VWRE v Minister for Immigration
[2006] FMCA 430
•30 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWRE v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 430 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error – ‘real chance test’ – whether error in applying wrong test – reference to ‘possibility’ – whether expression of ‘doubt’ in tribunal findings – failure to call witness – whether denial of natural justice – failure to provide reason for refusal to call witness. |
| Migration Act 1958, s.426(3) |
| Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 W360/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 211 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Abebe v Commonwealth (1999) 197 CLR 510 Collins v Minister for Immigration [2003] FMCA 571 WAGO v Minister for Immigration [2004] FMCA 412 |
| Applicant: | VWRE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1343 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 29 August 2005 |
| Date of Last Submission: | 12 September 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 30 March 2006 |
REPRESENTATION
| Pro Bono Counsel for the Applicant: | Ms N. Karapanagiotidis |
| Counsel for the Respondents: | Mr. R.C. Knowles |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The First Respondent’s name be changed by deleting the words ‘and Indigenous’.
The Applicant shall be granted leave to add the Refugee Review Tribunal as a Second Respondent to this application nunc pro tunc.
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 20 July 2004.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent shall pay the Applicant’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1343 of 2004
| VWRE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application the Applicant was permitted to rely upon an amended application dated 4 April 2005 and was granted leave to further amend the application by inserting a new ground. The parties were then invited to file and serve further written submissions in relation to the new ground.
The Applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 July 2004. In its decision, the Tribunal affirmed a decision of a delegate of the First Respondent refusing to grant a protection visa to the Applicant.
The application for judicial review, though originally filed in the Federal Court of Australia, was subsequently transferred to the Federal Magistrates Court. Both parties relied upon written submissions and both were represented at the hearing.
The Applicant is a citizen of Ethiopia who arrived in Australia on 6 May 2003. On 11 June 2003 the Applicant lodged with the First Respondent's Department an application for a protection visa.
The Applicant claimed that by reason of her Oromo ethnicity and support for the Oromo Liberation Front (“the OLF”) she faced a real chance of persecution at the hands of the Ethiopian authorities. In her application for a protection visa the Applicant set out in some detail the claim which included an allegation that her husband, who had also been involved with the OLF, had disappeared.
The Applicant claimed the Oromo people had never had power in Ethiopia even though they are one of the largest groups in that country. She further claimed that the Oromo people are treated badly by the Ethiopian Government and that they can be sent to gaol without trial and without questioning. The Applicant stated that there are 30 million Oromo people in Ethiopia.
The Applicant specifically made reference to her husband in the following terms (Court Book page 3):
“He was arrested and put in jail many times before his disappearance, and he was held separately, he slept on a concrete floor, beaten, interrogated and tortured. Since the disappearance of my husband the government would come to house and search for any documents or materials relating to the Oromo Liberation Front during they visited to our house I faced serious terrogation and beaten to release any information regarding OLF activities.”
As at time of refugee claim application I’m worry because I’m fear of serious persecution, because of my political belief and my husband is still missing because of his political belief. He disappeared two years ago and we have no idea of his where about and we have no information from the Red Cross regarding his where about today. The statistics of Oromo people missing every day are increasing in numbers, the Oromo people are disappearing because of the Ethiopia government is take them to gaol or killing them [sic].”
By letter dated 1 September 2003, a delegate for the First Respondent wrote to the Applicant in relation to her protection visa. In that letter the delegate refers to a request made to the department's overseas post to undertake residence and employment checks. The letter claims that based on information provided on 22 August 2003, the Applicant's husband had been working with the Ethiopian Coffee Export Share Co for the last 20 years and was currently employed as the head of the administration department in a branch of that company.
It is claimed that information was confirmed by the branch. The author then relevantly states the following:
“I find that there is a contradiction in terms of your claim that your husband was persecuted because of his OLF profile and disappeared three years ago.”
The Applicant was given five days to respond to the delegate's letter.
In her response dated 19 September 2003, the Applicant maintained that her husband had disappeared and claimed that:
“… little weight can be placed on simply what his former employer has stated, given the political corruption that is rife in Ethiopia.”
The letter relevantly contains the following comments:
“It is our submission that we believe that (the Applicant's husband) is not working at the Ethiopian Coffee Export Share Company currently. We have made all reasonable attempts to verify DIMIA's claim and have been unable to do so.
...
Should her husband at some stage be found, this does not contradict her core claim that her husband has disappeared, as she does not know where he is or what has happened to him. As far as she is concerned he is missing and most likely not alive. Nor if her husband is found does that negate her claims that he was persecuted because of his involvement in the OLF.”
