FEDERAL COURT OF AUSTRALIA
MIGRATION – application for review of decision of Refugee Review Tribunal (“RRT”) that the applicant is not a refugee – whether application for review can be remitted to RRT pursuant to s 481(1)(b) of the Migration Act 1958 (“the Act”) without a determination pursuant to s 481(1)(a) of the Act – whether evidence not before RRT admissible upon an application for review – basis of admissibility of such evidence – whether error of law by RRT in failing to review its findings of fact before concluding that applicant did not have a well-founded fear of persecution – degree of certainty of such findings of fact before RRT absolved from asking “What if I am wrong?” – whether RRT should have made further enquiries to verify authenticity of documents
Migration Act 1958, ss 50, 414, 416, 420, 425(1), 427(1)(d), 476(1)(a), 481(1)(a), 481(1)(b)
Administrative Appeals Tribunal Act 1975
Administrative Decisions (Judicial Review) Act 1977, s 5
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 160 CLR 379
Jegan Kirupatharan v The Minister for Immigration and Multicultural Affairs (Heerey J, unreported, 3 December 1997)
Jayasinghe v Minister for Immigration and Ethnic Affairs & Anor (1997) 76 FCR 301
Ovali v Minister for Immigration and Multicultural Affairs (Finn J, unreported, 24 October 1997)
Kemal Ozberk & Ors v Minister for Immigration and Multicultural Affairs (Marshall J, unreported, 19 January 1998)
Resmiye Polat & Ors v Minister for Immigration and Multicultural Affairs (O’Connor J, unreported, 25 March 1998)
Commonwealth Bank of Australia v Quade & Ors (1991) 178 CLR 134
Servos v Repatriation Commission (1995) 56 FCR 377
Szelagowicz v Stocker 35 ALD 16
Mendoza v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 405
Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300
Dharam Raj v Minister for Immigration and Ethnic Affairs (Davies J, unreported, 18 July 1996)
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Tranh Phat Ma v Billings (1996) 142 ALR 158
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409
Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553
Kathiresan v Minister for Immigration and Multicultural Affairs (Gray J, unreported, 4 March 1998)
NILUFER DEMIR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 2 of 1998
RYAN J
19 OCTOBER 1998
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
NILUFER DEMIR Applicant
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
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DATE OF ORDER: |
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WHERE MADE: |
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MINUTES OF ORDER
THE COURT ORDERS:
1. That the decision of the Refugee Review Tribunal dated 3 December 1996 be set aside.
2. That the matter to which that decision relates be referred to the Refugee Review Tribunal for further consideration according to law.
3. That the respondent pay the applicant’s costs of the application.
Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VG 2 of 1997 |
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BETWEEN: |
Applicant
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal (“the RRT”) made on 3 December 1996 affirming a decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant, a citizen of Turkey, was granted a visitor visa on 25 July 1995 in Ankara, Turkey and arrived in Australia on 10 August 1995. By application lodged on 30 October 1995 she applied for a protection visa and on 22 July 1996 a delegate of the respondent refused that application. On 3 December 1996 the RRT affirmed the decision of the delegate. It is that decision of the RRT which the applicant seeks to review.
The Applicant’s Claims And Evidence
The applicant is of Kurdish ethnicity and is an Alevi. She came from Kayseri in Turkey and in September 1994 she commenced a period of study at the University in Antakya. At the end of her first year at university the applicant decided to come to Australia for a holiday for two months. She purchased a return ticket. However, while the applicant was in Australia, she claimed she heard that the police in Turkey were searching for her not only in her home town of Kayseri but also in Antakya 450 kilometres away. She assumed that one of her friends had been detained and had provided information about her activities. The applicant claimed that while she had been living in Kayseri she used to attend meetings at which issues related to the Kurdish people in Turkey were discussed. She claimed that apart from attending these meetings and “helping people from the East” she had not been involved in any other activities during that period. The applicant also asserted that when she went to university in Antakya she had initially kept her Kurdish identity secret but that, after some anti-Kurdish comments made by one of her teachers, she subsequently disclosed to her close friends that she was a Kurd and an Alevi. She then joined a group of Kurdish students who held discussions about the pressure on Kurds and Alevis in Turkey.
The applicant claimed that, as a result of her identifying with the Kurdish people, she was harassed and sworn at from time to time at the university. She also claimed that she was sometimes pushed out of line and given smaller portions of food at the university cafeteria and that, in one incident, a friend of hers was punched in the face and hospitalised. She was not involved in this incident but believed that it had occurred because her friend was Kurdish. On another occasion, the applicant asserted, a meeting of her group had to be deferred because the members believed that it would be raided by the police.
According to the applicant, she came to Australia intending to return to Turkey but, following conversations with her mother, who had advised her that the police were looking for her, she determined to apply for refugee status. The applicant further said that she had told her mother that she needed proof of the police interest in her and that, as a result, her mother sent to her in Australia two documents, one purporting to be a warrant for her arrest (“the arrest warrant”) and one purporting to be a statement setting out the offence which the applicant was alleged to have committed (“the charge sheet”). The applicant claimed that her mother had requested her not to ask where her mother had obtained the arrest warrant and the charge sheet.
