the court orders that:

1.      The decision of the Refugee Review Tribunal be set aside.

2.      The matter be referred back to the Refugee Tribunal to be decided according to law.

3.      The Respondent pay the Applicant’s costs of the proceedings.

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

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR:   Sahra Abdullahi Elmi (“the Applicant”) seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 2 July 1998 affirming a decision of the Minister's delegate not to grant a protection visa.  The Applicant is a citizen of Somalia who arrived in Australia at the beginning of August 1997 in somewhat obscure circumstances.  Within weeks, on 29 August 1997, she lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  The Minister's delegate refused the application on 30 March 1998 and on 17 April 1998 the Applicant sought review of the decision by the Tribunal.

The application was lodged under cover of a letter of 29 August 1997 from the Legal Aid Commission of New South Wales.  That letter enclosed parts B and C of form 866 together with a document which although unsigned was headed “Statutory Declaration”.  It was quite clear that the application and the statutory declaration were to be treated as being part of the application made on behalf of the Applicant.  The relevance of that circumstance will be apparent shortly.  As foreshadowed in the letter of 29 August 1998, a further statutory declaration was forwarded.  That was done on 17 September 1998.

That declaration was signed by the Applicant and the covering letter requested that the earlier document be discarded.  It was not suggested before me that that request should have been adhered to and it was acknowledged that the original form of statutory declaration should be treated as part of the original application. 

The reasons of the Tribunal set out relevant provisions of the Refugee Convention which indicate the question which arose for decision by the Tribunal.  In the reasons, the Member identified four key elements which must be established in order to attract the protection of the Convention.  First, an applicant must be outside his or her country.  That prerequisite was clearly satisfied.  Second, an applicant must fear persecution.  Third, the reason for the persecution must be found in the singling out of one or more of the convention reasons, namely race, religion, nationality, membership of a particular social group or political opinion.  Fourth, an applicant's fear of persecution for a convention reason must be well founded.  Thus, the Member clearly recognised that there were separate issues that must be resolved in concluding whether or not the Applicant was entitled to the protection of the Convention.  More specifically, the distinction was drawn between the fear of persecution being a subjective fear of the Applicant on the one hand and the fear being well founded, based on objective material, on the other hand.  Again, the relevance of that will be apparent shortly. 

After summarising the Applicant’s claims and the evidence the Member set out findings and reasons.  At the beginning of that section the Member said:

The applicant travelled to Australia with a passport, but she does not know which country issued the passport, and [s]he states that [s]he is a national of Somalia.  Therefore for the purposes of the Convention I have assessed her claim as against Somalia as her country of nationality.  In assessing the applicant's Convention claims, the Tribunal is required to consider whether her fear is well founded and whether the treatment she fears amounts to persecution for a Convention reason.

Having stated that where claims are plausible and credible an applicant should be given the benefit of the doubt the member made the following observations:

The Tribunal finds that the applicant is not a credible witness.  There were a number of material and substantial contradictions and inconsistencies in her claims, that were not explained to the satisfaction of the Tribunal.  Some of her testimony and some of her claims were simply not plausible or believable.  As well, some of her claims were at odds with the independent evidence.  Many of her claims were vague and confusing.  In these circumstances, for the following reasons the Tribunal finds that her claims are not credible.

At the end of that section the Member said as follows:

Taken as a whole, in the presence of such unsatisfactorily explained contradictions of a material and substantial nature, and given the implausible explanations and the severity and degree of implausibility in question, the Tribunal can only come to the conclusion that the applicant's testimony is not plausible and therefore finds that she is not a credible witness.  Accordingly, since the Tribunal finds that the applicant's claims are not credible, there is no evidence on which it can be satisfied that the applicant has a well-founded fear of persecution due to membership of a particular social group or for any other Convention reason.

Accordingly, the Member affirmed the decision.  On the face of it, therefore, the conclusion is based on the Member's assessment of the credibility of the Applicant, who gave evidence before the Tribunal. 

When this application was originally filed no grounds of review were specified.  However, on the day of the hearing, leave was granted for an amended application to be filed specifying grounds as follows:

1.         Procedures that were required by the Migration Act 1958 to be observed in connection with the making of the decision were not observed and/or the decision involved an error of law being an incorrect interpretation of the applicable law.

            Particulars:

The Refugee Review Tribunal misinterpreted s 420 of the Act, failed to act in accordance with the substantial justice and merits of the case and/or otherwise failed to adopt procedures designed to decide the matter by reference to substantial justice and the merits of the case, in so far as it found that it was not satisfied as to the applicant's clan affiliation and identity, while ignoring the evidence of Mr Jimale and/or illogically relying on various alleged inconsistencies in the applicant's evidence, and/or illogically relying upon alleged inconsistencies between the applicant's evidence and so called objective evidence.

2.         The decision otherwise involved an error of law being either an error in interpreting the applicable law or a failure to properly apply it to the facts as found. 

            Particulars:

The Refugee Review Tribunal failed to consider whether, on the whole of the material before it, the applicant had a well-founded fear of persecution.

There are several aspects of the reasons which I find troubling and leave me with some disquiet.   That of itself, however, is not sufficient grounds to interfere with the decision.   The Court is very much constrained by the terms of section 476 of the Migration Act 1958 (Cth)(“the Act”) which specify the only grounds upon which the Court is able to interfere with the decision of the Tribunal.  