On 30 September 2003 a delegate of the First Respondent refused to grant the protection visa and the Applicant then applied for review of that decision with the Tribunal. She gave evidence to the Tribunal on 25 May 2004. Prior to the Tribunal hearing, the Applicant forwarded to the Tribunal a "Response to Hearing Invitation" form. That form refers to a name of a witness who, it is suggested, would give evidence of his visit to Ethiopian Coffee Export Share Co and how he was told in person that the Applicant's husband does not work there.
The following paragraph printed by the Department on the form provides:
“If you want the Tribunal to take evidence from a witness or witnesses, please give their names and brief details of what evidence you expect each witness to give at the hearing. The Tribunal will consider your wishes but it does not have to take evidence from any witness you name. A witness should give evidence to help show why you are a refugee and need a protection visa.”
The name of the witness has been inserted by the Applicant under that paragraph.
The Applicant also forwarded to the Tribunal an English translation of correspondence purportedly from the Applicant's brother which relevantly states:
“... based on your instruction on 30th of August 2003 I went to your husband's previous work place with two police officers to investigate whether ..., your husband is still working. We could be assured based on the organization's Managers that this person has terminated his work agreement a long time ago and he left the organisation.”
The Applicant further provided an English translation of correspondence from ‘Ethiopia Coffee Export Pty Ltd’ dated 3 September 2003 which relevantly states:
“Based on (the Applicant brother's) application lodged on 2/9/2003 and requested whether his sister, (the Applicant's) husband ... is working in our organization. Also he requested to be mentioned in the letter “'To Whom It May Concern” that there is another worker identified by the same name.
(The Applicant's husband) has left the job a long time ago with out reason therefore, the organization has expelled him from his position and there is a person having similar name working in the organization called by ...”
Again, prior to the hearing of the Tribunal, the Applicant's representative lodged a statutory declaration dated 23 March 2004 from Ms Ellen Roberts. In that declaration (Court Book page 241-243) Ms Roberts states that she telephoned ‘Ethiopian Coffee Share Export Co’ on 2 March 2004 using a number given on information supplied by the First Respondent's Department regarding the Applicant's husband. She claims to have spoken to a woman who answered the phone and requested to speak to a person of the Applicant's husband's name. She was informed that nobody by that name was known at the company.
By letter dated 31 March 2004 the Tribunal referred to earlier correspondence and in particular a letter dated 3 September 2003 from Ethiopian Coffee Export Pty Ltd stating that the Applicant's husband had left the job "for long time". The Tribunal then relevantly states:
“The Tribunal requests further information about (the Applicant's husband). The Tribunal wishes to know if (the Applicant's husband) still works with 'Ethiopian Coffee Export Pty Ltd' and whether you are able to advise the tribunal of the age of (the Applicant's husband).”
That information was sought by 18 May 2004. On that date the Applicant's representative informed the Tribunal that the Applicant had been unable to obtain any further information regarding the questions raised by the Tribunal and that her brother had sought further information but the company was unable to provide any further information. The letter further states:
“We are still endeavoring to find the information that you have requested and we will do our best to do so prior to the hearing. [sic]”
As indicated earlier, a hearing was conducted by the Tribunal on 25 May 2004 and the Applicant gave evidence. By letter dated 7 June 2004 the Tribunal provided the Applicant with a copy of its "draft findings and reasons" and then requested a response from the Applicant.
It appears to be common ground that this process was foreshadowed at the hearing by the Tribunal and the Applicant's representative accepted this process.
In any event, on 8 July 2004 the Applicant's representative lodged with the Tribunal written submissions in response to the draft findings and reasons. In that document concern was expressed under the heading "Preliminary comments" in relation to the process and the following appears:
“I do wish to have it noted from the outset that I am concerned about the process hat I have asked to enter into. I had asked at the hearing to address the adverse information raise but was not provided with the opportunity to do so. I acknowledge that I accept at the hearing the offer to respond to a draft findings and reasons of the RRT. In hindsight I am however deeply concerned about this process. For all intensive purposes it appears the decision to reject our client has already been made and that there is nothing that I could submit that would change this outcome. It appears that the member has already made a final determination on this case without affording me a genuine opportunity to address any adverse initial findings and concerns they may have. Giving the matter further consideration I do not believe it is the proper way to proceed. The applicant has now been placed in a position where they need to try and dissuade the decision maker of making a decision that appears to already be made.
