FEDERAL COURT OF AUSTRALIA

Saadik v Minister for Immigration & Multicultural Affairs [1999] FCA 825

MIGRATION – review of Refugee Review Tribunal decision – non-disclosure to applicants of “independent” evidence – inquisitorial function of Tribunal – s 425(1)(a) Migration Act 1958 – absence of evidence in support of alleged injuries – ss 476(1)(e) and (g) Migration Act 1958

Migration Act 1958 ss 420(2)(b), 425 and 476

Kioa v West (1985) 159 CLR 550 referred to

Minister for Immigration & Multicultural Affairs v Eshetu (1997) 162 ALR 577 referred to

Minister for Immigration & Multicultural Affairs v Capitly [1999] FCA 193 cited

Abebe v Commonwealth of Australia (1999) 162 ALR 1 considered

Sook Rye Son v Minister for Immigration & Multicultural Affairs [1999] FCA 7 cited

Sun Zhan Qui v Minister for Immigration & Multicultural Affairs (unreported, Lindgren J, 6 May 1997) cited

Caragay v Minister for Immigration & Multicultural Affairs (1997) 49 ALD 539 referred to

Meadows v Minister for Immigration & Multicultural Affairs (unreported, Full Federal Court, 23 December 1998) referred to

Li v Refugee Review Tribunal (1996) 45 ALD 193 cited

Chen v Minister for Immigration & Multicultural Affairs [1999] FCA 34 cited

Faddoul v Minister for Immigration & Multicultural Affairs [1999] FCA 87 cited

Doan v The Minister for Immigration, Local Government and Ethnic Affairs and K Boland (Refugee Review Tribunal) (unreported, Olney J, 9 April 1997) cited

ASHRAF MOHAMED ALSAID SAADIK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 1070 OF 1998

WALID MOHAMED ALSAYED SAADIK v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 1069 OF 1998

HELY J

SYDNEY

23 JUNE 1999

THE COURT ORDERS THAT:

1.         Each application is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicants are brothers.  They were born in Egypt, but claim to be citizens of Sudan, having returned to Khartoum in 1974.  They were educated in Khartoum at the primary, secondary and tertiary levels.  The applicants’ cases arise out of the same general factual matrix, but there are some differences when it comes to specifics.

2                     The National Islamic Front (“NIF”) came to power in Sudan on 29 June 1989 as a result of a coup d’etat.  Ashraf was then at university, and Walid was in college or secondary school.

3                     The applicants are Muslims and members of the Democratic Union Party (“DUP”).  That is one of the biggest opposing parties in Sudan.  The Sudanese Government is a repressive regime.  Independent evidence before the Refugee Review Tribunal (“RRT”) established that government security forces regularly tortured, beat, harassed, arbitrarily arrested, and detained opponents or suspected opponents of government with impunity.

4                     RRT details the claims which the applicants made of severe mistreatment at the hands of the Sudanese authorities by reason of their alleged involvement in political demonstrations and gatherings.  Ashraf claims to have been arrested on four occasions between 1989 and September 1995, detained in prison for varying periods where he was frequently whipped and otherwise savagely mistreated.  Walid claims to have been arrested on a like number of occasions in the same period, and subjected to similar mistreatment.

5                     In September 1995 Walid claims to have been arrested for participating in demonstrations against the government’s decision to increase bread prices.  He was held in Port Sudan Prison for two months, lashed daily and otherwise subjected to brutal and savage torture.  In November 1995 he was transferred to Khartoum but kept in custody.  He was lashed daily, and otherwise mistreated until his release was procured by bribery in January 1996.

6                     In late 1995 Ashraf claims to have been arrested for insulting Islamic Security members whilst searching for Walid in prison.  He was lashed savagely – the wounds from the lashing took a month to heal.  Prior to the wounds healing further lashings were administered.  This happened on more than one occasion until he too was released in January 1996 by the payment of a bribe.

7                     In January 1996 the applicants learned that they were to be conscripted into a militia organisation – the “Popular Defence Force” (“PDF”) – the PDF was a government initiative to boost the Sudanese defence forces by means of compulsory military service.

8                     A current passport was issued to Ashraf on 29 February 1996 and to Walid on 21 March 1996.  They left Sudan on 29 March 1996 for Saudi Arabia.  Both applicants claimed to have lived with their family in Khartoum between their release from prison in January 1996 and their departure from Sudan on 29 March 1996.

