WAHN v Minister for Immigration (No.2)
[2004] FMCA 93
•17 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAHN v MINISTER FOR IMMIGRATION (No.2) | [2004] FMCA 93 |
| MIGRATION – Application for review of a decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa – whether the Tribunal denied the applicant procedural fairness in that it gave the applicant no reasonable warning that it might proceed with the application on the basis that documents referred to in the Tribunal’s decision were forgeries – whether it failed to invite the applicant to provide additional evidence to establish that the documents were genuine – whether the Tribunal failed to accord procedural fairness where it relied on a linguistic report which the previous Tribunal had rejected – whether the applicant was given an opportunity to respond – jurisdictional error – decision of Tribunal set aside. |
Migration Act 1958 (Cth), ss.427(1)(d), 430, 430(1), 474, 474(1), 474(1)(v), 476(1)(a)
Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)
Judiciary Act 1903 (Cth), s.39B
WAHN v Minister for Immigration [2002] FMCA 336
WAHN v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 225
Plaintiff S157/2002 v Commonwealth of Australia (2003) 77 ALR 454; 195 ALR 24
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 171
Re Refugee Review Tribunal; ex parte Aala (2002) ALR 82
VAAC v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 74
Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte applicants S134/2002 (2003) 77 ALR 437
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 Re Minister for Immigration & Multicultural Affairs; ex parte applicant 20/2002 (2003) 77 ALR 1165; 198 ALR 59
Minister for Immigration & Multicultural Affairs v Epeabaka [1999] 84 FCA 1
Minister for Immigration & Multicultural & Affairs v Perera (2001) FCA 1212 NACV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 231.
Minister for Immigration & Multicultural Affairs; ex parte Cohen (2001) HCA 10
WAGU v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 912
Re Minister for Immigration & Multicultural Affairs; ex parte S20/2002 (2003) 198 ALR 59
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 171
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 188
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274
Odhimbo v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 122 FCR 29
Jon v Minister for Immigration & Multicultural Affairs (2002) FCA 107
Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf [2001] HCA 30
Minister for Immigration & Multicultural Affairs; ex parte Applicant S154/2002 (2003) HCA 60
Refugee Review Tribunal; ex parte Alala 204 CLR 89
| Applicant: | WAHN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | WZ192 of 2002 |
| Delivered on: | 17 June 2004 |
| Delivered at: | Melbourne (via video link to Perth) |
| Hearing date: | 2 December 2003 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr P Hannan |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr Allanson |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Court declares that the decision of the Refugee Review Tribunal made on 24 June 2002 is invalid and of no effect.
The application is remitted back to a differently constituted Refugee Review Tribunal for consideration and determination according to law.
That the Respondent pay the Applicant’s costs and disbursements fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE (via video link to Perth) |
WZ192 of 2002
| WAHN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of the Minister's delegate not to grant to the applicant a protection visa under the Migration Act 1958 (Cth) ("the Act"). The decision was handed down on 24 June 2002.
Background
The applicant claimed to be a citizen of Algeria and arrived in Australia on 16 August 2001. On 11 September he lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Act. A language report (by an analyst originating from Iraq) dated 16 October 2001 concludes that the applicant "obviously has his origins in North Africa". A language report (by an analyst originating from Morocco) dated 13 December 2001 concludes that the applicant
obviously has his language background in Morocco … the dialect is clearly Moroccan, despite the person's attempt to speak the type of Arabic found in Algeria.
On 28 March 2002 the respondent's delegate refused the protection visa on the basis of a failure to establish a well founded fear of persecution for a Convention reason. The delegate's reasons[1] record that the delegate was "satisfied and therefore finds the applicant to be an Algerian citizen". The delegate relied on the "myriad of documentation and the applicant's responses at interview".
[1] See Court Book, pages 161-187.
On 14 May 2002 the Tribunal held a hearing in Sydney which the applicant attended by video link from Port Hedland. The hearing was adjourned because of the applicant's objection to the interpreter.
On 28 May 2002 the applicant's solicitor/migration agent sent a letter dated 23 May 2002 to the Tribunal relating information received by the applicant from a friend in Algeria to the effect that the applicant's father and two brothers were still missing.
On 5 June 2002 the Tribunal held a hearing in Sydney which the applicant attended by video link from Port Hedland. On 24 June 2002 the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.
