FEDERAL COURT OF AUSTRALIA

Jama v Minister for Immigration & Multicultural Affairs [2000] FCA 524

MIGRATION – application for judicial review of a decision of the Refugee Review Tribunal to affirm a decision of a delegate of the Minister not to grant protection visas to the applicant and eight children who accompanied her to Australia – false representation allegedly made to immigration officials as to the identity of the applicant and the children - whether the decision of the Tribunal was thereby “induced or affected by fraud” within the meaning of s 476(1)(f) of the Migration Act 1958 (Cth) – whether the false representation was fraudulently or innocently made – whether, for the purposes of s 476(1)(f), it must be established that the decision was “induced” by fraud or whether it is sufficient to show that it was “affected” by fraud – whether, if the false representation in the present case was fraudulently made, the decision of the Tribunal could be said to have been “induced or affected by” that fraud – whether, even if the Tribunal’s conclusion as to the identity of the applicant was induced or affected by fraud, its overall decision was not so induced or affected because it disbelieved the applicant’s claims to fear persecution for Convention reasons

WORDS AND PHRASES – “induced or affected by fraud”

Migration Act 1958 (Cth), s 476(1)(f)

Briginshaw v Briginshaw (1938) 60 CLR 336, referred to

Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103, followed

Peters v The Queen (1998) 192 CLR 493, referred to

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, distinguished

Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234, distinguished

AMINA HUSSEIN JAMA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1489 OF 1999

LEHANE J

20 APRIL 2000

SYDNEY

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal dated 3 December 1999 be set aside.

2.         The matter be referred to the Refugee Review Tribunal for further consideration.

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

REASONS FOR JUDGMENT

1                     The sole ground of this application for review of a decision of the Refugee Review Tribunal dated 3 December 1999 is that provided by s 476(1)(f) of the Migration Act 1958 (Cth): that the decision was induced or affected by fraud.  By its decision the Tribunal affirmed an earlier decision of a delegate of the Minister to refuse to grant protection visas to the applicant and eight children who accompanied her when she arrived in Australia on 13 July 1998.  The alleged fraud is that of Mr Issa Kayse Sagaale (a permanent resident of Australia, recognised as a refugee in May 1996), who now claims to be the husband of the applicant and the father of two of the children and to have parental responsibilities, according to the custom of his people, in relation to all but one of the other children.  During an interview with departmental officers shortly after the applicant and the children arrived in Australia, Mr Sagaale denied that the applicant was his wife and that any of the children were his; he said that he did not know the applicant or the children.

Background: Tribunal’s reasons and conclusion

2                     Although the Tribunal was, in the end, unable to make any findings about who the applicant and the children were or where they came from, there seems no reason to doubt, on the material before the Tribunal and, for that matter, on the basis of evidence admitted in this proceeding, that the applicant is a Somali who has spent some time in Ethiopia.  The applicant and the children arrived in  Perth with class BC subclass 100 visas.  Those visas were issued in the name Hukun Mohamed Elmi, on the basis that she was Mr Sagaale’s wife, and in the names of eight children claimed to be members of his family.  In circumstances which the evidence before the Tribunal did not make very clear, the applicant was interviewed some days after her arrival by officers of the Department.  She said that she was not Hukun Mohamed Elmi but Amina Hussein Jama.  She applied for a protection visa.  She and the children were taken into immigration detention and were transported to Villawood, near Sydney, where they have been detained since that time.  The visas on which the applicant and the children entered Australia have been cancelled.

3                     The delegate’s decision to refuse the applications for protection visas was made on 21 October 1998.  The applicant and the children applied for a review of that decision by the Tribunal.  The Tribunal conducted three hearings, at each of which the applicant gave evidence.  During the first two hearings, the applicant maintained, in substance, the claims which she had made in interviews with departmental officers and in her application for a protection visa.  The Tribunal summarised those claims in the following two passages.