9                     The applicants arrived in Australia on 8 September 1996 and applied for Protection Visas in October 1996.  The subsequent history of those applications is to be found in RRT’s decision given on 11 September 1998 by which the decision not to grant protection visas was affirmed.

RRT’s findings

10                  RRT did not accept the applicants as credible, because of what it regarded as inconsistencies and contradictions in their claims.  RRT found they were not telling the truth.  It even expressed concern, for reasons which it gave, about the genuineness of the applicants’ claimed Sudanese background, but for the purposes of the decision, was prepared to accept that they are Sudanese.

11                  RRT:

Ÿ                     rejected the applicants’ claims that their passports were obtained irregularly, through influential contacts, so the applicants could leave the country quickly;

Ÿ                     found that the passports were processed through normal channels, and that their issue was evidence that the applicants were not, and never had been wanted by the Sudanese authorities;

Ÿ                     found that the applicants’ descriptions of their claimed torture to be exaggerated and unbelievable.  Their claims of detention and torture were fabricated;

Ÿ                     did not accept that the applicants were ever of interest to the Sudanese authorities, let alone that they were detained and tortured by them;

Ÿ                     accepted the applicants’ claims that they feared being required to render PDF service and that fear is well-founded;

Ÿ                     found that PDF service was a general requirement unrelated to political opinion;

Ÿ                     was not satisfied that the applicants have a well-founded fear of being persecuted for reason of political opinion, or any other Convention related reason.

The grounds for review

12                  The first ground upon which review is sought is that RRT relied upon a Department of Foreign Affairs & Trade (“DFAT”) cable of 22 January 1998 to the effect that failed asylum seekers, and those granted refugee status, have returned to Sudan and have suffered no problems with the authorities.  I accept that RRT did not inform the applicants of its intention to rely upon this cable at the hearing, or at any other time.

13                  But the applicants did not contend that they feared persecution by reason of the fact that they had sought asylum in this country, and even if they did, it was hard to see why, without more, that would amount to a fear of persecution for a Convention reason.

14                  The DFAT cable was a matter of general information which had nothing to do with the applicants as individuals.  It did not bear upon the grounds on which they sought refugee status.  It was, at best, only of marginal importance in relation to the claims which were made.  The better view is that it was irrelevant to those claims.  There was, in my view, no unfairness to the applicants in failing to disclose the contents of the cable because it did not go to, or impeach, the claim which was being made by the applicants.  See  Kioa v West (1985) 159 CLR 550 at 570, 587 and 629.

15                  The complaint as to non disclosure of the DFAT cable was originally grounded in s 420(2)(b) of the Migration Act 1958 (“the Act”).  For reasons which it is not necessary to recount, at the applicants’ request, the hearing of these proceedings was adjourned from time to time.  During the last of those adjournments the High Court delivered its judgment in Minister for Immigration & Multicultural Affairs v Eshetu (1997) 162 ALR 577.  As a result of that decision, the applicants abandoned their reliance on s 420(2)(b), and reformulated their claim so as to base it upon s 425(1)(a).

16                  The applicants submitted that it is implicit in s 425(1)(a) that they will be appraised of the case which they have to meet, otherwise the opportunity to be heard afforded by s 425(1)(a) would be undermined.  Reliance was placed on a series of natural justice cases which establish that whilst a decision maker may make his or her own enquiries, the requirement of a fair hearing necessitates disclosure to the party affected of the results of those enquiries, so as to allow that party an opportunity of dealing with them.

17                  I accept that s 425(1)(a) is a procedural requirement which must be followed: Caragay v Minister for Immigration & Multicultural Affairs (1997) 49 ALD 539 at 543.  I also accept that failure to comply with s 425(1)(a) will enliven the operation of s 476(1)(a): Minister for Immigration & Multicultural Affairs v Capitly [1999] FCA 193, par 18.  But the real question is whether the non disclosure of the DFAT cable has the consequence that there has been a failure to comply with s 425.

18                  Whatever view is taken of the reach of s 425, it cannot require disclosure of material to an applicant which, objectively speaking, is immaterial to the claim.  For the reasons earlier given, the DFAT cable is material of that type.  On this ground alone, reliance on s 425 fails.

19                  Further, proceedings before the RRT are essentially inquisitorial in character.  It is not an adversarial proceeding in which the applicant has a “case” raised against him or her which he or she has to answer.  RRT is not in the position of a contradictor of a case being made by the applicant: Abebe v Commonwealth of Australia (1999) 162 ALR 1 at [187] and [295].  The opportunity which s 425(1)(a) gives to an applicant is the right to appear before the Tribunal and give evidence.  As s 425(2) makes plain, that is not the same as a right to be heard; which carries with it the right to know the case which is to be answered.