It is apparent that the only grounds relied upon are those set out in sections 476(1)(a) and 476(1)(e), namely:

(a)        that procedures that were required by this Act or the regulations to be observed in connection with making the decision were not observed, indeed, that the decision involved an error of law being an error involving an incorrect interpretation of the applicable law; and

(b)        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.

The procedure which was not observed was said to be the procedure required by section 420 of the Act, which requires, first, that the Tribunal, in carrying out its function under the Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.  Section 420(2) then provides:

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.

The Applicant's application to this Court is founded primarily on an asserted failure to comply with the requirements of section 420 on the basis that that constituted a failure to observe procedures that were required by the Act to be observed in connection with the making of the decision.  It is necessary, in determining whether or not that case is made good, to consider and make a fairly detailed analysis of the reasons of the Member as well as to consider recent decisions of the Full Court of this Court concerning the relevance of section 420 to section 476(1)(a).

The Tribunal’s reasons under the heading “Findings and Reasons” contained two sections.  First, the Member gave consideration to whether he could be satisfied as to the Applicant's clan affiliation or her identity.  That section is introduced by the following:

The Tribunal accepts the difficulties of proof faced by applicants for refugee status.  However, due to the vague and confusing nature of the applicant’s evidence the Tribunal is unable to be satisfied as to the applicant’s clan affiliation or her identity.

At the end of this part of the reasons, the Tribunal in effect repeats that conclusion by saying as follows:

The Tribunal finds that this vague testimony, which in many cases was lacking in detail on key issues, is not satisfactory to establish the national identity or the clan affiliation of the applicant, which are at the very heart of the applicant’s claims.

The second part of the reasons is commenced by the following:

The Tribunal acknowledges the applicant’s age, lack of education and that the events which allegedly took place occurred when she was quite young.  But bearing this in mind, the rest of the applicant’s testimony was nevertheless contradictory, vague or not sufficiently detailed to be believable.

The Tribunal then sets out a number of instances in which the Tribunal considered that the Applicant’s testimony was “contradictory, vague or not sufficiently detailed to be believable”.  All of those matters are said to lead to the conclusion that I have set out above.  In order to deal with the Applicant’s case it is necessary to consider each of those two sections of the reasoning.

There are five matters which are referred to in relation to the conclusion that the Tribunal is unable to be satisfied as to the Applicant’s clan affiliation or her identity.  I shall deal with each of those separately.  First, the Member observed that although the Applicant was on notice that identity was a key issue, she made no efforts to obtain identification documents from Somalia.   That might be seen to be a harsh criticism.  The only evidence before the Tribunal was that the Applicant had been brought to Australia at the age of 18 or 19 by an agent to whom she had been introduced by her uncle.  She at no stage had possession of her travel documents.  The evidence before the Tribunal was that the agent, having ushered her through formalities at Sydney Airport, took her in a taxi to Auburn where he pointed out to her two Somali women and directed her to speak to those women.  She says that was the last time she saw the agent.  She in fact spoke to the women and has been staying with them since that time.

One can observe that those circumstances are somewhat unusual.  However, the Member does not appear to have taken those circumstances into account in his reasoning. It is the absence of effort to obtain identification documents that the Member found significant.  However, if the Applicant’s story were true, it is not surprising that she would not be in a position, having regard to her age and lack of means, to obtain evidence from Somalia which would confirm her identity.

Secondly, the Tribunal rejected the evidence of a Mr Jimale, who was called by the Applicant.  Certainly, in the notification to the Tribunal of the intention to call Mr Jimale, it was said that the evidence which Mr Jimale was to give would prove that the Applicant is in danger of victimisation or persecution if she returns back to Somalia at this time. 

When Mr Jimale had been sworn and was invited to give evidence, he was asked by the Member how long he had known the Applicant.  His answer was: “As the day she was born in 1979”.  The questioning then proceeded as follows:

Q149:  “How do you know her?”

A:         “We are relatives.”

Q150:  “Exactly how are you related?”

A:         “In my mother's side we are related.  My grandmother and her grandfather are cousins”

Q151:  “You're a member of which clan?”

A:         “Yeah, the Hawadle clan”

Q152:  “I'm asking: you are a member of which clan?”

A:         “Hawadl clan”.

Mr Jimale was then asked about where he lived in Somalia.  He said he came from Mogadishu and that he left in 1990 and went to South Africa.  The Applicant also says she comes from Mogadishu.  Mr Jamale said that he was not in Mogadishu when fighting took place and agreed that he left before that.   He was then asked what he would like to tell the Member in connection with “your claims”.  Mr Jimale then reported what he said he had been told by his mother.  That included statements that some of the Applicant's siblings had been killed.  At the end of the evidence, the Member asked:

You don’t know who killed her siblings or where?

He responded:

They been killed in Medina and some militia from Hawadle clan.  Same clan, we are.

Medina is the suburb of Mogadishu where both Mr Jimale and the Applicant say they had previously resided. 

In dealing with Mr Jimale's evidence, the Tribunal said as follows:

The testimony of the applicant's witness, Mr Jimale, does little to establish the identity of the applicant, since he left Somalia in 1990 and had no personal knowledge of the claims made by the applicant.

