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MIGRATION - Review of decision of the Refugee Review Tribunal - application for a protection visa - whether the applicant has a well-founded fear of persecution for political reasons - where the matter had already been remitted to the Tribunal for reconsideration previously - whether the second Tribunal made a jurisdictional error - whether the applicant was denied procedural fairness - whether there is a duty to make further enquiries - whether there is an obligation for the Tribunal to put to applicant his own previous inconsistent statements - whether the Tribunal has an obligation to put all adverse country material to the applicant - whether the Tribunal was guilty of apprehended bias or actual bias.

WAFP v Minister for Immigration [2003] FMCA 215 (10 June 2003)

WAFP v Minister for Immigration [2003] FMCA 215 (10 June 2003)
Last Updated: 19 June 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAFP v MINISTER FOR IMMIGRATION
[2003] FMCA 215



MIGRATION - Review of decision of the Refugee Review Tribunal - application for a protection visa - whether the applicant has a well-founded fear of persecution for political reasons - where the matter had already been remitted to the Tribunal for reconsideration previously - whether the second Tribunal made a jurisdictional error - whether the applicant was denied procedural fairness - whether there is a duty to make further enquiries - whether there is an obligation for the Tribunal to put to applicant his own previous inconsistent statements - whether the Tribunal has an obligation to put all adverse country material to the applicant - whether the Tribunal was guilty of apprehended bias or actual bias.



Migration Act 1958 (Cth) ss.48A, 430

Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275

Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553

Re Minister for Immigration; Ex parte A [2002] 185 ALR 489

Re Minister for Immigration; Ex parte Cassim (2000) 74 ALJR 1404

Azzi v Minister for Immigration [2002] FCA 24

NACC v Minister for Immigration [2002] FCA 333

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

H v Minister for Immigration (2000) 63 ALD 43

WAGH v Minister for Immigration [2003] FCA 8


Applicant:
WAFP



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 79 of 2002



Delivered on:


10 June 2003



Delivered at:


Sydney



Hearing date:


29 May 2003 at Sydney via videolink to Perth



Judgment of:


Raphael FM


REPRESENTATION

Counsel for the Applicant:


Mr J Hawkins



Counsel for the Respondent:


Mr P Macliver



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs in the sum of $4,250.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 79 of 2002

WAFP


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant, whose claim to be of Sudanese nationality was accepted by the Refugee Review Tribunal, arrived in Australia on 25 July 1997. He was taken into immigration detention and on 22 September 1997 lodged an application for a protection (Class XA) visa. His application was refused on 27 October 1997 and that decision was affirmed by the Refugee Review Tribunal on 23 December 1997. The applicant lodged a second application for a protection visa on 22 April 1998 pursuant to a decision to allow a second application made by the Minister for Immigration under s.48A. That application was refused by a delegate on 20 August 1998 and the decision was confirmed by the Refugee Review Tribunal on 3 November 1998.

2. This second decision of the Tribunal was reviewed by the Federal Court (Lee J, 29 June 1999) and the Full Federal Court (2 May 2000). The decision of the Tribunal was held to be invalid and the Minister, after considering an appeal to the High Court, allowed the matter to be discontinued and remitted to a Tribunal differently constituted. That Tribunal held a hearing on 23 January 2002 and came to its decision on 1 February 2002. The decision was handed down on 1 March 2002. It is that decision which is the subject matter of this application for review.

3. In his response to the bio-data questionnaire contained at [CB 1] the applicant indicates he was born on 1 January 1966. He claims that he left high school in 1981 and worked on a farm for two years. He then left the Sudan for Iraq in 1983 returning in 1990. During that time he became first a butcher and then a chef at an international hotel. He returned to Sudan regularly on leave. In 1990 he left Iraq because of the war and returned home but, he found, by way of a radio announcement, that he was subject to call up pursuant to a government decree made in 1989. He left his home and fled to Kassala. From Kassala he crossed the border into Eritrea and from thence found his way to Jordan. He remained in Jordan until 1997 when he travelled to Australia via Malaysia.

