The Tribunal amends its decisions and reasons for decision published on 16 June 2010 as follows:
1. At page four:
(a)changing the application number from 2008/6010 to 2008/6011; and
(b)deleting FRFJ as the name of the Respondent and inserting Minister for Immigration and Citizenship;
2.At page five:
(a)changing the application number from 2008/6011 to 2008/6010;
(b)deleting SHVF as the name of the Respondent and inserting Minister for Immigration and Citizenship; and
(c)Where the names of those constituting the Tribunal are listed, insert in the next line after Deputy President S A Forgie, Senior Member E Fice; and
3.At page 112, following the certification of the decision and reasons for decision and following those listed as Counsel for the Applicants insert after Ms Debbie Mortimer SC and Mr Guy Gilbert.
S A Forgie Deputy President
CATCHWORDS – IMMIGRATION – REFUGEES – protection visa - whether applicants are persons to whom Australia has protection obligations under refugee conventions - whether serious reasons to believe applicants have committed serious non-political crimes - decisions set aside.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
YYMT and FRFJ [2010] AATA 447
Case
[2010] AATA 447
Decision Date
CaseChat Overview and Summary
The applicants, YYMT and FRFJ, were the subject of a legal dispute concerning their eligibility for a protection visa in Australia. They argued that they were owed protection obligations under the relevant refugee conventions. The respondents, however, asserted that the applicants had committed serious non-political crimes outside their country of refuge prior to their admission as refugees, thereby excluding them from the protection of the Convention. This case was heard and determined by the Federal Court of Australia.
The court was required to decide whether the applicants were persons to whom Australia owed protection obligations under the relevant refugee conventions. Additionally, it had to determine whether there were serious reasons to believe that the applicants had committed serious non-political crimes outside their country of refuge prior to their admission as refugees. The court was tasked with assessing the credibility of the evidence provided by the applicants and the respondents, and weighing the conflicting testimonies to reach a conclusion.
In reaching its decision, the court considered the principles of expert evidence of foreign law, as elucidated in R v Mokbel. The court emphasised the importance of expert evidence meeting the expected standards, and the need for the court to make its own interpretation of foreign law based on the evidence presented. The court also noted that if there was a conflict in expert testimony, it had to reach its own interpretation of the foreign law, taking into account the evidence given. The court concluded that if the evidence did not satisfy it as to what the relevant law was, its application and effect, then the party seeking to prove the foreign law would fail.
The Federal Court set aside the decision of the respondent and substituted a decision that the provisions of Art 1F(b) of the 1951 Convention Relating to the Status of Refugees with the 1967 Protocol did not exclude the application of that Convention to the applicants. This meant that there were no serious reasons for considering that the applicants had committed a serious non-political crime outside their country of refuge prior to their admission as refugees.
Orders
Orders of the court
The Tribunal:
1. sets aside the decision of the respondent dated 11 December 2008; and
2. substitutes a decision that the provisions of Art 1F(b) of the 1951 Convention Relating to the Status of Refugees with the 1967 Protocol do not exclude the application of that Convention to YYMT and MQCR, i.e. there are no serious reasons for considering that YYMT and/or MQCR committed a serious non-political crime outside the country of refuge prior to their admission to that country as a refugee.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Where expert evidence of a foreign law is given, it must meet the standards expected of all expert evidence. As Gillard J noted in R v Mokbel (Ruling No 4),[56] the expert may be cross-examined. An expert:“… is entitled to state his opinion based upon his knowledge and practical experience of the foreign law and of course he may refer to statutory provisions, decisions or codes for the purpose of doing so. But in any such event, the Court is at liberty to examine the particular law or code or decision in order to determine the correct statement of the law. In De Beeche v South American Stores Ltd and Chilean Stores Ltd … [[1935] AC 148], Viscount Sankey LC stated:‘Whilst it is true that the witnesses called to prove foreign law may refer to any passages in the code of their country as containing the law applicable to the case, the Court is at liberty to look at those passages and consider what is their proper meaning.’… If there is a conflict of testimony, … the Court must reach its own interpretation of the foreign law taking into account the evidence given. See Lazard Bros v Midland Bank. [[1933] AC 279 at 298]. Lord Wright in that case summarised the law as follows:‘What the Russian Soviet law is in that respect is a question of fact, of which the English court cannot take judicial cognisance even though the foreign law has already been proved before it in another case. The court must act upon the evidence before it in the actual case. … No earlier decision of the court can relieve the judge of the duty of deciding the question of the actual evidence given in the particular case. On what evidence of the foreign law a court can act has often been discussed. The evidence it is clear must be that of a qualified expert in the foreign law. If the law is contained in a code or written form, the question is not as to the language of the written law, but what the law is as shown by its exposition interpretation and adjudication: so in effect it was laid down by Coleridge J in Baron d Bode’s case. In the Sussex peerage case, Lord Denman stated his opinion as to the same effect as he had done in the Bardon de Bode’s case. He said that if there be a conflict of evidence of the experts, “you (the judge) must decide as well as you can on the conflicting testimony, but you must take the evidence from the witnesses.” Hence the court is not entitled to construe a foreign code itself: it has not “organs to know and to deal with the text of that law” (as was said by Lord Brougham in the Sussex peerage case). The text of the foreign law if put in evidence by the experts may be considered, if at all, only as part of the evidence and is a help to decide between conflicting expert testimony.’(Emphases added)In my respectful opinion, that summarises the law and the principles that must be applied in this proceeding.’[57][56] [2006] VSC 137[57] [2006] VSC 137 at [24]-[26] Gillard J concluded that, although the principles had been developed in civil proceedings, they applied equally to criminal proceedings.[58] The defence had raised the issue of foreign law in that case. It would seem that it did so in order to challenge whether actions taken by a US Federal Customs Officer in the United States of America to locate and check for two cocaine packages were actions taken in what would amount to a controlled operation under various provisions of the Commonwealth and State laws. If they were and the prescribed procedures followed, the officer would have been permitted to locate and check the packages without committing an offence. Gillard J found that the defence had to prove the foreign law on the balance of probabilities and said:“… the Court would not accept evidence that is unpersuasive, or reveals that the whole law which bears on the factual matters has not been placed before the Court. Like any other finding of fact, the Court must do its best on the evidence but if the evidence does not satisfy the Court as to what the relevant law was, its application and effect, then the defence, as the party seeking to prove the foreign law, fails. …… [I]f the court seeks to examine the foreign sources to form some opinion, it would only reach a conclusion if the evidence established that the Court had all the law relevant to the topic in evidence and that the Court felt a degree of confidence that its decision on what was the foreign law was soundly based. ”[59][58] [2006] VSC 137 at [28][59] [2006] VSC 137 at [45]-[46]