There is, it seems to me, a non sequitur in that statement.  It may well be that Mr Jimale could give little evidence to corroborate the assertions made by the Applicant that there had been fighting in Medina and that she had been compelled to leave her home by reason of that fighting.  That is because he had left Somalia before any of the fighting began.  However, the fact that he left Somalia in 1990 has nothing to do with the question of whether or not Mr Jimale could establish the identity of the Applicant.

He said that they were related, albeit somewhat distantly.  He said that they lived in the same suburb in Mogadishu.  He also said that he and the Applicant were of the same clan.  Nevertheless, the Member appears to have discounted entirely the evidence of Mr Jimale insofar as it may have been able to establish the identity of the Applicant.  The Tribunal, for example, made no effort to inquire of Mr Jimale as to how well he knew the Applicant or when he had last seen her.  It is clear that the Tribunal had signalled in advance that it was concerned as to the identity of the Applicant.  The Applicant was represented at the hearing by a solicitor from the Legal Aid Commission, who asked no questions of Mr Jimale.  Nevertheless, the reason given for ignoring the evidence of Mr Jimale, namely that he had left Somalia in 1990, seems to me to be lacking in reason.  It would have been a different matter if the Tribunal disbelieved Mr Jimale.  However, no indication was given to that effect.

The third matter dealt with by the Member in his reasons for concluding that he was not satisfied as to the Applicant's clan affiliation or identity concerned her knowledge of sub-clans.  The Member concluded that:

it is implausible that the applicant would not be able to recount a range of the main sub-clans of the Hawaiye clan.

He said that he found that the fact that the Applicant did not know where Belet Weyne was located in Somalia and did not know the characteristics of the Hawadle, aside from the fact that they were traditionally farmers and nomads, makes her evidence implausible.  The Member considered that if she were truthful she would be able to provide information on what he characterised as basic issues.  That conclusion was said to be based upon the evidence of Dr Dorward.

In his reasons, the Member referred, under the heading “Independent Evidence”, to material published by the United Nations High Commission for Refugees and also to a publication by Dr David Dorward, a director of African Research Institute at La Trobe University.  The material from Dr Dorward cited by the Member is taken from material that was in evidence before me, having been tendered without objection.  The Member cited an extract from a page in a document apparently written by Dr Dorward.  The material before me contains the following under the heading “Genealogy”:

Descent is traced through the male line (tol).  Tradition is transmitted orally, from father to son.  In theory, every Somali knows his abtirsiinyo.  However it is a myth that such knowledge is universal and equally known to all. 

In practice, genealogical knowledge is keener in some than others.  On the whole, it is the elders and clan heads who are seen as the repositories of genealogical knowledge.  As a result, many ordinary Somali may not necessarily possess a clear understanding of the finer points of their own personal genealogy.  However, honour states that a person should be fully aware of his genealogy, his place in society.  Hence individuals will rarely admit to less than expert knowledge in the field.  If pressed, they are apt to construct a lineage that “makes sense” to themselves.  Their rational [sic] for constructing their personal genealogy is not easily unpacked.

However the only extract which is set out in the member's reasons are the following two sentences:

Honour states that a person should be fully aware of his genealogy, his place in society.  Hence individuals will rarely admit to less than expert knowledge in the field. 

Quite apart from the fact that that extract is cited out of context, it appears to have been relied upon by the member to draw a completely erroneous conclusion.  The suggestion, which is clear in the reasons, is that he does not believe the Applicant because she was unable to recount a range of the main sub-clans of the Hawaiye clan and was unable to say where a particular place was located which was said to be the principal location of the Hawadle clan in Somalia.

In fact, the extract from Dr Dorward’s writing rather suggests that it is common that a person may not necessarily be fully aware of his or her genealogy notwithstanding that honour requires that he or she should be.  Dr Dorward’s comment is that individuals will rarely admit to less than expert knowledge in the field.  Insofar as the Applicant did express some ignorance of these matters, that may be inconsistent with a statement that they will rarely admit to less than expert knowledge.  However, the criticism which the member directed at the Applicant was not that she was prepared to admit to less than expert knowledge but that she did not in fact have the knowledge. 

The evidence, in any event, indicated that the Applicant did give some statement of her lineage.  When asked by the Member what her clan lineage was, she said she was from the Hawadle clan.  She then was asked to set out her lineage through a series of questions.  She gave answers as follows:

I am from Hawadle clan.  Hawadle, then I am from Abdalla clan also … and from Abdalla I am from Solaymen clan. 

She was then asked if she could go further than that and she responded:

I am from Haragale. 

Then she was asked whether Hawadle were a part of which larger clan and she said she was from the Hawaiye clan.  To that extent, the Applicant answered all of the questions which were put by the member as to her lineage and her clan.  She was then asked whether she knew the other sub-clans of Hawaiye.  She responded:

I don’t know very much but I know some of it.  …  I know Abgal and Habr Gidirs.  I know Shkal. 

She was then asked whether she knew any of the other sub-clans of the Hawiye.  She responded:

I don’t know.

