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MIGRATION – appeal from a decision of a Federal Magistrate affirming decision of Refugee Review Tribunal refusing appellant a protection visa – where the Tribunal made adverse findings regarding the appellant’s credibility and substance of his claim without considering the appellant’s initial interview with an adviser and an interpreter – whether jurisdictional error.

WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003]

WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 (24 December 2003)
Last Updated: 30 December 2003

FEDERAL COURT OF AUSTRALIA


WAFP v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 319


MIGRATION – appeal from a decision of a Federal Magistrate affirming decision of Refugee Review Tribunal refusing appellant a protection visa – where the Tribunal made adverse findings regarding the appellant’s credibility and substance of his claim without considering the appellant’s initial interview with an adviser and an interpreter – whether jurisdictional error.








Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 48A, 483A


Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited





WAFP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
W 145 OF 2003




LEE, CARR AND TAMBERLIN JJ
PERTH
24 DECEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 145 OF 2003


ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA


BETWEEN: WAFP
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: LEE, CARR AND TAMBERLIN JJ
DATE OF ORDER: 24 DECEMBER 2003
WHERE MADE: PERTH


THE COURT ORDERS THAT:

1. The appeal be allowed.


2. The orders of the Federal Magistrates Court made 10 June 2003 be set aside and in lieu thereof it be ordered that:

‘1. The application for orders in the nature of prerogative relief be granted.
2. The decision of the Refugee Review Tribunal made 1 March 2002 be set aside and the matter remitted to the Tribunal for determination according to law.
3. The respondent pay the applicant’s costs.’

3. The respondent pay the appellant’s costs.








Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 145 OF 2003


ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA


BETWEEN: WAFP
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: LEE, CARR AND TAMBERLIN JJ
DATE: 24 DECEMBER 2003
PLACE: PERTH


REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a decision of a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the RRT"), made on 1 March 2002, which affirmed a decision of a Ministerial delegate to refuse to grant a protection visa to the appellant under the Migration Act 1958 (Cth) ("the Act").

2 Counsel acting ‘pro bono publico’ appeared for the appellant before the Federal Magistrates Court and on the hearing of the appeal. At the appeal hearing, and without objection, counsel for the appellant was given leave to file amended grounds of appeal. Although the application for review was not stated in clear terms and may have appeared to rely on grounds arising under the Administrative Decisions (Judicial Review) Act 1977 (Cth), it appears that in the Federal Magistrates Court the application was taken to have been made under s 483A of the Act and s 39B of the Judiciary Act 1903 (Cth) seeking orders in the nature of prerogative relief in respect of the decision of the RRT.

3 The first ground of the amended appeal is that the RRT erred in law by finding, in the absence of any evidence, that it was not credible that the appellant would have been sponsored and employed by the Jordanian Royal Palace in Amman if his passport had indicated that he had left Sudan illegally. More specifically, it is stated that there was no evidence that: (a) passports were checked before employment of persons at the Palace; (b) the appellant’s passport had been checked; or (c) the appellant would not have been employed if the passport had indicated that he had left Sudan illegally.

4 The appellant contends that the Magistrate erred in not finding that this conclusion was erroneous in law, and that his Honour should have held that there was no evidence upon which that finding or statement could have been made.

5 The amended Notice of Appeal also asserts that the RRT erred in law when it found it "odd" that the appellant would take the risk of leaving Sudan illegally with the fairly strong possibility, on his own argument, that he would be detected and sent to be tortured. It is contended that the Magistrate compounded this error in concluding that this statement was part of the RRT reasoning process, rather than a finding of fact, and in finding that the RRT was not required to provide the appellant with an opportunity to challenge that conclusion, by making him aware of it, with the consequence that there was lack of procedural fairness.

6 The question whether the appellant’s departure from Sudan was illegal was central to the reasoning of the RRT.

BACKGROUND

7 The relevant circumstances can be shortly stated. The appellant, who was thirty-six years of age at the time of the relevant RRT decision of 1 February 2002, says that he refused to comply with a request to perform military service in Sudan when called up in 1990. He said that this was perceived as a refusal to join the army, and therefore as political opposition to the government, at a time when the country was involved in civil war. The appellant says that he had no alternative but to flee the country, which he did illegally in 1990, and he says that if returned he will be imprisoned for a long term and probably executed. He claims that this is a view supported by Amnesty International.