4. The applicant claimed that he had a well-founded fear of persecution for convention reasons based upon the following matters, which presumably constituted persecution by reason of imputed political opinion. Firstly, the applicant claimed that whilst in Jordan he had joined the opposition Umma Party and carried on work for it at a level which would have ensured that his name came to the attention of the Sudanese government who would arrest and imprison him upon his return. Secondly, the applicant claimed that as he had left the country in order to avoid conscription and had not completed any national service he would be arrested and imprisoned and possibly required to undertake a period of national service in the south of the country where the civil war was raging. Thirdly, the applicant claimed that because of the publicity given to his case in Australia when it was being considered by the Federal Court and the Full Bench of the Federal Court it would have become known to the Sudanese government that he was claiming to be opposed to them and as a result he would be arrested upon arrival. Finally, the applicant indicated that if he returned to the country after having left it illegally he would be subjected to imprisonment and persecution.

5. The Tribunal dealt with the applicant's claims in detail, some of which will be rehearsed in these reasons for decision. At [CB 454] the Tribunal said:

"In summary, the Tribunal did not find the applicant to be a particularly truthful witness. It is satisfied that he fabricated his evidence that he was subject to conscription, left Sudan illegally and sent a letter setting out his claims to be a refugee to his brother. It is satisfied that he has embellished his claims to have been an active member of Umma and finds he was a low level supporter in Jordan and has been inactive since arriving in Australia. It finds that he does not face a real chance of persecution for the reasons he has described. Even if the Sudanese authorities are aware that he has made a refugee application in Australia, are aware of that contents of that application and know that the applicant has been kept in immigration detention, the Tribunal is still not satisfied that he faces a real chance of persecution if he returns to Sudan."

6. The applicant was represented at the hearing of this matter by Mr Hawkins who appeared pro bono. The court is grateful to Mr Hawkins and other colleagues of his in Western Australia who undertake these cases on this basis, for their intervention is always of assistance to the court.

7. There was filed on behalf of the applicant an amended grounds of application which stated as follows:

"The grounds of the application are:

A The Tribunal made a number of errors that amounted to a "jurisdictional error", alternatively that amounted to the Tribunal member acting in excess of jurisdiction;

B The Tribunal member's decision was not made in good faith;

C The Tribunal member's decision was affected by actual bias against the applicant.

In that:

1 The member failed to comply with Migration Act sections 424A(1) and 425(1) alternatively failed to accord natural justice and/or procedural fairness in that the member failed to bring to the applicant's attention critical issues or factors upon which the member's decision was likely to turn."

There is then set out 11 paragraphs of particulars and I shall deal with each in turn:

1.1 The Tribunal found as a fact that in order to strengthen his claims to be recognised as a refugee the applicant changed his account as to how he left Sudan [CB 445]. There was no evidence to that effect and the member did not put this view to the applicant.

What is said at [CB 445] is the following:

"It was asserted at the hearing before this Tribunal that the applicant has always claimed he illegally left Sudan. That is not the case. In his first application form, he said he left legally using his Sudanese passport (see part C, Item 43). The statement that accompanied that application did not say he left illegally, although he has since argued that his illegal departure is a core aspect of his claim to protection. He did not make the claim at his entry interview, either, although it appears he had the opportunity to do so when he discussed why he left Sudan and how he got to Australia. ... However, by the time he made his protection visa application, he had had time to collect his thoughts and had been advised by a lawyer experienced in refugee matters and in dealing with the special needs of applicants in migration detention. He did not merely omit to say how he left his country but made an express, sworn statement that he left legally. In the circumstances, the Tribunal concludes that he did leave Sudan legally and that he later changed that account in order to strengthen his claims to be recognised as refugee."

8. What actually occurred was that the only real statement that the applicant left Sudan legally is contained in the "tick a box" answer to question 43 of the form of application for a protection visa (866) found at [CB 35]. The applicant sought leave, which was not opposed by the respondent, to file an affidavit from the applicant. This affidavit explained how he thought the box had come to be ticked in the fashion it had (he had not checked the completed document after his solicitor had assisted him, he just signed it). At paragraph 18 of the affidavit he says:

"If the Tribunal member had asked me about these forms I would have told him that the forms were not correct and I would have told him the circumstances under which they were filled in. I had already told him in the hearing that I left illegally."