The Tribunal's findings and reasons may be summarised as follows:
a)The applicant was not a truthful witness and was prepared to make up aspects of his evidence when difficulties in his evidence were pointed out[2].
b)The Tribunal had serious concerns as to who the applicant actually was and where he was from.
c)The applicant was not a citizen of Algeria. The Tribunal relied upon the language report, the absence of a passport and the explanation given by the applicant for that, and the unsatisfactory aspects of the applicant's evidence concerning his Convention claims.
d)The applicant "was knowledgable about matters relating to Algeria" but "he could well have learned those things and may well have lived in Algeria" and "may well have studied there".
e)The applicant spoke, reads and writes Spanish in the language spoken in the north of Morocco.
f)The applicant had given different stories about a police clearance certificate and that the documentary evidence produced by him was not reasonable to accept as being genuine and that it had either been produced by him or someone else.
g)Even if the applicant was from Algeria he was only caught up in generalised violence and is of no interest to the Algerian authorities or anyone else.
[2] See Court Book, page 260.
On 3 July 2002 the applicant filed an application in the Federal Court of Australia, which application was transferred to the Federal Magistrates Court. On 18 December 2002 the application was heard by Raphael FM and on 23 December 2002 Raphael FM dismissed the application (see WAHN v Minister for Immigration [2002] FMCA 336).
On 31 December 2002 the applicant filed a notice of appeal in the Federal Court and on 13 October 2003 the Full Court of the Federal Court (French, Lee and Tamberlin JJ) approved consent orders whereby the decision of Raphael FM was set aside and the matter sent back to this Court for a fresh hearing (WAHN v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 225). In substance, the Full Court approved the consent orders because the decision of Raphael FM had been given before the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 77 ALR 454; 195 ALR 24.
The applicant sought and was granted leave to amend the original application for review filed in the Federal Court in terms of a minute of “proposed substituted application for an order for review” ("the substituted application") which was filed on 28 November 2003. The substituted application identifies nine grounds of which the plea in paragraph 1(b) was not pressed.
Relevant legislation
The initiating application in this matter was filed on 3 July 2002. The Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) was assented to on 3 July 2002 and by s 2 thereof commences on the day after it receives royal assent. Thus the Migration Legislation Amendment (Procedural Fairness) Act 2002 does not apply.
Since the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (supra) it is clear that Part 8 of the Migration Act does not prevent an application for judicial review under s.39B of the Judiciary Act 1903 (Cth) of a decision of a Tribunal in certain circumstances where the application is based on a denial of natural justice and jurisdictional error. (see Plaintiff S157/2002 v Commonwealth of Australia (supra); WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 171 at [28-29]). A failure to accord procedural fairness constitutes a jurisdictional error. (Re Refugee Review Tribunal; ex parte Aala (2002) ALR 82 at [89, 101, 135 and 143] and VAAC v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 74 at [31].)
There will be jurisdictional error, reviewable consistently with Plaintiff S157/2002; Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte applicants S134/2002 (2003) 77 ALR 437 and Part 8 of the Act where the Tribunal overlooks an important matter going to the core of the Tribunal's jurisdiction but is an integer of the applicant's claim.
There is jurisdictional error if the determination that the condition upon which depended the power (or duty) to grant a protection visa was not met was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds (see Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [656-657] and Re Minister for Immigration & Multicultural Affairs; ex parte applicant 20/2002 (2003) 77 ALR 1165; 198 ALR 59 at [34] and [37] and [13] and [14].
Applicant’s claims
In a statement made in support of his application the applicant said that his family had lived in a village called Gibn Badis but had moved to the city Sidi Bel Abbes in 1995 to escape from terrorist activity. After a few years in the city the authorities had been falsely informed that his family financially supported a terrorist group. In 1997 the police had taken away his father and two of his brother, tortured them and imprisoned them for a year for believed involvement with a terrorist group. The government had also confiscated all the family's money and their car. In 2001 a tax officer had claimed the family business to not have proper documents and had imposed a penalty. The government was always watching the applicant and his family because they wrongly believed the family financially supported an Islamic terrorist group. The applicant claimed these matters led to him leaving Algeria. He left on a false passport and believed he would be executed if he went back.
In support of his claim the applicant produced several documents attesting to his residence, education and citizenship in Algeria. One of these documents, the police clearance he later said was a false document he had produced himself[3]. Later again he said it was genuine but had been obtained by his father bribing an official[4]. In a letter from his agent dated 3 October 2001 the applicant's claims were said to be on the grounds of:
1.Imputed political opposition to the government;
2.Fear of the terrorists from whom the government offered no protection; and
3.Membership of a social group, namely his family.
[3] See Court Book, page 84.
[4] See Court Book, page 93.