I also submit that the RRT should be required to call the applicant’s brother (the Applicant’s brother) and test the veracity of his evidence. Given that the member has placed such great weight in their adverse credibility findings on the evidence and actions of the applicant’s brother, they should have called him and spoken to him at the RRT hearing. The failure to do this is a denial of natural justice for our client in particular given that the applicant had him down as a witness on her response to hearing invitation.”
The following also appears in the submissions made for and on behalf of the Applicant:
“To ensure a fair hearing and decision and for it to appear to be fair it is our submission that a new hearing be conducted. In the alternative if the RRT refuses to grant such a hearing we submit that further evidence needs to be called and the applicant’s brother called to give evidence as we note they are stipulated witness.”
Significantly, under the heading "Specific credibility issues" the Applicant's representative states:
“8. The RRT makes a number of assumptions in relation to the actions and activities of the applicant’s brother. The applicant’s brother was noted as a witness, was available and should have been called. The tribunal itself recognized in their draft findings and reasons how critical his evidence is.”
The tribunal's decision
The Tribunal did not accept the Applicant had a well-founded fear of persecution for a Convention reason. It was satisfied that due to several implausible aspects of the Applicant's claims and evidence, she was not a witness of truth. In particular, the Tribunal made the following adverse findings:
·The Applicant was not a "woman at risk" in Ethiopia because her husband was not subject to harm for reasons of his actual or imputed political opinion or any other convention reason and had not disappeared (at least for the reasons given by the Applicant).
·It was not plausible that the Applicant's husband would be arrested, detained and mistreated by the Ethiopia authorities many times but not dismissed from his Government employment as well.
·It was not plausible that the Applicant's husband would experience mistreatment by the authorities for 10 years but the Applicant herself only began to experience mistreatment by the authorities some five years after her husband first experienced such mistreatment.
·It was not satisfied that the Applicant's husband disappeared for the reasons the Applicant claimed, or that he was sought by the Ethiopian authorities for his actual or imputed support of the OLF.
·The Applicant did not become involved with the OLF due to her husband's involvement or otherwise and she would not be imputed with any involvement with the OLF upon return to Ethiopia.
·The Applicant therefore did not face a real chance of being harmed in Ethiopia for her OLF involvement.
Grounds of the application
As indicated earlier, the Applicant ultimately relied upon an additional ground. A supplementary amended application was filed together with three pages of supplementary contentions of fact and law from the Applicant which has generated an eight-page response from the First Respondent. Both parties had the opportunity to properly address the additional grounds. The grounds therefore include those set out in the amended application and the Applicant's "Supplementary Amended Application" which I summarise as follows:
1.The Tribunal applied the wrong test in assessing the applicant's claims.
2.The Tribunal failed to call a witness nominated by the applicant and thereby committed jurisdictional error.
3.The Tribunal caste an onus of proof on the applicant.
4.The Tribunal failed to provide the applicant an opportunity of response and/or denied her procedural fairness.
5.The Tribunal failed to take into account relevant considerations/material in the making of its decision and/or the assessment of the Applicant’s claims.
6.In addition or in the alternative, the Tribunal’s failure to consider the documents constituted a denial of procedural fairness because the case presented by the Applicant was not considered by the Tribunal.”
Ground 1 - Applying the wrong test
Applicant’s Submissions
The Applicant submitted that the Tribunal failed to apply the "real chance" test in its assessment of the Applicant's claims. It entertained some doubt with respect to critical matters but failed to speculate on the possibility that it had come to the wrong conclusion.
Reference was made by the Applicant to the ‘real chance test’ considered by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo). In Guo reference was made to the joint judgment it the High Court as follows:
“In the same case, McHugh J said (32) that a real chance of persecution excluded a far-fetched possibility of persecution but that as little as a 10 per cent chance of persecution may constitute a well-founded fear of persecution.
Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term “well-founded fear” is to invite error.
No doubt in most, perhaps all, cases arising under s 22AA of the Act, the application of the real chance test, properly understood as the clarification of the phrase “well-founded”, leads to the same result as a direct application of that phrase. Wu Shan Liang (33) is an example. Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term. In the present case, for example, Einfeld J thought that the “real chance” test invited speculation and that the Tribunal had erred because it “has shunned speculation” (34). If, by speculation, his Honour meant making a finding as to whether or not an event might or might not occur in the future, no criticism could be made of his use of the term. But it seems likely, having regard to the context (35) and his Honour’s conclusions concerning the Tribunal’s reasoning process, that he was using the term in its primary dictionary meaning of conjecture or surmise. If he was, he fell into error. Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term “real chance” not as epexegetic of “well-founded”, but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.”