8 The appellant left Jordan in mid 1997 to travel to Australia on a Sudanese passport. He stayed in Malaysia for ten weeks, and says that his passport was lost or destroyed, and thrown overboard while at sea. He arrived in Australia on 25 July 1997 without any travel documents.

9 The history of the appellant’s attempts to secure a protection visa up to the date of the relevant RRT decision on 1 February 2002, is as follows. The appellant was interviewed on 27 June 1997 by an official of the then Department of Immigration and Multicultural Affairs ("the Department"). He lodged an application for a protection visa with the Department dated 8 September 1997. This application was made with the assistance of a registered migration agent, Florin Burhala of Victoria. On 10 September, the appellant was interviewed by an officer of the Department. In this interview, he stated that he had to cross the Sudanese border into Eritrea illegally. His application for a protection visa was refused on 27 October 1997, and that decision was affirmed by the RRT on 23 December 1997. The Minister made a decision to allow a second application, pursuant to s 48A of the Act, and the appellant lodged a second application for a protection visa on 22 April 1998. That application was refused by a Ministerial delegate on 20 August 1998, and the RRT affirmed that decision on 3 November 1998. The appellant was interviewed by each of the Ministerial delegates, and attended hearings before each member of the RRT.

10 The appellant challenged the RRT decision of 20 August 1998, and succeeded in the Federal Court by a decision of 28 June 1999, which was affirmed by the Full Court on 2 May 2000. The Minister appealed the Full Federal Court decision to the High Court, but subsequently discontinued that appeal, and the matter was remitted to the RRT to be determined in accordance with the orders of the primary judge of the Federal Court. The appellant attended the RRT hearing on 23 January 2002 and gave oral evidence. He was accompanied by an adviser at the hearing. He called two witnesses who gave evidence on his behalf. The RRT decision to refuse the appellant’s application was made on 1 February 2002 refusing his application.

THE RRT DECISION

11 The RRT accepted that the appellant is a national of Sudan, and that he had been able to renew his passport many times prior to 1993. It also found that he had made trips to and from Sudan without incident since 1990. The RRT concluded, in view of the appellant’s inconsistent statements, that he was not "always credible". One important example of the appellant’s inconsistency was said to be the claim in his original application that he left Sudan legally, using his Sudanese passport, which is to be contrasted with his later claim that his departure was illegal, which was subsequently perceived to be a core aspect of his application for a protection visa. The RRT observed that the appellant did not merely omit to say how he left his country, but made an express sworn statement that he left legally. However, the appellant’s "statement" that he left Sudan lawfully was in the form of a cross in a box on an application for a protection visa form, which was presumably completed by his adviser, Mr Burhala. The RRT makes no reference to the fact that on 10 September 1997, in an interview with an officer of the Department, assisted by an Arabic interpreter, the appellant said that he crossed the Sudanese border illegally, and gave details of surrounding circumstances which strongly support that assertion. The RRT noted that the appellant had referred to close ties between Jordanian and Sudanese authorities, and considered that it was reasonable to assume that the former would check with the latter about the bona fides of Sudanese citizens to whom the Jordanian authorities were considering the grant of resident visas. The member then made the observations referred to earlier, to the effect that it was not credible that the appellant would have been sponsored and employed by the Jordanian Royal Palace if he had left Sudan illegally. The RRT concluded that the appellant renewed his passport legally in Jordan and did not leave Sudan illegally, as claimed in his application for a protection visa. It disbelieved the appellant on this aspect.

12 Later in the reasons, the RRT refers to the member suggesting that the appellant could have avoided the call up by enrolling as a student in Sudan. The appellant says that this would be "cheating". The member’s view of this was that it was very "odd" that he would risk leaving the country illegally, being detected and being sent to be tortured rather than "cheating".

13 The RRT found that the appellant returned to Sudan in 1990, that he was not subject to any conscription call-up, and that he left legally. Extensive reference was made throughout the RRT reasons to country information. The RRT concluded:

"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 has embellished his claims to have been an active member of Umma [one of Sudan’s main opposition political parties] 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 the 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."