On 20 March 2001 the agent for the applicant advised the Department that the applicant's father and brother had recently been re-arrested "as part of the family's targeting by the security service". It was then claimed that the applicant's family were targeted because of his father's complaints and criticism of the Algerian government from when they had relocated to Sidi Bel Abbes and again upon his release from prison in 1998.
In his application for review to the Tribunal the applicant restated the basis of his claim making clear that he claimed a well founded fear of persecution from terrorist groups for imputed political opinion and also feared persecution for having left on a false passport.
The first hearing conducted on 14 May 2002 was adjourned due to the applicant's expressed concerns about the interpreter. At the second hearing on 5 June 2002 the applicant made a claim that in 2001, after the visit of the tax office, the government anti-terrorist squad had come to his family and beaten them, including the applicant[5].
[5] See Court Book, page 254.
The Tribunal concluded the applicant was prepared to fabricate evidence and exaggerate and was not a credible witness. The Tribunal also gave significant weight to the linguistic report. While noting the applicant to be knowledgable about Algeria, and may well have stayed there, it also noted that he reads and writes Spanish (spoken in North Morocco). The Tribunal found the applicant was not from Algeria as claimed but "most reasonably" from Morocco. The Tribunal however, went on to determine the matter on the basis it accepted the applicant to be from Algeria. On the evidence that:
i)he had been able to depart Algeria without difficulty;
ii)nothing had ever happened to him (a clear rejection of the recent claim of being beaten by security forces), he had never been arrested, and nor had any members of his family other than his father and brothers;
iii)the recent concerns of the authorities were tax and business matters not Convention related; and
iv)the applicant was not of adverse interest to anyone.
The Tribunal accepted that if the applicant was from Algeria he was at risk of violence as was virtually anyone in Algeria due to the situation with civil conflict. It did not accept that the evidence disclosed any Convention connection between his fear of being caught up in the violence as a bystander and the risk of harm.
The applicant's grounds for review
The applicant raised nine grounds. It is convenient, as the applicant did in argument, to treat the first three together. They are:-
a)The Tribunal committed jurisdictional error by purporting to find that the "documentary evidence produced by (the applicant) is not reasonable to accept as being genuine, and these have either been produced by (the applicant) or someone else." That finding (in effect one of forgery) was illogical and not based on findings or inferences of fact supported by logical grounds.
b)The applicant was denied procedural fairness in that:
i)The Tribunal gave the applicant no warning or no reasonable warning, that it might conduct the application for review upon the basis that the documents referred to on page 5 of the Tribunal's reasons, save for the police clearance certificate, were other than genuine documents;
ii)It never put to the applicant sufficiently in advance of the hearing that those documents were "either produced by him or someone else";
iii)It failed to invite the applicant to provide further evidence that those documents were genuine and to allow the applicant a reasonable opportunity to do so; and
iv)The Tribunal member said to the applicant during the course of the hearing on 5 June 2002 that "documents don't prove anything. Anyone can get fake documents and indeed you allege that you had a fake Algerian passport to leave Algeria".
in circumstances where the respondent's delegate had:
·Considered the applicant's application for a protection visa upon the basis that the applicant was an Algerian national by relying inter alia "on the many documents supplied by the applicant to establish that he was in fact an Algerian national" and
·Only refused the applicant's application for a protection visa upon the basis that the applicant had not established a well founded fear of persecution on a Convention ground.
c)The Tribunal committed a jurisdictional error in making the finding that the documents referred to on page 5 of the Tribunal's reasons had "been produced by (the applicant) or someone else" (ie. were forgeries):
i)being a finding that the Tribunal was not qualified to make in the absence of evidence from a suitable documentary expert;
ii)by failing to arrange for the documents referred to on page 5 of the Tribunal's decisions to be:
· Analysed by a suitable documentary expert which were available to the respondent and/or
· The subject of suitable diplomatic inquiries.
What is in effect complained of is that the Tribunal was not entitled to find on the evidence that the documentary evidence was a forgery and that procedural fairness required that the applicant be given a warning of the Tribunal's doubts about the documents, having regard to the previous decision of the delegate which had accepted the veracity of the documents. As a consequence, the Tribunal was required before making a finding that the documents were forgeries to have them properly analysed and/or attempt to have them verified.
It is necessary to look at precisely what occurred in order to consider the applicant’s contentions.
The applicant's claims of persecution
The applicant originally claimed:
a)That in 1997 the police came to his father's house and took his father and brother away and questioned and tortured them. They were in prison for one year because of a belief that they were involved in a terrorist group (although they were not).
b)The government confiscated money from the family as a penalty at that time.
c)In 2001 a tax officer came and accused them of not having proper documents and imposed financial penalties. It was suggested that they were helping an Islamic terrorist group financially (although they were not).