It was submitted that the Tribunal's decision in this instance demonstrates that it did entertain doubts and did not reach a state of positive disbelieve. Accordingly, it was required to ask "What if I am wrong?" in rejecting crucial elements of the Applicant's claim and to speculate on the possibility that it has come to the wrong conclusion. Detailed reference was made to the Tribunal's findings and reasoning process and it was submitted that the implausibility of particular claims did not cancel out the possibility of their occurrence. Particular reference was made to the following passage in the Tribunal's decision where it refers to submissions made regarding the ‘draft findings’:
“The next issue addressed was a submission the ‘RRT erred in making a finding that the applicant’s husband was not a member of the [OLF] and persecuted because they would have dismissed by their employer if this was the case. This is mere speculation. There exists no evidence to prove that everyone suspected of being involved in the OLF loses their employment’. With respect, it is clear that no such finding was actually made. What was stated was that ‘clearly it is possible the applicant’s husband may have been “arrested, detained and mistreated many times” as the applicant claimed and not in fact be “dismissed” from his employment, but I do not believe it to be plausible.’ As I would hope is apparent from my above Findings and Reasons, I was not prepared to make definitive adverse credibility findings based solely on those claims I observed were ‘merely implausible’. What the Tribunal’s observations as to the ‘plausibility’ of certain of the applicant’s claims did, was to satisfy the Tribunal there were reasonable grounds for concluding, along with my other findings, that the applicant was not generally credible and therefore not a witness of truth. I have amended the relevant parts of my above findings and reasons to identify those observations I made as to the implausibility of some of the applicant’s claims. Further, given the applicant has had an opportunity to comment on my draft Findings and Reasons, I am not satisfied any misunderstanding, relating solely to my mere observations as to the implausibility of some of her claims, has materially disadvantaged the applicant.”
(Court Book p.317)
It was argued that the Tribunal failed to undertake its task namely, to consider whether the Applicant faced a "real chance" of persecution if she returned to Ethiopia. Whilst it was acknowledged that the claims as put by the Applicant were possible, the Tribunal then failed to consider the implications of its own findings and, it was submitted, failed to speculate as to the future chance of the Applicant being harmed if returned. It was submitted that this is not a case where a fair reading of the Tribunal's reasons shows that the Tribunal had "no real doubt" that the claimed events had not occurred.
In support of this ground, reference was made to other passages in the Tribunal's decision where it referred to claims and then indicated the claims may be possible, after which the Tribunal moved to conclude that it did not think it "plausible".
First respondent’s submissions
The First Respondent submitted that the Tribunal applied the correct test. Whilst finding that certain claims were possible and that events might have occurred, the Tribunal reached a conclusion that it did not consider it "plausible" on the evidence before it that the aspects of the Applicant's claim had occurred. It was submitted that in each instance, the Tribunal gave considered reasons for its adverse finding, and when read in the context of the reasons, it is clear the Tribunal itself did not harbour any real doubts about these aspects of the Applicant's claims.
It was submitted that the Tribunal expressed serious credibility concerns about the Applicant's claim that despite the authorities arresting, detaining and mistreating her husband many times, he was not dismissed from Government employment. Relevantly, the First Respondent referred to the following extract from the Tribunal's decision which appears at Court Book page 302:
“Furthermore, and importantly, I do not believe it is plausible that a person who had been ‘arrested, detained and mistreated many times’ as claimed, even if they were subsequently released, would not have been dismissed from their employment if they were suspected of supporting the OLF. That said, clearly it is possible the applicant’s husband may have been ‘arrested, detained and mistreated many times’ as the applicant claimed and not in fact be ‘dismissed’ from his employment, but I would merely observe that I do not think it is plausible.”
Reference was made to the rejection of the Applicant's claim that she did not experience any problems until five years after the authorities started mistreating her husband, where the Tribunal states at Court Book page 303 the following:
“As a family member of someone who was apparently suspected of supporting the OLF, I do not think it plausible the applicant would only have commenced being harassed by ‘the government’ some five years after her husband, if he was in fact suspected of OLF support. That said, clearly it is possible the applicant may have only commenced being harassed ‘some five years after’ her husband, but in light of the country information set out above, I would merely observe that I do not think it is plausible.”