The arrest warrant and the charge sheet were in evidence before the RRT in both their original form and in translation. The arrest warrant, in translation, was in the following terms:
WARRANT FOR ARREST
The name and surname of the accused: : Nilufer DEMIR
Address of residence and work: : Adnan Menderes Cad. 16.
sk, Yildirim Apt. Kat: 2 No: 5
ANTAKYA
Physical description of the accused :
The Court issuing the warrant for arrest : The Republic of Turkey
KAYSERI
Criminal Court No. 1
File Number : 1995/329
The offence she is charged with : To be a member of and helping
an illegal organisation.
Reasons for issuing the warrant for arrest: The possibility that the accused
may abscond.
This is a Warrant for Arrest of Nilufer DEMIR for whom a Warrant for Arrest has been issued for the reasons given above under Article 104 of Criminal Law. 15/09/1995
Clerk Judge
Signed Seal and Signature
(illegible)
The charge sheet, in translation, was in the following terms:
The Republic of Turkey
KAYSERI
Criminal Court No. 1
File No. : 1995/543
Order No. : 1995/206
THE MATTER IS OUT OF THE JURISDICTION OF THE COURT
THE APPLICANT : K.H. (*)
THE ACCUSED: : 1- Nilufer DEMIR, daughters (sic) of Namik Kemal
and Sehriban, born on 19.10.1974 in Erzurum,
resides at Adnan Menderes Cad. 16.sk. Yildirim Apt.
Kat:2 ANTAKYA. Student at the department of
Garden Plants at the faculty of Agriculture, Mustafa
Kemal University.
2- Muhsin BAHAR, sons (sic) of Suleyman and
Hatice, born on 23.10.1973 in Kayseri, resides at
Fevzicakmak Mah. Billur Cad. No:76.
THE OFFENCE : To be a member of an illegal organisation PKK and
to help and harbour members of this organisation.
DATE OF OFFENCE : Between the years 1994-1995
THE PREPARATORY DOCUMENTS HAVE BEEN EXAMINED.
The court heard that Nilufer DEMIR, a student at the department of Garden Plants, faculty of Agriculture, Mustafa Kemal University, has been involved with the illegal organisation PKK and that she was involved in activities to recruit new members to the organisation and that she has provided help and logistic support to the members of the organisation and that she has become a student leader during the student demonstrations at the school and led the students and that she has shouted slogans in favour of the illegal organisation and its leader and that she has made speeches promoting the organisation and its activities.
The court also heard that the other accused, Mushin BAHAR, was a militant of the organisation and was involved in illegal activities.
The Court decreed that, considering the nature of the offence, the accused persons be ARRESTED and the matter be referred to the State Security Court in Kayseri. 23.11.1995
Please be advised and take necessary action.
Clerk Judge 24352
Signed and sealed
(illegible)
The applicant also made general claims that the government in Turkey was now fundamentalist and consequently the number of incidents against both Kurdish and Alevi people had increased.
At the hearing the applicant’s advisers provided a lengthy written submission urging the RRT to accept the credibility of the applicant in relation to her claims. The submission also provided a letter dated 2 October 1995 purporting to be from the applicant’s sister in which she set out details of the visits by the police to her home in Turkey.
In addition to the evidence provided by and on behalf of the applicant, the RRT also had in evidence before it a letter from the Document Examination Unit dated 4 July 1996 which, omitting formal parts, was in the following terms:
Re: Nilufer DEMIR – Turkish Arrest Warrant and & Charge Sheet
I have examined the documents referred to above and make the following comments:
ARREST WARRANT
· I have no known genuine specimen of a document of this type with which to make a comparison.
· The preset text has been applied to the document by a commercial printing method (letterpress).
· The text has been applied with a manual typewriter equipped with a Turkish language platen and a cloth ribbon.
· I can find no evidence of any alterations or amendments to the document.
· The document bears an illegible circular wet seal and a simplistic text seal.
CONCLUSION
I would urge caution in accepting this document in the absence of other substantiating evidence.
CHARGE SHEET
· I have no known genuine specimen of a document of this type with which to make a comparison.
· The document has been prepared on plain white paper which contains no watermark or other identifying feature.
· The text has been applied with a manual typewriter equipped with a Turkish language platen and a cloth ribbon.
· The document bears an illegible circular wet seal.
· I can find no evidence of any alterations or amendments to the document.
CONCLUSION
Whilst I have no standard against which to make a comparison I have reservations concerning the authenticity of this document for reasons set out below.
1. I would have expected that documents of this type would follow a pre-determined format and as such a pre-printed form would be available on which to refer the case.
2. Apart from a simplistic circular wet seal the documents contain no verifiable security features.
I would urge caution in accepting these documents as evidence in the absence of further substantiation.
The documents are returned herewith.
The Reasons of the RRT
After setting out the legislative framework, the test in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 160 CLR 379, and the claims of the applicant, the RRT, under the general heading “REASONS” observed:
It is considered by the Applicant’s adviser that the Applicant was not a refugee at the time that she left Turkey. This is confirmed by the Applicant’s own statements that at the time she left Turkey she intended to return to Turkey. Accordingly the Tribunal is satisfied that at the time the Applicant left Turkey to come to Australia she did not have a well-founded fear of persecution for a Convention reason. However, the Tribunal also has to consider whether the Applicant has become a refugee sur place since her arrival in Australia as a result of events that have occurred in Turkey since the Applicant left.
...
