in its decision that the applicant’s response to this issue was evasive. I do not accept the applicant’s submission on this matter. The Tribunal’s expression at page 34 of its decision was directed solely to the question of Ortex and insofar as it was, it was appropriately answered and recorded. It would appear that the Tribunal’s decision was based upon notes made by the Tribunal member at the hearing and to that end some inaccuracies may appear. For instance in response to the direct question “so you were involved in closing down machinery?” the Tribunal recorded the applicant’s answer as “no”. But the series of questions and answers following that question and answers as revealed in the transcript could readily lead to a perception that the applicant was being evasive.[27]
It follows I do not accept the applicant’s observations support his complaint in that regard.
d)The applicant complains that the Tribunal mis-described a page 42 of its decision (CB369.8) events recited at transcript page 121. I accept the respondent’s submission on this point that this complaint is not supported upon a review of that material.
[27] See the series of questions and answers commencing at page 70 of the transcript.
Comments suggesting pre judgment
The applicant complains that the Tribunal made comments during the hearing which suggested pre judgment and that the hearing was a formality. One instance alleged was a remark made at the end of the first hearing day “that’s why we’re coming back tomorrow. But if I don’t give you (indistinct) the Courts will criticise me, saying I didn’t give you the opportunity, if the decision is adverse”.
It was submitted that such a comment implied that the principle purpose of the hearing was to avoid judicial criticism or insulate the ultimate decision from potential challenge.
I do not accept the applicant’s contentions on this point. It appears plain from a reading of those words in context that the Tribunal was seeking to emphasise at the end of the first days hearing that there was a need for a second day. That was to enable the applicant ample opportunity to provide the additional evidence which the Tribunal considered necessary. Further the Tribunal’s rider concerning the prospect of criticism by a court on review could not reasonably imply that the purpose of the next days hearing was to avoid judicial criticism or insulate the ultimate decision from potential challenge. Although axiomatic for a lawyer the statement was arguably one made to placate the applicant who appeared to be concerned he was not going to be heard. See for instance his remarks “(but) I still haven’t had a chance to tell you what happened to me, what I lived through” (transcript page 102). In that context it can be seen that the Tribunal’s remarks were designed to reinforce in the applicant’s mind not only that the matter would be adjourned for hearing to the next day but that such was his right, a right which would be protected by a court. I do not accept the applicant’s criticism of the Tribunal’s remarks as indicating bias.
Manner of hearing
Following a request by the applicant I listened to the recording of the proceeding conducted by the Tribunal. There are some minor departures between the proceeding as recorded and the transcript. Broadly however the transcript accurately records the evidence given before the Tribunal.
What is not apparent from the transcript is the difficulty occasioned by the necessary intervention of the interpreter between the applicant and the Tribunal. It was difficult to discern any significance from the tone in the applicant’s voice because his expression was in his native tongue. There did appear to be occasions of exasperation by the Tribunal member herself which appeared to be occasioned by responses received to various questions. The responses suggested some difficulty with the translation. Generally however the tone of the Tribunal member was compassionate. On occasions when she was seeking answers to questions it became “plaintive” in its pitch. However it was not ever inappropriate, harassing or overbearing. Although submissions made by the parties refer to the Tribunal’s examination of the applicant as “vigorous” or robust I do not consider such adjectives generally describe the examination. Clearly there were occasions when the parties to the examination did become excitable. However such occasions were limited and certainly no more frequent than what one might expect in the examination of an individual conducted by medium of an interpreter in the context of a refugee application.
It follows from a consideration of the discreet issues raised both separately and collectively that I do not consider a fair minded and informed observer might reasonably have apprehended that the decision maker in this instance did not bring an impartial mind to the resolution of the issue to be decided. In my view the proceeding would not give rise to a reasonable apprehension of the possibility that the Tribunal was predisposed toward a result other than the result reached following evaluation of the material before it. Nor would it support the proposition that it did not proceed to treat the matter with an open mind capable of persuasion in favour of the applicant. In my view the conclusions of the Tribunal were not arbitrary but reasoned. There was evidence to support the Tribunal’s findings of fact in respect of each matter and it cannot be concluded that in reaching its material findings the Tribunal was motivated by any capricious or arbitrary cause. In my view the Tribunal’s decision was one which appears to have been reached following a reasoned and even-handed consideration of all material including the applicant’s own evidence in respect of which the Tribunal was assisted to form views concerning the applicant’s credibility.
I do not accept the applicant’s contentions on this matter.
Conclusion
In this application the visa applicant failed to satisfy the Refugee Review Tribunal of his claims for Convention status. His application raised five grounds for review. My findings are:
a)The Tribunal did not act in excess of jurisdiction by reaching a decision based on illogical reasoning and not supported by facts particularly in respect of the arrest warrant and credit findings based on his commitment to causes and generally.
b)The Tribunal dealt with every integer of the visa applicant’s claim and in particular the issue of the authenticity of the arrest warrant.
c)The Tribunal did not require corroboration of evidence in an absolute sense in support of any finding of fact.
d)The Tribunal appropriately applied the “real chance” test.
e)The Tribunal dealt with all elements of the claim required of it.
Finally I am not satisfied the Tribunal’s decision is vitiated by bias in the conduct of the application.
Order
I order that the application be dismissed.
Subject to the applicant not making application within seven (7) days I order that the applicant pay the respondent’s costs fixed in the sum of $5,000.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Beverley Schmidt
Date: 22 December 2008
per Gleeson CJ at [5].
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