S129 of 2003 v Minister for Immigration
[2007] FMCA 1741
•21 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S129 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1741 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – claimed breach of s.424A – failure to provide a fair hearing – lack of procedural fairness – no reviewable error – application dismissed. |
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “Applicant S129/2003”.
| Migration Act 1958 (Cth), ss.91X, 420, 422B, 424A, 425, 476 Migration Legislation Amendment Act(No 1)1998 No. 113 |
| Applicant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 Applicant S301/2003 v Minister for Immigrationand Multicultural Affairs [2006] FCAFC 155 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 Applicant VCAT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 141 Ebner v Official Trustee In Bankruptcy [2000] HCA 63 Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 Muin v Refugee Review Tribunal and Ors; Lie v Refugee Review Tribunal and Ors (2002) 190 ALR 601 NAIF v Minister for Immigration [2003] FMCA 458 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 Re Minister for Immigration; Ex parte Abebe (1999) 197 CLR 510 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Re Minister for Immigration; Ex parte Miah (2001) 260 CLR 57 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 WACO v Minister of Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 Webb v R (1994) 181 CLR 41 |
| Applicant: | APPLICANT S129 of 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2268 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing dates: | 23 June 2006, 7 & 9 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J H Gibson |
| Solicitors for the Applicant: | Mr S Hodges of Stephen Hodges Solicitor |
| Solicitors for the Respondents: | Ms D Watson of Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
These proceedings transferred to the Federal Magistrates Court on 5 August 2005 and numbered SYG2268 of 2005 is dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2268 of 2005
| APPLICANT S129 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by the applicant filing a draft Order Nisi with the High Court of Australia on 7 April 2003. The proceedings were remitted to the Federal Court of Australia on 25 August 2003. On 5 August 2005, the matter was transferred to the Federal Magistrates Court. The applicant seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 18 November 1999, affirming a decision of a delegate of the first respondent made on 1 July 1999, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
A Court Book ("CB") prepared by the first respondent’s solicitors was filed on 2 March 2006. I marked that document Exhibit “A” and the contents were read into evidence.
This matter was originally scheduled for final hearing on 23 June 2006. On that date, Mr Gibson, counsel for the applicant, sought an adjournment to obtain a transcript of the Tribunal hearing held on 14 October 1999. Leave was granted and the following orders were made:
a)The applicant serve on the respondent’s solicitors a copy of the Tribunal hearing transcript on which he relies by 14 July 2006.
b)The respondents advise of any objections and serve a corrected version of the Tribunal hearing transcript by 4 August 2006.
c)The applicant file and serve his affidavit annexing the Tribunal hearing transcript by 18 August 2006.
d)The applicant file and serve a further amended application and affidavits if required by 22 September 2006.
e)The respondents file and serve any affidavits by 6 October 2006.
f)The matter be listed part-heard at 10.15am on 7 November 2006.
g)Costs of today be reserved.
A transcript of Tribunal hearing conducted by Ms K Rosser and held on
14 October 1999was tendered by Mr Gibson. The document was read into evidence.
Applicant’s claims
The Tribunal decision of Ms Rosser, reference N99/28990, contains the following information in respect of the applicant’s claims. I summarise those claims as follows. At the time of the applicant’s Protection visa application of 31 May 1999, he was a 29 year old Algerian national. He was engaged to be married and claims that his three brothers and four sisters lived in Algeria. The applicant travelled to Australia on a Spanish passport in another person’s name. However, he has an Algerian passport in his own name which was issued on 19 February 1995. The applicant claims that he ran his own business trading goods between Algeria and Syria from 1990 to 1994. He then owned an electrical appliance shop and operated a bar and disco in Ksar Challalla from 1994 to 1997. He states that he has been unemployed since 1997. He also states he attended school from 1976 to 1990 and obtained a certificate in hydraulics.
The applicant states that he had many problems in Algeria and was discriminated as a Berber. He says he would be punished for not completing military service, in that he would be sent to the desert and forced to kill. He states that if he does military service, Islamic groups will target him. He also states he has already received death threats from Islamic groups because he ran a bar and disco.
The applicant states that he left Algeria illegally by going to Morocco, because he is prevented from travelling for not doing military service. He claims that he left his Algerian passport in Malaysia so that he could travel on to Australia. He did so because he was worried that he would be deported to Algeria if he was caught with two passports (CB 126).
In a statutory declaration provided to the Department of Immigration, the applicant stated that his parents were dead but his siblings lived in Algeria. He stated that he avoided military service by bribing educational institutions for certificates stating that he studied there. He also claims that the bar and disco he operated were profitable. The applicant was approached by members of the Socialist Forces Front (“FFS”) to fight for Berbers in Algeria. He started attending FFS meetings and donating money in 1994 and also lent his car to FFS members to use on party business. The applicant established good relationships with local party organisers and put up posters criticising Islamic fundamentalists.
The applicant managed to obtain an alcohol licence by paying bribes to the authorities. He also bribed the police and military by giving them free alcohol and electrical equipment. He travelled to Algiers to buy electrical goods to sell in his hometown and a larger town in the area.
The applicant states that he was arrested on 28 November 1996 because he was an FFS supporter. He was released four days later after paying a bribe. After this incident, he started receiving threats from an armed Islamic group called the GIA. They demanded that he close the bar and disco for being un-Islamic. He was unable to obtain protection from the police or the military. The GIA also accused him of corrupting people by making satellite dishes available to them (CB 127).
The applicant decided the situation in Algeria was impossible and that he was likely to be killed if he remained. He left Algeria in May 1997 by bribing border guards to let him into Morocco. He did not remain in Morocco as he felt that he would be detained and returned to Algeria. He bought a Spanish passport in Turkey but used his Algerian passport to enter Malaysia in May or June 1997. When his stay in Malaysia was due to expire, he took two short trips to Thailand and one to Singapore and re-entered Malaysia legally on three occasions. He states that he left Malaysia for China on 16 May 1999 using the Spanish passport. Once in China, he applied for an Australian visitor’s visa using the Spanish passport (CB 128).
Tribunal’s findings and reasons
The Tribunal noted that aspects of the applicant’s evidence were internally inconsistent, inconsistent with independent evidence and implausible. The Tribunal stated that the applicant was not a credible or reliable witness and that he fabricated evidence to create the profile of a refugee. The Tribunal accepted that the applicant is an Algerian national and of Berber ethnicity. However, it was not satisfied that he was at risk of persecution in Algeria because of his ethnicity. The Tribunal stated that the independent evidence did not suggest that Berbers were at risk of persecution in Algeria merely for reason of ethnicity. The evidence indicated that Berbers were an important indigenous minority group who participated freely and actively in the political process.
Furthermore, the applicant’s claim to have been a member of the FFS since 1994 was not accepted by the Tribunal. The membership card presented to the Tribunal had been altered to show that the date he joined the party was 1994. However, he admitted to the Tribunal that the date originally entered on the card was 1999. He stated that he wanted the card to show his correct date of membership and had altered it. His evidence concerning joining the FFS in 1994 was also internally inconsistent, which became more significant in conjunction with the altered membership card. The Tribunal was finally not satisfied that the applicant joined the FFS in 1994, nor that was he involved in any FFS activity. It was therefore not satisfied that he had been detained for this reason. The Tribunal noted that independent evidence indicated that the FFS won 645 out of 15,000 available posts in the 1997 local elections. In order to participate in the elections, the FFS had to have been well tolerated by the Algerian regime. Moreover, no FFS leaders were in prison. There was no evidence that the FFS represented a threat to the Algerian regime.
The Tribunal considered each individual claim made by the applicant and concluded that the chances of him being persecuted if he returned to Algeria were remote and insubstantial. The Tribunal was of the view that the applicant would be able to resume the same or similar employment if he returned, and did not accept that he had any outstanding military service obligations in Algeria. Consequently, the Tribunal was satisfied that the applicant was not at risk of persecution, did not have a well-founded fear of persecution and was not a refugee for the purposes of the Refugees Convention.
Application for review of the Tribunal decision
Mr Gibson sought leave to file a further amended application at the commencement of the Court hearing of 7 November 2006. This is a 17 page document with five grounds of review and extensive particulars for some of the grounds. Many of the particulars are in the nature of submissions and so I have set out each ground and listed the particulars, followed by parties’ submissions and then my findings. I granted leave for the further amended application to be filed.
Submissions and reasons
Issues
The essential issues in this case are summarised by Mr Gibson as:
a)Whether the Tribunal complied with its obligation under s.424A(1) of the Act to inform the applicant of information (including omissions) which would form a reason or part of the reason for the decision to affirm the decision under review (“the 424A issue”);
b)Whether the applicant was accorded procedural fairness by the Tribunal making a decision without hearing him or without putting to him the concerns it had as to the omissions, which would be the reason or part of the reason for dismissing his case (“the procedural fairness issue”); and
c)Whether the Tribunal made determinations against the weight of evidence, in the absence of evidence, or on evidence which was not fairly put and thereby did not afford the applicant procedural fairness (“the evidence issue”).
Mr Gibson submits that the Tribunal’s determination was based on a series of findings about the evidence, written documents and supplementary material before it. The Tribunal member also indicated that she had read a statement, a declaration and extensive submissions by a Legal Aid solicitor. At the hearing, the Tribunal said that it did not accept the applicant’s written submissions.
As the essential issues are the obligations under s.424A of the Act and the common law rules of natural justice, it is important to note that the Tribunal decision was signed on 18 November 1999. Section 424A was introduced into the Act by the Migration Legislation Amendment Act(No 1)1998 No. 113 which commenced on 1 June 1999 and therefore applies to this decision. However s.422B, which excludes the common law rule of natural justice, was not introduced into the Act and operative until 4 July 2002. The Tribunal was obliged to afford the applicant natural justice in accordance with the common law.
In Mr Gibson’s pleadings and oral submissions, the term “cross-examination” appears, which is the interrogation of one party’s witness by the opposing party in adversarial proceedings. In contrast, proceedings before the Tribunal are inquisitorial in nature: Re Minister for Immigration & Multicultural Affairs; Ex parte Abebe (1999) 197 CLR 510 at [87] per Gummow and Hayne JJ. Where this term appears in the grounds of review and reproduced in this judgment I have left it unchanged. However, in all other instances the term “examination” has been substituted.
The large number of particulars, or alternatively submissions, that are contained in the grounds of review focus on the manner in which the Tribunal conducted its hearing. The requirement for proceedings before a tribunal are discussed in Muin v Refugee Review Tribunal & Ors; Lie v Refugee Review Tribunal & Ors (2002) 190 ALR 601 at [263]-[268] per Hayne J:
263.Unlike a court, the Tribunal was not restricted to acting only on material that was expressly referred to in the course of a particular review. It was not bound by rules of evidence and its members were obviously expected to develop and rely on knowledge of affairs in the countries from which claimants come. It may very well be, therefore, that, as individual Tribunal members heard accounts given to them by a series of applicants for protection visas who came from a particular country, and as those Tribunal members read more widely about the country concerned, they developed a body of knowledge upon which their views about the country were formed. And as they become more knowledgeable their capacity comprehensively to identify the particular sources of their knowledge would ordinarily diminish.