The applicant thus claimed to fear persecution because of his membership of a family group which was targeted by the government (because they were believed to have terrorist links).
On 20 March 2002[6] the applicant made a further claim by letter through his solicitors that his father and brother had recently been rearrested as part of the family's targeting by the security service. This was confirmed in a letter dated 22 March 2002 from his solicitors to the Department[7] in a submission from his solicitors in support of his application to the Tribunal[8] a summary in a lengthy document of his claims were made[9] the claims were stated to be:
· The applicant's family moved to Sidi Bel Abbes to be safe from terrorist groups. In 1997 the applicant's father and two brothers were arrested, interrogated, tortured and imprisoned for one year without trial because of their suspected financial support of Islamic terrorist groups. After one year they were released with the applicant's uncle acting as guarantor, but the applicant's family's money was confiscated along with their car.
· In January 2001 the applicant's family was forced to pay one million dinars to the Algerian tax officer who claimed that they did not hold the proper documents for the family store. The applicant instructs that the government was always watching his family because of their suspected links with an Islamic terrorist group. The applicant instructs that the one million dinar fine was unfair, and was merely an excuse to get money from the family.
· The applicant further instructs that he fears returning to Algeria because there is no guarantee of safety, particularly because he left the country on a false passport and without a valid police clearance certificate. The applicant instructs that he had sought a passport prior to his departure, but was told at the passport office that this was impossible due to his family reputation and the attention from the government that his reputation had caused.
· Since being in Australia, the applicant instructs that his brothers and father had been arrested in Algeria, which the applicant discovered during a telephone conversation to a friend in Algeria.
· The applicant instructs that he also fears that Islamic terrorists groups will harm him if he is forced to return to Algeria. The applicant advises that since being in Australia, a massacre occurred close to Sidi Bel Abbes during which 40 people were killed. The applicant learned of this massacre during his telephone conversation with a friend in Algeria.
[6] See Court Book, page 83.
[7] See Court Book, page 92.
[8] See Court Book, page 205.
[9] See Court Book, pages 211-212.
Despite setting out his claims at the various times described, in his hearing before the Tribunal the applicant raised an entirely new claim. At Court Book, page 254 the applicant claimed that after the tax department incident in 2001 the "Ninjas" being specialist government anti-terrorist squad came and beat the applicant and his family. The Tribunal asked the applicant why he had never mentioned this before and he responded:
I didn't know I had to tell everything. I thought I would just mention the 1997 incident.
The Tribunal challenged him further and ultimately he claimed that no-one had asked him about this before and that was why he had not mentioned it. The Tribunal put to him that he had clearly been asked and given the opportunity on several prior occasions to say what had happened to him and he had never mentioned this. The Tribunal indicated to him that it had doubts about his veracity having raised this significant claim so late in the proceedings.
The documents which the applicant produced to the Tribunal are described at Court Book page 143 and are: his birth certificate, his driver's licence, his father and grandfather's birth certificate and mother's death certificate; family certificate, citizenship certificate (Algerian), national Algerian identity card, his qualification certificate and high school certificate showing he has not done military service, and his police clearance from Algeria. He said that his passport which was a false passport had been thrown away at sea. The Tribunal found that the applicant was not Algerian as claimed by him[10] but
is most reasonably - based on the linguistic evidence - from Morocco. He has made no claims against that country. Having made that finding it is not necessary for me to consider his claims relating to Algeria.
[10] See Court Book, page 262.
The Tribunal came to this conclusion because it did not accept his evidence and because of the linguistic report. The Tribunal noted[11] that there was a linguistic report on file which clearly stated he was speaking with an Arabic dialect found in Morocco. The Tribunal noted that the report was unequivocal in its findings and commented that the dialect was clearly Moroccan despite the person's attempt to speak the type of Arabic found in Algeria. The Tribunal then considered that against other findings in relation to the applicant, namely the fact he did not have a passport and what the Tribunal considered to be unsatisfactory aspects of the evidence which he gave. In particular the Tribunal noted that the allegations of being attacked by a Ninja squad in 2001 being not raised until the hearing was the most serious exaggeration of the aspects of his history and that it was unbelievable that it was not previously mentioned by him. The Tribunal found that as a result it did not occur and that he was fabricating evidence at the hearing.
[11] See Court Book, page 260.