The Applicant claims that she has become a refugee sur place because the police are now looking for her and because there is now a warrant in existence for her arrest. Accordingly it is necessary for the Tribunal to consider the validity of these documents.
The RRT then continued at page 7:
The Tribunal notes that the Document Examination Unit could not come to any firm conclusion as to the two documents. However despite this the Tribunal does not accept that the Applicant is wanted for any offences in Turkey. Firstly the Tribunal notes that in relation to the document which sets out in detail the alleged charge that the Applicant faces the Applicant’s charge is set out in considerable detail whereas the other co-accused is simply accused of being a militant of the PKK and being involved in other illegal activities. In the Tribunal’s view this indicates that the document has been prepared with the Applicant in mind and not the alleged co-accused. Secondly the warrant for arrest refers to the reason for issuing the warrant as being the possibility that the accused may abscond. However it is apparent that at the date that this document was prepared the Applicant was already in Australia. Thirdly the document’s claim that the Applicant is charged as being a member of an illegal organisation the PKK. However the Applicant has told the Tribunal that she has never been involved with the PKK. Even bearing in mind that false charges can be laid from time to time in the Tribunal’s view the charges bear so little resemblance to the history of the Applicant that in the Tribunal’s view the documents have been fabricated for the purpose of furthering a claim for refugee status. Finally the Tribunal does not accept that if such documents were genuine the Applicant’s mother would not reveal where she obtained them from. The Tribunal’s considers that the Applicant’s mother’s reluctance to reveal where the documents came confirms that they were created to assist in the Applicant’s application for refugee status.
Having considered these documents as a whole the Tribunal does not accept that they are genuine and does not accept that the Applicant is wanted in Turkey. The Tribunal has also considered the letter from the Applicant’s sister dated 2 October 1995. As the Tribunal has not accepted that the police have any interest in the Applicant the Tribunal considers that this letter was provided to bolster the Applicant’s claim for refugee status. Once it is concluded that the Applicant is not wanted in Turkey then the Applicant is not a refugee sur place. Accordingly the Tribunal is satisfied that should the Applicant return to Turkey there is no real chance that she will face persecution.
The RRT then observed:
The Applicant made general claims about the pressure on Kurdish people and Alevi people. She gave evidence about a friend of hers being assaulted and she claimed that this was because he was Kurdish. She also stated that on one occasion a meeting had to be postponed. She also gave evidence about the attitude of a teacher at University. However the assault did not involve the Applicant. Further whilst she complained about the teacher’s attitude the Applicant was able to attend university. The Tribunal accepts that there is discrimination against both Kurdish and Alevi people.
The RRT then examined country information and concluded:
...The Tribunal notes that the estimate of the number of Alevis in Turkey varies from three million to twelve million to a third of Turkey’s 62 million population. So whilst the information above does include instances where they have been subjected to serious violence the Tribunal does not accept that all Alevis face persecution. The evidence of the Applicant in fact confirms this conclusion in that she does not claim that she has suffered serious consequences that could be said to amount to persecution as a result of her Alevi religion.
After considering further country information referable to the applicant’s Kurdish ethnicity, the RRT then said:
The war between the government and the PKK is being conducted in the south east. This is not in an area where the Applicant lived or studied. In her years at high school and then at university she did not suffer any harm that could be said to amount to persecution as a result of her Kurdish ethnicity. Having rejected her claims to being wanted by the police because of her political involvement the Tribunal is also satisfied that the Applicant does not face a real chance of persecution as a result of her Kurdish ethnicity.
The Tribunal accepts that with the rise to the pro-Islamic Welfare Party (Refah) to a power sharing situation in the national government and with its success in local elections the situation of Alevis and Kurds may become more precarious. However, leaving to one side those of Kurdish ethnicity living in the south east in the areas where there is fighting, the Tribunal does not accept that there is any evidence to date that leads to the conclusion that wholesale persecution of members of these groups has occurred.
The Tribunal accepts that any association or any imputed association with the PKK will lead to difficulties and given Turkey’s history of human rights abuses would lead to a real chance of persecution. However, having rejected the documentary evidence as concocted, the Tribunal does not accept that the Applicant has either an actual or imputed association with the PKK. The Tribunal is satisfied that the Applicant is able to return to Turkey and continue her studies without facing any real chance of persecution.
Accordingly the RRT found that the applicant did not have a well-founded fear of persecution and dismissed the applicant’s claim.
The Applicant’s Notice of Motion
The applicant lodged a second amended application for review on 11 August 1997 (“the amended application for review”). However, the applicant also subsequently filed a notice of motion which sought, among other things, an order that:
The applicant have leave to refer to the evidence contained in the Affidavit of Nilufer Demir sworn the 4th day of December 1997 and the exhibits thereto and the Affidavit of Cengis Sonkaya sworn the 4th day of December 1997.
At the hearing, Counsel for the applicant sought in addition that the “matter” be remitted to the RRT for further consideration in the light of the evidence, including the evidence contained in the further affidavits to which the applicant sought leave to refer before this Court. Counsel for the applicant submitted that, notwithstanding that this Court had not made a determination upon the application for review, it nevertheless had power under s 481(1)(b) of the Migration Act 1958 (“the Act”) to remit a matter to the RRT for further consideration in the light of the additional evidence. Section 481 is in the following terms:
(1) On an application for review of a judicially-reviewable decision, the Federal Court may, in its discretion, make all or any of the following orders:
(a) an order affirming, quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or such earlier date as the Court specifies;
(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit;
(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;
(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Federal Court considers necessary to do justice between the parties.
