FEDERAL COURT OF AUSTRALIA

MIGRATION - appeal from Refugee Review Tribunal (“RRT”) decision refusing refugee status – whether there was evidence or other material to justify the making of the decision – whether the procedures that were required by the Migration Act 1958 (Cth) or the Migration Regulations to be observed in connection with the making of the decision were observed – whether the RRT formed an adverse view as to the credit of the applicant based on factual errors in its findings - whether the RRT’s failure to give the applicant an opportunity to present the truth to it about part of its evidence amounted to a substantial injustice and therefore an error of law

Migration Act 1958 (Cth), ss 420, 476(1)(a), 476(1)(e), 476(g), 476(4)(b)

Migration Regulations (Cth)

Navaratne v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Tamberlin J, 1 August 1997), cited

Kopalapillai v Minister for Immigration and Ethnic Affairs (unreported, Full Federal Court, 8 September 1998), cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited

Thambythurai v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Finkelstein J, 16 September 1997), cited

NGO QUANG THUAT v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 340 of 1998

O'CONNOR J

SYDNEY

24 NOVEMBER 1998

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal dated 24 March 1998 be set aside and remitted back to the Tribunal for reconsideration according to law.

2.         The respondent pay the applicant’s costs.

NOTE:             SETTLEMENT AND ENTRY OF ORDERS IS DEALT WITH IN ORDER 36 OF THE FEDERAL COURT RULES.

REASONS FOR JUDGMENT

This is an application for the review of a decision of a member of the Refugee Review Tribunal (“the Tribunal”) dated 24 March 1998 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.

At the directions hearing of this matter on 28 June 1998, the Court made an order, inter alia, that the applicant file and serve on or before 24 July 1998 an amended application fully particularised.  On 12 October 1998 the applicant filed an amended application.  The grounds of this amended application as summarised are:

1.         That the Tribunal erred in law in that on the evidence and materials before it the only conclusion that was open to the Tribunal was that the applicant was a refugee within the meaning of the Migration Act 1958 (Cth) (“the Act”), whereas the Tribunal found otherwise.

2.         That the Tribunal erred in law in that it failed to consider and determine the question whether, by reason of the applicant’s position as an officer in the military police during the former regime, he was branded, together with others in a similar position, has having a “bad background” and thereby suffered and would continue to suffer should he return to Vietnam limitations relating to both residence and employment which amounted to persecution and so acted contrary to s 420 and ss 476(1)(a) and 476(1)(e) of the Act.

3.         That the Tribunal erred in law in that it found that the applicant assisted one of his brothers in avoiding conscription by acts of deception whereas there was no evidence upon which the Tribunal could so find, and thereby acted contrary to s 420 and ss 476(1)(a), 476(1)(g) and s 476(4)(b) of the Act.

4.         That the Tribunal erred in law in that it failed to return to its initial investigation of the applicant’s failure to state details of his 1981 escape attempt in his application, as the Tribunal had indicated that it would, the finding on this aspect being material to the Tribunal’s findings as to the applicant’s credibility, and thereby the Tribunal failed to act in accordance with s 420 of the Act and in breach of s 476(1)(a) of the Act.

LEGISLATIVE CONTEXT

The relevant provisions of the Act in respect of this application are as follows:

 “Refugee Review Tribunal’s way of operating

420.  (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.

...

Application for review

476.  (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;

...

(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;

...

(g)       that there was no evidence or other material to justify the making of the decision.

  (2)  The following are not grounds upon which an application may be made under subsection (1):

(a)       that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)       that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.

…

  (4)  The ground specified in paragraph (1)(g) is not to be taken to have been made out  unless:

…

(b)       the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is a person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

The applicant seeks an order that the decision under review be set aside and remitted back to the Refugee Review Tribunal for reconsideration according to law.

FACTUAL BACKGROUND

The applicant is a citizen of Vietnam.  In his first application the applicant states that because he was with the former Army of the Republic of Vietnam in 1975, when the Viet Cong invaded the South, he was arrested and held for two and a half years.  He was later restricted in his movements.  In 1980 he was arrested and imprisoned for two months due to an unsuccessful attempt to escape.  The applicant claims that during this time he was tortured, harassed and labelled as a  “bad element”.  He was strongly discriminated against and maltreated by society.

At an interview with the Department officer the applicant claimed that his brother was killed during his escape attempt in 1981.  He said he was caught by the police and only released when his family paid a bribe.

In his application to the Tribunal the applicant stated that he made an escape attempt in 1980 and a second attempt in 1981.  He said that after the first attempt he was sent to prison for two months.  He said his brother was killed in the second escape attempt and he received a one year gaol sentence.

At the hearing before the Tribunal, the applicant repeated the latter evidence but added a period of three months detention after the second escape attempt and before the one year imprisonment.