The First Respondent noted that the Tribunal refused to accept that as at August 2003 the Applicant's husband was no longer employed by a Government employer. The Tribunal referred to information obtained by an employee of the Department. It states in relation to that issue the following at Court Book page 304:
“Further enquiries indicated that when the advice pertaining to her husband’s whereabouts had initially been sought [August 2003] by DFAT, the person who made the enquiry was a locally employed Amharis speaker, they did not reveal they were acting on behalf of the Australian government when making the inquiry, and the enquiry was made without prior warning for the company employees, at least by DFAT. That said, while it is clearly possible the employees of the named company may have been acting under ‘pressure’ from the Ethiopian government, in light of the above evidence, I would merely observe that I do not think it is plausible.”
The First Respondent relied upon the High Court decision in Guo and in particular the following passage which appears at page 576 of the joint judgment where the Court states:
“It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.
In the present case, however, the Tribunal appears to has had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.”
The First Respondent also relied upon the decision of the Full Federal Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 where at [64] and [65] the Court states:
“64In my view, there is no reason in principle, and nothing in the reasoning of the Hight Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Quo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.
65.Nor do I think that there is anything in the reasoning of the Hight court which permits a court exercising powers of judicial review to “impute” to the RRT (or other administrative decision-maker) a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the RRT should not or could not have relied on those finding to hold that the applicant’s fear of persecution was not well-founded. To take this course on the basis of the court’s own assessment of the evidence before the RRT, is to enter the territory of merits review. It is one thing to find error in a decision-maker’s failure to apply the correct legal test or to comply with statutory obligations (for example, to set out findings on material questions of fact as required by Migration Act, s 430(1)(c)). It is another to decide what factual findings the RRT should or should not have made.”
It was submitted that in the present case the Tribunal's reasons, when read fairly and as a whole demonstrates the Tribunal itself had "no real doubt" that claimed events had not occurred or had not occurred for the reasons claimed by the Applicant. The reference by the Tribunal to the possibility of particular claimed events occurring or occurring for particular reasons does not disclose any real doubt but rather an even‑handed approach in which the Tribunal simply adverted to the basis of the Applicant's case.
It was submitted the language used by the Tribunal did not justify imputing to it any lack of conviction or confidence in its findings. It was submitted the Tribunal's conclusions further demonstrate the absence of any real doubt in respect of its findings about the Applicant's husband. It was satisfied the Applicant was "not a witness of truth". It also made a further significant finding at Court Book page 307 where it states:
“The applicant’s case was that due to her husband’s involvement in OLF, she became involved with the OLF. She supported her claim to fear persecution in Ethiopia by claiming her husband had disappeared and she believed his disappearance was for reasons of his OLF involvement. When advised that her husband had been located, the applicant sought to discredit this evidence by providing contrary evidence from her brother [the guardian] from Ethiopia. For the reasons set out above I am satisfied that the brother’s evidence, at least to the extent that it purports to support the applicant’s case to invoke protection obligations in Australia, can be positively disbelieved. Furthermore, as I do not accept her husband is even involved with the OLF, I do not accept the applicant became involved with the OLF, or that she would be imputed with OLF involvement on return to Ethiopia.”
It was argued the Tribunal was not then obliged to consider the possibility that its findings were wrong and the Tribunal did not fail to apply the test described in Guo and Rajalingam. It correctly stated the real chance test.
Reasoning
In my view, the First Respondent's submissions in relation to this ground are correct. On a proper reading of the Tribunal's findings, it would be unfair and an unreasonable interpretation to suggest that it had a real doubt in its findings simply because it referred to the claims remaining a possibility. To do so does no more than to simply acknowledge that a claim is possible. Ultimately, however, an adverse credibility finding as in this case combined with specific findings of implausibility is sufficient in the decision-making process to indicate that there is no suggestion that the Tribunal lacks confidence in its findings.
I do not consider the reasons as a whole and findings made as providing any basis upon which I can conclude that the Tribunal has applied the wrong test. It has not failed to apply the real chance test. It recited the test in clear terms as requiring it to consider whether the real chance is "not remote or insubstantial or a far-fetched possibility". I do not see any error in the application of the test or in the reasoning, and otherwise accept the submissions made for and on behalf of the First Respondent in relation to this ground.
I do not see any aspect of the Tribunal's reasoning which would lead to a conclusion that in this instance it has had any real doubt that its findings both in relation to the past and future were correct. By simply referring to a "possibility" does not in my view provide any or any sufficient basis upon which this Court could conclude that the Tribunal had any real doubt in relation to its substantive adverse findings.
Hence, in my view this ground should fail.
Ground 2 - The Tribunal failed to call a witness nominated by the Applicant and thereby committed jurisdictional error
Applicant’s submissions
In support of this ground it was submitted that the Tribunal was required to call the nominated witness namely the Applicant's brother. In failing to do so, it was submitted, the Tribunal was in breach of s.426(3) of the Migration Act 1958 (“the Act”) and/or misconstrued its function and/or denied the Applicant procedural fairness and/or ignored relevant material.