The Tribunal also then went on to deal with the documents and having noted that the police clearance form was the subject of different stories as to how it was obtained coupled with his lack of credibility led the Tribunal to conclude that the documentary evidence produced by him was not reasonable to accept as being genuine and that it was either produced by him or someone else (in other words a forgery). In this context the Tribunal gave weight to the linguistic report and found that he was not Algerian.
Clearly the Tribunal was entitled to come to the view it did on the credibility of the applicant.
This was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker “par excellence”. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the subset reasons why it accepted or rejected individual pieces of evidence.
In so far as the applicant's own evidence was concerned having had ample opportunity to do so previously and having raised a significant claim to the Tribunal very late in the piece the Tribunal was entitled to form an adverse view of the credibility of the applicant about the applicant's stories regarding persecution.
However it is equally clear in my view, that one of the significant parts of the decision of the Tribunal was a failure to accept that the applicant was an Algerian national. This was based, as explained upon an acceptance of the linguistic report weighed up against a rejection of the evidence of the applicant and a finding that his documentary evidence was fabricated.
The applicant contends, firstly that a finding about the genuineness of the documents relied upon by the applicant in support of his Algerian nationality was illogical and secondly that there was procedural unfairness and thus a denial of natural justice, in the manner in which the Tribunal used that evidence. The first argument is more easily dealt with.
There were inconsistencies in some of the documents produced by the applicant. There was concern over the passport and inconsistent stories in relation to whether it was a valid or false one. Secondly, there was inconsistency in his story about the police clearance coupled with the applicant's claims late in the proceedings which he had not previously raised. It could not thus be said it was unreasonable for the Tribunal not to accept the genuineness of his other documents against an adverse finding of credit. In the same vein, it could thus not be said that the reasoning in relation to all the documents was illogical but even if it could be said that the reasoning of the Tribunal in this respect lacked logic, that did not involve jurisdictional error (see Minister for Immigration & Multicultural Affairs v Epeabaka [1999] 84 FCA 1; Minister for Immigration & Multicultural & Affairs v Perera (2001) FCA 1212 at [22] - [26]; and NACV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 231.
In Minister for Immigration & Multicultural Affairs; ex parte Cohen (2001) HCA 10 at [37] McHugh J said:
If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. The questions of fact are ordinarily for the administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.
The second part of the applicant's argument however relates to a breach of natural justice by the position in which he was put when the Tribunal relied on the linguistic report and rejected his other documents which he contended supported his claim to be Algerian. In its decision, the Minister's delegate noted that the documentation provided by the applicant had not been examined by the document examination unit. The Minister noted at Court Book, page 164 that:
At interview, the applicant provided extensive Algerian country information. He further demonstrated fluency in Arabic and exhibited an open demeanour. The linguistic report from Skandinavisk Sprakanalysab dated 16 October 2001, indicated that "the person obviously has his linguistic background in North Africa". The subsequent linguistic analysis dated 13 November 2001 assessed the applicant's language as originating from Morocco. The Tribunal also noted "the applicant's property at Port Hedland IRPC indicated a plethora of documents regarding his Algerian nationality that are available on his departmental file.
The delegate went on to say:
Despite the findings of one of the linguistic reports, after considering the myriad of documentation and the applicant's responses at interview, I accept the applicant to be an Algerian national. I am satisfied and therefore find the applicant to be an Algerian citizen and is therefore outside of that country.
The first warning the applicant had that the Tribunal might not accept that the applicant was from Algeria was during the aborted hearing on 14 May 2002. Well into the interview the Tribunal put to the applicant at page 5.38 of the Transcript:
While there are some linguistic problems anyway, because you're aware from what is on the department file that you have discussed with your adviser and what your adviser has put to the Tribunal that there's a linguistic report on file that says you quite clearly speak Moroccan Arabic.
Then again at page 6.15:
Okay. We can discuss that on the next hearing but that is one of my concerns. We can address that further next time.
It was not until the hearing before the Tribunal on 5 June that the matter was raised directly with the applicant in the following passage at page 8.5:
What I want to raise with you now is the evidence from a linguistic expert that says you speak Arabic with a clear Moroccon dialect. You're aware of that evidence?---No - what?
I know - look, stop stop. You know what's going on, you know what's being talked about. There is linguistic evidence on file, and you're aware of it, that says you speak with a Moroccan
dialect?---Sir, there is a big difference between the Moroccan and Algerian dialects and what I'm speaking it's the Algerian dialectic and I have all my documents and evidence with me to show you.