264.There is, therefore, a very practical reason to doubt that procedural fairness required the Tribunal to identify the source, and the general nature, of every piece of material that led the member to form a view that a particular country was willing and able to protect its citizens. So to hold would impose an obligation that could not readily be performed and in some cases would be impossible. But the difficulty in the argument advanced by Mr Muin is even more deep-seated than that.
265.Procedural fairness required that Mr Muin have a reasonable opportunity to place before the Tribunal any submission and any material that he wished to advance in support of his claim. Unlike National Companies and Securities Commission v News Corp Ltd and Mahon v Air New Zealand there was no question of allowing a person an opportunity to meet some adverse finding that might later be published. In such a case an investigating body may be obliged to provide an opportunity for rebuttal because the issue emerges with sufficient definition only at the stage where the body forms a tentative view that the adverse finding may be made. But that is not this case. As has already been pointed out, the issue of the willingness and ability of his country of citizenship to afford Mr Muin protection from persecution on Convention grounds was central to his claim. The Tribunal was not obliged to tell Mr Muin that it was minded to reach a view about that question, which was contrary to the view he sought to have it form, and then ask him whether he wished to contradict that view. That he had to make out his claim about this matter was apparent from the outset of the Tribunal's review. Indeed, it was apparent from the moment he made his claim to a protection visa. This was not some issue that emerged only in the course of the Tribunal's proceedings.
266.Nor was the Tribunal bound to draw attention to the material which it considered to be persuasive of the view that he was not a refugee and then ask him whether he wanted to contradict it. Of course he wanted to put the opposite view. Again, so much was clear from the moment he made his claim for a protection visa. But it is fundamentally wrong to speak, in this context, in terms of "contradiction" if that is to suggest some competition between cases put by adversaries. Here there was no adversary to Mr Muin's claim. It was for him to make good his claim that he was entitled to Australia's protection.
267.Nor was this some aspect of his personal circumstances about which it might be expected that he had special knowledge or to which his answer might have some particular significance. It was a question about the general political situation in Indonesia - a matter about which his personal knowledge could fairly be expected to have been fully revealed (or at least revealed to the extent that he considered useful) in whatever evidence or submissions he had made to the Tribunal.
268.Yet in essence the plaintiff's case in relation to adverse material was, first, that he could legitimately expect the Tribunal to tell him that it was minded to find against him and, secondly, that he could legitimately expect the Tribunal to tell him what material, adverse to his claim, the Tribunal either was minded to accept or was considering accepting and, before concluding the matter, seek his comment about that predisposition and that material. Procedural fairness does not go so far. To accept these contentions would amount to casting the Tribunal in the role of an adversary to a claimant's claim to refugee status. Not only were the procedures prescribed by the Act not adversarial proceedings, the Tribunal is not to be cast in the role of contradictor.
In Re Minister for Immigration; Ex parte Miah (2001) 260 CLR 57 at [31], Gleeson CJ and Hayne J stated that procedural fairness does not require a tribunal to give an applicant a running commentary on his prospects of success, or to warn him of every reason why his claim may not be sufficient to justify the grant of a visa.
I acknowledge the very considerable effort made by Mr Gibson and various parties assisting the applicant in preparing his appeal to this Court. However, this Court in conducting judicial review of an administrative tribunal’s decision is bound by the authority in Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 where their Honours emphasised that “it was inappropriate, in the conduct of judicial review, for an over-zealous approach to be adopted towards the reason of the administrative decision-maker”. See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 291-292. Such reasons were to be given a “beneficial construction”. See also Miah.
Where large numbers of particulars and submissions have been provided in respect of a ground of review, I have attempted to establish groupings which relate to a separate issue and then address them collectively. By adopting this approach, I believe all of the issues have been addressed.
A protection visa application and any subsequent administrative and judicial review is complicated by the fact that the applicant is often unable to converse in English and relies on interpreters to convey their claims and present arguments in support. In this case, the applicant is a Berber and has relied on an Arabic interpreter at the Tribunal hearing. This aspect of this application was considered in greater detail in the grounds of review. However, it is important to note that the applicant was represented by Mr Bill Gerogiannis, a qualified legal practitioner and a registered migration agent, for the preparation and appearance at the Tribunal hearing. That practitioner filed additional material in support of the applicant’s case. Most importantly, the main elements of the grounds of judicial review focus primarily on the conduct of the hearing. Mr Gerogiannis was present throughout the entire hearing representing his client’s interest. The transcript available to the Court (which excludes tape 3) records discussions between the Tribunal member and Mr Gerogiannis. Significantly, at no stage during the hearing or at after the hearing on 14 October 1999 and the date of the decision on 18 November 1999 did Mr Gerogiannis raise any complaint with the member in respect of any aspect of the conduct of the hearing, the examination of his client or any other aspect.
A fair reading of the transcript indicates that the Tribunal gave Mr Gerogiannis every opportunity to discuss issues with the applicant and supplement or correct misunderstandings. This is clearly demonstrated in the exchange at the conclusion of the hearing:
4.31: TM: Did you have an opportunity to speak to your client on the break? Do you need another chance to speak to him again?
4.32: Adviser: No, I don’t think so. We discussed what you said before the first break. We discussed at length.
4.33: TM: Nothing he wants to change?
4.34: Adviser: No.
4.35: TM: Alright then. Then we’ve finished. Ok?
4.36: TM: My concerns about credibility have been made. Just looking through your submission to do with military service….[unclear]
4.37: Adviser: Two issues covered mainly in the submission: Military service and the recent changes after the referendum. Our submission is that since the referendum there have been killings and the submission is that you couldn’t say that the situation has settled down sufficiently to be able to say that the situation in Algeria has improved significantly from previously.
4.38: TM: Well, I guess I generally don’t have problems with the military service arguments but I have a problem accepting your client hasn’t done military service.
4.39: Adviser: I recognise that.
4.40: TM: And I am happy to give a copy of the Canadian…in relation to…(rest unclear)
4.41: Adviser: No, I don’t think I need to see it. The submission talks a little about the other aspects of Applicant S129’s application: that he was a disco owner and they banned the disco, and the fact that he was an FFS member and a Berber. And there is the cumulative aspect as well that the Tribunal might consider.
4.42: TM: We can do that. There’s an issue of relocation in relation to that. OK. Alright then. Well, thank you very much for being able to come in and …(rest unclear)
4.43: Adviser: Do you want a cleaner copy of the new material attached to the submission? I wasn’t sure if there were any problems with the way they came out, yeah. Do you want the whole lot?
4.44: TM: Yeah, if you’ve got a new set.
4.45: Adviser: I’ve prepared a clean copy. Let me just say quickly, in relation to the application form…the Forms B and C that the Tribunal referred to early on, I submit that he was assisted by a friend who is not an expert and it wouldn’t surprise me at all if there were errors made in the application.
4.46: TM: That doesn’t matter too much. I think that….(inaudible) Alright, I wanted the original…(inaudible)…off the document from…(inaudible)…you can actually see Item 9 underneath that. I really don’t think I need to. I think that he can have the originals such as this right back; there’s that….
4.47: Adviser: That package I gave you.
4.48: TM: This is a photocopy? Can I keep this for a minute? I don’t think it was otherwise provided.
4.49: Adviser: No, that’s the only copy that I have…
4.50: TM: OK. A copy of that to me, and then the …(inaudible). Otherwise, everything else…OK? Thank you, thanks very much. Goodbye. (Something inaudible)
Issue one: Section 424A
The further amended application lists the following first two grounds:
1. The Second Respondent failed to comply with the provisions of the Migration Act 1958 Section 424A.
2. The Second Respondent in rejecting documentary evidence tendered on behalf of the applicant failed to comply with the provisions of the Migration Act section 424A.
PARTICULARS
(a) The applicant refers to the Reasons dated I8 November 1999 of the Member, Ms Kim Rosser.
(b) The applicant refers to the pages of those Reasons and identifies the following further and better particulars on matters which require written notice pursuant to the provisions of the Migration Act section 424A as follows:
i. Article by Dr. Larbi Sadiki (see page 20 last paragraph “Call Up Process”).
ii. Articles referred to (see pages 21-22 under paragraph “Deferral of Military Service being article “The Canadian Immigration and Refugee Board), paper prepared by Jean-Martin Bercloz (paragraph 2 page 22), article by Jean-Martin Bercloz in respect of Yellow Card, sample of Yellow Card “a sample of which has been sighted by this Tribunal”.
iii. Articles referred to under paragraph page 23 “obtaining passports and departing Algeria” being information from the IGC, comment by Dr Larbi Sadiki.
iv. Article referred to under paragraph 23 “Front des Forces Fsocilistes (FSS)” the reference to “the research directorate of the Canadian Immigration and Refugee Board”.
v. Articles in respect of paragraph at page 24-27 “Berbers” being reference to US Bureau of Democracy Human Rights and Labour (see page 25 paragraph 3).
vi. UNHCR paper (see paragraph 1 page 26) Canadian Immigration and Refugee Document Board (see page 26 last line of paragraph 2).
vii. US Bureau of Democracy Human Rights and Labour (page 26 paragraph 3).
viii. The World Directory of Minorities (last paragraph page 26).
(c) The applicant refers to the findings and reasons at pages 27-36 and says that Notice was required in respect of the following:
i. Page 28 paragraph 3 “the independent evidence set out above”.
ii. Page 29 paragraph 3 line 5 “the independent evidence set out above”.
iii. Page 31 paragraph 4 “this is directly inconsistent with the independent evidence before me…”.
iv. Paragraph 3 page 32 “sixthly, the independent evidence indicates that”, and same paragraph line 3 “the independent evidence also indicates”.
v. Page 34 paragraph 2 line 4 “the independent evidence set out above”.
The claim in respect of s.424A of the Act has a number of elements. I will begin by addressing the independent evidence identified in ground 2(b). Mr Gibson argues that the Tribunal referred to a number of pieces of independent country information in the Tribunal decision, being:
(i)Information from Dr Laba Sarkis in respect of the “caller process” (CB 142). (Ground 2(b)i.)
(ii) The Canadian Immigration & Refugee Board in respect to “development of military service” (CB 143). (Ground 2(b)ii.
(iii)A paper prepared by Jean-Martin Berclaz in respect of “obtaining passports and departing Algeria” (CB 144).
Mr Gibson contends that none of this material was subject to written notice to the applicant as is required by s.424A.
However, Mr Gibson does acknowledge that the decision record does refer to other material that may fall within the exception created by s.424A(3). This includes:
(i) The research directorate of the Canadian Immigration &
Refugee Board in respect of the applicant’s membership of
the FFS (CB 145-6). (Ground 2(b)iv.
(ii) The US Bureau of Democracy Human Rights and Labour in
respect to background material of Berbers in Algeria.
(Ground 2(b)v.