“The applicant claimed she was illiterate and about 38 years old.  She last saw her husband named Ali Aden Abdullahi about 2 years and three months previously.  He is about 39 years old.  He [sic] parents are dead, her father 6 years ago during the civil war, her mother also 6 years ago from illness and hunger.  She gave a history of having 8 children.  Six children have the same father, another two are she claims the product of rape – one aged (at that time) 18 months (a boy) and the other 4 months (a girl).  Only three of her own children are with her in Australia.  The others are with her mother‑in‑law in Daroor in Ethiopia.  The other five children with her in Australia are her sister, and her brother’s four children.  The four children of her brother she states are aged 11, 10, 8 and 5.  She claims that she has looked after them since the death of their parents in Hayndale which is in Somalia near the Ethiopian border.  In relation to a photograph which was found in her luggage (stapled to the inside cover of file 98/009613), she denied knowing who the people were, stating that she just found it in her bag.  The bag had belonged to her husband’s father and he had bought it from overseas, she knew the photograph was there and ‘when she asked her husband, he said it was someone his father knows, I think they live in an Arab country (Saudi Arabia).’  She was asked by [an officer of the Department] whether it was the man who met her at the airport, she said she didn’t know.  She said that she had paid US$6000 for the documents to come to Australia, and ‘I was sitting somewhere when I was offered documents.’  She claimed that in Somalia and in Ethiopia she had been beaten.  She claimed the money had come from her father‑in‑law, and he had given the money to them prior to his death six years ago.”

…

“The applicant … claims that she was born in 1960 in Harasheikh, Somalia.  She speaks Somali only.  She is Tumal, Muslim, married in 1980 in Harasheikh, she was a housewife and a vendor.  She left Ethiopia in July 1998 having been an illegal in that country.  She has lived in Ethiopia, in Addis Ababa from 1997 until July 1998, and previously (without any exact detail) in Harasheikh, Somalia.  She had no education.  She claims that she left Somalia as she was a member of the ‘minority clan.  My clan was being harassed, killed raped and oppressed by the members of the Isaks (Habaryunis especially), my brother was killed and my husband was kidnapped, I think by the Habarynis [sic].  My father was also killed and my mother died of starvation.  My other brother died later of natural causes as did my two sisters one who was older than I and another who was younger.  I’m only left with one sister and no brother.  My brother died of injuries sustained in fighting against the Habaryunis.  My father was kidnapped by the other tribe and I heard that he was killed.  As for my husband I have not seen him for two years and four months.  My husband had one brother and one sister, but they are both dead, the brother before we were married and the sister after our marriage.  They both died of natural causes.  Only my mother in (presumed by the Tribunal to be mother in law) was alive and staying in Daroor in Ethiopia.  I can’t go back as it is not safe for me and my children.  I fear the major tribes who are persecuting us.’  She states ‘the major tribes would kill me and my children too … As a minor tribe we are targeted and even if I am killed no one would ask any question … there is no authority in Somalia.’  She claims that she last left Somalia in 1997 crossing the border by foot.  In other parts of the file the applicant states (notes from an interview conducted on 15 July 1998 – folios 50 – 63) that she has no idea where her husband is, he was in prison in Somaliland for 10 years.  He was released at one stage and they were together for 4 years, he escaped from prison and was recaptured and imprisoned.  She was raped twice and as a consequence has the two younger children.  Her children include those of her brother and his wife.  She has looked after those four since the parents died.  This was about four and a half years ago after the birth of Muna who is about five and a half.  The applicant has looked after them since.  She had not seen her husband for two and a half years since she was six months pregnant, he had fled from the civil [war] and the fighting and was neither for or against the government.  After separation from her husband she lived in an area called Harashek [sic] for about one and a half years, and then one year in Addis Ababa, including at Diridhabe near Addis. She did not live in a refugee camp, and sold potatoes in the market.  She rented a single room in Addis.  She got the US$6500 from her husbands [sic] father.  She had the money for about ten years, and had some in cash and some in jewellery.  She also sold vegetables.  She had no idea how the father‑in‑law had the money.  She never had a Somali ID card or passport.  She left Ethiopia as she could not survive.  She had no problems in Ethiopia, though was raped twice when she was looking for her husband.  She had been heading into Somalia, and was raped once in Somalia and once in Ethiopia.  In relation to the documents to come to Australia she said that the man Abdullah had arranged it all.  She met him at the market where she sold vegetables.  He told her the documents were stolen, she was confused as to whether he gave her the documents in Addis Ababa or in Diridabah [sic].  She was told the documents would match her family, and there was someone else’s photographs on the documents.  The man told her that the documents were for children who just happened to be of the same age as her children.  She claimed that she later found out that this man Abdullah had stolen the documents from his sister’s husband’s family, and had sold them to the applicant.  She had no idea who the people in the large studio photograph were.  At Perth airport when she arrived she happened to meet an African man who understood Somali but could not speak it and who gave her and all the children a lift to his home which was about one and a half hours away from Perth airport.  They stayed on the verandah of his house and she had no idea where they were.  The man gave them food, and she stayed at his house for two days when he took her to the Catholic Migrant Centre.  She has no idea who he is.  She wants to live in peace and safety in Australia.  Her family are in her hands.  She said that in Ethiopia she was beaten and her body is scarred from this, it is not her country, and she was harassed for being a Somali.  She fears return to Somalia.  She belongs to a minority group and would be discriminated against, she cannot protect herself and the children.”