Documents don't prove anything. Anyone can get fake documents and indeed you allege you had a fake Algerian passport to leave Algeria. … The expert says, "The speech on the tape is Arabic. The person obviously has his language background in Morocco. The person speaks an Arabic dialect found in Morocco. The person uses words and expressions that are typical of the Arabic spoken in Morocco". Then he gives some examples. Then he says "These examples are also typically Moroccan in terms of pronunciation. Phonetically the dialect is clearly Moroccan, despite the person's attempt to speak the type of Arabic found in Algeria". Would you like to comment on that?---Yes, sir.
What would you like to tell me?---I'm Algerian and they're certificates that prove I'm Algerian even my birth certificate. I can give you all of that. Give it to an expert and he can tell you if it's false or not. Then if you want more clarification to be more sure, you can bring an Algerian person that speaks only Algerian to speak to me and tell you if I'm speaking in an Algerian dialect or the Moroccan dialect.
In WAGU v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 912, French J considered a similar issue. At paragraph 34 he said:
It may well be the case that where a Tribunal has made findings adverse to the credibility of an applicant before it, those findings may form a basis for rejecting the authenticity of documentary evidence tendered to the Tribunal by the applicant. There is a danger in so proceeding because it may be that documentary material itself should be taken into account in assessing credibility. To proceed otherwise risks putting the cart before the horse. But to complain of such an approach is perhaps to complain about want of logic or inferior modes of reasoning rather than to identify jurisdictional error.
His Honour then cites a passage from Re Minister for Immigration & Multicultural Affairs; ex parte S20/2002 (2003) 198 ALR 59 per McHugh and Gummow JJ at 70 - [49]:
In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the applicant.
French J continued at [36]:
Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision. But where corroborative evidence is rejected on the basis on a finding of fraud or forgery or on some other positive basis which had never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party's credibility.
French J concluded in WAGU that the Tribunal's treatment of the email concerned was a failure to accord procedural fairness to the appellant by at least putting to him the Tribunal's suspicions about the way in which the email came into existence.
In WAGU his Honour considered two decisions of the Full Court in which questions of procedural fairness involving Tribunal findings about the genuineness of tendered documents were involved. In WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 171, the Court was dealing with an Iranian national who claimed to have a well founded fear of persecution if returned to Iran because of his involvement with a reformist cleric Shirazi. The applicant's advisers had provided translated copies of two letters which, if genuine, corroborated the claim of involvement with Shirazi. The Tribunal found the applicant not to be a credible witness and was not prepared to accept either of the letters tendered as genuine. At no time had the Tribunal given any indication to the applicant that it doubted their genuineness, nor did it invite him to comment on that issue. The Full Court held the letters essential to his claim in that they were tendered as evidence of his relationship with the Ayatollah Shirazi. Their Honours held that the question of whether the letters were genuine to not directly depend upon the evidence of the applicant and that a finding that they were forgeries could turn upon his credit insofar as it was a finding that they had been concocted to advance his case. If this was so, fairness would require that before a finding of forgery were made the person so accused should be given the opportunity of answering it. Their Honours held that the applicant had succeeded in showing that the purported decision of the Tribunal was affected by jurisdictional error in that it had not afforded natural justice to the applicant by failing to give him the opportunity to answer the suggestion that the letters tendered by him after the hearing were not genuine. WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 188 was a case also concerning an Iranian national. One of the matters complained of in the Full Court was that there had been a breach of the rules of natural justice in the failure of the Tribunal to give the appellant the opportunity to deal with concerns held by the Tribunal but not disclosed to him regarding the genuineness of the documents submitted by the appellant to the Tribunal in support of his application (although this case involved no findings of credibility against the applicant).
The Full Federal Court in WACO at paragraph 58 said:
There can be a denial of natural justice where a decision maker makes a finding on an important issue in a case without notice that the issue is the subject of any dispute and where the party affected adversely by that finding is not given an opportunity to be heard. That is because so to do will itself be unfair. It will not be necessary for the party alleging unfairness to put before the court the evidence which he would have presented had there not been a miscarriage of justice. It is sufficient in such a case that the party has not been afforded an opportunity to put his or her case. Only where the case is one where it can be shown that the appellant could not, even if given the opportunity to do so, affect the outcome would it be held that there was no denial of procedural fairness. If the possibility exists that the appellant, if given the opportunity might be able to make submissions or call evidence which could affect the outcome the appellant will not fail merely because the appellant has not proved that the submissions or evidence would affect the outcome.
The applicant in this case, had already told the Tribunal he could prove the authenticity of the documents if given the opportunity to do so by the Tribunal.