(iii) UNHCR, 1997, “guidelines relating to the eligibility of
Algerian asylum seekers (CB 148). (Ground 2(b)vi.
Mr Gibson argues that the Tribunal clearly relied on the above source material at [20] as noted in its “Findings and Reasons” in the following passages:
(i)“The independent evidence set out above….” (CB 150.6 and CB 151.6) and (CB 156.5).
(ii) “The independent evidence before me” (CB 153.8 and CB
156).
Mr Gibson submits that the Tribunal failed to comply with s.424A of the Act by not issuing, prior to the hearing, any notice to the applicant of the identity or nature of the information that the Tribunal considered would be a reason, or a part of the reason, for affirming the decision under review. He also submits that the Tribunal did not ensure that the applicant understood why it was relevant to review and invite him to comment on it.
Ms Watson submits that the independent country information identified by Mr Gibson as being relied upon by the Tribunal does fall within s.424A(3)(a) because the information is not about “a class of persons of which the applicant or other person is a member”. Ms Watson submits that VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 establishes that this is not a criterion which needs to be satisfied for information to come within s.424A(3)(a). It is submitted that if it the applicant argues that the information is specifically about him, despite no reference to him personally, that contention is also without foundation. That information is general in nature and it would not be possible to use it to identify an individual.
VJAF at [13]-[16] states:
13.The appellant contends that the information does not fall within the exception for two reasons. First, the information, whilst not being specifically about the applicant is specifically about other persons, though unnamed. Second, this information is not "just about" a class of persons of whom the applicant is a member, as it also concerns "how the Cambodian authorities deal with SRP members."
14.Both contentions fail. The first contention depends upon the characterisation of the information contained in the country reports. These reports were prepared by human rights bodies and foreign governments and concerned two main themes: the political environment associated with the holding of local level commune elections in February 2002; and the general treatment of SRP members by the Government. Those reports necessarily involved some reference to the people who took part in the events described therein. But it does not follow that this was information specifically about those persons, and it plainly was not.
15.The major premise of the second contention, as the appellant accepted, is that s 424A(3)(a) contains two criteria that must be satisfied in order for the Tribunal to be relieved of its statutory obligation. Such a construction of the paragraph has been rejected by previous Full Courts. The true construction of the paragraph is one whereby
reference to the class of persons in subs 424A(3)(a) is not another criterion to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it.
That was the view of the unanimous Full Court in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 (at [12]-[14] per Gyles and Conti JJ; at [21] per Allsop J) (VHAP of 2002) and it has been followed ever since.
16.It must again be emphasised that the requirement for a Full Court to be satisfied that an earlier decision of another Full Court is plainly wrong before departing from it, is most unlikely to be satisfied by a mere repetition or development of arguments already authoritatively rejected. It is to be regretted that at least three Full Courts have recently been invited to depart from the settled construction of s 424A(3)(a) on what appears to have been no more than a rehearsal of previously rejected arguments: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92. Much more is required: see Telstra Corp v Treloar (2000) 102 FCR 595 at 602-603 (Branson and Finkelstein JJ) and see QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [28]-[30] (Lander J; Dowsett J and Hely J agreeing).
I agree with Ms Watson that the country information referred to by Mr Gibson is not specifically about the applicant or another person and therefore clearly falls within the exception in s.424A(3).
The second s.424A issue concerns the applicant’s FFS membership card. The Tribunal state in its “Findings and Reasons” “in my view, it is quite possible that [the applicant’s] brother amended the date on the card” (CB 151.1). The evidence before the Tribunal covers the circumstances under which the date on the card had been changed, being the evidence given at the Tribunal hearing (transcript p.2.159-2.162, p.2.163-2.179). Mr Gibson submits that the Tribunal did not suggest to the applicant at the hearing that the date on the card had been changed by his brother as suggested above.
The Tribunal then found “as I am not satisfied that [the applicant] join the FFS in 1994, I am not satisfied that he was involved in any FFS activities. I also cannot be satisfied that [the applicant] was detained for this reason” (CB 151.2). Mr Gibson contends that these matters were not put to the applicant (transcript 2.159-2.192). The examination in respect to the FFS followed later (transcript p.2.377, p.4.3 and 4.8).
Mr Gibson then referred to a third issue in respect of s.424A, being a report prepared for the Canadian Immigration & Refugee Board by an unnamed professor of Political Science (transcript p.2.377). Mr Gibson submits that the Tribunal said to the applicant that it would send him a copy but that was never received. Mr Gibson submits that as the identity of the professor is unknown and the information was specific information put to the applicant concerning his modus operandi, it falls within s.424A.
The Tribunal also questioned the applicant in detail on his deferment of military service. The Tribunal’s reasons set out the method by which young men in Algeria can defer service by obtaining a “yellow card” for undertaking tertiary studies. The Tribunal stated that it had not sighted the applicant’s yellow card and questioned him in detail about it (CB 132-133). Yet, the Tribunal’s request for details and the function of the yellow card was referred to at the hearing (transcript p.2.73-2.122). Mr Gibson submits that in the circumstances, the information about the yellow card is clearly “caught” by s.424A and would not be subject to the exception in s.424A(3)(a).
Mr Gibson also submits that the Tribunal found that the applicant had set out deliberately to deceive it by suggesting that he was liable for military service. Further, that there had been period of 18 months for him to have completed his service. Mr Gibson submits that was not fairly put to the applicant (the 424A issue). Mr Gibson contends that Tribunal’s conclusion that the applicant had done his military service was because certain documents were forged (which the applicant admitted to), his oral evidence about the yellow card was suspect, and he was able leave and return to Algeria for four years. This was notwithstanding evidence before the Tribunal that a yellow card would enable a person who has not completed military service to leave Algeria. Mr Gibson submits that the Tribunal found that the applicant could not possibly have left Algeria without an exemption certificate or proof that he had done military service.
Mr Gibson submits that no external source material relied on by the Tribunal refuting the call-up notices was put to the applicant as is required by s.424A The Tribunal’s determinations were made without providing appropriate notice to the applicant about what it based them on. The applicant was not given an opportunity to address the Tribunal on these matters of fact. Mr Gibson submits that the Tribunal stating that “independent evidence or information before me”, was used in support of its findings but the applicant was not notified of any such material. The Tribunal failed to make the applicant aware of the case against him and give him an opportunity to respond to issues raised.
Ms Watson submits that the Tribunal relied on information which the applicant provided to the Department and also resubmitted to the Tribunal. The applicant’s solicitor at the time stated in a letter to the Tribunal dated 30 October 1999:
His claims are set out in his statutory declaration dated 23 July 1999 and his statement dated 1 June 1999, which accompanied his protection visa application. (CB 65)
The applicant’s statement of 1 June 1999 also states:
Details of my education and employment history are set out in Form 866C. (CB 28)
Ms Watson submits that the applicant therefore intended the Tribunal to refer to his earlier statements and his education and employment history by resubmitting them. Ms Watson contends that such material falls within s.424A(3)(b) and relies on Applicant S301/2003 v Minister for Immigrationand Multicultural Affairs [2006] FCAFC 155 where, in circumstances identical to the present, the Court found that such information did fall within s.424A(3)(b).
I agree with the submissions made by Ms Watson in respect of the second group of documents identified by Mr Gibson. I am satisfied that each of those documents were identified and submitted by the applicant’s representative in correspondence to the Tribunal after the review application was filed and before the Tribunal hearing. Therefore, the resubmitted material, originally provided to the Department, falls within the exception in s.424A(3)(b). Consequently, grounds one and two cannot be sustained and should be dismissed.
Issue two: Failure to provide a fair hearing
The further amended application states:
3. The Second Respondent in making determinations as to the authenticity of documents submitted on behalf of the Applicant failed to give the Applicant a fair hearing and comply with the provisions of the Migration Act 1958 Section 420.
4. The Second Respondent failed to make a determination in accordance with the provisions of the Migration Act 1958 Section 420(2).
Section 420 of the Act states:
s 420 Refugee Review Tribunal’s way of operating
420 (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
There is a general complaint made by Mr Gibson that there was a need for the Tribunal to put its concerns about evidence to the applicant in order to afford him natural justice. This goes against clear authority as there is no such requirement in the context of a hearing before an inquisitorial tribunal. This was addressed in Muin v Refugee Review Tribunal and Ors; Lie v Refugee Review Tribunal and Ors (2002) 190 ALR 601 at [263]-[268] per Hayne J:
263.Unlike a court, the Tribunal was not restricted to acting only on material that was expressly referred to in the course of a particular review. It was not bound by rules of evidence and its members were obviously expected to develop and rely on knowledge of affairs in the countries from which claimants come. It may very well be, therefore, that, as individual Tribunal members heard accounts given to them by a series of applicants for protection visas who came from a particular country, and as those Tribunal members read more widely about the country concerned, they developed a body of knowledge upon which their views about the country were formed. And as they become more knowledgeable their capacity comprehensively to identify the particular sources of their knowledge would ordinarily diminish.
264.There is, therefore, a very practical reason to doubt that procedural fairness required the Tribunal to identify the source, and the general nature, of every piece of material that led the member to form a view that a particular country was willing and able to protect its citizens. So to hold would impose an obligation that could not readily be performed and in some cases would be impossible. But the difficulty in the argument advanced by Mr Muin is even more deep-seated than that.
265.Procedural fairness required that Mr Muin have a reasonable opportunity to place before the Tribunal any submission and any material that he wished to advance in support of his claim. Unlike National Companies and Securities Commission v News Corporation Ltd and Mahon v Air New Zealand there was no question of allowing a person an opportunity to meet some adverse finding that might later be published. In such a case an investigating body may be obliged to provide an opportunity for rebuttal because the issue emerges with sufficient definition only at the stage where the body forms a tentative view that the adverse finding may be made. But that is not this case. As has already been pointed out, the issue of the willingness and ability of his country of citizenship to afford Mr Muin protection from persecution on Convention grounds was central to his claim. The Tribunal was not obliged to tell Mr Muin that it was minded to reach a view about that question, which was contrary to the view he sought to have it form, and then ask him whether he wished to contradict that view. That he had to make out his claim about this matter was apparent from the outset of the Tribunal's review. Indeed, it was apparent from the moment he made his claim to a protection visa. This was not some issue that emerged only in the course of the Tribunal's proceedings.
266.Nor was the Tribunal bound to draw attention to the material which it considered to be persuasive of the view that he was not a refugee and then ask him whether he wanted to contradict it. Of course he wanted to put the opposite view. Again, so much was clear from the moment he made his claim for a protection visa. But it is fundamentally wrong to speak, in this context, in terms of "contradiction" if that is to suggest some competition between cases put by adversaries. Here there was no adversary to Mr Muin's claim. It was for him to make good his claim that he was entitled to Australia's protection.
267.Nor was this some aspect of his personal circumstances about which it might be expected that he had special knowledge or to which his answer might have some particular significance. It was a question about the general political situation in Indonesia - a matter about which his personal knowledge could fairly be expected to have been fully revealed (or at least revealed to the extent that he considered useful) in whatever evidence or submissions he had made to the Tribunal.