...
(3) The Federal Court may, at any time, of its own motion or on the application of any party, revoke, vary, or suspend the operation of, any order made by it under this section.
Counsel for the applicant submitted that the power conferred upon this Court by s 481(1)(b) of the Act was not predicated upon an exercise by the Court of the power conferred by s 481(1)(a) of the Act. In support of this contention Counsel for the applicant referred to a judgment of Heerey J in Jegan Kirupatharan v The Minister for Immigration and Multicultural Affairs (unreported, 3 December 1997). In that proceeding upon an application for review of a decision of the RRT, Heerey J did not determine the application but instead remitted the matter to the RRT for reconsideration of the authenticity of certain documentary evidence which had previously been before the RRT. His Honour observed at p 5:
It is true enough, as counsel for the respondent pointed out, that there is no unqualified obligation on the Tribunal to obtain evidence for the applicant.
However, I note in Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284 at 291, a passage in the joint judgment of Black CJ, von Doussa, Sundberg and Mansfield JJ, which at least accepts that a request by an applicant to ask the Tribunal to exercise its powers to make inquiries, while not decisive, is at least relevant. In any case, the agent’s letter was a request to be given time for it to arrange the necessary examination – not necessarily something which the Tribunal had to arrange. There is no mention in the Tribunal’s reasons of the applicant’s agent’s request and no explanation why it could not be acceded to.
...
I think substantial justice requires that this matter be reconsidered: Migration Act 1958 (Cth) s 420(2)(b), Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621. The application is allowed. The matter will be remitted for re-consideration by a tribunal differently constituted.
Mr Mosley of Counsel for the respondent sought to distinguish Kirupatharan on the basis that, by contrast with the present case, there was no evidence the RRT that the documents relied upon had been assessed for their authenticity by a qualified document examiner. Counsel submitted that, in any event, Heerey J’s judgment was wrong in law and that there was no power under the Act to remit a matter to the RRT in the manner contended for by Counsel for the applicant.
In my view, an order of the kind contemplated s 481(1)(b) of the Act can only be made in consequence of an exercise of the power conferred by s 481(1)(a) of the Act. Counsel for the applicant accepted that if s 481(1)(b) of the Act were to be read in the manner for which he contended, the court would be authorised to require the RRT to reconsider one of its own decisions whilst it remained in effect and operative. Counsel for the applicant also accepted that if this Court were to reject the interpretation of s 481(1)(b) for which he contended, then there was no other provision in the Act which supported the making of an order requiring the RRT to revisit its own decision in the manner suggested on behalf of the applicant. I can discern nothing in the Act which expressly or by implication indicates that the legislature intended that the Court should be able to authorise the RRT to revisit its own decisions in that way. On the contrary I infer from the Act an intention that a refusal of an application for a protection visa once finally determined should be conclusive in respect of all evidence considered in determining that application. Thus, s 50 of the Act provides:
If a non-citizen who has made:
(a) an application for a protection visa, where the grant of the visa has been refused and the application has been finally determined; or
(b) applications for protection visas, where the grants of the visas have been refused and the applications have been finally determined;
makes a further application for a protection visa, the Minister, in considering the further application:
(c) is not required to reconsider any information considered in the earlier application or an earlier application; and
(d) may have regard to, and take to be correct, any decision that the Minister made about or because of that information.
Reference should also be made to s 414 which stipulates:
(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
Section 416 of the Act then provides:
If a non-citizen who has made:
(a) an application for review of an RRT-reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or
(b) applications for reviews of RRT-reviewable decisions that have been determined by the Tribunal of the Administrative Appeals Tribunal;
makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application:
(c) is not required to consider any information considered in the earlier application or an earlier application; and
(d) may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information.
In my view, that legislative scheme supports the conclusion that a determination of an application for a protection visa, whilst it remains in force, precludes a reconsideration of information on which that existing determination was based unless the RRT in the exercise of a discretion in the light of fresh information considers such reconsideration appropriate.
In Jayasinghe v Minister for Immigration and Ethnic Affairs & Anor (1997) 76 FCR 301 at 311 Goldberg J posed the question:
Does the tribunal have the power to reconsider or reopen a decision on a review determining the substantive application?
Even if a “decision” for the purposes of s 475(1)(b) of the Act does bear a broader meaning than simply the final determination of the substantive application before it, I do not consider that the tribunal has the power to reconsider or reopen its final decision on a review determining the substantive application.
The existence of such a power is essentially a matter of statutory construction. No such power is referred to expressly in the Act and if such power exists it must be found by implication in the statutory scheme. Mr Niall placed significance on s 420(2) which requires the tribunal, inter alia, not to be bound by technicalities and to act according to substantial justice and the merits of the case. He submitted that these obligations were consistent with an implied power to reopen a matter and were not inconsistent with such a power. He also sought to draw support from ss 414 and 416 from which he extracted a principle that the tribunal should resolve issues without the necessity of repeat applications. I do not consider that these sections by themselves enable an implication of the power to reopen a substantive decision and indeed, for reasons to which I shall refer, s 416 points against such an implication.