To suggest, as the Member does, that that evidence is inconsistent with the independent evidence of Dr Dorward seems to me to lack rationality.  It indicates that the Applicant was able to answer pretty well all of the questions concerning her lineage which one might expect her to be able to answer.  The fact that she did not know a series of other names of other sub-clans is certainly not inconsistent with the evidence of Dr Dorward.  The fact that she did not know where Belet Weyne was located in Somalia could well be explained by the fact that she in fact lived in Mogadishu.  Having regard to her age and her circumstances it may not be surprising therefore that she did not know where other parts of her clan resided.

In relation to the characteristics of Hawadle, a series of questions was put to her considering the Hawadle people as follows:

Q22:    What are the characteristics of the Hawadle?

A:        I don't know because I grew up in Mogadishu.

Q23:    But you must have known what the traditions of your clan were even though you lived in - you grew up in Mogadishu?

A:        I call tell you a little, but I'm not grew up among the Hawadle people.

Q24:    What can you tell me?

A:        What do you mean, the characteristics?

Q25:    What were the traditional occupations of the Hawadle people?

A:        The Hawadle people, mainly they are farmers and nomads.  Some of them, they have goats, camels and cows.

Q26:    Is there anything else you can tell me about them?

A:        No.

A conclusion that the Applicant is not Hawadle from the fact that she did not know the “characteristics” of the Hawadle, aside from the fact that they were traditional farmers and nomads is certainly not borne out by the extract from Dr Dorward.  In any event, a conclusion that an applicant in the circumstances of this Applicant would not understand what “characteristics” meant is not surprising. 

Some aspects of those conclusions, of course, may go to the weight of the matter, which is not relevant for me in proceedings of this nature.  However, there is nothing in the findings made by the Member to indicate other independent evidence which suggests that lack of knowledge, beyond the answers given by the Applicant, in any way indicated inconsistency with what is known about the people of Somalia.

The Member referred to his conclusion that he was not satisfied as to the national identity or clan of the Applicant, in relation to what he characterised as extremely vague and undetailed evidence concerning circumstances in Somalia.  First of all, the Member said that her statement that the Civil War began some time in the 1990s is vague.  The evidence from the transcript was as follows:

Q27:    Do you know when Siyad Barre left Somalia?

A:        I don't know Siyad Barre himself and I don't know anything - such thing.  Just what I know, there was civil war in Somalia.

Q28:    Do you know when that civil war was?

A:        Yes, there was a war, but I don't know who fighting to whom.  I hear only the bullets all over the places.  That's what I knew.

Q29:    So you don't know when the civil war began?

A:        I think it was sometimes in nineties - in 90.

The criticism of the Member was that her statement that the civil war began sometime in the 1990s is vague.  In fact, the transcript rather suggests that she said it was in 1990, although that may not be clear.  If the Member was concerned about that matter it was incumbent upon him, it seems to me, to pursue the matter further.

Next, the Member said that the Applicant did not know when the US marines arrived in Mogadishu.   The question as it was put to her was in fact as follows:

Q30:    Do you know when the American troops invaded Somalia?

A:        I don’t know the date.

Q31:    Do you know the year?

A:        No.

The Member’s characterisation of the evidence is not accurate from that point of view.

Finally, the Member referred to the fact that the Applicant was unable to identify what part of Mogadishu various landmarks were located in.  He asked her about the air force base in Mogadishu, the university, the market, the central mosque and the parliament building as well as the main post office.  It may be that the Member had some other knowledge of the location of those landmarks within Mogadishu although there was no reference in the reasons to that knowledge.  I would not find it surprising that a 14 year old girl would necessarily know the location of any of those matters.  She was in fact able to tell the location of the market, and question and answer was as follows:

Q39:    Do you know where the market is?

A:        I know a market where we used to go for shopping.  That was in Madena.

Q40:    Do you know where the main market is in Mogadishu?

A:        Is Hamarwayne.

……………………………

Q41:    Is that a part of Mogadishu?

A:        The market itself is Hamarwayne.

Q42:    Where is it?  What part of town?

A:        In the centre of Mogadishu.

Thus, the Applicant was in fact able to indicate the location of one of the landmarks where it might be expected that she would have had some familiarity; an air force base, a university, a central mosque and parliament are not things ignorance of which is surprising in a girl of that age.

I have summarised all of the matters which led the Member to conclude that he was not satisfied of the national identity or clan affiliation of the Applicant.  Two of the matters, as I have indicated, are based on irrational reasoning.  The other matters are matters which, I must say, I do not find in the slightest bit compelling.  However, those other matters are matters of weight for the Tribunal.

In the second part of the reasons, the Member listed a further series of what were said to be inconsistencies and contradictions in the Applicant’s evidence as follows.  First, it was said that in the first statutory declaration, that is, the unsigned document, she stated that she knew some Arabic although she did not mention this in her application for a protection visa.  The Member said that he found the explanation offered by the Applicant for that contradiction was non responsive and therefore unsatisfactory.  That criticism rather suggests that the Member may not have paid much attention to the material in question.  As I have already indicated, the unsigned statutory declaration was submitted under the same cover as the form of application itself.  The application itself referred to the statutory declaration.  The printed form of application contains a question, “Which languages do you speak, read or write?”.  Opposite that there were spaces headed “Language/Dialect”, “Speak”, “Read”, and “Write”.  Underneath “Language”, the word “Somali” was written.  Underneath “Speak” there appeared a tick.  In the statutory declaration, the following paragraph appeared:

Up until 1993 I lived with my family in Medina, a suburb of Mogadishu.  I did not have any formal education but I did go to the local “dux” where they teach Koran and where I learned to read a little bit of Arabic.  I attended this school for a total of about three years.  The rest of the time I lived at home and helped my mother with housework.