268.Yet in essence the plaintiff's case in relation to adverse material was, first, that he could legitimately expect the Tribunal to tell him that it was minded to find against him and, secondly, that he could legitimately expect the Tribunal to tell him what material, adverse to his claim, the Tribunal either was minded to accept or was considering accepting and, before concluding the matter, seek his comment about that predisposition and that material. Procedural fairness does not go so far. To accept these contentions would amount to casting the Tribunal in the role of an adversary to a claimant's claim to refugee status. Not only were the procedures prescribed by the Act not adversarial proceedings, the Tribunal is not to be cast in the role of contradictor.
No specific written or oral submissions have been made on s.420 of the Act. If grounds three and four have been pleaded with the intention of being read and applied to the issues in ground five (that the applicant has been denied procedural fairness), I note that a ground of procedural fairness does not require the Tribunal to give the applicant a running commentary on his prospects of success, or warn him why his claim might not be sufficient for the grant of a visa: Re Minister for Immigration & Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 at [31] per Gleeson CJ and Hayne J. The operation of the s.420 was considered in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 at [48]-[51] per Gleeson CJ and McHugh J:
48. It is not an acceptable approach to statutory interpretation to negate the clear intention of the legislature by reliance on s 420 of the Migration Act 1958. In any event, s 420, when understood in its legal and statutory context, is an inadequate foundation for an attempt to overcome the provisions of s 476(2).
49. The relationship, or lack of it, between ss 420 and 476 was correctly explained by Lindgren J at first instance in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1987] FCA 324. The history of legislative provisions similar to s 420 was examined in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26. They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.
50. Section 420 is to be understood in its statutory context. It appears in Pt 7 Div 3 of the Migration Act, which is headed "Exercise of Refugee Review Tribunal's powers". The following two sections deal with the constitution of the Tribunal. Part 7 Div 4 deals with the procedures to be adopted by the Tribunal. Part 7 Div 5 deals with similar matters. There follows Pt 8 of the Act, which includes s 476, and which provides a set of provisions which confer, and define, the Federal Court's jurisdiction to review Tribunal decisions.
51. Davies J, in the Full Court of the Federal Court, took the view that the requirement of s 420 that the Tribunal, in reviewing a decision, must act according to substantial justice and the merits of the case, meant that, notwithstanding the terms of s 476(2), if there were a contravention of that requirement the decision of the Tribunal may be set aside. Burchett J treated s 420 as conferring rights which s 476(2) did not take away. However, the language, and the purpose, of s 476(2)(b) is clear. The provision was intended to define the jurisdiction of the Federal Court in relation to judicial review of the Tribunal's decisions by excluding as a ground of review the ground relied upon by Mr Eshetu.
As grounds three and four appear to be pleaded in conjunction with ground five, I do not believe it necessary to make further separate comments on the operation of s.420.
Issue three: Procedural fairness
Ground five of the further amended application consists of thirteen sub-grounds and one hundred and sixty-five particulars. I will deal with each sub-ground in turn.
Ground five claims:
5. The RRT fell into jurisdictional error, and the exercise of its jurisdiction and power was affected in that the Applicant was denied procedural fairness:
Ground five, sub-grounds (i) to (iv) claim:
(i) The applicant had requested the assistance of an interpreter in the Arabic language.
(a) The applicant speaks Algerian Dialectal Arabic.
(b) The interpreter was Lebanese and seeking to interpret classical Arabic.
(c) It is evidenced from the transcript of the proceedings that there were difficulties in interpretation which were expressed to the Tribunal by the interpreter.
(d) The Tribunal failed to ensure that the interpreter was correctly communicating questions and answers and the evidence to avoid mistakes and misunderstandings.
(e) The applicant says that there was an absence of procedural fairness and a fair hearing was not available by reason of the inability of the interpreter to translate both questions and answers in this hearing by reason of the above language difficulties.
(f) The Tribunal knew or should have known from the statement made by the interpreter that there was a problem with translation, the applicant and interpreter were experiencing difficulties in communication and that this matter was addressed to ensure a fair hearing and procedural fairness and to avoid error arising from misunderstandings and failures to communicate. The Tribunal did not do so.
(ii) The Tribunal was aware that there were many differences between Arabic that spoken in Algeria and to the Arabic that is spoken elsewhere,
(iii) The Tribunal was aware in particular there might be some words or phrases or concepts that the applicant would usually express in French rather than in Arabic.
(a) The Tribunal stated to the applicant that it understood French and could speak, read and write French and that the interpreter is also a French speaker. The Tribunal admitted that it did not speak Arabic of any description.
(b) Notwithstanding the above statements by the Tribunal at the commencement of the hearing as to the language problem the Tribunal failed to ensure that the translator also understood the differences between Arabic that is spoken in Algeria and Arabic that is spoken elsewhere.
(c) The Tribunal knew or should have known arising from these matters there were problems with the translation and communication between the Tribunal through the interpreter and the applicant.
(iv) The Tribunal rejected over a wide range of matters the evidence of the applicant based on responses to questions by the Tribunal from the applicant in circumstances where the interpretation and response was critical.
(a) The applicant says that neither himself nor the Tribunal was aware or these mistakes or of the importance arising there from until the applicant had the opportunity to consider the findings of the Tribunal.
(b) The Tribunal found inconsistencies in the evidence of the applicant based on errors in the above translation and accordingly the basis of the Tribunal’s findings are on the mistake of facts arising from the difficulties of the translation, its inaccuracies, and there was no real meaningful dialogue between the Tribunal and the applicant arising there from.
(c) As a consequence the applicant did not receive a fair hearing.
Mr Gibson identified five parts of the Tribunal hearing transcript which he claims evidence the problems with interpretation (transcript paragraphs 1.14, 2.166, 2.188, 2.221-222, 2.308 and 2.310). However, Mr Gibson acknowledges that the problems are not significant (transcript paragraph 2.166). Sub-ground 5(iii) identifies differences which may exist in translating Berber to Arabic but the Tribunal rejected evidence from the applicant due to problems in translation. Mr Gibson claims these were problems which were due to interpretation but the Tribunal made findings of fact which he claims are against the evidence.
Ms Watson submits that the applicant only requested an Arabic interpreter, which was provided by the Tribunal (CB 126). He was also accompanied by his Legal Aid solicitor at the hearing (CB 64, 126). However, no reference to the adequacy of translation was noted in the Tribunal decision, nor did the applicant’s representative raise concerns about the translation in the four weeks between the hearing and the handing down of the decision. The applicant also alleges that “mistakes” in translation were critical to the Tribunal’s findings. These mistakes were not identified and how they impacted on the Tribunal’s findings was not pleaded. Ms Watson contends that the ground as pleaded is without foundation.
Section 427 of the Act requires the Tribunal to provide an interpreter when an applicant is unable to give evidence without one: VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 at [8]. The Tribunal also has a statutory obligation under s.425 of the Act to ensure the invitation to a hearing is “real and meaningful”. This includes providing an interpreter of sufficient skill so that the applicant is not denied his/her rights to a fair hearing: Applicant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [16]; VWFY at [37]. To succeed in this claim, the applicant must show that either the standard of interpretation was so inadequate that he was prevented from giving evidence, or errors made by the interpreter were material to the adverse conclusions of the Tribunal: Applicant P119/2002 at [17].
When the issue of interpretation is raised, the Court should consider whether there is a “correct” translation available, against which the interpreter’s performance can be compared: VWFY at [10]. In making this comparison, “it is sufficient if the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated”: NAIF v Minister for Immigration [2003] FMCA 458 at [63]; WACO at [26]. If there is no such evidence before the Court, it must then consider the manner of the applicant’s responses including “the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter”: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [41] per Kenny J (which was applied in VWFY and Applicant P119/2002).
On a fair reading of the Tribunal hearing transcript, it appears that the test in Perera has been satisfied although some of the Tribunal’s questions could have been rephrased for clarification. I acknowledge that the transcript may not accurately relay the actual dynamics of the hearing because it has been edited to remove exchanges in a foreign language. All that appear are the Tribunal member’s questions in English and the applicant’s responses through the interpreter. Despite this, I am satisfied that the overall communication via the interpreter was generally consistent and absent any confusion.
A discussion takes place at the commencement of the hearing regarding the interpretation and the differences between the Arabic spoken in Algeria and elsewhere. The Tribunal also invited the applicant to use a French term if he was more comfortable doing so than in Arabic. The Tribunal asked whether the applicant had any questions arising from that discussion, to which the applicant said he did not.(transcript, paragraphs 1.16-1.17) The Tribunal also asked:
Do you have any difficulties understanding the interpreter?
[Applicant]: I understand you but I wish you understand me – or I hope. (transcript, paragraphs 1.18-1.19)
The Tribunal also asked whether the applicant objected to using that particular interpreter. Although there was no response recorded, I assume that no objection was raised from the nature of the exchanges that followed. In the circumstances, I am satisfied that this ground cannot be sustained.
Ground five, sub-ground (v) claims:
(v) The Tribunal made a significant number of findings of fact adverse to the applicant in circumstances where the matters arising there from were not fairly put to the applicant and an appropriate opportunity was given.
(a) The Tribunal demonstrated bias by making a significant number of findings on fact adverse to the applicant in circumstances where the evidence was evenly balanced or supported the applicant but may have been problematic.
(b) The Tribunal demonstrated bias to the applicant in that following evidence commencing at 10:00am on 14 October the Tribunal at approximately 11:30am said to the representative of the applicant “It will be clear to you that I have some issues in relation to credibility and I wonder whether you might want to just spend a few minutes talking to your client about that and the importance of telling the truth and if there is anything he would like to change in relation to his evidence then this is going to be the time to do it.”
(c) The transcript shows that prior to this adjournment the Tribunal had cross examined the applicant on a wide range of matters but did not by way of procedural fairness put to the applicant that his evidence was not credible or being accepted.
(d) At the highest the Tribunal in cross examination of the applicant stated that: “I’m a bit perplexed”. “I have a little bit of problem with these papers”. “Can you see there is a little bit of a problem with these things?”
(e) In respect of documents relating to the deferment of military service produced by the applicant from an educational institution.
(f) The Tribunal stated: “It appears to me that someone has produced these letters in order to assist you with your case and that they were not generally issued by these organisations.”
(g) The Tribunal further put to the applicant: “Can you understand why I might not think or I might have problems with accepting that these documents are genuine?”
(h) The difficulties, if any, the Tribunal expressed relating to documents and the interpretation which may be given to the authenticity of those documents was not supported by full and adequate reasons or prior notice.
(i) The Tribunal ignored full and detailed explanations in respect of such difficulties as were numerated.
(j) The Tribunal failed to concede, as would have been evident, that the applicant was not in a position to produce original documents by reason of the circumstances in which he left Algeria and the significant time gap and difficulty in obtaining documents.
(k) The Tribunal failed to give any proper consideration or any consideration at all in respect of the explanations as to the failure to produce original documents and/or apparent inconsistencies with the documents from the applicant.