Mr Niall submitted that the doctrine of functus officio was a legal technicality primarily directed to the exercise of judicial power which should yield to the requirement that the tribunal provide a mechanism of review that is fair, just, economical and quick: s 420(1). I do not consider it a correct characterisation of the doctrine of functus officio to call it a “legal technicality”. Rather it is a description or consequence of the performance of a function having regard to the statutory power or obligation to perform that function. The effect of the application of the doctrine is that once the statutory function is performed there is no further function or act for the person authorised under the statute to perform: R v Moodie; Ex parte Mithen (1977) 17 ALR 219 at 225; Comptroller-General of Customs v Kawasaki Motors Pty Ltd (1991) 32 FCR 219 at 225; 103 ALR 661.
I agree with his Honour’s analysis and note that it has been applied in other judgments at first instance in this Court (see e.g. Ovali v Minister for Immigration and Multicultural Affairs (Finn J, unreported, 24 October 1997); Kemal Ozberk & Ors v Minister for Immigration and Multicultural Affairs (Marshall J, unreported, 19 January 1998); Resmiye Polat & Ors v Minister for Immigration and Multicultural Affairs (O’Connor J, unreported, 25 March 1998).
Despite my clear view that this Court remit this matter to the RRT in the manner contended for by the applicant, it remains to be decided whether, and if so, for what purpose, the evidence referred to in the applicant’s notice of motion is admissible before this Court. Counsel referred to authority setting out criteria against which the admissibility of evidence sought to be admitted on appeal is to be tested. That authority included Commonwealth Bank of Australia v Quade & Ors (1991) 178 CLR 134. In my view, however, the admissibility of evidence depends on different considerations from those in an appeal which apply to the admissibility of evidence which a party seeks to adduce before a court conducting a review of an administrative decision.
In the context of a review of an administrative decision, Spender J observed in Servos v Repatriation Commission (1995) 56 FCR 377 at 385:
The policy of the legislation in my opinion is to make the decision of the Tribunal final on questions of fact. It is inconsistent with that policy to seek to adduce evidence before the Federal Court for the consideration of the Court on an application pursuant to s 44 of the Act, the object of which is to invite the Court to disagree with a factual conclusion reached by that Tribunal.
Although observation was made in relation to a so-called “appeal” under the Administrative Appeals Tribunal Act 1975, the same approach has been taken on e.g. in Ozberk (supra) and Polat (supra) on applications for review pursuant to the Act.
In Szelagowicz v Stocker 35 ALD 16 at 22 Davies and Einfeld JJ observed in connection with an application for review under the Administrative Decisions (Judicial Review) Act 1977 that a decision had been based upon a fact that did not exist :
They provide a ground of review where there was before the decision-maker no evidence of a fact, the decision was based on the existence of that fact and the fact did not exist. On this ground, a decision may be challenged, but only if evidence is called which positively establishes that the fact did not exist. They do not permit evidence to be adduced to contradict either evidence or material which was before the decision-maker or an inference which was available to be drawn from that evidence or material.
See also Mendoza v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 405 where Einfeld J suggested, at 416 that “The question of whether evidence not before the decision-maker can be admitted in judicial review matters appears to depend on the type and circumstances of the case”. After referring to a passage from the judgment of Lockhart J in Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540, Einfeld J noted that his Honour acknowledged that, in respect of some of the grounds set out in s 5 of the Administrative Decisions (Judicial Review) Act, it may be appropriate for additional material to be received by the court in some circumstances.
Similarly, in my view, evidence is admissible upon an application for review where the basis of the application is an alleged error of law involving a failure to make proper enquiry. Such evidence however, is not admissible as going to the truth of the matter which it is said the proper enquiry would have revealed. To use the evidence in that way would, as Marshall J observed in Ozberk (supra), turn “the review into a review on the merits”. However, it remains open to admit the evidence as going to the reasonableness or propriety of the enquiry which it is suggested the decision-maker should have made. Accordingly, I regard the affidavits referred to in the applicant’s notice of motion as admissible on that limited basis.
The applicant sought to rely upon two affidavits and the exhibits thereto. The first sworn by the applicant on 4 December 1997, attached the originals of two documents which were deposed to be “a confidential internal police memorandum together with a list of names of persons who are to be ‘included in the wanted list’”. Also attached was a composite translation of both documents which was in the following terms:
CONFIDENTIAL
Mayor’s Office, Istanbul
Directorate of Security Forces
Number: B.o5. 17EGM. 4.34.00.14 08.01.1995/371
05/01/1997
Re: wanted or apprehended persons
To the Directorate of Security Forces in Bagcilar
Ref: our letter dated 27.01.1988 and number Em.Sb.1.Dgr.1474
Please find attached a supplement (11 pages) to “the booklet of people who are wanted by provincial security departments’, which provides identification details of persons WHO ARE RECENTLY INCLUDED IN THE WANTED LIST AND persons who are to be taken off the wanted list because THEY HAVE BEEN APPREHENDED.
Please ensure the new persons who are wanted be added in the wanted list and the names of those persons who have been apprehended be taken off the list and that computer records be updated. Please make sure no confusion is caused at the passport department.
