FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAOX & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1467 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visas – whether Tribunal decision was “a house of cards” – whether decision ‘based on’ unsupportable finding – credibility – merits review not function of judicial review – procedural fairness – weight to be accorded anonymous information and expert DNA evidence – whether anonymous information ‘credible, relevant and significant’ – whether anonymous information selectively withheld – applicants must make out own case – whether DNA expert should have been called as a witness – whether breach of s.424A of the Act – onus of proof – standard of proof – ‘Wednesbury unreasonableness’ – whether irrational, illogical reasoning process – whether actual and/or apprehended bias – whether bias demonstrated by Tribunal’s departure from findings of fact by earlier Tribunal. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424, 424A, 474 |
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Details
- Case
- [2008] FMCA 1467
- Decision Date
CaseChat Overview and Summary
In the case of NAOX v Minister for Immigration, the applicants sought judicial review of a decision made by the Migration Review Tribunal (MRT) concerning their claims for refugee status. The applicants argued that the Tribunal's decision was flawed and not properly based on evidence, particularly regarding their family relationship and credibility. The Federal Magistrates Court was tasked with reviewing the legal sufficiency of the Tribunal’s decision and whether it complied with procedural fairness and relevant legislative requirements.
The primary legal issue before the court was whether the Tribunal's decision was adequately supported by evidence and whether the applicants' claims of procedural unfairness and errors in the Tribunal's reasoning warranted judicial intervention. The applicants argued that the Tribunal failed to appropriately consider their sworn statements and an expert DNA report, instead relying on anonymous and untested information. The Minister for Immigration, as the first respondent, contended that the Tribunal's decision was sound, that the applicants' arguments mischaracterised the Tribunal’s findings, and that the decision should be upheld.
The court found that the Tribunal's decision, while perhaps not ideal, was within its legal authority and adequately based on the evidence presented. The judge accepted that the Tribunal did not err in its assessment of the applicants' family relationship and credibility. The court held that the anonymous information, although untested, did not undermine the overall credibility of the Tribunal's decision. Furthermore, the sworn evidence of the applicants and the DNA report were considered, but the Tribunal was entitled to give more weight to other evidence, including the disavowal of earlier statements by a witness. The court also dismissed the argument that the Tribunal should have reconvened to call the expert witness or obtain its own expert evidence, finding that the Tribunal had adequately considered the matter within its procedural powers.
ORDERS:
1. The application filed on 4 April 2008 and the amended application filed on 14 July 2008 are dismissed.
2. The Applicants pay the First Respondent’s costs as agreed or as taxed in accordance with rule 21.02 (2)( c ) of the Federal Magistrates Court Rules.
The primary legal issue before the court was whether the Tribunal's decision was adequately supported by evidence and whether the applicants' claims of procedural unfairness and errors in the Tribunal's reasoning warranted judicial intervention. The applicants argued that the Tribunal failed to appropriately consider their sworn statements and an expert DNA report, instead relying on anonymous and untested information. The Minister for Immigration, as the first respondent, contended that the Tribunal's decision was sound, that the applicants' arguments mischaracterised the Tribunal’s findings, and that the decision should be upheld.
The court found that the Tribunal's decision, while perhaps not ideal, was within its legal authority and adequately based on the evidence presented. The judge accepted that the Tribunal did not err in its assessment of the applicants' family relationship and credibility. The court held that the anonymous information, although untested, did not undermine the overall credibility of the Tribunal's decision. Furthermore, the sworn evidence of the applicants and the DNA report were considered, but the Tribunal was entitled to give more weight to other evidence, including the disavowal of earlier statements by a witness. The court also dismissed the argument that the Tribunal should have reconvened to call the expert witness or obtain its own expert evidence, finding that the Tribunal had adequately considered the matter within its procedural powers.
ORDERS:
1. The application filed on 4 April 2008 and the amended application filed on 14 July 2008 are dismissed.
2. The Applicants pay the First Respondent’s costs as agreed or as taxed in accordance with rule 21.02 (2)( c ) of the Federal Magistrates Court Rules.