4                     There were some variations.  For example, the applicant’s solicitor, writing to the Tribunal before the first hearing, stated that the applicant now accepted that the photographs on the department’s file for the class BC subclass 100 visa application were of herself and the children.  The Tribunal questioned the applicant closely about her claims.  It asked some questions of one of the children.  It heard the evidence of a witness who claimed to have met the applicant and her husband in Daroor, Ethiopia.

5                     After the second hearing, the Tribunal wrote to the applicant.  It referred in some detail to a number of apparent discrepancies in the material before it, particularly the applicant’s own evidence, and to aspects of the claims which the Tribunal found improbable.  The Tribunal stated its concern, in summary, as follows:

“Having considered the entirety of your claims and all files relating to you the Tribunal is concerned about the truth of your claims in general, but also specifically of your claim to be Amina Hussein Jama.  This is significant as it affects how the Tribunal can review and consider your matter.  In particular the Tribunal is concerned that you may in fact be Hukun Mohamed Elmi.  This is the identity you used to enter Australia.  The Tribunal also, as a consequence, has concerns as to the identity of the children accompanying you.”

6                     The applicant’s solicitor replied, enclosing a statutory declaration made by the applicant in which she made what the solicitor described as “major changes in the evidence.”  The statutory declaration began as follows:

“1.       I want to tell the truth about my life and how I came to Australia and why I did not tell the truth before now.

2.         The document I used to come to Australia was mine.  My husband and I had some conflict.  That is why I lied before.

3.         My true name is Hukun Mohamad Elmi Hayd.  I was born in Oodweyne.  I am 33 years old.  I am a member of the Tumal clan.  I grew up and got married in Oodweyne.  It is in the region of Burao.  All of us are from the Tumal clan, my husband too.  The children with me are all mine except for one who is my sister, Sabaat.  My husband’s name is Isse Keys Sagaale.

4.         I was married in 1985.  We lived in Oodweyne.  Both my husband and I were supporters of Siad Barre as he was very good to the Tumal Clan.  Because of this we gained the opposition of all the other clans.  Things became very difficult for us in 1988 when the Issak attacked and took over our home.  They looted our property.

5.         Because of this attack and the feeling that we were now very unsafe we fled from Oodweyne to Ethiopia.  We went to Daroor which is just across the border in Ethiopia.  I went with my husband and all our children.”

7                     The applicant described further harassment by the Issak clan in 1995, leading to the family’s flight to Addis Ababa and Mr Sagaale’s departure for Australia.  The applicant then claimed to have returned to Somalia in 1997 to look for her brothers and parents.  She said that she was captured by members of the Igal clan, imprisoned and raped every day.  Meanwhile, the applications for visas for the applicant and the children were proceeding and ultimately the visas were issued.  However, by the time the applicant had been released from prison, she had fallen pregnant as a result, she claimed, of rape.  On account of her husband’s response to news of her pregnancy and the earlier death of another of their children, the applicant now feared for her safety upon arrival in Australia:

“22.     When I had the baby my husband sent me some communications and letters and a cassette and he said no one raped you, you got married and had that baby.  When you get to Australia I will cut your head.  I will slaughter you and the young girl.  He had a plan.  He wanted me to bring his children to Australia, that is what he was intending.  I have not seen him in Australia.  I do not know whether my husband is alive or dead.

23.       My husband blamed me because another child passed away.  His name was Ayale.  He became sick and died when we were in Addis.  He did not believe me.  He said he died because I did not feed him properly.  He said he died from hunger and because I mistreated him.”

8                     According to the applicant’s declaration, her brother arranged that someone would meet her at the airport in Perth.  He advised her not to make contact with her husband.  She was met in accordance with the arrangement made by her brother.  She was taken to a house some distance from Perth and thence to the Catholic Migrant Centre, where she was interviewed by officers of the department.