20                  Section 425(1)(a) secures to the applicant the right to advance whatever evidence or argument (Sook Rye Son v Minister for Immigration & Multicultural Affairs [1999] FCA 7 par 36) the applicant wishes to advance in support of the contention that the applicant has a well-founded fear of persecution.  There must be a genuine opportunity to appear before RRT to give evidence: Sun Zhan Qui v Minister for Immigration & Multicultural Affairs (unreported, Lindgren J, 6 May 1997).  But the existence of that opportunity does not import some obligation on RRT flowing from s 425(1)(a) to raise with an applicant matters on which the success of the application may depend.  Section 420 was found by the High Court in Eshetu to be an inadequate foundation for an attempt to overcome the provisions of s 476(2).  Section 425 provides an even less secure foundation for that attempt, having regard to the terms of the section, and the limited nature of the rights which it confers.  That is all the more so if s 425 is regarded as determining the content of that aspect of the requirements of procedural fairness often referred to as “the hearing rule”: Abebe at [157] per Gummow, Hayne JJ.

21                  Finally, the applicants did not adduce any evidence as to whether, or how they were prejudiced by non disclosure of the DFAT cable.  There was no evidence as to whether the information which it contained was controversial, or as to the response, if any, which the applicants would have made to it.

22                  Section 425(1)(a) imposes an obligation on RRT to afford the applicant the opportunity to appear and give evidence.  That opportunity was given.  The applicants’ contention must be that it was rendered illusory or fatally undermined by non-disclosure of the DFAT material.  Assuming that an apparent compliance with s 425(1)(a) could be negated by an argument to that effect, some demonstration would be required of disadvantage accruing to the applicants by reason of the procedures adopted before it could be concluded that an apparent opportunity to appear and give evidence was not real.  In this context, it cannot meaningfully be said that the applicants have been denied the opportunity of giving evidence with respect to a matter, unless it is shown that there is some evidence which they could, and (probably) would, have given with respect to that matter but for the non disclosure in question.

23                  There was no demonstration, by evidence or argument, of disadvantage accruing to the applicants by reason of non disclosure of the DFAT cable.  It was submitted that had the cable been disclosed, then the issue of PDF service may have been viewed in a different light.  But there is simply no connection between the two matters.

24                  Accordingly, this ground on which review is sought fails.

Second ground

25                  The second ground on which review is sought relates to the rejection by RRT of the claims made by the applicants of detention and torture.  The ground is put differently in relation to each applicant:

Ÿ                     In relation to Walid, the claim is that RRT did not fairly and squarely put to him that his claims were fabricated so as to afford him an opportunity of rebutting a contention to that effect.  The conclusion that the claims were fabricated is also said to be without evidentiary foundation.

Ÿ                     In relation to Ashraf, the claim is that on the materials before it, RRT could not reasonably be satisfied that the claims of detention and torture were fabricated.  Ashraf’s claim was rejected on the basis of an opinion of the RRT as to the scarring effects of whipping and the length of time for which those effects would be evident, which RRT was not qualified to form without expert evidence, of which there was none.

The claims were originally grounded in s 420.  They were reformulated such that the claim in relation to Walid was based upon s 425(1)(a) and s 476(1)(a); the claim in relation to Ashraf was based on s 476(1)(e) and (g).  The applicant’s counsel eschewed reliance on s 430(1).

Walid

26                  The Minister’s delegate, in a decision given on 24 November 1997 accepted Walid’s claims of arrest, detention and treatment in a painful, humiliating and degrading manner.  Walid made additional claims in a submission to RRT, including a claim that in 1989 he was arrested for involvement in student political demonstrations and lashed “in a very savage and severe manner” continuously for about half an hour.

27                  RRT did not accept Walid’s version of events; his evidence was described as “inconsistent, contradictory and implausible” and his claims of detention and torture were found to be fabricated.  These matters were not put to Walid at the hearing before RRT.  He was not afforded the opportunity of responding to a contention that he had fabricated his claims of detention and torture.  There was nothing in the Minister’s delegate’s decision which would have alerted him to the fact that his claims in that regard might not be accepted.  No questions were put to him at the hearing before RRT in relation to his torture claims.  RRT informed him (p 49-51) that it had some difficulty in accepting his evidence as to how he was able to circumvent compulsory military service.  But that was the extent of the notification to him of a problem which RRT had with the credibility of his account, with the possible qualification that at p 58, RRT indicated that information available to it as to when a curfew was in place was different from Walid’s account.