After the applicant was released from prison in 1982 he left the local area and registered in another area using his deceased brother’s name and papers.  The applicant later moved to be closer to his wife but attempts to register in his wife’s area were unsuccessful.  In 1988 his sister was able to bribe an official to have the applicant registered with her household and he worked for her until his departure for Australia.

In Australia the applicant has been involved with a group of former South Vietnamese army officers and took part in a demonstration in Canberra during the visit by the Prime Minister of Vietnam in 1995.  Since his arrival in Australia, the official who was bribed to register him at his sister’s house has been gaoled for such activities.

The applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa on 13 March 1995.  The delegate’s decision refusing the application was made on 30 October 1996.  The applicant applied for a review of that decision by the Tribunal on 29 November 1996.  The application for review was rejected by the Tribunal and his application for protection visa refused on 24 March 1998.

TRIBUNAL’S DECISION

The Tribunal accepted that the applicant was sent to a re-education camp for being an officer of the military police of the former Republic of Vietnam.  The Tribunal also accepted that this “bad background” resulted in denial of employment opportunities.  The Tribunal accepted that the applicant made an escape attempt in 1980 which resulted in two months imprisonment.  However the Tribunal did not accept the remainder of the applicant’s claims.

The Tribunal did not accept the applicant as a credible witness.   It considered there were a number of inconsistencies and contradictions in his evidence.  The Tribunal found that when questioned about these inconsistencies, the applicant was evasive and non-responsive and his demeanour gave the impression that he was not telling the truth.

The Tribunal did not believe the applicant’s claims about bribery of an official to get him registered with his sister’s household, the later prosecution of that official or that he is at risk because of it.  The alleged bribe was paid in 1988 but was only prosecuted by the authorities after the applicant left Vietnam in 1994.  Initially the applicant said the police took the falsified registration card away one month after the applicant departed and prosecuted the official.  He claimed the police told his sister they had lost the card and gave her a new one without his name on it.  Then he said it was two months before he left that the police came to get the card and that his name was on the replacement card but was deleted by the police in 1996.  The letter from his wife stated that the police terminated his household registration because he had been away for nearly three years and made no mention of prosecution for bribery.  The Tribunal was satisfied that the story was a fabrication, that the applicant was registered lawfully at his sister’s house and that he is not at risk of prosecution for bribery of an official.

As to the applicant’s claims in respect of his political activity in Australia for overstaying his exit visa, the Tribunal was satisfied from the independent country information that the Vietnamese authorities do not prosecute returnees and that the applicant’s fears of persecution on these grounds are not well-founded.

The Tribunal concluded as follows:

“I am satisfied that the applicant fabricated much of his evidence.  I am satisfied that the evidence which I do not accept is not sufficient to give rise to a well-founded fear of persecution for reasons of political opinion, membership of a particular social group or any other Convention reason.”

In the reasons for decision, the Tribunal said as follows:

“At the Department interview, the applicant said he made an escape attempt in 1980 in which his brother was killed.  He said he was caught by the police and only released when his family paid a bribe.  He made no mention of a second escape attempt or of being imprisoned for one year.

In his application to the Tribunal, he stated he made an escape attempt in 1980 and a second attempt in 1981.   He said that after the first attempt he was sent to prison for two months.  He said his brother was killed in the second one and he received a one year gaol sentence.

At the hearing, he repeated the latter evidence but added a period of three months detention after the second escape attempt and before the one year imprisonment.

When asked to explain the omission of the second escape attempt in 1981, the death of his brother and the one year prison sentence from the initial application, he said, “I only tried to summarise without mentioning the details.”   I do not accept that explanation.  The statement of reasons given in the initial application was substantial and referred to the specifics of the 1980 escape attempt and the two months imprisonment if produced.  I find it implausible that the applicant would give this particular information but omit the far more serious second attempt, if it in fact occurred.  I am satisfied that it did not occur and was a subsequent invention designed to improve the applicant’s chances of success in this application.

The applicant’s evidence about his brother’s avoidance of conscription was also unbelievable.  He was continually evasive and non-responsive when I questioned him about this and his demeanour gave the impression that he was not telling the truth.” (p 10)

In these passages the Tribunal referred to, among others, two significant matters:

1.         The failure to mention the 1981 escape attempt at the Department interview, which was found to be a “recent invention” motivated by his desire to improve his chances of success.

2.         The evidence of his brother’s avoidance of conscription where the applicant was described as “continually evasive and non-responsive”.

Both matters, in my view, were very significant in causing the Tribunal to form an adverse view as to the credit of this applicant.

At the hearing, Counsel for the applicant submitted that both matters had been affected by factual error on the part of the decision maker.