At the hearing, the Member put the following questions and received the following answers on that topic.

Q46:    Now, in the first statutory declaration that we have in the file in the department that's in support of your application for a protection visa, it says that you learnt to read a bit of Arabic at the local ... indistinct ...

A:        Well, yes, I do.

Q47:    But in your application that you filled out for language - the question for languages, it only mentions that you can read, speak or write Somali.  It mentions nothing about Arabic.  Can you tell me why you didn’t mention that you also read a bit of Arabic?

A:        The Arabic I can read because I learn the Koran.  Only I can read, I don’t know what it means but I can read.

Q48:    I understand that.  But in the question in your application about the languages that you know, you only mention Somali, you don’t mention Arabic.  Can you tell me why you didn’t mention that there.

A:        Didn’t I mention the Koran, that I know the Koran?

Q49:    In the section about your languages, the question is …

A:        I said I learn the Koran for 3 years.

Q50:    The question here is, “Which languages do you speak, read or write?” and the only answer is “Somali”.  You don't mention anything about Arabic here.

A:        I said I can speak and write Somali language but Arabic - I can’t speak Arabic.  I can read because I learn the Koran, and the Koran is similar like Arabic language.

That is the evidence which the member said was a contradiction, non responsive and therefore unsatisfactory.  That seems to me to be irrational or lacking in reason in the sense that the two documents were not separate; they were part of the same document.  The explanation given by the Applicant as to why she did not include Arabic as a language which she could read or write is a perfectly understandable and rational explanation.

Secondly, the Member referred to an asserted inconsistency concerning the name of the clan which attacked the Applicant’s family in 1993.  The Member says that initially during the hearing before the Tribunal the Applicant stated that she did not know the name of the clan which attacked her family in 1993 but that she then stated it was the Habr Gadir.  Again, it is necessary to consider the evidence to which the Member was referring and I set it out as follows:

Q55:    When you say "Rebels attacked our house," they were members of which clan?

A:        I don't know their clan but they were ... indistinct ... and they had guns.

Q56:    Can you tell me why they only wanted to kill the men and not the women?

A:        I think those people who attack us, they were from Habr Gadir clan and they don't want woman - to kill them.  Only they want to kill the man, because man can get gun and fight back, but the woman is nothing; they can’t do anything.

Q57:    But a moment ago when I asked you which clan were they from you said you didn't know, and now are you saying that you think they’re from Habr Gadir?  Why is it that all of a sudden you know the name of the clan?

A:        The reason that I said Habr Gadir - because between Hawadle and Habr Gadir there was a war, so anybody who attack to Hawadle people will be only Habr Gadir, and by that time I don't know much about the clans.

It may be that there is some inconsistency in that answer although it would be capable of being explained on the basis that in the second answer the Applicant began her answer by, “I think”.  That, of course, may simply go to the weight of the evidence but it is certainly an explanation for what might apparently be an inconsistency. 

The third matter is a matter of some significance and it is a matter which does tell against the Applicant without some explanation.  The Member's summary of the material is as follows:

Most importantly, there are very significant and material contradictions on the date the applicant left Somalia and arrived in Kenya comparing the application for protection visa, the first statutory declaration and the second statutory declaration.  As noted above, the application for a protection visa states that the applicant was in Kenya from 1993 until 1997, whereas the second statutory declaration states that she only arrived in Kenya in 1997.  The applicant stated during the hearing before the Tribunal that she arrived in Kenya in 1997.  The only explanation the applicant offered for these contradictions was that she did not know the dates and was only guessing.  The Tribunal finds that this is an unsatisfactory explanation.  The first statutory declaration and what is stated in the application for a protection visa is completely different in terms of the chronology of events between 1993 and 1997 from what is recounted in the second statutory declaration. 

There is substance in that observation in that the material which was contained in the sworn statutory declaration covers events which were simply not referred to in the earlier material.  One could imagine possible explanations for the inconsistency.  For example, the detail of that period is simply not stated in the application or in the unsigned declaration.  The material is quite summary in form.  The material in the application itself involves filling in blank spaces in a printed form and there is certainly a statement in the application form itself that from 1993 to 1997 the Applicant had resided in Kenya at Isiolo in Nairobi. 

In the unsigned declaration the Applicant said that the war became very bad in 1993 and then went on to say as follows:

5.         With my uncle and his family we fled.  We got on to a truck which took us to Kenya and then we lived in Nairobi in the suburb known as Isili where there are many Somalis living.  We lived in a house with my uncle, his wife and his six children.  …

6.         I lived in Nairobi for about four years.

In the signed declaration the Applicant recounts in much more detail moving around from one area to another.  Although it is not clear whether some of those areas were in Somalia or in Kenya.  It is, however, clear from the signed declaration that the Applicant was not living in Kenya during that period.  The Applicant was given the opportunity to explain that inconsistency, but I think it is fair to say that she fails to give any satisfactory explanation for the inconsistency.