28                  In Meadows v Minister for Immigration & Multicultural Affairs (unreported, Full Federal Court,  23 December 1998) the Full Court held that a failure to make it known to an applicant that RRT considered that findings as serious as participation in elaborate fraud to support an otherwise unmeritorious case by false and contrived evidence were open, resulted in a failure to act according to the substantial justice and merits of the case in terms of s 420(2)(b).  It may be that for RRT to proceed in the way in which it did involved a denial of natural justice.  I do not express a view on that, because that is not a ground on which an application may be made for review by the Federal Court of a decision of RRT (s 476(2)(a)).  And any consideration of that issue by a court with jurisdiction to determine it would need to take into account the observations in Abebe at [187] and [295].

29                  However, for the reasons earlier given, the failure to afford Walid an opportunity to respond to the contention that he fabricated evidence does not have the consequence that Walid was denied the opportunity to which he was entitled by virtue of s 425(1)(a).  This ground on which review is sought, fails.

Ashraf

30                  Walid’s hearing took place on 26 May 1998; Ashraf’s hearing occurred on 3 June 1998.  During the course of Ashraf’s hearing, the following occurred:

“MR GRIFFIN:          Your adviser said earlier that he was no expert on torture, neither am I.  I also understand that there may be a temptation to exaggerate certain things in an application.  And indeed the United Nations handbook on assessment of refugees counsels people in a position like myself to take into account the fact that applicants may exaggerate their circumstances but that should not necessarily mean that their circumstances are not correct.

I want to put you on notice that even though I am not an expert on torture, I can use my own commonsense as to the results on the human body of cuts and wounds.  I have some difficulty accepting that a human being could experience the degree of whipping that you have indicated you have experienced without sustaining the scarring.

INTERPRETER:         In fact I have no scars at all on my back but I got a wound in my leg.”

31                  RRT concluded:

“I accept that there are different types of torture and that not all physical injury results in scarring.  However, Ashraf consistently maintained that he was beaten and whipped even to the point of twice daily for three months and later several times a day on open wounds which took one month to heal.  I do not accept that such injuries would not leave scars.  I am satisfied these claims of detention and torture were fabricated.”

32                  RRT was not bound to accept those claims, and it did not have to have rebutting evidence before finding that the matters asserted were not made out.

33                  It may be that there is a difficulty in invoking commonsense to resolve an issue which, fortunately, is outside common experience from an Australian point of view.  But, whether this be so or not, there is no error of law in terms of s 476(1)(e) in the decision to which RRT came.  At the highest, there is a wrong decision on a question of fact.

34                  The applicant’s case could only be put, if it can be put at all, on the basis that RRT was not entitled to rely on commonsense to form a view as to the after effects of torture on the human body without some material from a qualified source on that question.  In my view, RRT was so entitled, but even if that is not so, the ground specified in s 476(1)(g) will only be made out if the provisions of s 476(4) are satisfied.

35                  Section 476(4)(b) has no relevant application, because it has not been established that the particular fact on which RRT relied, namely, that whippings of the severity and frequency claimed by Ashraf leave permanent scars on the body, did not exist.  Nor does s 476(4)(a) apply, because the issue before RRT was whether it was satisfied that the applicants had a well-founded fear of persecution for a Convention reason, if they were to return to Sudan.  There is no particular matter which was required by law to be established before RRT could reach a decision that it was not so satisfied: see Li v Refugee Review Tribunal (1996) 45 ALD 193 at 204; Chen v Minister for Immigration & Multicultural Affairs [1999] FCA 34 pars 30-34; Faddoul v Minister for Immigration & Multicultural Affairs [1999] FCA 87 pars 16-17; Doan v The Minister for Immigration, Local Government and Ethnic Affairs and K Boland (Refugee Review Tribunal) (unreported, Olney J, 9 April 1997) at 20-21.

36                  Accordingly, this claim fails.

Conclusion

37                  It was not submitted that the circumstances were such that even though RRT rejected the claims brought forward by the applicants, it was guilty of some reviewable error in failing to consider whether a case had otherwise been made out, for example on the basis of the independent information, of a well-founded fear of persecution for Convention reasons.

38                  Accordingly, each application should be dismissed with costs.

Associate:

Dated:              23 June 1999