Section 426(3) of the Act provides:
“(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.”
Reference was made to the response to the invitation to attend the hearing and call witnesses set out earlier in this judgment. It was submitted that the nominated witness had provided a letter in relation to inquiries that he had made as to the alleged continuing employment of the Applicant's husband. That letter was before the Tribunal.
It was submitted the Tribunal failed to comply with s.426(3) of the Act because although the Tribunal is not obliged to procure the attendance of a nominated witness in all circumstances, the facts of this case called for the Tribunal to take the evidence from the Applicant's brother. The failure to do so caused considerable disadvantage and unfairness to the Applicant. It was submitted that that evidence was critical to the Applicant's case. It was argued the Tribunal was required to call the Applicant's brother for the following reasons:
·The witness was nominated on the "response to hearing invitation" and details were provided.
·The witness's evidence was crucial, a fact recognised by the Tribunal.
·The issue of the witness's attendance was not raised at the hearing and there were time constraints at the hearing because of the interpreter's limited availability.
·The Applicant explicitly requested in writing after the hearing for the Tribunal to call the nominated witness.
In relation to the last point, reference was made to the correspondence dated 8 July 2004 where the Applicant's adviser requested that the Applicant's brother be called as a witness. In the letter, submissions were made in support of a claim for a new hearing to be conducted, or in the alternative, as set out in the extract earlier in this judgment, it was argued that given the member has placed such weight in adverse credibility findings on the evidence and actions of the Applicant's brother, then he should be called. Significantly, it was submitted:
“The failure to do this is a denial of natural justice for our client in particular given that the applicant had him down as a witness on her response to hearing invitation.”
The letter further contains submissions set out earlier in this judgment concerning the activities of the Applicant's brother and refers to him being available and that he should have been called.
It is submitted that no response was received to that correspondence, with the Tribunal simply making its decision on 20 July 2004, which it delivered on 12 August 2004.
In dealing with the request to call the Applicant's brother, the Tribunal in its decision states the following:
“The applicant’s migration agent submitted the Tribunal ‘should be required to call the applicant’s brother…and test the veracity of his evidence’ due to it placing ‘such great weight in their [the Tribunal’s] adverse credibility findings on the evidence and actions of the applicant’s brother.’ I note that by virtue of s426(3) of the Act the Tribunal ‘must have regard to the applicant’s wishes [to take evidence from a witness] but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.’ That said, if I was satisfied I should do so, I would have sought to obtain evidence from the applicant’s brother in Ethiopia, however, I am not satisfied I should do so.
I concede that I have placed significant weight on inter alia, what I might describe as the ‘implausibility’ that I am strongly satisfied arises from the written evidence provided by the applicant’s brother in Ethiopia. However, I note that applicant attended a hearing with the Tribunal on 25 May 2004, and this issue was squarely raised at that time. The issue was raised again in my letter of 7 June 2004 and which required a response by 1 July 2004. The applicant was given a further week, at her request, to respond by 8 July 2004. I further note that by letter of 18 May 2004, from her migration agent, and from her evidence at the Tribunal hearing on 25 May 2004, the applicant remained in regular contact with her brother in Ethiopia. In spite of this, and notwithstanding it is now submitted the Tribunal should ‘test the veracity of the [applicant’s brother’s] evidence’, no such further evidence has been provided to the Tribunal by the applicant from her brother. This is in spite of the applicant and her migration agent, having been able to readily provide evidence previously from the applicant’s brother in Ethiopia.
If further evidence from the applicant’s brother would support her case, I am satisfied the applicant, with the assistance of her migration agent and even her daughter with who she lives in Australia [and who is apparently also in contact with her uncle, the applicant’s brother, in Ethiopia], was capable of obtaining such evidence. That no such evidence, or any reason for the failure to do so, was provided to the Tribunal, is perplexing if the applicant though such evidence would assist her case. Irrespective of this however, I am not satisfied, on the evidence and submissions, that fairness would require the Tribunal to initiate further enquiries of the applicant’s brother [the guardian] as suggested. Accordingly, I am not satisfied the ‘failure of the Tribunal to seek further evidence’ as suggested, constitutes in this particular case a ‘denial’ of natural justice’.”