Whilst conceding that there was notice given to the applicant during the aborted hearing on 14 May, the applicant contends that that notice was not adequate and the applicant was unwittingly taken by surprise. I agree with that contention. What was put to the applicant at the hearing and which unquestionably took him by surprise was that the documents were forgeries. That was not put to him on 14 May. What was put to him on 14 May was that there were linguistic issues but the question of the potential forgery of his documents was never raised until the hearing. Even when it was, it was not in a context in which he had an opportunity to respond. It was raised in the context of a comment by the Tribunal in discussion with the applicant about the linguistic report.
Documents don't prove anything. Anyone can get fake documents and indeed you allege you had a fake Algerian passport to leave Algeria.
The Tribunal then went on to ask about the linguistic report and asked him to comment on that (that is, the linguistic report). The transcript indicates that he was never asked to comment on the question of whether the documents were forgeries or not. The Tribunal failed thereby to give consideration to whether the other documents were genuine giving rise to a reasonable apprehension that the Tribunal closed its mind to a relevant line of inquiry, a line of inquiry the applicant was pressing
It's the Algerian dialect and I have all my documents and evidence with me to show you.
and a matter which the respondent's delegate had found persuasive on the issue of his nationality. In doing so in my view the Tribunal ignored relevant considerations, namely the documents which the applicant said established his nationality as Algerian. As the High Court said in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [73] - [74] what will constitute an irrelevant consideration or a relevant consideration will fall to be determined by reference to the legislation pursuant to which the decision is made, and, perhaps, the matters advanced by the party.
Having regard to those matters it was contended by the applicant that it was incumbent upon the Tribunal to have some suitable person verify the accuracy or otherwise of the documents. The Tribunal is empowered by s.427(1)(d) to require the secretary to arrange for the making of any investigation that the Tribunal thinks necessary with respect to the review and to give the Tribunal a report of that investigation or examination. The applicant contends that that section of the Act obliged the Tribunal to arrange for the making of an investigation necessary for the review and cited a number of cases in support of that proposition. The respondent contended however that as a result of s.474 previous cases which recognised some circumstances where a failure to inquire will amount to legal error must now be read subject to s.474.
It is clear that s.424(1)(v) does not impose any legal obligation on the Tribunal. It is not a procedure "required by the Act" within the meaning of s.476(1)(a) and does not impose any duty on the Tribunal to make further inquiries in the absence of some special or exceptional circumstances such as failure by the Tribunal to honour an undertaking to inquire (see Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274). However, the Tribunal's power to do so and failure to do so in circumstances in which the question only arose for the applicant during the hearing and in the face of his express reliance on the capacity for verification of those documents, in my view provides weight to the argument that the Tribunal failed to accord natural justice to the applicant which caused it to fail to consider his claims namely that he was an Algerian and was persecuted for reasons relevant to his Algerian citizenship.
The Tribunal committed a jurisdictional error and denied the applicant procedural fairness by treating the language analysis report dated 13 November 2001 as effectively determinative of the applicant's nationality
The respondent contended that the Tribunal was entitled to act on and give such weight as it considered appropriate to the linguistic analysis (see Odhimbo v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 122 FCR 29 and Jon v Minister for Immigration & Multicultural Affairs (2002) FCA 107 at [24] - [25]).
The applicant relied upon the decision of Raphael FM in WAIO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FMCA 114 and contended that that was the correct approach. In WAIO Raphael FM found that there was jurisdictional error by the Tribunal and that the Tribunal acted without jurisdiction in preferring the evidence of one analyst to that of the applicant's migration agent. However, the gravamen of that decision it seems to me is that the applicant was denied the opportunity to have an independent analyst consider the report and the tape because he was not provided with the tape. Whilst I accept in this case that the question of the linguistic report was raised with the applicant on 14 May as a matter that he should address on the adjournment hearing before the Tribunal, the context in which this arose must also be considered. That context was that although the hearing was a fresh hearing before the Tribunal, the applicant was unrepresented and the Minister's delegate had not relied on the report and accepted the documentary evidence as to the nationality of the applicant. Whilst this might not on its own amount to procedural fairness such as to amount to jurisdictional error, coupled with the manner in which the documentary evidence was discarded by the Tribunal this was another aspect of failure to provide natural justice to the applicant in that the opportunity to adequately challenge the linguistic report was not realistically afforded him.
The Tribunal committed a jurisdictional error and/or denied the applicant procedural fairness in reaching the conclusion that the applicant is not Algerian having regard to the following matters:
The Tribunal's recording that the applicant could speak, read and write Spanish as he had learnt this at school
The applicant speaks Spanish a language spoken in the north of Morocco.