9. It is certainly true that one of the reasons that the Tribunal came to the view that the applicant had left the country legally was because he signed the form prepared by his solicitor in which that box had been ticked. But that is not the only reason. At [CB 445/456] there is discussion about the renewal of the applicant's passport in Jordan. The Tribunal comes to the view that the applicant renewed his passport and stated:

"It is not credible that the applicant would have been sponsored and employed by the Royal Palace in Amman, if his passport had indicated that he had left Sudan illegally."

10. There was thus evidence available to the Tribunal to come to the conclusion which it did without relying on the admission in the application. The applicant argues that it was unfair of the Tribunal not to put his response in the application to him at the hearing. I am not sure that is the case. The Tribunal's task is not to cross-examine applicants but to enquire into their claims and make a decision upon them. Decisions and dicta in the Federal Court of Australia indicate that a failure by the Tribunal to make inquiries about the claims or the evidence of an applicant may sometimes be a breach of the rules of natural justice or render the decision unreasonable (Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553). However, in Re Minister for Immigration; Ex parte Cassim (2000) 74 ALJR 1404 the High Court held that there is no general duty to make inquiries about an applicant's claim but rather the "Tribunal should only make inquiries if the material is `readily available'"[13]. Further in Azzi v Minister for Immigration [2002] FCA 24 and NACC v Minister for Immigration [2002] FCA 333 the court held that the duty to enquire will only exist in rare and exceptional cases. There is also no requirement for a Tribunal to put to an applicant information in his own documentation which might give the Tribunal cause for concern.

11.

1.2 The Tribunal member did not point out to the applicant that contrary to the submissions made on his behalf that the applicant had always claimed he illegally left Sudan, in his first application form he said that he left legally housing his Sudanese passport.

This particular submission is similar to the claim made above that the Tribunal had some obligation to point out to the applicant what he himself had already written. For the reasons given above I do not believe that the Tribunal has such an obligation. As stated above the dichotomy between the original application and the later testimony was one of the reasons given by the Tribunal to believe that the applicant left the Sudan legally. But there was other evidence, discussed above, from which the same conclusion could have been drawn.

12.

1.3 By reason of the matters particularised in 1.1 and 1.2, the member deprived the applicant of the opportunity to give evidence or to explain the discrepancy between the form dated 8 September 1997, the statement dated 9 September 1997, and the statements he made when interviewed on 10 September 1997.

This is the same point as raised in 1.1 and 1.2

13.

1.4 The Tribunal held that the applicant was not subject to a conscription call while he was in Sudan in 1990. The basis for that finding appears to be findings at [CB 447] that conscription was not introduced until after the applicant had left Sudan. The material at 447 upon which the member relied to make the findings about the introduction of conscription does not definitely say that conscription was not implemented before the applicant had left Sudan. Further, this material was not put to the applicant or his witness Ahmed Khalid Fadlalla, and was contrary to evidence given by Fadlalla at [CB 373 and 418].

In Mr Fadlalla's statement at [CB 373] he says:

"After this current government came to power in Sudan, military service became compulsory as soon as you turn 18."

At the transcript at [CB 418] he explains that the government came to power in 1989 and that military service was immediately compulsory for anyone over 18.

14. The Tribunal relied upon country information set out at [CB 447] which confirmed that conscription had been introduced in 1989 but indicated that it had not been necessary to impose a draft. This information was based on research completed in June 1991, after the applicant left the Sudan. There was therefore evidence upon which the Tribunal could come to the conclusion to which it came. In Re Minister for Immigration; Ex parte A [2002] 185 ALR 489 at 500 [49-55] Kirby J considers the appropriateness of the Tribunal putting adverse country material to an applicant. He states at [50]:

"The foregoing are reasons why, whatever the exemptions provided by the Act, the Tribunal, performing its functions independently and justly as the Parliament contemplated, might in a particular case need to afford an applicant notice of at least the substance of apparently adverse country material. Contrary evidence and materials as well as contradictory submissions could then contribute to better decision-making - a principal purpose of modern administrative law."