It was submitted on behalf of the Applicant that the reasoning set out above demonstrates the Tribunal misconstrued its task and its duties. Essentially, it was argued the Tribunal dismissed the request on the basis that the Applicant could have provided further information from the brother and that she has not suggested that he was capable of providing any favourable or supporting evidence and/or that it is not for the Tribunal to make the Applicant's case.
It was argued that the Tribunal impermissibly drew an inference that the brother's evidence would not have helped the Applicant. It concluded that fairness did not require it to call the nominated witness, despite the fact that it used the absence of evidence or explanations from the brother to draw further adverse inferences against the Applicant.
Further reference was made to the Tribunal’s decision where it drew the adverse inferences against the Applicant in the following passages:
“Even though the applicant’s evidence appeared to include that the Ethiopian government can and did act in an arbitrary manner, I accept her claim that ‘some police are OK’ in Ethiopia. The problem I have, however, is there is no evidence provided thus far that would satisfy me her brother would have known which police officer was ‘OK’, or that he would have even sought such assistance if he was being ‘harassed’ by ‘the government’ as claimed.
Thus, for the purpose of this decision, I accept the applicant’s evidence that her brother [the guardian] enlisted the assistance of two police officers to accompany him to the company in which the applicant’s husband had ‘formerly’ been employed. However, by accepting at least this part of his evidence, I believe the applicant’s case unravels.”
The Tribunal, following on from that extract, went on to conclude that:
“… “no explanation was provided, for instance, as to why the applicant's brother simply did not make more discreet enquiries without the assistance of the two police officers ...”
It was submitted that by referring to the concept of "fairness" not requiring the Tribunal to take evidence from the nominated witness demonstrates a false appreciation of its task (see W360/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 211 (10 July 2002)).
The Tribunal, it was submitted, deprived itself of the opportunity to consider relevant evidence having the capacity to corroborate the appellant's claims in a material respect.
First respondent’s submissions
The First Respondent submitted that the Tribunal was not obliged to accede to the Applicant’s request that her brother be called as a witness to the hearing. It was acknowledged, however, that the Tribunal was required to have regard to the Applicant's wishes. It was submitted that having regard to the history of the Tribunal proceedings, it could not be claimed the Tribunal failed to consider the Applicant's request. Further, it was submitted the Tribunal was not under a duty to make inquiries of the Applicant's brother.
It was noted by the First Respondent that there was no evidence that the issue of the availability of the Applicant's brother or his possible contribution to the oral evidence at the hearing was discussed in the hearing before the Tribunal at all. The events preceding the Tribunal's decision demonstrates, according to the First Respondent's submissions, that the Applicant was provided with a reasonable opportunity to obtain further evidence from her brother about the nature of his inquiries of the employer of the Applicant's husband.
It was ultimately a matter for the Applicant to advance whatever evidence or argument she wished to advance in support of her contention that she had a well-founded fear of persecution for a Convention reason. The Tribunal was permitted to require her brother's evidence to be submitted in writing instead of orally, and it was then required to decide whether or not that claim was made out. It was submitted that it was open to the Tribunal to reach a negative conclusion in relation to that evidence.
In support of the submissions made by the First Respondent, reference was made to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] and [112] where the Court states the following:
“[43] This ground of error is misconceived for two reasons. First, there was evidence before the tribunal to assist it in determining how to deal with the question of unreliability. There was the Turner report and the fact that the respondent did not object to providing evidence either at the hearing or by affidavit following the hearing. Secondly, whilst s 427 of the Act confers power on the tribunal to obtain a medical report,15 the Act does not impose any duty or obligation to do so. Rather, s 42616 provides that, even if an applicant requests that the tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the tribunal is not required to obtain such evidence. Thus, the tribunal is under no duty to inquire.
[112] At the same time, the respondent provided an affidavit seeking to explain why he gave false evidence in his original interview and why his subsequent claims varied from time to time. He also sought to restate and elaborate upon his claims to some extent. As to the former, he deposed as follows:
After I arrived in Australia I was interviewed about why I had left Iran and come to Australia. I gave false or incomplete answers because I feared the consequences for my family if I told the truth about the persecution my family and I had been subjected to. I feared that the information about me and my family, and the fact that I was seeking asylum in Australia, might get back to the Iranian authorities. This fear was in part based on the fact that the interpreter was Iranian. I also feared that the Australian authorities would see me as a troublemaker or terrorist and refuse to allow me to stay in Australia.
…
I did not tell the truth about leaving Iran on a false passport at the first interview because I thought the Australian authorities would make adverse conclusions about me.