(l) The Tribunal failed to give the applicant prior notice of its concern about documents in writing and reasons for same so that the applicant may have an opportunity to address these issues at the hearing.
(m) The Tribunal’s findings that educational documents may not be authentic by reason of spelling errors was not subject to any prior notice nor did the Tribunal give any consideration to a multitude of factors which may give rise to such errors including the difference between Arabic, French, Algerian Arabic and the idiosyncrasies of the persons preparing the documents.
(n) The typographical errors identified by the Tribunal appear to relate to no more than 2 spelling error of a minor nature which appear to be grammatical and may, and in all probability did, arise from typographical and spelling errors by the maker of the document.
(o) The Tribunal stated that “I suspect that what is the case is that you in fact have done your military service”. Again, that finding appears to have been made by reference to documents produced by the applicant. The Tribunal failed to put to the applicant in writing or give prior notice of any alleged defects or inconsistencies with such documents on which it based its findings or to give weight or any proper weight to the explanations provided by the applicant.
(p) The Tribunal had prior notice of the exhibits tendered on behalf of the applicant and failed to seek written further and better particulars or raise with the applicant matters of concern as to any alleged defects or inconsistencies in such documents.
(q) The Tribunal relied on alleged inconsistencies with documents when compared with documents from an independent source relied upon by the Tribunal.
(r) The Tribunal failed to put particulars and details of the independent source and identify such documents and any deficiencies or other inconsistencies with the exhibits on behalf of the applicant so as to give the applicant and his advisors an opportunity to consider and answer such concerns.
(s) The Tribunal failed to identify and give sufficient particulars and details all matters which it relied upon to form the finding that “1 suspect that what is the case is that you in fact have done your military service”.
(t) In order to make that determination the Tribunal was required to reject the verbal evidence of the applicant, the documents produced in respect of certificates from institutions to the effect that he was still a student, the applicant’s evidence of the yellow paper notice issued by the military, his evidence of passing back and forth across the border whilst he was trading in both clothing and electrical goods, the certificate issued by the military after he had left Algeria advising that he was required to attend to for military service, any misconceptions between the Tribunal and the applicant arising by reason of the translation problems referred to above, to give proper weight to the explanations provided by the applicant. And that the Tribunal in determining “1 suspect that what is the case is that you in fact have done your military service,” had not fairly put to the applicant those matters on which the suspicion was raised, prior notice of such suspicions, the opportunity to address such suspicions and full and sufficient particulars as to the basis on which the suspicions were founded.
(u) The applicant says that the Tribunal should have given the applicant prior written notice of all material and facts on which it relied for the purposes of its cross examination of the applicant and all matters which may give rise to the allegation that the applicant had in fact done military service.
(v) The applicant refers to the decision and reasons dated 18 November 1999 by Ms Kim Rosser and says in respect of her “findings and reasons” pages 27-36 that the applicant was not put on notice or given an opportunity to respond to the following matters on which she made a determination as follows:
i. Page 29 paragraph 1 “in my view it is quite possible that [Applicant S129/2003’s] brother amended the date on the card (FSS Membership).” This finding was never put to the applicant.
ii. Page 29 second paragraph, second last sentence “I’m not satisfied that he was involved in any FSS activities”. These matters were never put to the applicant.
iii. Page 31 third paragraph finding that “This indicates that [Applicant S129/2003] did not in fact undertake courses in the institutions concerned.” This was not put to the applicant so as to distinguish the fact that the certificates were from various institutions or from the same institution (see paragraph 3 page 31).
iv. Page 33 paragraph 3 that “In my view, [Applicant S129/2003] would have had ample time to complete compulsory military service in the period between mid 1989 and mid 1990 and 1992.” This was never put to the applicant.
v. Page 34 paragraph 1 towards the end of the paragraph “In my view, it is entirely plausible that [Applicant S129/2003’s] brother or someone else on his behalf prepared the document and paid a guy to have them officially stamped”. This view was never put to the applicant.
vi. Page 34 second last paragraph commencing “the other documents provided by [Applicant S129/2003] is a summons originally issued…on 1st August 1998”. No part of this summons was ever put to the applicant.
(w) The applicant says these matters were not fairly put or put at all.
Mr Gibson submits that paragraph 1.10 of the transcript states:
The Tribunal: Now, having read the material in your Departmental file and also the material that’s been provided to the Tribunal, I cannot be satisfied that you meet the definition of a refugee and that’s why you’ve been asked to come to the Hearing today…
Mr Gibson submits that this opening statement was an ominous start for the applicant as it showed that the Tribunal had already formed a view. Mr Gibson further states that the opening statement became significant when the Tribunal later asked about the applicant’s disco and bar, his military service and the education exemption certificates which he admitted were forged.Mr Gibson contends that the applicant gave a clear and credible account of events and that any inconsistencies were only minor. The Tribunal then said to the applicant’s representative:
TM: It will be clear to you that I have some issues in relation to credibility and I wonder whether you might want to just spend a few minutes talking to your client about that and the importance of actually telling me the truth. (transcript, paragraph 2.238)
Mr Gibson submits that the above statement indicates that the Tribunal had reached a conclusion about the applicant not based on a rational and clear understanding of the evidence. He acknowledged that this conclusion may have been made after the applicant admitted that all the educational documents were forgeries. Mr Gibson submits that a reading of the transcript does not show that the Tribunal was justified in suggesting that the applicant’s adviser should remove the applicant from the hearing and lecture him on the concept of truth.
Ms Watson responded generally to the issue of bias raised in the opening submissions of Mr Gibson. Mr Gibson submitted that the Tribunal member began the hearing by saying that she lacked satisfaction on the material before her. The applicant took this to mean that the member was coming to the matter with a closed mind.
Ms Watson submits that the Tribunal was only explaining its role and function by calling for a hearing as set out in s.425 of the Act. Ms Watson argues that approach does not suggest an apprehension of bias. The general test for apprehended bias is whether the relevant circumstances are such that a fair minded and informed person might reasonably apprehend that the decision maker might not bring, or have brought, an impartial mind to bear on the decision: Webb v R (1994) 181 CLR 41 at 70-71; Ebner; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.
Ms Watson submits, and I agree with the submission, that the overall impression gained by reading the transcript is that the Tribunal sought to explore issues with the applicant over and above its general obligation to explain its concerns about the applicant’s evidence and considering the documents supplied by the applicant. On several occasions, the Tribunal said that she has problems with particular issues advanced and sought further explanation. Similarly, the applicant’s adviser was informed of those concerns and asked to discuss these with the applicant.
Ms Watson supported her submissions by reference to the Tribunal’s comments at the completion of its hearing:
TM: Ok. Well look, I don’t have any other questions to ask you. Is there anything that you want to tell me about that you have not been able to tell me about during the hearing? (transcript, paragraph 4.25)
That was a general invitation to the applicant to provide any further information he may wish. The applicant then addressed a number of issues in response to the Tribunal invitation (transcript, paragraph 4.26-4.30). The following exchange then occurred:
TM: Did you have an opportunity to speak to your client on the break? Do you need another chance to speak to him again?
Adviser: No, I don’t think so. We discussed what you said before the first break. We discussed that at length.
TM: Nothing he wants to change:
Adviser: No.
TM: Alright then. Then we’ve finished. OK?
TM: My concerns about credibility have been made. Just looking through your submissions to do with military service…
Adviser: Two issues covered mainly in the submission: Military service and the recent changes after the referendum. Our submission is that since the referendum there have been killings and the submission is that you couldn’t say that the situation has settled down sufficiently to be able to say that the situation in Algeria has improved significantly from previously.
TM: Well, I guess I generally don’t have problems with the military service arguments but I have a problem accepting your client hasn’t done military service.
Adviser: I recognise that. (transcript, paragraph 4.31-4.39)
Ms Watson submits that while Mr Gibson complains that the Tribunal raised its concern about the applicant’s creditability, the same ground also complains that the Tribunal did not put to the applicant that this evidence was not credible. Ms Watson submits that the transcript makes clear that the Tribunal has raised concerns it had about the applicant’s evidence and documents provided. It had not yet come to a conclusion about these issues and was affording the applicant the opportunity to demonstrate that the evidence was credible and the documents genuine. Whether the Tribunal ultimately accepted the applicant’s explanation was clearly a matter for it to determine.
The Tribunal decision sets out the applicant’s explanations about the grammatical and spelling errors in the educational certificates and the reasons why the Tribunal did not accept them as genuine (CB 155-156). The general test for apprehended bias is whether a fair-minded and informed person might reasonably apprehend that the decision-maker might not have brought an impartial mind to bear on the decision: Webb v R (1994) 181 CLR 41 at 70-71; Ebner at 343-345; Ex parte H. Ms Watson submits that no bias is disclosed in the way the Tribunal dealt with this issue and that its findings were clearly open to it.
The Tribunal is not required to provide prior notice of its concerns in relation to these documents. The documents were sent to the Tribunal by the applicant’s representative two days prior to the hearing (CB 92-117), except for one document produced at the hearing (CB 114-115). There was therefore no requirement for the Tribunal to issue a notice under s.424A(1) because of the exception in s.424A(3)(b). The Tribunal is not required to put its evaluative process to the applicant for comment: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24].
The amended application asserts that the Tribunal had not put to the applicant matters which led it to suspect that he had completed military service. However the Tribunal decision sets out discussion with the applicant on this issue (CB 132-133).
The contents of the Court Book and particularly the Tribunal’s decision together with the supporting transcript indicate that after the member had reviewed the application and supporting material and was not satisfied that it was in the position to make a favourable decision on that information alone and accordingly invited the applicant to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of his claims. This is clearly stated in the Invitation Letter issued in accordance with s.425 of the Migration Act (CB 61-62). The Legal Aid solicitor assisting the applicant accepted the invitation to submit additional material and for the applicant to attend the Tribunal hearing scheduled for 14 October 1999.
The transcript of the hearing demonstrates that the member instructed the applicant and his advisor in respect of the conduct of the hearing. Nothing appears in the transcript (of the three available tapes) indicating that the panel advisor who was a legally qualified practitioner raised any concern in respect to that opening address informing the participants as to the procedures that were going to be followed. The decision record supported by the transcript indicate that as part of the hearing, a number of documents supplied by the applicant were subject to an inquisitorial examination with the applicant being provided with an adequate opportunity to respond to those questions. The applicant was also informed as to inconsistencies between the documents that he submitted and publicly available information about documents of that character and nature.
The invitation was extended to the applicant to explain why his documents varied from the description of those documents as contained in that public information. During this process no objection was raised by the applicant’s advisor in respect of any aspect of these inquiries. On the information before me, I am satisfied that the Tribunal performed its task correctly in accordance with the Act and Regulations as they were at that time. I am also satisfied that a fair-minded and properly informed lay observer would form the view that the decision-maker had undertaken this task in other than an impartial manner. I am satisfied that this claim cannot be sustained.