Encl. 11 pages Signed
Resat ALTAY
3rd class Security director
Anti-terrorism Branch
director
Distribution
Police Intelligence, Community Policing, Passport offices, Airports, Coast Guards, Police Ammunition sections, Smuggling offences squads, Fraud investigation squads, Narcotics squads, Firearms licencing offices, police traffic offices, central bus stations, special security squads, anti-terrorism squads, Archives and records units and security forces directorates in towns.
Security Forces Directorate
In AVCILAR
No: 000888
6/1/1997
CONFIDENTIAL
Translation of marked section on page 2
2015 Telex message from TUNCELI SECURITY FORCES dated 30.09.1997 and number B.05.1.EGM.6.32.10.Fis.Ars.0221.16/97. 97/3045 L67E
PERSONS TO BE INCLUDED IN THE WANTED LIST
Nilufer Demir, daughter of N.Kemal, born in 1974 in G.ali, Sariz, in Kayseri, PKK (Kurdish Workers Party)
Resmiye Polat, daughter of Mahmut, born in 1959 in Gumusali, Sariz in Kayseri, PKK
The second affidavit was sworn 4 December 1997 by Cengis Sonkaya. The deponent asserts that he was employed as a police officer in Turkey between May 1993 and September 1995. On the basis of that experience he describes the documents annexed to the applicant’s affidavit of 4 December 1997 as similar to other documents of the same kind which he and his fellow police officers were required to carry with them whilst on duty. Mr Songkaya’s affidavit included the following paragraphs:
7. That in addition to using the same format of the documents I saw whilst I was working as a police officer in Turkey, there are a number of authenticating features to the memorandum. In particular, the stamp at the bottom right hand corner of the memorandum is from the Avcilar police station and contains the date of the document together with a number under which the document is to be archived. Further, the document appears to have been signed by the appropriate officer in charge of the Avcilar city police station.
8. In relation to the attached list of names, this document would also appear to be genuine in that it is set out in the correct format and contains full details as required. For example, the first heading contains a number 2015 and is in respect of a message received from the Tunceli Security Forces dated the 30.09.1997. The subsequent numbers (2016 and 2017) relate to messages or communications from other police stations. The reference number quoted in the first heading also appears to be genuine in that it refers to the source of the communications (Tunceli police station) and notes the reference provided by the records section of the Central Police Headquarters in Ankara (“EGM”) indicating the place where that communication is kept in their archives. The list itself is the same as many others that I have seen and provides the names of persons being sought, the name of their father, the year of their birth and the place at which they are registered and all government records are kept concerning them.
9. Accordingly, the layout of the documents together with the detailed information included in them and the authenticating features of them indicate to me that both documents are genuine.
Grounds for Review
Various matters were pleaded in the amended application for review. However, at trial Counsel for the applicant confined his submissions to whether the RRT, in omitting to make further enquiries as to the authenticity of the documentary evidence before it, had failed to accord substantial justice to the applicant pursuant to s 420 of the Act.
Section 420 of the Act provides:
(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
Counsel further submitted that a failure by the RRT to determine an application in accordance with substantial justice and the merits of the case had been held by Davies and Burchett JJ in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 to be an error of law, making the decision vitiated by such a failure reviewable for the purposes of s 476(1)(a) of the Act.
Section 476 of the Act, so far as is relevant, provides:
(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
(b) that the person who purported to make the decision did not have jurisdiction to make the decision;
(c) that the decision was not authorised by this Act or the regulations;
(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;
(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(f) that the decision was induced or affected by fraud or by actual bias;
(g) that there was no evidence or other material to justify the making of the decision.
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(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.
Counsel for the applicant submitted that it was not open to the RRT upon the evidence before it to conclude the documents on which she relied as establishing that she was on a “wanted list” in Turkey were not authentic. It was argued that the report of the Document Examination Unit was equivocal in its assessment of the authenticity of those documents and that consequently the RRT should have made further enquiries before concluding that they were spurious. The RRT erred, in Counsel’s submission, in imputing to the framers of the challenged documents attitudes of mind and administrative practices which may have commended themselves to similar agencies in Australia but were not shown to be shared by the corresponding authorities in Turkey.
Counsel for the respondent noted that the High Court had granted special leave to appeal from the judgment of the Full Court in Eshetu which he invited me not to apply by holding that a failure to accord substantial justice pursuant to s 420 of the Act was necessarily an error of law. He also submitted that there was no general requirement for the RRT to make enquiries (citing Dharam Raj v Minister for Immigration and Ethnic Affairs (Davies J, unreported, 18 July 1996)). Counsel further submitted that, in any event, in addition to the letter from the Document Evaluation Unit, there was other evidence before the RRT which entitled it to make a finding that the arrest warrant and the charge sheet were not authentic. It was submitted that it was then open to the RRT to reject the evidence on which the applicant relied as establishing a well-founded fear of persecution if she were to return to Turkey.
In my view, however, the critical question is whether the RRT made its findings of fact with that degree of certainty which made it unnecessary to ask “What if I am wrong?” the question postulated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 where, at 293 Kirby J observed:
8. Because the test propounded by this Court in Chan involves the necessity of a measure of speculation about what the chances held in store for an applicant, and whether there was a “real chance” that made an established fear of persecution “well founded”, an indication that the delegates had put all speculation out of account would certainly show legal error. So would an indication that the evaluation of the “chance” and its “reality” had been made by a test of weighing the probabilities. Two points must be made here.