THE MAGISTRATE’S DECISION

14 After considering the RRT decision, the Magistrate concluded that the RRT’s statement concerning the Royal Palace was not a matter which was required to be put to the appellant, and that it was not a finding of fact, but was part of the process of reasoning which, taken with other material, led the member to disbelieve the appellant’s assertions. The Magistrate emphasised that the appellant had made an "express sworn statement" in his original protection visa application that he had left Sudan legally. This was a reference to the crossed box on the application form. The Magistrate makes no reference to the statement that the appellant made two days later, with the benefit of an interpreter, giving details about his illegal crossing of the Sudanese border into Eritrea.

15 In relation to the RRT’s finding concerning the oddity of the behaviour of the appellant in deciding to risk illegal departure, capture and torture, rather than making a "cheating" application to be a student in order to avoid the draft, the Magistrate considered that this determination was part of the reasoning process of the RRT, and that no reviewable error was disclosed.

REASONING ON APPEAL

16 The appellant’s crossing of the box in his original visa application to indicate that he left Sudan legally, together with the RRT’s findings with regard to the appellant’s credibility, provided the principal basis for the RRT’s conclusion that the appellant’s application should be rejected in relation to the assertion of illegal departure from Sudan. However, the RRT did not refer to or give any weight to the circumstance that two days later, in the interview with the interpreter, he stated that he had left "illegally". In that interview, the appellant gave details of waiting outside the city of Kassala to find a way to Eritrea, and referred to fleeing Sudan after staying outside Kassala for twenty to twenty-five days. These are not the hallmarks of a legal departure from Sudan. There is nothing in the material to indicate that any of the appellant’s documents would have indicated to employers that he had left Sudan illegally. The view of the RRT is largely based on pure speculation. It does not follow from the RRT’s observation that there is a close relationship between Sudanese and Jordanian authorities, that the appellant’s illegal departure would have been detected by the Jordanian Royal Palace. There is a significant deficiency in the reasoning of the RRT in its approach to the inferences drawn from the appellant’s employment in the Palace.

17 In evaluating the credibility of the appellant’s statement regarding his illegal departure from Sudan, it is, of course, open to the RRT to act on a view as to what was likely in the ordinary course of events. The RRT’s statement about probability is one way of testing the appellant’s assertion. It is not essential to have evidence that demonstrates whether a passport would be checked or required to be produced, or whether a person would be rejected on the basis of a suspect passport. Drawing conclusions on the basis of less than definitive evidence can often constitute part of the RRT’s appraisal and evaluative process, and does not itself constitute a finding of fact.

18 It is evident that the RRT attached great importance to its conclusion that the appellant left Sudan legally, both as to his credibility generally and the substance of his claim that he was driven to leave due Sudan because of his refusal to be conscripted. However, when the RRT considered the material before it, it referred to the crossed box in the visa application form, and to two other matters, but omitted to refer to the fact that at the first opportunity that the appellant was given to be interviewed with an adviser and an interpreter, he said he had left illegally and gave evidence of surrounding facts which strongly corroborate that statement.

19 In our view, the RRT has failed to have regard in its reasons to important relevant material going to a central consideration in this matter, namely, the legality of the appellant’s departure from Sudan.

20 The second observation made by the RRT member, regarding the appellant’s claim that, as a result of his illegal departure, he could suffer detention and torture if returned to Sudan, is part of the reasoning process. This observation must be approached in the context of the specific question that the member posed to the appellant, and considered in the light of the other material before the RRT. It was open to the RRT, when considering the evidence, to accept the proposition that it would be unlikely or incredible that a person would expose himself to detention and torture as a consequence of illegal departure, rather than enrolling as a student. This is not a finding of fact, but is part of a reasoning process used to evaluate the evidence and the assertions made by the appellant, in deciding whether the appellant’s version of events should be accepted.

21 However, in our view, the failure by the RRT to refer to the interview of 10 September 1997 and to take it into account in considering whether the appellant departed illegally did amount to an error of law, because it constituted a failure to have regard to relevant material, which is so fundamental that it goes to jurisdiction: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82].

22 The appropriate orders are that the appeal be allowed; the orders of the learned Magistrate be set aside; the matter be remitted to the Refugee Review Tribunal for determination in accordance with law; and that the respondent pay the costs of the appellant of the appeal, and of the proceedings before the Magistrate.




I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.



Associate:

Dated: 24 December 2003



Counsel for the Applicant: Mr MJ Hawkins (pro bono publico)



Counsel for the Respondent: Mr PR Macliver



Solicitor for the Respondent: Australian Government Solicitor



Date of Hearing: 27 November 2003



Date of Judgment: 24 December 2003
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