The applicant contends that this is not a challenge to the weight of the evidence but rather is a natural justice challenge. In other words it is contended that the Tribunal attributed to the applicant statements that the applicant simply did not make. The respondent contends that the references are not part of the Tribunal's findings. However, an error of fact on the part of the Tribunal is not sufficient to amount to jurisdictional error unless it was a matter that the Tribunal was required to take into account. The applicant contends that it goes to the question of jurisdiction because it is central to the findings about nationality. In my view the best that could be said of the use by the Tribunal of this evidence is that it did shore up the finding that the applicant was not Algerian but Moroccan and the juxtaposition of it suggests it is supportive of that finding. It does not however amount to jurisdictional error.
The Tribunal committed jurisdictional error by failing to make findings as to:
the reasons why the applicant's father and brothers were arrested on one occasion;
why the applicant's father and brothers were in prison for one year after that arrest as claimed by the applicant
whether and if so why the applicant's father and brothers were subjected to torture during that imprisonment as claimed by the applicant.
The Tribunal failed to make findings concerning the massacre of 40 people upon which the applicant relied in a written submission to the Tribunal dated 18 April 2002.
The applicant contends that although failure to refer to such matters in the Tribunal's reasons does not constitute a breach of s.430(1) of the Act, it indicates the Tribunal did not ask itself the correct question and thereby fell into legal error.
The Tribunal did not make specific findings on these matters for two reasons. The first and most significant is that the Tribunal did not accept that the applicant was from Algeria as claimed and thus because of that finding the further matters referred to in these grounds were not matters requiring findings to be made. I accept the submission of the respondent that the obligation on the Tribunal is to make the findings on those matters it considers to be material and not to make findings on all matters. However, that merely serves to highlight the jurisdictional error which occurred as a result of the failure to accord natural justice to the applicant. In other words, the Tribunal ignored relevant material in a way that affected the exercise of power.
The Tribunal did however give some consideration to the question of whether the applicant had a well founded fear of persecution even if he was from Algeria but rejected that proposition. The Tribunal found that on his evidence he was able to depart Algeria without difficulty, nothing ever happened to him in Algeria and the matters which caused him concern happened to other persons who happened to be members of his family. The Tribunal found that he was never arrested nor his sister-in-laws or uncles. It indicated that the attention of the authorities was not with the wider family but with specific persons.
The respondent contends that it was unnecessary for the Tribunal to make the further findings now claimed by the applicant because those matters were not material to the basis on which the decision was made. It is difficult to see how this is so. The Tribunal noted when considering his claim as if he were Algerian only those parts of the evidence which suggested that family members had not been persecuted but ignored evidence of those who had. It is in my view a failure to ask a right question namely having regard to the evidence given by the applicant as to what has occurred to his father's brother and the risk to him, as an Algerian citizen, because the Tribunal did not really accept that he was an Algerian citizen and did not seriously consider his claims on that basis. The Tribunal appears to have ignored the evidence that his father and brothers were in prison for a year and that they had been rearrested.
The Tribunal had before it specific evidence regarding the rearrest of his father and brothers and the imprisonment of them for 12 months. Whilst Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf [2001] HCA 30 stands for the proposition that s.430 obliges the Tribunal only to record those findings which it actually made and there is no objective test which can be applied in determining whether the Tribunal has been in breach of a duty to make findings on issues upon which it should have made findings, the failure to do so may constitute:
a failure to take account of relevant considerations (whether acts of persecution have occurred in the past).
(per McHugh Gummow and Hayne JJ at [348-9 and 351]).
The Tribunal's "alternate finding" of no Convention [sic] based fear even on the premise that the applicant was from Algeria does not disentitle the applicant to the relief sought if any of the other pleas on the grounds of review are made out (see Minister for Immigration & Multicultural Affairs; ex parte Applicant S154/2002 (2003) HCA 60 at [22] per Gummow and Hayden JJ; Refugee Review Tribunal ex parte Alala 204 CLR 89, at [116, 113 and 152].
I accept the contention that the Tribunal's finding on the Algerian nationality issue coloured the Tribunal's finding on the Convention issue and for example the validation of the documents of the applicant establishing Algerian nationality may well have impacted on the overall credibility findings of the Tribunal.
For the reasons I have set out above however the applicant was denied natural justice to endeavour to establish his nationality as Algerian. The Tribunal's decision should be set aside and the matter remitted to a differently constituted Tribunal be determined in accordance with law.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 17 June 2004
0