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court of law conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for such a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, so long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
Secondly, the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: “What if I am wrong”? (Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 441, per Einfeld J.) Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems “likely” or “entitled to greater weight”, the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a “real chance” of persecution.
A similar approach seems to have been taken by Drummond J in Tranh Phat Ma v Billings (1996) 142 ALR 158 where his Honour, after referring to Kirby J’s exposition of the “What if I am wrong?” test in Wu, observed at 160:
I do not think that Kirby J, in the last part of the passage in his reasons in Wu which I have set out, suggests that the decision-maker must refrain from reaching conclusions on the factual issues before him, but must instead proceed immediately to speculation on whether, on the whole of the material before him which he has not attempted to assess for probative cogency, the particular applicant for refugee status has a well-founded fear of persecution. ... All I think Kirby J was concerned to explain was that, unless the decision-maker can dismiss as unfounded factual assertions made by the applicant, the decision-maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect.
In the present case the RRT’s conclusions on the evidence before it were expressed as follows:
The Tribunal notes that the Document Examination Unit could not come to any firm conclusion as to the two documents. However despite this the Tribunal does not accept that the Applicant is wanted for any offences in Turkey. Firstly the Tribunal notes that in relation to the document which sets out in detail the alleged charge that the Applicant faces the Applicant’s charge is set out in considerable detail whereas the other co-accused is simply accused of being a militant of the PKK and being involved in other illegal activities. In the Tribunal’s view this indicates that the document has been prepared with the Applicant in mind and not the alleged co-accused. Secondly the warrant for arrest refers to the reason for issuing the warrant as being the possibility that the accused may abscond. However it is apparent that at the date that this document was prepared the Applicant was already in Australia. Thirdly the document’s claim that the Applicant is charged as being a member of an illegal organisation the PKK. However the Applicant has told the Tribunal that she has never been involved with the PKK. Even bearing in mind that false charges can be laid from time to time in the Tribunal’s view the charges bear so little resemblance to the history of the Applicant that in the Tribunal’s view the documents have been fabricated for the purpose of furthering a claim for refugee status. Finally the Tribunal does not accept that if such documents were genuine the Applicant’s mother would not reveal where she obtained them from. The Tribunal’s considers that the Applicant’s mother’s reluctance to reveal where the documents came confirms that they were created to assist in the Applicant’s application for refugee status.
Although it noted that the report from the Document Evaluation Unit was equivocal, the RRT went on to make findings, adverse to the applicant, that the arrest warrant and charge sheet were not authentic. In this regard the RRT seems to have been influenced not only by matters internal to the two documents but also by the alleged unwillingness of the applicant’s mother to reveal where the documents came from. However, the internal evidence to which the RRT referred was not, in my view, inconsistent with the authenticity of the arrest warrant and the charge sheet. The absence of any other evidence before the RRT tending to suggest that the applicant was not on a “wanted list” in Turkey therefore makes it difficult to impute to the RRT that it had no real doubt of the correctness of its findings adverse to the applicant. The effect of the absence of such a real doubt has been indicated by this passage from the joint judgment of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 579:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not “differentially at risk for a Convention reason”. Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.
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If, for example, a tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.
In the present case, however, the tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the tribunal was not then bound to consider whether its findings might be wrong.
The understanding which I have of the combined operation of the reasoning of the High Court in Wu and Guo appears to have been shared by Merkel J when he observed in Emiantor v Minister for Immigration and Multicultural Affairs 48 ALD 635 at 650:
The High Court in Guo rejected the approach of Einfeld J. In particular the Court made it clear that the “What if I am wrong?” approach to fact finding:
· is relevant to facts found on the basis that they are “slightly more probable than not”;
· is neither rational nor necessary when the RRT has no real doubt that its findings are correct;
· has a varying applicability in cases lying between the two situations stipulated above.
His Honour then went on to examine the findings relied on by Counsel for the Minister as demonstrating “that the RRT appears to have taken the view that the probability of error in its findings was insignificant”.
The question, as far as I have so far considered it, is one of interpretation of the reasons of the RRT. In the present case, as I have already noted, the RRT acknowledged that the Document Evaluation Unit “could not come to any firm conclusion” as to the authenticity of the arrest warrant and the charge sheet.
However, in proceeding to indicate that “despite this the Tribunal does not accept that the applicant is wanted for any offences in Turkey” the RRT went on to consider matters internal to the impugned documents themselves or related to their provenance. To the extent that it considered matters extrinsic to the arrest warrant and the charge sheet, the RRT accepted on the basis of the “country evidence” that “there is discrimination against both Kurdish and Alevi people” but regarded the incidents of discriminatory treatment to which the applicant had been subjected as insufficiently serious to give rise to a well-founded fear of persecution should she return to Turkey.
In that context the finding as to the authenticity of the challenged documents was not merely one of a multitude of findings of fact, the rest of which had been made with a high degree of certitude. Rather, it was the single finding on which the RRT’s conclusion turned. I do not regard the RRT’s reasons, considered as a whole, as indicating that it had no real doubt that its finding on that central question was correct. I am reinforced in this interpretation by the failure of the RRT to make further enquiries about the authenticity of the arrest warrant and the charge sheet from sources in Turkey or otherwise available through the Department of Foreign Affairs and Trade.