Ground five, sub-ground (vi) claims:
(vi) Prior to the morning tea adjournment referred to above at approximately ll:30am the applicant was asked by the Tribunal in cross examination questions concerning his membership of a political body “FPS”, his involvement inn bar and disco.
(a) The Tribunal noted issues of concern as to evidence of membership of the FFS in 1994, evidence of the applicant’s interest in the bar and disco.
(b) The Tribunal did not challenge the applicant’s evidence in cross examination on these matters.
(c) The Tribunal did not put to the applicant prior to the morning tea adjournment cross examination as to credit or that the applicant was not telling the truth.
(d) In Indicating to the applicant’s representative at the morning tea adjournment there were issues of credit and “the importance of telling the truth” without putting such matters to the applicant the applicant was denied procedural fairness and the Tribunal was demonstrating bias.
Mr Gibson then referred to significant questioning of the applicant concerning membership of the FFS and his involvement in the bar and disco. The questions address the death of the cousin whom the applicant worked with at the bar and disco and claimed that they were partners in that business. Particular emphasis was directed to a document referring to the applicant’s role in the disco, being a “Record of Service” identifying the two owners of the business and certification that the applicant managed the business from 1996 to 1997 (CB 96). The Tribunal identified and inquired about:
(i)The dates contained in that document suggest that the applicant was still running the business two or three months after his cousin was killed.
(ii)While the applicant states that he fled the morning after his cousin’s death, the record indicates that he remained at the bar and disco.
Mr Gibson contends that these two issues can be explained as follows:
(i)The law in Algeria prohibits the owning of two businesses. The applicant’s name appears on the certificate of ownership of an electrical business, and the record of service of the bar and disco was the only evidence produced in respect of his involvement in it and must be silent on any equity or partnership in respect of it.
(ii)The applicant gave unchallenged evidence that he required some time to tidy up his affairs and arrange his departure.
Mr Gibson argues that based on this document, the Tribunal came to the remarkable conclusion that the applicant continued on at the bar when persons associated with the bar were targeted by extremists and he was only its manager. Mr Gibson argues that this conclusion is against the weight of the evidence and the conclusions drawn from its contents were against the unchallenged evidence of the applicant.
Ms Watson submits that it is clear from the decision that the Tribunal was questioning how the applicant could present a record of service stating that he managed the bar until 27 April 1997, when his earlier evidence was that he went to another town in February 1997 (CB 152).
In relation to the FFS issue, the Tribunal noted that the card presented had been altered to change the date of membership (CB 133-134). It noted the applicant’s explanation and set out its findings (CB 150-151).
In respect of a claim that the Tribunal is obliged to advise the applicant that it had concerns about his credit in relation to his answers in relation to the “Record of Service”. Ms Watson argues that there is no such obligation on the Tribunal and relies on Re Minister for Immigration & Multicultural Affairs; Ex parte Abebe (1999) 197 CLR 510 at [87] per Gummow and Hayne JJ:
The want of procedural fairness was said to lie in the tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the tribunal are adversarial rather than inquisitorial or that in some way the tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out.
I am satisfied that the Tribunal member who is conducting an inquisitorial proceedings and upon identifying issues in the evidence placed before the Tribunal, raised questions in respect of those issues and was within the Tribunal’s power to draw conclusions from that evidence. There is no obligation for the Tribunal member to challenge those issues as a contradictor or to conduct the hearing on an adversarial basis. I am satisfied that this claim cannot be sustained.
Ground five sub-ground (vii) claims:
(vii) The Tribunal made findings of fact in relation to the following matters: military service, date of joining of the FFS. ownership of the disco bar, authenticity of documents relating to continuing education and deferment of military service, closing of the disco bar and flight of the applicant following the murder of his cousin, the undertaking of military service by the applicant, the authenticity of call up notices for military service issued after the applicant left Algeria, the authenticity of documents provided to the Tribunal by the applicant generally and in particular documents procured at the request of the applicant from his family in Algeria.
(a) The determinations on these matters were made without proper or any notice to the applicant prior to the hearing of the documents, material and all matters on which the Tribunal relied in making these determinations.
(b) The applicant was not given the opportunity to respond or address matters on which the applicant should have been given notice and consideration of material before the Tribunal which supported its conclusions. Accordingly, the applicant was denied a fair hearing.
(c) The Tribunal failed to accept any or all of the explanations given by the applicant in respect of the matters raised by the Tribunal on the issues which gave rise to the above findings.
(d) On assessing the credibility of the applicant the Tribunal was not sensitive to the difficulties faced by asylum seekers and the requirement to give the benefit of the doubt to those who are genuinely creditable, but unable to substantiate all the claims.
(e) The Tribunal in making the above adverse findings on a multitude of documents and submissions on behalf of the applicant failed to proceed and assess the material and evidence before it on the basis that it might possibly be true.
(f) In finding that there were matters of probability and making adverse findings against the applicant the Tribunal failed to give weight, sufficient weight or any weight at all to the evidence of’ the applicant given the difficulties faced in obtaining evidence, the history of the experiences in Algeria, his subsequent flight and present position in Australia.
(g) The Tribunal failed to consider the material, which was voluminous and significant and referred to in its reasons concerning the political situation in Algeria and in particular the significant support the applicant receives by reference to that material in respect of his evidence as to both deferment of military service by reason of continuing education, the system of issuing yellow papers in relation to exemption from military service and the evidence and explanations provided by the applicant in answer to the matters raised by the Tribunal on these issues.
(h) The applicant says that the Tribunal in making the determinations and findings erred in failing to give him a fair hearing, proper notice, arid consideration of the evidence before it and the special circumstances of the applicant.
(i) The applicant says that in making the above determination the applicant was denied procedural fairness and the Tribunal was subject to bias.
(j) The Tribunal’s findings that “aspect: of [the applicant’s] evidence were internally inconsistent, inconsistent with the independent evidence and implausible, In my view, the problem with [the applicant’s] evidence was such that I cannot consider him to be a credible or reliable witness. I am of the view that [the applicant] fabricated evidence in an attempt to create himself the profile of a refugee.”
(k) In making the above determination the Tribunal fell in error.
(l) In particular the Tribunal relied on the evidence of the applicant’s membership of the FFS since 1994.
(m) The Tribunal accepted he was currently a financial member of the FFS and accepted the card dated 1999 in support.
(n) That finding however is against the evidence that the applicant left Algeria in May 1997. The applicant was cross examined in detail about his involvement with the FFS, the activities he undertook with that organisation and the circumstances in which he was arrested in 1996 by the Police arising from these activities. This evidence was not challenged.
(o) The applicant was cross examined as to the history of the FFS and his knowledge of the organisation. This evidence was unchallenged.
(p) The findings by the Tribunal that the 1997 membership card was changed to 1994 was subject of a detailed explanation of the applicant which was creditable.
(q) The applicant gave evidence he had a card for membership in 1994 and lost it. The transcript shows that there was a difficulty in translation and misinterpretation as to further questions as to whether or not he in fact had a card in 1994 or at all. The applicant agreed with the Tribunal that he had a card in 1994 and that a card would have been issued when he joined in 1994. Any inconsistencies appear to arise from the translation problems referred to above.
(r) The findings by the Tribunal that he was not a member in 1994 was against, the unchallenged evidence and weight of that evidence, The applicant was not cross examined in any detail as to his allegations he was arrested by the Police in 1996 however the Tribunal did not accept his evidence.
(s) The Tribunal made no reference to the subsequent material enumerated in its reasons concerning the activities of the FFS and numerous arrests. The material before the Tribunal supported the contentions of the applicant and does not appear to have been considered by the Tribunal nor was any reference made to it on this issue.
(t) For the Tribunal to have found that he was member of the FFS in 1999 would clearly imply by reason of the fact that he left the country in May 1997 that he was in fact a financial member in May 1997. There was no evidence before the Tribunal to suggest that the applicant could have joined the FFS after he fled Algeria in May of 1997.
(u) In making the finding that the applicant was not a member of the FFS in 1994 to 1997 prior to leaving Algeria the Tribunal has failed to give proper or any consideration to the evidence and weight of evidence before it.
(v) The Tribunal relied on a report prepared for the Canadian Immigration and Refugee Board which “stated that the leaders and members of the FFS are not systematically targeted or repressed by the Algerian Authorities”.
(w) This document was not shown to the applicant, no details of the report were given to the applicant nor does the report appear to be in the material referred to in the reasons.
(x) This evidence was put to the applicant shortly prior to the luncheon adjournment.
(y) After the luncheon adjournment the Tribunal made reference to a conversation with a professor of political science at University. The Tribunal stated that “he said that there are those two factors in the FFS and that the presence of those two factions in the FFS in fact has neutralised its political action and the party does not represent a threat to the regime…because of this Information I have some difficulty in accepting that you were arrested in 1996 because you are in FFS…”
(z) No particulars were given by the Tribunal to the applicant to identify the professor, where and when this conversation took place and the applicant was given no opportunity to speak with the professor or otherwise to discuss this information. The information would appear to be hearsay and the Tribunal failed to exercise its jurisdiction in failing to give the applicant prior notice of this information, sufficient particulars to identify its source arid mako further enquiry. The applicant was not given an opportunity to respond to this information.
(aa) The Tribunal in making its determinations at page 29 of its reasons as to persecution of the applicant by reason of his membership with the FFS as being “remote and insubstantial” is made by reference to “the independent evidence set out above”.
(bb)The evidence however is not identified in any particular, the evidence was not put to the applicant in writing or by way of prior notice and the applicant was given no opportunity to identify or respond to the evidence, on which the Tribunal relied. This evidence ignores the unchallenged evidence that the applicant was arrested by Police in 1996 and his detailed description of the activities undertaken by him including the placing of posters, sign writing and the use of his car which led to his arrest in 1996. The Tribunal never put any of its source material on which it based its findings as to the FFS to the applicant.
(cc) In making a determination concerning the FFS based on a conversation with an unidentified professor of political science at University the Tribunal has gone outside its source material and relied on material which was never put to the applicant. The Tribunal has fallen into further error in relying on a report from the Canadian Immigration and Refugee Court which again is not referred to in its source material arid was never put to the applicant.
(dd)The above material is not evident on the independent evidence referred to at pages 15 and 16 of the reasons.
(ee) The Tribunal made findings concerning the applicant’s involvement with the bar and disco.
(ff)The applicant gave evidence his cousin Kamal [withheld] was employed at the disco as a barman and was killed on 04 .02. 1997.
(gg) That evidence was unchallenged.
(hh) The applicant produced a certificate apparently signed by one of the owners of the bar and disco that the was the manager of the bar and disco,
(ii) The Tribunal found that this document was in fact a certificate of employment.
(jj) In so finding the Tribunal did not accept the evidence of the applicant that he was an equity partner in the bar and disco and provided the finance and also the manager.
(kk) In finding that the document was an “employment document” the Tribunal did not consider the evidence of the document which it made no reference to employment.
(ll) The Tribunal in finding that the applicant was an employee only did not cross examine in any way the applicant concerning his statement that he had financed the bar and disco and was a silent equity partner by reason of local law prohibiting him from owning two businesses at the time.