1.         The applicant had referred to the 1981 event at the Department.  The Departmental decision maker had wrongly described it as occurring in 1980 in his reasons for decision, and

2.         The applicant had been misunderstood in his evidence as to his brother’s avoidance of conscription.  The decision maker thought he had used the word “we” when referring to the event and the applicant had in fact said “he”.   The subsequent questioning then proceeded on a false basis and it was this evidence which was described as “evasive and non-responsive”.

Both matters, in my view, constitute material matters.  They were crucial in the Tribunal’s conclusions that this was a case of fabrication of a claim for refugee status.

There was an acknowledged discrepancy in the evidence given by this applicant between his initial application and the matters raised at the Departmental interview.  This discrepancy was not discussed in the reasons for decision.  If it had been, as Counsel for the applicant submits, it could not have been considered to be motivated by any rejection of the claim by the Department.

Moreover the applicant had informed the Tribunal at the hearing that he had mentioned the 1981 matter to the Department.  The decision maker responded by saying he “would leave the matter” and come back to it.  He did not do so.  This, the applicant says, deprived him of the opportunity to correct the misapprehensions created or to address the true discrepancy in his evidence.  The respondent submits in response that the conclusions reached by the Tribunal as to the credit of this applicant were clearly open to it.  As the respondent correctly submits, it is a matter for the Tribunal as to whether it believes the applicant and findings as to credit would not be lightly challenged.

In Navaratne v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, 1 August 1997), Tamberlin J said:

“The credibility of an applicant is largely a matter of impression.  There is no reason, in principle, why the observations of the High Court in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179, as to the disadvantage of an appellate body in considering credibility findings should not apply in respect of review applications to this Court under s 476 of the Act.  The oft-cited remark of the Court as to the “subtle influence of demeanour” are especially important in migration cases where many of an applicant’s assertions must be accepted at face value in the absence of any evidence to the contrary.  Inevitably, a great deal must depend on the demeanour as well as the consistency of the evidence of an applicant in testifying as to specific critical facts that are incapable of being independently verified.  For these reasons it will often be difficult to persuade this Court on a review application to set aside findings by an administrative decision-maker on credibility questions.” (p 7)

This passage succinctly states this principle.  Further, in Kopalapillai v Minister for Immigration and Multicultural Affairs (unreported, Full Federal Court, 8 September 1998) the Court said:

Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (S Taylor (1994) 13 UTLR 43).   Nor is there a rule that a decision maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case.” (p 16)

Relying on these principles the respondent says that as the findings were based on both “demeanour and inconsistencies in his evidence” they should not be overturned on judicial review.

However s 415 of the Act and clause 866.221 of the Migration Relations (Cth) require the person considering the merits of a claim for refugee status to reach a state of “satisfaction” that the applicant is a person to whom Australia has protection obligations under the Refugee Convention.  Such a decision is not immune from review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 [at 274-277, 281-282]). 

One basis for such review would be a false basis of material facts for the findings made.

The respondent’s submission is that the Tribunal’s findings of fact and its conclusions as to the applicant’s credibility left the Tribunal with an “inadequate factual foundation” to be satisfied that the applicant had a well founded fear of convention if returned to Vietnam.

In my view, the basis on which this decision maker reached crucial conclusions as to the credibility of this applicant are flawed.  One would only have to consider the finding on page 10 of the reasons for decision referred to previously where the decision maker said:

“I am satisfied that it did not occur and was a subsequent invention designed to improve the applicant’s chances of success in this application”.

This was a conclusion not capable of being made on the evidence before the Tribunal.

The ground of review under s 476(1)(g) is made out.

In addition, I consider the failure to give the applicant an opportunity to present the truth to the Tribunal about the history of the 1981 incident amounts to an error of law.   At the hearing the Tribunal had put to the applicant an incorrect fact.  The applicant challenged this and was told the Tribunal would return to the issue.  It did not do so.  However, it relied on the incorrect information to draw inferences as to the applicant’s credit.

Further, the finding that the applicant assisted one of his brothers in avoiding conscription, was also incapable of being made. This finding, also being crucial in the Tribunal’s assessment of the applicant’s credit.

Not all errors of fact will amount to a finding that the decision is substantially unjust.  In Thambythurai & Anor v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, 16 September 1997) at page 13, Finkelstein J said:

“It is difficult to see how a decision can be described as substantially unjust or otherwise than in accordance with the merits of a case if, in the process of arriving at it, the decision-maker makes an erroneous assumption about a peripheral fact or improperly draws an inconsequential inference.”

However, if the error is material or significant as it is in the present case, (the credit of the applicant being crucial to the conclusions reached) such a conclusion must be reached.  It is not necessary in the light of the above conclusions to consider the ground concerned with employment difficulties.  In my view the handling of the credit issue tainted the whole proceedings at the Tribunal in this matter.

This decision should be set aside and remitted to the Refugee Review Tribunal for reconsideration.

Associate:

Dated:              24 November 1998