It has been held in this Court that as a general rule the RRT is not obliged to make enquiries (see, e.g. Dharam (supra) and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 per Wilcox J.) However, Black CJ observed in Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409 at 413:
Although it is in general not for the decision-maker to make out a case for someone seeking the exercise of a discretion in their favour it has been recognised that there are occasions when the adequate consideration of a relevant matter necessarily involves the making of some inquiry as to the facts: see Waniewska v Minister for Immigration and Ethnic Affairs (1986) 70 ALR 284 per Keely J at 299, citing the observations of Wilcox J in Singh v Minister for Immigration and Ethnic Affairs (unreported, 4 December 1985); Singh (Heer) v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4 per Forster J at 9; Lek v Minister for Immigration, Local Government and Ethnic Affairs (supra) per Wilcox J at 434-436. See also: Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 per Toohey J at 178-179; Akers v Mininster for Immigration and Ethnic Affairs (1988) 20 FCR 363 per Lee J at 373. It should also be noted that a failure by a decision-maker to obtain readily available factual material likely to be of critical importance in relation toa central issue may lead to the conclusion that decision has been unreasonably made: Luu v Renevier (1989) 91 ALR 39 at 50; Tickner v Propho (1993) 40 FCR 183 at 198-199.
Furthermore ss 425(1) and 427(1)(d) of the Act, in empowering the RRT to pursue enquiries, contemplate that there will be circumstances in which an enquiry by the RRT of its own accord is appropriate.
Section 425(1) provides:
Where section 424 does not apply, the Tribunal:
(a) must give the applicant an opportunity to appear before it to give evidence; and
(b) may obtain such other evidence as it considers necessary.
Section 427(1)(d) indicates that:
For the purposes of the review of a decision, the Tribunal may:
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(d) require the Secretary to arrange for the making of any investigation, or nay medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
In Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 560 Black CJ, von Doussa, Sundberg and Mansfield JJ concluded:
Accepting for the purposes of argument that s 420(2)(b) requires a procedure to be observed in connection with the making of a decision within s 476(1)(a), the question is whether the obligation to act according to substantial justice requires the Tribunal to make an inquiry of the nature suggested here. The way in which the Tribunal is required to operate and the powers conferred on it suggest that there may be circumstances in which inquiry by the Tribunal will be necessary in order that it discharge its obligation to act according to substantial justice and the merits of the case. In cases where s 424 does not apply (that is, where there is no review “on the papers”), the Tribunal must give an applicant an opportunity to appear before it to give evidence (s 425(1)(a)), and “may obtain such other evidence as it considers necessary” (s 425(1)(b)). An applicant may give the Tribunal written notice that he or she wants it to obtain oral evidence from a person or persons named in the notice (s 426(2)). If the Tribunal is so notified, it must have regard to the applicant’s wishes, but it is not required to obtain evidence from any such person (subs (3)). Section 427(1)(d) empowers the Tribunal to require the Secretary to arrange for the making of any investigation it thinks necessary with respect to the review, and to furnish a report of that investigation. These provisions show that the Tribunal’s role in cases that come before it for review is not a passive one, although the circumstances in which the Tribunal could be found to be under an obligation to make a particular inquiry will no doubt be rare, as they have been in cases under the ADJR Act.
Had the RRT established, after making enquiries of the kind which I have indicated, that the contents of the arrest warrant and charge sheet differed from what the standard forms of those documents as issued in Turkey usually contained, or that there were other features tending against their authenticity, I would have been more inclined to impute to it a lack of any real doubt about its finding that they were “concocted”. However, in the absence of such further enquiries, I am unable to interpret the RRT’s reasons as exhibiting that degree of certainty which would have absolved it from asking “What if I am wrong?”. Since it is clear that the RRT did not apply that test before concluding that the applicant did not have a well-founded fear of persecution, it was guilty of an error of law and its decision must be set aside.
I should indicate parenthetically that the conclusion to which I have just come has been reached on a view of the effect of the RRT’s reasons construed as a whole. It was, therefore, unnecessary for me to consider whether, if the RRT’s reasons had unequivocally indicated that it had no doubt that the impugned documents had been fabricated, that conclusion was open to the RRT on the whole of the evidence before it. Such a consideration would have entailed asking whether a view that the Court regards as mistaken that the evidence permitted the attainment of no real doubt, is an error of law. In the circumstances, an answer to that question must await a case which squarely raises it.
The Court has recently been advised by the RRT in the light of the observations of Gray J in Kathiresan v Minister for Immigration and Multicultural Affairs (unreported, 4 March 1998) to which I referred in Rajalingam v Minister for Immigration and Multicultural Affairs (unreported, 14 September 1998) at p 20, that its practice is for a matter remitted to the RRT by the Court to be allocated for hearing by a member other than the member who made the decision which has successfully been reviewed. Accordingly, it is sufficient to order that the decision of the RRT dated 3 December 1996 be set aside and that the matter to which that decision relates be referred to the RRT for further consideration according to law. The respondent must pay the applicant’s costs of the application.
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I certify that this and the preceding twenty-four (24) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. |
Associate:
Dated:
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Counsel for the Applicant: |
Mr P Rose |
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Solicitors for the Applicant: |
Erskine Rodan & Associates |
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Counsel for the Respondent: |
Mr W Mosley |
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Solicitors for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
12 December 1997 |
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Date of Judgment: |
16 October 1998 |