The next matter, described by the Member as contradictory or vague and insufficiently detailed evidence, concerned the journey which the Applicant made with her agent from Nairobi to Sydney.  The Member observed that the agent was a Somali and therefore they spoke the same language although the Applicant said that she did not speak during the flight.  That evidence is not so much evidence of a contradiction as simply being implausible.

Finally, apart from the matter already referred to concerning the time when fighting broke out between Habr Gadir and the Hawadle, the Member referred to an inconsistent answer given in the course of the hearing.  In the signed statutory declaration the Applicant said that she went by truck from Baidabo to Walanweyn.  However, at one stage during the hearing she said she walked from Baidabo to Walanweyn.  In the next answer she corrected that and said that she in fact went by truck.  It is significant that in the answer the Applicant was, in fact, told what she had said in the signed declaration.  Thus, it is not a question of her failing to remember what she had already said but rather on its face appears to be simply a mistake.  The question and answer were as follows:

Q132:  Then you say “Fighting then came to Baydhabo and we took a truck to Wanlaweyn”.  How many kilometres or how long was the trip too Wanlaweyn?

A:        We walked about three days from Baydhabo to Wanlaweyn.

Q133:  It says in your second statutory declaration that you took a truck to Wanlaweyn and now you're saying that you walked  Which is the real story?

A:        We got a truck from Baydhabo to Wanlaweyn.

Q134:  But a moment ago you just said that you walked?

A:        I said from Afgooye to Baydhabo we walked but from Baydhabo to Wanlaweyn we got a truck.

Q135:  In Wanlaweyn you say, in your second statutory declaration - you say you then took a truck to – Bulohawo?

A:        Bulohawo, yes.

The Member considered that the Applicant’s explanation for that inconsistency was non-responsive since she failed to attempt to explain the contradiction.  It would be strange if, having been told that she had said in her declaration that she took a truck, she would respond immediately that she walked if the reason for doing so was because the witness did not remember what she had said in the declaration.   On its face, it seems to me that that was clearly a mistake.  The witness did, in fact, explain the mistake saying that she meant to refer to the place from which she had walked and indeed end her declaration.

She said that they walked from Mogadishu to Afgooye.  That they stayed in Afgooye for a few months and “The fighting in Afgooye increased and we went by truck to Baydhabo”.  There is some inconsistency in that answer although the declaration refers to a number of different times at which different journeys were taken.

I must bear in mind that it is not for this Court to consider the detail of the evidence or the extent to which it might be reliable since that is a fact finding matter for the Tribunal.  There is considerable substance in the observations made by the Member concerning the contradictory nature of some of the other evidence.  However, there are logical deficiencies in the reasoning which led to the Member's conclusion that he could not be satisfied that the Applicant had established her national identity or clan affiliation.

What is not clear from the reasons is the extent to which the Member reached a conclusion concerning the various elements which, at the beginning of his reasons, he identified as being necessary to be established.  The only conclusion was that the Applicant's claims are not credible and that there is no evidence, therefore, on which the Tribunal can be satisfied that the Applicant has a well-founded fear of persecution due to membership of a particular social group or for any other Convention reason.

It seems to be implicit in that conclusion that the reason why the Tribunal could not be so satisfied was because it could not be satisfied as to the clan affiliation or national identity of the Applicant.  There is no specific finding concerning the absence of any evidence as to a well-founded fear.  In other words there is no finding by the Tribunal, for example, that this person, whatever her identity might be, could have a fear which was well-founded.  Indeed, as both parties contended, the Tribunal made no findings at all but simply concluded that it could make no findings because there was no credible evidence.

As I have said, for the reasons I have now indicated in some detail, I have some disquiet concerning the conclusions that have been reached and the reasoning which led to those conclusions.  The question is whether any ground within section 476(1) has been established.  The question of the operation of section 420 in the context of section 476(1) has been the subject of recent decisions of the Full Court of this Court, one of which is now on appeal to the High Court.  I am bound by any applicable decision of the Full Court which includes Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 as well as Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 151 ALR 505.  It is not for me to express any view about the reasoning in those decisions in so far as the reasoning is binding upon me.

In Eshetu, Davies J, with whom Burchett J generally agreed on this subject, expressed the view that section 420 describes procedures with which the Refugee Review Tribunal is bound to comply.  Accordingly, a breach of the provisions of section 420 is a ground of review under section 476(1).  His Honour said (at 303-304):

It is the most general provision, so far as the Refugee Review Tribunal is concerned, of the sections which deal with the procedures to be followed. …

One of the necessary elements of acting [according to substantial justice in the merits of the case] is the provision of procedures which are fair and just and are directed to ensuring that the application can be decided according to its substantial justice and the merits of the case.

However, the words “act according to substantial justice and the merits of the case” refer in his Honour's view to more than matters of procedure.  His Honour referred to the decision of Lockhart J in Singh v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, 18 October 1996) to the effect that (at 304):

If … the Tribunal had acted so unfairly as to deny substantial justice to the applicant, that would … be a failure to observe procedures required by the Act for the purposes of section 476(1)(a).