(mm)The Tribunal had accepted evidence that the applicant was the registered owner of an electrical business from 1994.
(nn)The Tribunal had a rational explanation as to why the document stated that the applicant was the manager or the business but not a proprietor as such statement would have infringed the local regulations.
(oo) The Tribunal did not make any findings that such regulations did not exist and appear to have accepted this statement.
(pp)The Tribunal failed to give any weight or proper weight to the evidence of the applicant concerning his equity and relationship with the bar and disco. The circumstances in which he fled immediately following the murder of his cousin employed as a bar man in the disco after he had left the disco in the early hours of the morning and his concern as to threats to his own life.
(qq) The Tribunal ignored the applicant’s evidence that he had received threats and fled the following day.
(rr) In interpreting the document setting out the period in which the applicant was the manager as evidence that the applicant was deliberately misleading the Tribunal and in fact had not fled the Tribunal ignored the evidence and weigh of evidence.
(ss)In accepting that the cousin was in fact employed as a bar man in the disco and murdered in the early hours of the morning the Tribunal, that the applicant at that time conducted his own electrical business, that there was a prohibition against owning two businesses at a time the tribunal failed to give weight or proper weight to the rational explanation the applicant fled the business, the document before it was not an employment document as such and sought to rend into that document as evidence that the applicant was not telling the truth was against the evidence and weight of evidence.
(tt) In so doing the Tribunal fell into error and misread the document.
(uu) In making a determination that the applicant was not under threat by reason of his involvement in the bar and disco the Tribunal has ignored the evidence in the material before it as to Islamic activity and opposition to westernisation as represented by the bar and disco of which the applicant was both the manager and an equity partner.
(vv) In finding that the applicant continued to be employed in the bar and disco until 27 April 1991 almost 3 months after the death of his cousin the Tribunal has relied on a misreading of the content of the document as to the ownership and management of the bar and the applicant’s evidence on this question. It has failed to give any weight to the evidence of the applicant that his cousin and the bar man of the same bar and disco was murdered on the way home from the disco.
(ww) It has ignored independent evidence before it of the activities of Islamic fundamental organisations at that time.
(xx)In making determinations that the applicant had in fact continued to work in the bar and accordingly his cousin was not killed because he worked in the bar the Tribunal has indulged in fanciful speculation not supported on the evidence and against the weight of evidence.
(yy)This speculation is clear evidence of bias and the failure to give the applicant a proper and fair hearing and consider his evidence and the weight of evidence.
(zz)This error arises from the error of giving weight to the document interpreted as being an employment document which clearly it was not.
Ground five, sub-ground (ix) states:
(ix) The Tribunal made similar findings in respect of the call up notices for military service.
(a) Again, the Tribunal failed to give the applicant notice of its concern. Failed to put to the applicant the independent evidence on which it relied, and failed to make any enquiry that the applicant’s explanation that the certificate was genuine, was issued in his absence when he was in Australia or that the words “urgent” on the certificate were an indication that it was not a genuine certificate and were on behalf of the Tribunal speculation.
Mr Gibson contends that both of the call-up notices were subject to an adverse finding by the Tribunal. The first notice was found Tribunal to carry no weight because the word “urgently” appears indicating the time at which the applicant should attend the Selection and Orientation Centre of the Algeres Military Region (CB 100). Mr Gibson argues that the Tribunal’s rejection of this certificate was due to its reliance on source material which was not put to the applicant. In the decision record, this material is identified as being an article by Mr Laba-Sarkis from the Centre of Middle Eastern and Central Asian Studies at the Australian National University which describes the call-up procedure as follows:
· The individual is sent a conscription order with an acknowledgment of receipt 15 days prior to his allocation date.
· The draftee then has the set time period in which to appear before the particular recruitment centre.
· Upon appearing before the specified authority the draftee is given a conscription notification, at which point his military service officially begins. (CB143)
The applicant was questioned about the certificate during the hearing with the following questions:
2.126: TM: Ok. Now, another document you have provided here is this “Ordre de Convocation”. So where’s the original document?
2.127: Applicant: They are going to send it to me because they couldn’t send it by DHL. When you go and send some mail in the DHL, they are going to look at what sort of documents you are sending; that’s why they couldn’t send it. So they are going to send that normally…..
2.128 TM: Right, and how did your brother actually get this document?
2.129: Applicant: It was sent to him. I wasn’t in Algeria at the time.
2.131: Applicant: This copy is a ’97 one. They didn’t send any convocation in ’97 except because they knew I was studying and I was studying before and that’s why they sent this one to me in ’97.
2.132: TM: So this was the first one that was sent to you?
2.133: Applicant: Yes
2.134: TM: So you had not received a call up order before?
2.135: Applicant: There was another one in ’98.
2.136: TM: Ok, but you hadn’t before this one; you’d not ever received….
2.137: TM: Right. See, I have some difficulty actually accepting that this is a genuine document that was issued to you, and one of the reasons that I have some difficulties accepting that that is the case is that this document does not tell you when you are supposed to actually turn up. If this was a genuine document and was the first call up notice it would give you a date and a time where you were supposed to actually turn up, and this doesn’t do it.
2.139: Applicant: It mentioned the 20th of the 10th 1997.
2.140: TM: That’s the date it was apparently signed, although in fact it hasn’t been signed. But here it says: “Ordre du Haut Commissariat des Service National vous etes tenu de vous presenter URGENT”, and that means nothing (transcript pp.29-30)
Mr Gibson argues that the finding that the call-up notice did not mean anything when read with the source material was not open to the Tribunal. The source material says that the draftee has a time period in which to appear to before a particular recruitment centre. Mr Gibson argues that finding that the word “urgent” meant nothing was not open to the Tribunal on that information. The meaning the Tribunal attributed to the word “urgent” was a mistake of fact and error. Mr Gibson argues that it is fundamental to the applicant’s case that the conscription notice, if it were genuine, establishes that the applicant has not completed military service and is at risk of persecution.
Mr Gibson submits that the Tribunal indicated to the applicant that it had great difficulty accepting that the “Ordre De Convocation” was a genuine call-up notice. Following on from the exchange reproduced above at [118] the Tribunal put the following to the applicant:
2.144: TM: Ok, Well, I have to say that I have great difficulty accepting that this is a genuine call-up notice.
2.145: Applicant: Well, it is a genuine one because it was sent to me.
2.146: TM: I suspect that what is the case is that you in fact have done your military service (transcript, p.31)
The Tribunal did refer to the information which was cited in the decision as forming the basis for its questions. It gives the applicant every opportunity to deal with the issue and put the genuineness of that notice fairly and squarely to the applicant. Ms Watson acknowledges that the second call-up notice was not raised at the hearing. However, a line of questioning had occurred and the whole reason for a second notice is that the first notice had not been complied with.
Ms Watson submits that there is no requirement for the Tribunal to deal directly with the second notice because it had made its views on the first notice clear to the applicant. Furthermore, the Tribunal decision treated the second notice in a different fashion to the first. Ms Watson suggests that the Court therefore infer that the second call-up notice was not of major concern to the Tribunal because of its positive finding that the first call-up notice was not genuine.
The Tribunal states in its Findings and Reasons:
“Given this evidence, I do not accept that a call- up notice would merely state that a draftee had to report urgently, without giving a specific date on which he had to do so. I therefore do not accept that the document provided by [the applicant] is a genuine call-up notice.”
Ms Watson submits that this finding is in accordance with the principles established in WACO v Minister of Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171. In that case, the Court found that if documents which were potentially corroborative of a critical aspect of an applicant’s claim were not genuine and the Tribunal failed to give the applicant an opportunity to be heard, then a denial of natural justice would have occurred. In this case, I agree with Ms Watson that the Tribunal had complied with its obligation to clearly put to the applicant its concerns about the fraudulent nature of the first call-up notice.
Ms Watson submits that there is no requirement for the Tribunal to give advance notice of any concerns that it has about a document provided by the applicant. The independent information relied upon by the Tribunal indicates that a time is set on call-up notices, which was also raised with the applicant (CB 156).
Ground five, sub-ground (x) states:
(x) The Tribunal also dismissed as genuine a summons issued on 1 August 1998 as not being genuine by reason of the fact that it had a reference that the applicant had a specialisation in mathematics.
(a) Again, the applicant was never given notice of this problem or of the Tribunal’s concerns. The Tribunal was aware that the applicant had in fact a certificate as to hydraulics.
(b) (withdrawn).
(c) (withdrawn).
(d) The rejection of this summons as a genuine document on the basis of the grounds set out in the reasons is speculative, against the evidence and weight of evidence and is evidence of bias.
Mr Gibson submits that the summons was also a document the Tribunal attacked on the basis that it made a reference under the sub-heading “Specialisation” (CB 112). Mr Gibson contends that there is a certificate in Arabic certifying the applicant’s qualification in mathematics which was presented to military authorities in support of his deferment of military service. Mr Gibson directed the Court’s attention to the detailed nature of the summons. Mr Gibson also advised that the summons was issued by the Director of National Military Service in Oran, which is the capital city of the province where the applicant lived. A finding by the Tribunal that Oran was not the correct city from which the certificate should have been issued was a mistake of fact and the Tribunal fell into error.
Ms Watson submits that the Tribunal had concerns about the summons due to the fact that it was issued from a place where the applicant had never resided and that it described him as having university education, which was not claimed by the applicant (CB 156). In circumstances where the Tribunal had already found that the applicant did not have outstanding military service obligations, the reference to the summons was the Tribunal considering other material which may impact upon its finding. It indicated that due to the problem with the summons, it would not accord it any weight as it could not be satisfied that it was a genuine document.
Ground five, sub-ground (xi) states:
(xi) The tribunal found that the passport which the applicant purchased in Turkey was fabricated in that there was no photograph on the passport.
(a)The applicant was asked concerning the Spanish passport “You told me it had no stamps in it”. The applicant replied, “no stamps, no photographs nothing. I had the opportunity to buy this passport and I did it”.
(b)The Tribunal has interpreted this answer as meaning that the passport came without photos.
(c) Again, this appears to be a translation problem.
(d)The applicant was referring to his photograph on the passport and that it had no Algerian stamps on it.
(e)This is confirmed by the further answer to the question “What did you think you were going to be doing with the passport “. Answer: “I thought I would have the opportunity to change the photograph to have some stamps.”
(f) The Tribunal has reached conclusions relating to this passport based on a misunderstanding of the evidence.
Mr Gibson submits that the Tribunal made the following finding in respect of the Spanish passport which the applicant claimed to have purchased in Turkey:
[The applicant’s] behaviour after leaving Algeria is not consistent with his claim to be a refugee. [The applicant] travelled from Morocco to Turkey, where he claims to have bought a Spanish passport. In my view, if [the applicant] had genuinely been fleeing persecution, he would not have proceeded to travel to Malaysia, but would instead have used the Spanish passport to travel to some place in Europe where he could seek asylum. [The applicant] claimed that the Spanish passport he purchased did not contain his photograph or stamps.