The vice Kirby J was seeking to remedy was one in which an applicant had no chance to refute particularly damaging country information. But in this case the applicant did have such an opportunity. He gave his own evidence about when conscription came in and he called a witness. The Tribunal was then able to choose between the country information and the evidence provided by the applicant. It did. It chose against the applicant. This is the Tribunal's privilege. It is not a reviewable action.

15.

1.5 The Tribunal member found that the applicant is above the maximum call up age and that he did not face a real chance of being conscripted if he returned. The member did not put to the applicant or his witness Ahmed Khalid Fadlalla the material that member relied on to make those findings.

The relevant extract from the Tribunal is found at [CB 448]. What in fact occurred was that the Tribunal used the evidence of the applicant and his own witness to come to the view that the maximum call up age was 33. It noted the witness' evidence that the authorities sometimes randomly ignored that maximum age and relied on some general country information to find that the applicant did not face a "real chance" of call up. Once again the Tribunal has made a finding based upon its assessment of available evidence.

16.

1.6 The Tribunal member did not refer to country information that was provided in written submissions to the effect that any Sudanese who returned to Sudan after staying out of the country for a year or more was taken to security police headquarters and, if they had taken part in political activity while abroad, risked ill treatment including torture [CB 275]. The Tribunal member's implied finding that the information was not relevant was a critical issue and by not telling the applicant that the member proposed to disregard the information, the member denied the applicant the opportunity of persuading the member that the information was pertinent to any finding that there was a basis for the applicant's fear that he would be tortured on his return.

The extract found at [CB 275] is from country information provided by the Research Branch, Canadian Immigration and Refugee Board. It deals with people returning to the Sudan with a Sudanese passport that does not have in it an exit visa. It states that such persons would be the subject of questioning at the border control. It says that the fact that a person left Sudan without an exit visa might suggest that the person was a political opponent of the government and therefore he or she would be detained upon return. But the final paragraph of the extract says:

"A representative of Sudanese Democratic Forum in London, UK, in a telephone interview speculated that no penalty for illegally leaving Sudan would be invoked if the person had connections to the National Islamic Front, or if the person had no record of political activities either in Sudan or while out of the country."

17. It can be assumed that the Tribunal compared this information with the information provided by the applicant. It did not disregard the information provided by the applicant but chose the information appearing in the Court Book over his information. It must be remembered that the Tribunal had already decided that the applicant did not leave the country illegally. There is no obligation on the Tribunal to refer to in its reasons for decision to every piece of evidence and information provided by an applicant. Pursuant to s.430 of the Migration Act 1958 (Cth) the Tribunal is only required to set out the evidence or other material upon which its findings are based.

18.

1.7 The Tribunal member's finding at [CB 448], that it was odd that the applicant took the risk of leaving the country illegally with the fairly strong possibility that he would be detected and sent to torture centres was not supported by any evidence and the issue and reasoning were never put to the applicant.

This is not a finding of fact made by the Tribunal, but rather is part of the Tribunal's reasoning process. It does not reveal a failure to provide the applicant with procedural fairness.

19.

1.8 There was no evidence to support the Tribunal member's finding at [CB 446] that the applicant renewed his passport legally.

These matters are dealt with by the Tribunal at [CB 445-446]. The Tribunal relied on evidence from the applicant that whilst in Jordan he was sponsored and employed by the Royal Palace in Amman. It did not accept his story that he renewed the passport illegally because it did not think that the applicant would have this sponsorship if he had left Sudan illegally. The Tribunal has made findings of fact. Such findings are not reviewable where there is evidence from which they can be supported.

20.

1.9 There was no evidence to support the Tribunal member's finding at [CB 446] that the applicant would not have been employed in the Royal Palace in Amman, if his passport had indicated that the applicant had left Sudan illegally. Further, the applicant was not invited to present arguments or evidence on the issue.

As stated above, the conclusions reached by the Tribunal were its findings as to fact and the comments made indicate its process of reasoning. Factual error does not constitute jurisdictional error.