His Honour observed (at 305) that:

The phrase “substantial justice and the merits of the case” does not, of course, empower a tribunal to make a decision otherwise in accordance with law.

His Honour referred to Bouton v Labish (1994) 33 NSWLR 225where the New South Wales Court of Appeal observed that the term “substantial justice” has an ambit wider than that of procedure.  It must be assumed that something additional was contemplated beyond procedural fairness.  His Honour summarised his conclusions concerning the operation of section 420 in the context of section 476(1)(a) as follows (at 305):

The Migration Act has substituted for the rules developed by the common law and the rules incorporated in the ADJR Act rules of its own.  Section 420 provides that the mechanism of review shall be “fair, just, economical, informal and quick” and shall be directed to arriving at the “substantial justice and merits of the case”.  If the procedures of the Tribunal have not met that prescription, the decision of the Refugee Review Tribunal may be set aside.  It matters not that the breach may also have amounted to a breach of the rules of procedural fairness developed by the common law.  The matter is to be determined not by the common law but by the words of the statute.  A breach of the statute is not saved by section 476(2).

Nor it seems by section 476(3).  His Honour observed (at 306) that the new provisions were designed to substitute statutory law for the common law.  Therefore, section 420 and the other procedural sections of the Act are given full force and effect by the operation of section 476(1)(a) whilst 476(2) excludes the operation of the nominated common law principles.  Each provision achieves an appropriate operation without encroaching on the other.  Accordingly, the fact that a decision is so unreasonable that no reasonable Tribunal should have arrived at it does not exclude examination of a decision to see whether an error of law, being an error involving the incorrect interpretation of the applicable law, has occurred.

In Sun Zhan Qui Wilcox J, with whom Burchett J agreed, referred to the decision of Davies J in Eshetu and expanded on that to some extent.  His Honour observed (at 546):

Two aspects of s 420 are relevant.  First, s 420(1) requires the tribunal, in carrying out its statutory functions, “to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”.  Secondly, under section 420(2)(b) it “must act according to substantial justice and the merits of the case”. 

Having observed that substantial justice involved more than fair procedures, Wilcox J referred to the passage which I have set out above from the judgment of Davies J and then went on to say (at 547):

…it is no answer to a complaint of failure to comply with s 420 that the failure resulted in a manifestly unreasonable decision.  The scheme of the legislation is to require the court, in considering an application for judicial review of a decision of a tribunal, to determine whether the applicant has made out any of the grounds specified in subs (1) of s 476; if so, it is not to the point that the circumstances were such that, absent subs (2), the decision would have been reviewable on the ground that it breached common law principles concerning natural justice or is manifestly unreasonable. 

I also observe that it would, by parity of reasoning, follow that it would not be to the point that the circumstances were such that, absent sub-section (3), the decision would have been reviewable on the ground that it took into account irrelevant considerations or failed to take into account relevant considerations.

Wilcox J then applied that view of section 420 to the case in question.  In particular, his Honour was prepared to consider that section 420 would be offended by a decision which was so unreasonable that no reasonable person could so exercise the power involved in making the decision.  If the Tribunal’s treatment of the issues is so unreasonable that it must be said that the decision could not have been made by a reasonable person there has not been substantial justice (page 548).

In addition, his Honour considered the failure of the Tribunal in the case there under consideration to give weight to at least two important facts and said (at 549):

…these facts did not conclusively prove Mr Sun's claim to have been at Tiananman Square on 4 June 1989, but they strongly supported it.  If she had found facts inconsistent with that claim, Ms Schmidt [the tribunal member] would have been entitled to refuse to draw the inference these facts would suggest, but substantial justice would still have required she take them into account.  Ms Schmidt did not find facts inconsistent with the claim, she merely disbelieved it.  She did that without taking the two mentioned facts into account.

In his conclusion, Wilcox J considered that the failure by Ms Schmidt to comply in at least those respects with the requirement of section 420 constituted a failure to act according to substantial justice and the merits of the case.

Davies J in Eshetu referred to several decisions concerning the concept of substantial justice. In particular, reference was made to R v The War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 (“Bott’s Case”).  There was a requirement in the legislation there in question that an appeal tribunal:

…shall not, in the hearing of appeals, be bound by any rules of evidence but shall act according to substantial justice and the merits of the case…

The majority judgment of Rich, Dixon and McTiernan JJ observed (at 243-244):

…it may be said that the expressions in sub-sec. 2, although adopted from legal procedure, really describe the grounds upon which a more or less discretionary judgment must be formed by an administrative body, and that neglect of its requirements, as distinguished from a mere erroneous application of them, would amount to a departure from the prescribed criterion or a desertion of the issue to be determined.

Those observations do not give a great deal of assistance in the content of the concept of substantial justice.  However, Starke and Evatt JJ, who gave separate decisions, dealt with the concept in slightly more detail.  Starke J said that in order to comply with such a requirement (at 249):

[t]he decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice.

His Honour went on to say:

Apart from the character of the duty imposed upon the Appeal Tribunal, the provisions of sec. 45W(2) make it clear that that tribunal was under no obligation to follow wholly or in any special respects the procedure of a Court of law: it was largely master of its own procedure; its duty was lawfully performed if it observed the express provisions of the Act and did not violate any substantial requirement of justice.