…
I told Dr Al Jabiri [the respondent’s previous migration agent] of all the times I was arrested. Dr Al Jabiri told me I did not need to mention all the details of my history and arrests. Specifically, Dr Al Jabiri told me I did not need to mention: (1) my arrest during my last year at school for involvement in protest demonstrations and my subsequent expulsion from that school, (2) my involvement with community protests in 1998 against the government after our area had been flooded because people of the neighbouring area (occupied by wealthy oil company employees) had removed a water barrier protecting our suburb. He told me that my case was strong enough based on my last arrest. I relied on his expertise, believing Dr Al Jabiri knew how best to advance my application.”
Further reference was made to the High Court decision in Abebe v Commonwealth (1999) 197 CLR 510 at [187] where the Court stated:
“187 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 was a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.”
Reasoning
In my view, the Applicant's submissions in relation to this ground are correct. The Tribunal clearly received a request for evidence of the Applicant's brother to be adduced. In refusing that request and then proceeding to make significant and adverse findings on an issue which I regard as a crucial matter for determination by the Tribunal, it has in the circumstances denied the Applicant procedural fairness. I have mentioned in other matters that a failure to provide an opportunity to adduce evidence then known to be available can constitute procedural unfairness. (see Collins v Minister for Immigration [2003] FMCA 571 (8 December 2003) at [41] (Collins) and WAGO v Minister for Immigration [2004] FMCA 412 at [52] (WAGO)).
Whilst there is no formal obligation on the Tribunal to accede to the Applicant's request for her brother to be called as a witness at the hearing, the Tribunal should do more than simply decline the request. In this case it has not only declined the request but then proceeded to make what I regard as substantial and adverse findings regarding the document produced by the potential witness.
It has further raised by way of criticism that the failure of the Applicant to provide an explanation as to why the Applicant's brother did not make more discrete inquiries without the assistance of two police officers. It otherwise made comments concerning other matters which would obviously be within the ambit of evidence which could easily have been provided by the Applicant's brother.
Where a Tribunal proceeds to refuse a request for a witness to be available for evidence, having indicated significant issues with documentary evidence from that witness which relate to a crucial issue for determination by the Tribunal, then in my view the Tribunal must do more than simply refer to the request. Whilst I accept that it is not bound automatically to accede to the request, a denial of procedural fairness will occur when it is clear that the witness is readily available, the Tribunal already has a preliminary view in relation to evidence provided in documentary form by the witness and that it is not satisfied with that evidence. It is particularly important where, as in this case, the ultimate conclusion of the Tribunal is based upon the adverse finding in relation to that documentary evidence.
Procedural fairness requires, in my view, a proper and fair consideration of the request to call the witness at a hearing, and there is no material before this Court which would indicate any or any proper basis for the Tribunal's refusal to meet that request.
Where Tribunal’s are concerned about the authenticity or reliability of documentary material and have witnesses who are the authors of that material readily available to give evidence and be tested, then the failure to arrange for the attendance of witnesses may, as in this case, constitute a denial of procedural fairness (see Collins at [41] and WAGO at [52]).
It follows therefore, in my view, that the decision should be quashed as the Applicant has succeeded on this ground.
Other grounds
Other matters included a claim that the Tribunal cast an onus of proof on the Applicant by its request for further information.
In my view, that claim cannot be sustained, as the Tribunal has done no more than simply request further information, as it had indicated that on the material then before it, it was unable to be satisfied that the Applicant's claims had been made out. That request does not in my view provide a basis upon which the Court could conclude that the Tribunal required the Applicant to disprove various matters. I accept the submissions of the First Respondent that the Tribunal in this instance has simply requested further information in the manner described.
Further, I do not accept that the ground of a denial of procedural fairness based upon the provision of a draft copy of findings and reasons can be sustained. That process, on one view, may well be regarded as enhancing the process and providing procedural fairness, as at least it gives the Applicant an opportunity to understand in advance the possible reasoning process of the Tribunal.
In this instance, at the very least the advantage to the Applicant is evident by the fact that it prompted a response including a request for the Applicant's brother to give evidence. As I have found, the Tribunal erred by not providing the opportunity for that evidence to be adduced, and hence it is somewhat ironic that the Applicant seeks to rely upon a further ground, suggesting that the provision of the draft reasons itself constitutes denial of procedural fairness.
I do not see any evidence before me that the Applicant in the circumstances was denied any opportunity to comment. The denial of procedural fairness has arisen, as found earlier, by the refusal of the Tribunal to permit the Applicant's brother to give evidence as requested on matters crucial to the determination of the application.
Conclusion
It follows for the reasons given that the decision should be quashed.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 30 March 2006
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