21.

1.10 There was no evidence that the Government had announced a call up for military service before the applicant returned to his country in 1990...

There was evidence about this. It was given by Mr Fadlalla. It was also in the country information previously quoted. It was my understanding that the applicant's Counsel did not press this matter.

22.

1.11 The Tribunal member's lack of good faith alternatively bias is further made apparent by

(a) the method and manner of questioning the applicant as to his nationality and right to return to Iraq, Jordan and Malaysia when the applicant's nationality was not an issue [CB 384-390, 425] and the member was of the opinion that the applicant had no right to return to Iraq, Jordan or Malaysia [9analogous to SCAN v MIMIA 11 March 2003 where the Tribunal had misled the applicant to believe that the Tribunal considered a document to be genuine, and later stating that they had always had concerns over the genuineness of the document - found to be failure to afford procedural fairness, loss of opportunity to put forward other evidence)];

[the Tribunal Member's attitude towards the applicant as evidence by the exchanges on pages 388, 389, 393, 396 (transcript) and the finding that the applicant is `prone to embellishing and concocting' (decision page 453);] and

(b) the Tribunal member's attitude towards the solicitor who appeared for the applicant, as evidenced by the exchanges at [CB 396, 402, 403, 410, 429, 430 and the finding at 446 that the applicant "may have told his current adviser" that he renewed his passport illegally.

In respect of the complaint at (a) I am satisfied from considering the transcript that the Tribunal properly questioned the applicant in relation to his nationality and his rights of return to other countries. It is quite clear that what then happened was that the Tribunal became convinced that the applicant could not return to other countries and was a citizen of the Sudan and eventually so stated. Neither the questioning nor the conclusions reached by the Tribunal open up any suggestion of actual or apprehended bias. I have also looked at the references made to the transcript of proceedings. The applicant alleges that these show apprehended bias or unfairness on the part of the Tribunal. I am mindful of what the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 has said in regard to these vices. I am not however satisfied that the remarks referred to are more than vigorous exchanges between the Tribunal, the applicant and his representative. I also note that in H v Minister for Immigration (2000) 63 ALD 43 at [12] the court referred to a comment made by Hely J where the Tribunal member exhibited a degree of scepticism and impatience with the story which was being told to him:

"It is probably a fair comment to say that the transcript reveals that the presiding member exhibited a degree of scepticism and impatience with the story which was being told to him. At some points in the transcript, the presiding member indicated that he did not find what was being put to him by the applicant in the least bit convincing, and that he believed that the applicant was lying. ...

It would have been better if some of the statements made by the member had been left unsaid. But I am not satisfied that the member came to the hearing with his mind made up such that he was not open to persuasion."

23. Furthermore in WAGH v Minister for Immigration [2003] FCA 8 where an applicant argued that the Tribunal's failure to look at the applicant during the hearing, making negative hand gestures and using a short tone resulted in an absence of bona fides, French J stated at [51]:

"Want of good faith on the part of the Tribunal is a serious allegation which is not a vehicle for exploration of the merits of the Tribunal's factual reasoning nor review of the levels of patience or courtesy exhibited by Tribunal members."

I am unable to find that the Tribunal has fallen into jurisdictional error in this manner.

24. When one steps back and considers this case, away from the drama of the court room, it is clear that the well rehearsed and skilfully made arguments of Mr Hawkins were really an attack upon the verdict of the Tribunal by an applicant who believes that the Tribunal made a number of essential errors of fact. The applicant says that he did leave the Sudan illegally. The applicant says that he did not renew his passport legally. The applicant says that he will be in danger if he returns to the country by reason of his political association and his having left the country illegally and the imputed political association that will involve. He says that he will be persecuted upon his return to the country because of his failure to be conscripted. The applicant put the best case he could upon those points. He called evidence in support. The Tribunal considered the applicant's claims and his evidence and considered other country information which led it to come to the conclusion that the claims of the applicant were without substance. In undertaking that task the Tribunal acted within its jurisdiction. The application must be dismissed. I order that the applicant pay the respondent's costs assessed in the sum of $4,250.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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