Starke J then went on to conclude that because the applicant had been given an adequate opportunity of presenting his case and that evidence was received both for and against him there had been no violation of any substantial requirement of justice.  Evatt J (at page 256) reached an opposite conclusion and to that extent he was in dissent.  However, he made several observations as to the content of the concept, which were referred to by Davies J.  He said as follows:

…in my opinion, the Tribunal did not act “according to substantial justice”.  This is the overriding statutory command, and it is almost a paraphrase of the general principle enunciated by Viscount Haldane in Arlidge's case. Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, “bound by any rules of evidence”.  Neither it is.  But this does not mean that all rules of evidence may be ignored as of no account.  After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth.  No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence as such, do not bind, every attempt must be made to administer “substantial justice”.

The reference to Arlidge’s Case is a reference to the Local Government Board v Arlidge [1915] AC 120.  The reference to the judgment of Viscount Haldane is a reference to the manner in which the board in question there could obtain evidence. From one point of view, therefore, one might conclude from the observations of the High Court in Bott's Case that substantial justice is almost synonymous with the principles of natural justice or procedural fairness. 

However, it is clear that Davies J says that the matter goes further than that.  Certainly Wilcox J indicates that it goes beyond mere procedural fairness to include Wednesbury Corporation unreasonableness and failing to take into account relevant considerations.  It seems to me that it would therefore also include taking into account irrelevant considerations.

The Minister, in resisting the Applicant's submissions, based his contentions on three propositions.  First, he contended that there could be no review of the sufficiency or adequacy of evidence under section 476 except as contemplated by section 476(4) and in this case the Applicant places no reliance on the adequacy or sufficiency of evidence ground, paragraph 476(1)(g).  Reference was made to the decision of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 where, for example, Mason CJ observed (at 356) that there is no error of law simply in making a wrong finding of fact.

Mason CJ also referred (at 359) to the effect of equivalent provisions in the Administrative Decisions (Judicial Review) Act 1977 (Cth)of section 476(1)(g) and 476(4) that an error of law could not include a mere lack of evidence as distinct from a complete absence of evidence.  However, such a contention, it seems to me, while it may well recommend itself in terms of what appears to be the scheme of section 476, cuts directly across the decisions of the Full Court in Eshetu and Sun Zhan Qui.  

In other words the clear statement by Davies J as explained by Wilcox J, is that notwithstanding the privative provisions in section 476(2), (3) and (4), if there can be demonstrated a failure to act according to substantial justice then there will be a ground established under section 476(1)(a). 

Secondly, it was contended that even if section 476(1)(a) permits a review on the ground of failure to act according to substantial justice the concept of substantial justice goes only to procedural matters and in that sense reliance was placed on Bott's Case.  However, as I have said above, the observations of Davies J and Wilcox J go beyond that.

The third level at which the Minister resisted the application was that even if the broad approach which seems to be required by Eshetu and Sun Zhan Qui is applicable, an analysis of the matters relied on by the Applicant did not indicate that the Member was doing otherwise than deciding factual matters.  In effect, I have dealt with the issues concerning that matter in the above.

I find the possible application of section 420 difficult simply because of the lack of assistance given by the statute as to what is intended to be comprised in the concept of “substantial justice and the merits of the case”.  That difficulty, of course, might be a reason for coming to a view contrary to that espoused by Davies J and Wilcox J but, as I have said, that is not a matter for me.

In the circumstances, I consider that the deficiencies in the reasoning to which I have referred above do constitute a failure to act according to substantial justice insofar as the Member failed to give any weight at all to the evidence of Mr Jimale or to take the opportunity of pursuing with Mr Jimale his ability to give appropriate evidence as to the identity of the Applicant.  The member did not say that he disbelieved Mr Jimale and Mr Jimale's clear evidence was that the Applicant was a member of the appropriate clan and that she had lived in Medina in Mogadishu.

In addition, taking into account what were said to be inconsistencies based on the evidence of Dr Dorward appears to me also to be a failure to act according to substantial justice where the conclusions reached in that regard do not appear to be supported at all by the evidence before the Member.

I should observe that there were aspects of the material before the Member which certainly indicate that there are questions to be examined in relation to the circumstances of the Applicant and I have indicated in the detailed analysis above those areas where the Member may well have been justified, in the absence of the matters to which I have referred, in concluding that the witness' evidence is not entirely credible.

However, insofar as the Member appears to have based his conclusion on not being satisfied as to the identity and clan affiliation of the Applicant, I consider that he has relied on irrational and illogical reasoning.  I would not conclude that his decision is one which no reasonable person could have reached on the material before him.  Nevertheless, it appears to me that he has not advised himself correctly as to the approach which he should give to the evidence in question.

He does appear to me to have failed to pursue possible areas of inquiry through Mr Jimale and appears to have taken into account a conclusion that is not based on evidence.

In those circumstances, on balance I am satisfied that there has been a failure to act according to substantial justice.  I consider that the decision of the Tribunal should be set aside and the matter should be referred back to the Tribunal to be decided according to law. 

I order the respondent to pay the Applicant's costs of the proceedings.

Associate:

Dated:              30 September 1998