Orders
Orders of the court
1.
The application filed on 4 April 2008 and the amended application filed on 14 July 2008 are dismissed.
2.
The Applicants pay the First Respondent’s costs as agreed or as taxed in accordance with rule 21.02 (2)( c ) of the Federal Magistrates Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The first respondent further points to the remarks of Gleeson CJ at [26] that:The requirement is to "base [a] decision on evidence"; a requirement as to the way the decision-maker is to go about the task of decision-making. The distinction between judicial review of administrative decision-making upon the ground that there has been an error of law, including a failure to comply with the requirements of procedural fairness, and comprehensive review of the merits of an administrative decision, would be obliterated if every step in a process of reasoning towards a decision were subject to judicial correction. The duty to base a decision on evidence, which is part of a legal requirement of procedural fairness, does not mean that any administrative decision may be quashed on judicial review if the reviewing court can be persuaded to a different view of the facts [emphasis added]. Likewise, the first respondent submits that, in the present case, even if the Court were to find that any of cumulative findings of the Tribunal, in particular at Point 14 of its decision, were defective and not based upon the evidence, nevertheless, the Tribunal decision itself as to whether the applicants had well-founded fears of persecution was not “based on” those alleged defective parts of the cumulative credibility finding. It submits that the applicants are, in effect, seeking to erroneously “get into one small part of one step of a whole number of steps that led to the ultimate conclusion”. I accept the submissions of the first respondent on these matters. I am thus satisfied that the applicants’ submission based on the ‘house of cards’ analogy must fail. In any event, even if I be wrong in this regard, I consider that, contrary to the applicants’ contention, the findings of the Tribunal at Point 14 of its Findings and Reasons in regard to the issue of ‘family relationship’, (being the “pivotal card” in the applicants’ argument), are supportable for the reasons set out below. Point 14 deals generally with the issue of the “dob-in” information. The relevant part of Point 14 for the purposes of the applicants’ argument is the Tribunal’s assessment of the “family relationship” issue based on:·the “dob-in” information indicating that the applicants are cousins once removed on their maternal lineage·an earlier statement by the witness (the second applicant’s brother) that the applicants are cousins·the sworn evidence of the applicants that they are not related·the sworn evidence of the witness disavowing his earlier statement that the applicants are cousins·an expert DNA Report stating that the applicants are “not likely to be related” (CB 509). In summary, Mr Levet asserts that:·the anonymous information cannot be tested, should not be accorded any weight, was not relied on by the second Tribunal, was gradually revealed in greater detail to the applicants thus appearing to have had parts selectively withheld, and where the Tribunal has reversed the onus of proof by constantly asking the applicants to disprove, on the balance of probabilities, some motivation for why persons would provide such anonymous information and why it should not be used against them. ·the sworn evidence of the applicants that they are unrelated, and that the evidence of the witness disavowing his earlier statement in the visa application that they were cousins, (and his reasons for using discretion in this regard, given the cultural sensitivities), should have been accepted by the Tribunal. ·the Tribunal dismissed the findings in the authoritative “unchallenged” DNA report without reconvening a Tribunal hearing to permit the applicants to call the expert before it; without the Tribunal itself obtaining its own expert evidence; where the Tribunal, as a non-expert, “deconstructed” the DNA evidence through a “contortious” exercise, and then made the “outrageous” finding that is “so overwhelmingly” against the evidence, by combining “two obnoxious things,” that there is a strong likelihood that the DNA result supports the ‘dob-in’ information on the basis that the first cousins’ index was 0.63; and in circumstances where the Tribunal has not put the matter in writing to either the applicants or to the expert for their comments or response. Mr Levet submits in this regard that:… ordinarily, expert evidence is rejected after competing expert evidence is put on and after experts are cross‑examined. This has been rejected by the tribunal where there has been no request that the expert appear to be examined by the tribunal, where the tribunal has not sought to obtain its own evidence in relation to the matter. It has just simply rejected it. The evidence of the expert is that they are unlikely to be related. Purely and simply.
Ratio Decidendi
Legal Principle Established
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