I find this explanation unpersuasive. I consider it inherently implausible that a person purchasing a passport would buy one that they would not be able to use. Moreover, [the applicant’s] evidence in relation to this issue was internally inconsistent. (CB 156-157)
The discussion of this issue appears in the transcript as follows:
2.311: TM: Ok now, we’ll start again. You bought a Spanish passport in Turkey.
2.312: Applicant: Yes, I bought it in Turkey.
2.313: TM: You told me it had no stamps or anything in it.
2.314: Applicant: No stamps, no photographs, nothing. I had the opportunity to buy this passport and I did it.
2.315: TM: Right. What did you think you were going to be doing with the passport?
2.316: Applicant: I thought that I would have the opportunity to change photograph, to have some stamps. I knew that there were people who would do that.
2.317: TM: And if you were able to buy a Spanish passport with no stamps and no photographs in it Turkey, then in Turkey you would have been able to have photos put in it and stamps put in it. Why didn’t you do it there?
2.318: Applicant: I didn’t think about doing it in Turkey.
2.319: TM: And then you got to Malaysia, and you told me a little while ago that after a year and a half in Malaysia you had spoken to people who told you that you could go to Thailand and get stamps and photos put in.
2.320: Applicant: I would give them money and they would be able to make me travel anywhere and they would change the photograph and give me stamps.
2.321: TM: Why did you go Malaysia?
2.322: Applicant: Because you don’t need a visa to….for an Algerian to go yo Malaysia.
2.323: TM: I find your evidence in relation to these issues to be quite confusing and puzzling.
2.324: Applicant: Well, what is confusing? I will convince you.
2.325: TM: Well, it makes no sense to me that you would just buy a Spanish passport in Turkey with no photo in it, no stamps in it, no exit or entry stamps in it, just in case you might be able to use that some time.
2.326: Applicant: Because the person I bought the passports from in Turkey is an Iranian person, and he told me that I would be able to get the photograph changed and the stamps and everything else in Thailand.
2.327: TM: So he told you that?
Mr Gibson contends that the references to the changing of the photograph at paragraphs 2.316, 2.320 and 2.326 shows translation problems and the parties were at cross purposes in this discussion. Mr Gibson submits that the Spanish passport did have a photograph which clearly was the applicant’s and that the answer in paragraph 2.314 should be read as “No photograph of myself”. This accords logically with the applicant’s next three answers. Mr Gibson argues that these consistencies demonstrate that if another interpretation favourable to the applicant was available, the Tribunal could not make the finding it did with any certainty. The Tribunal relied extensively on source material, a significant part of which was never put to the applicant and was never subject to any notice under s.424A of the Act.
Ms Watson contends that the Tribunal’s finding was not that there were no photographs or stamps but that the passport did not contain the applicant’s photograph. The Tribunal found it “inherently implausible that a person purchasing a passport would buy one that they would not be able to use”. Ms Watson submits that it was clearly put to the applicant at the hearing why he did not claim refugee status when he was in Turkey. Further, that it was clearly put to the applicant that he was not acting as a genuine refugee would. This was pursued by the Tribunal asking:
2.299: TM: Why didn’t you go somewhere else in Western Europe for asylum?
The Tribunal was troubled by the applicant’s response and its findings were open to it on the material before it. This issue was the subject of extensive examination of the transcript by Mr Gibson. However, I am satisfied that the Tribunal had sufficient material to reach its conclusion. This is a finding of fact and is not subject to review by this Court.
Ground five, sub-grounds (xii) and (xiii) state:
(xii) It is apparent from the above findings that the Tribunal made findings in respect of not less than the following:
(a) The applicant did not join FFS in 1994.
(b) The applicant was not imprisoned in 1996 because of FFS.
(c) The applicant did not repeat a year in school in 1991.
(d) The applicant in fact had done military service during the period 1990-1991.
(e) The applicant’s cousin was not killed because he worked as a bar man in the disco.
(f) The applicant had not fled the area by reason of the killing of his cousin.
(g) The applicant had in fact continued to work in the disco for some 3 months there after.
(h) The applicant’s assertion that his cousin was killed by Islamic fundamentalists or similar was not supported in that he did not flee.
(i) That all documents as to education said to have been obtained by bribery for the purposes of the yellow paper deferment notice were concoctions by the applicant through his brother for the purposes of this application.
(j) That the two summons documents relating to military service were fabrications for the, same purpose.
(k) The applicant had no equity in the bar or disco.
(l) That the applicant had no problems with military service and accordingly could go back and forth across the border freely in Algeria without problems.
(m) That the applicant was a Berber, the manager of a disco a member of the FFS and accordingly was not at risk as to political persecution at the hands of either the civil Police or of Islamic fundamentalists.
(n) That all explanations to the contrary by the applicant were not to be accepted.
(o) That all the documents no matter whatever minor inconsistency wore not to be accepted at face value, that the document as to his interest as a manager of the disco was to be interpreted as a certificate of employment.
(p) The applicant says that these findings are clearly by reason of the weight and nature of them ignoring independent evidence before the Tribunal and the evidence of the applicant clearly an indication of bias, impartiality and the absence of a fair hearing.
(q) The applicant says that such findings are against the weight of evidence.
(xiii) The findings by the Tribunal that the applicant has no reason for fear of prosecution should he return to Algeria can only be based on the finding that he had already done military service, had not been a member of the FFS in 1994 and accordingly there was no real risk.
(a) The applicant says it was not on the evidence before it and for the reasons stated above open to the Tribunal to make these findings.
(b) The Tribunal has failed to exercise the jurisdiction conferred on it by the Migration Act.
Mr Gibson indicated to the Court that the purpose of sub-ground (xii) was to identify fifteen findings adverse to the applicant. The Tribunal identified in the applicant’s visa application and statement minor inconsistencies which were taken to be major items by the Tribunal. He submits that the applicant had minimal skills in English and had difficulty in preparing these documents. Mr Gibson argues that the minor inconsistencies relate to matters where an interpretation favourable to the applicant was available and the Tribunal could not, with any certainty, make the findings it did without further examination. He claims that the Tribunal relied extensively on source material, a significant part of which was not put to the applicant and was never subject to any notice under s.424A.
Mr Gibson claims that the yellow card and a number of related issues should have been subject to a s.424A notice. Mr Gibson suggests as a possible line of reasoning that the applicant left school in 1990 and did his military service. That finding is based on certificates, some of which are identified as forgeries, others were not put to the applicant or alternatively were not considered. One of the inconsistencies in the visa application is in the statement relating to education. The relevant passages from the transcript in respect of the year that the applicant left school are as follows:
1.179: TM: OK, now you say that you finished in 1991. In your application here you said that you finished in 1990.
1.180: Applicant: I repeated a year in 1990.
1.181: TM: Yes, but you’ve told me today that it was 1991. Why did you write in your application that you finished school in 1990?
1.182: Applicant: In 1990 I finished the three years of secondary school. In ’91 I repeated the last year.
Mr Gibson argues that the questionnaire is silent in respect to repeat years. So that is a starting point for finding that he has in fact repeated the year.
Mr Gibson contends that similar issues arise in respect of:
i) the applicants ability to move back and forth across Algeria;
ii) rejection of the two call-up notices;
iii) rejection of the evidence of the yellow card system;
iv) dismissing the word “urgently” on the call-up notice;
v) the word “mathematics” used on the call-up notice;
vi)the suggestion that Oran was not the place where the notice was issued.
Mr Gibson contends that all these issues reveal mistakes in the Tribunal’s assessment and finding that contrary to the applicant’s claims, he had undertaken his military service.
Mr Gibson then referred to WACO at [33]:
33 The Tribunal must give the appellant an opportunity to appear before it and give evidence: s 425 of the Act. If an appellant seeks to give evidence, the Tribunal is under a duty to raise plainly and unambiguously the critical issues on which his or her application might depend so that he or she may have an opportunity of being heard on them: Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 370 at 388 (per Merkel J) and see 382 (per Einfeld J) and 383 (per von Doussa J); Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 288 at [29]-[30] per O'Connor, Tamberlin and Mansfield JJ.
He claims a denial of natural justice in the Tribunal finding that the call-up notices, which were potentially corroborative, were not genuine. The Tribunal failed to give the applicant an opportunity to be heard on the second call-up notice. In the first call-up notice the reference to mathematics and Oran were rejected on a mistake of fact. Mr Gibson claims that the Tribunal fell into error and relies on WACO.
Mr Gibson also referred to WACO at [42], [43] and [44]:
42 The question raised here is whether the Tribunal was entitled to reject a document which on its face was genuine without giving the party which tendered it an opportunity to comment upon the genuineness of the document or to call evidence supporting its genuineness. An administrative tribunal undertaking an inquisitorial function is not obliged to put to an appellant an assertion of apparent falsity or unreliability in respect of each and every matter raised by the appellant for the appellant's comment (Abebe v Commonwealth of Australia (1999) 162 ALR 1 per Callinan J at 76). However, the tribunal will have a duty to raise clearly with the appellant the critical issues on which his or her application might depend. It is clear that the question whether the letters were genuine was a matter which went directly to the most critical issue in the case, namely the appellant's relationship with Ayatollah Shirazi. It was upon this relationship that the claim that the appellant had a well-founded fear of persecution for a convention reason rested.
43 In the broadest sense procedural fairness requires that an administrative tribunal is bound to hear a person affected by its decision before exercising its powers: FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 360 per Mason J. Underlying it is the entitlement of the person to know the case sought to be made against him or her and to be given the opportunity of replying to it: Kioa v West (1985) 159 CLR 550 at 582. As Mason J pointed out in that case at 583, `natural justice and fairness are to be equated'. Whether procedural fairness must be afforded and the content of it will, where the decision made arises in a statutory framework depend upon the legislation pursuant to which the decision is to be made and all the circumstances of the case.
44 In a passage often quoted Mason J in Kioa v West said at 585:
`In this respect the expression `procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, ie in accordance with the procedures that are fair to the individual considered in the light of the statutory requirements, the interest of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations..’
In respect of the applicant’s claim regarding the year he completed his education, Ms Watson referred to the visa application form (Form C, question 32, CB 19) where the applicant was asked:
Education
Give full details of all the education you have undertaken.
Total numbered years (space to enter answer)
From Month / Year To Month / Year (CB 19)
Ms Watson submits that it was opened to the Tribunal to find from the answers given that the applicant had finished high school in 1990. It was clearly open to it to reject his explanation that he was confused and despite his evidence that he finished in 1991, he had repeated a year which caused him to say that he completed in 1990. I agree with the submission made by Ms Watson that there is nothing perverse in the Tribunal’s reasoning.
Ms Watson submits that particulars (xii) and (xiii) repeat matters already raised above. It is submitted that these particulars are attacks on findings of fact by the Tribunal, which were open to it on the material before it.
I am satisfied that the Tribunal had been abundantly fair and based its decision on principles set out in the authorities above.
Conclusion
I am satisfied that none of the grounds contained in the further amended application can be sustained and consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 21 December 2007
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