9                     The third hearing then took place.  The Tribunal questioned the applicant about aspects of the claims which she now made.  Among other things, the Tribunal Member questioned her about a large photograph (referred to in the quoted passage from the Tribunal’s reasons), found in her luggage when she arrived in Perth, of a man and a woman who, the applicant now said (contrary to earlier claims), were Mr Sagaale and herself.  The nature of the photograph appears from the following passage in the Tribunal’s reasons:

“[The applicant] said ‘it was taken just before he left me in Ethiopia.’  The Tribunal asked if she was certain.  She said ‘I don’t know about it.’  The Tribunal put to the applicant that this was impossible to accept as true.  The Tribunal explained that if the photograph was of her and her husband Sagaale as she now claimed and it was taken just before he left her in Ethiopia then how was it possible that it showed well dressed people and her with much gold jewelry [sic], further this was not consistent with her claims of being impoverished, destitute living in a hut outside of a refugee camp, selling vegetables to try and live and her parents dying of starvation.

Those observations elicited the concession that the man in the photograph was Mr Sagaale; the applicant did not know who the woman was; the photograph had been sent to her by her husband.  The applicant, however, maintained that she had made the mistake because “I had many photographs of me in my gold jewelry [sic] so when I saw all of the jewelry [sic] I thought it was me. ”

(It may be noted, though it is inconsequential, that the suggestion that the applicant was the woman in the photograph was first made by the Tribunal in its letter written to the applicant after the second hearing.)

10                  The Tribunal proceeded to consider the evidence before it, including information about conditions in Somalia and Ethiopia.  It pointed to inconsistencies in the claims made by the applicant at all three hearings.  It concluded:

“It is unfortunate but as a result of the applicant’s inability to tell the truth I am left with nothing that can reasonably be said to be true.  I find that the applicant was not a credible witness.  I do not know who the applicant is, I do not know who the children are or what relationship they have to her, I do not know where they are from and I do not know what their true history is nor why they left and do not want to return to Ethiopia.  I am unable on the evidence before me to make any findings on these matters.”

The Tribunal, having so concluded and having considered the country information, found that it could not be satisfied that the applicant had a well‑founded fear of persecution for Convention reasons; the children made no specific claims and the fate of their applications depended accordingly on the fate of the applicant’s claim.  Consequently, the Tribunal affirmed the decision of the delegate not to grant protection visas.

Application for judicial review

11                  The applicant makes no complaint about the way in which the Tribunal dealt with her claim.  She accepts that the inconsistencies in her evidence were such that the Tribunal’s decision was clearly open to it and, but for the fraud which Mr Sagaale is said to have committed, would not be open to attack.  The allegation of fraud is supported by an affidavit sworn by Mr Sagaale on 16 March 2000.  In the present proceedings, Mr Sagaale gave some further evidence in chief orally and was cross‑examined.  He has a reasonable command of English but gave his evidence, in part, through an interpreter.  Although the affidavit is lengthy, I think it is desirable to set out most of it in full.  Mr Sagaale did not, in cross‑examination, depart from his affidavit evidence although there was a degree of confusion about the precise chain of events immediately following the arrival of the applicant and the children in Perth.  The relevant section of the affidavit reads:

“1.       I am the husband of Amina Hussein Jama (whose real name is Hukum Mohamed Elmi).  We were married according to Islamic law at Odwein in Somalia in 1985.  I do not know the exact date, because dates were not important in our society in Somalia.  We were not issued with a marriage certificate, because such certificates were not issued to anybody in Odwein unless a formal request is made.

2.         I escaped from Somalia to Ethiopia, and was recognised as a refuge in Australia in May 1996.  I then applied through the Australian High Commission in Nairobi, using my wife’s brother as a contact, for my wife and children to join me in Australia.

3.         After I was recognised as a refugee I sent money for my wife and the children who were with her to move from the refugee camp called ‘Daroor’ in Ethiopia to Addis Ababa.  This was in late 1996.  After this I sent about $ U.S. 300.00 per month to my wife in Addis Ababa.

4.         There was a telephone in the house where my family was staying on rent in Addis Ababa.  I know from speaking to my wife and my brother in law named Abdullah, that he was staying with my family.  The manner in which I maintained contact with my family was that Abdullah would telephone me and speak for a minute of two, and I would then telephone back and speak for longer.

5.         Some time before my wife’s scheduled interview with the Australian High Commission in Nairobi, which I believe was to be in about September 1997, I telephoned my wife and spoke to Abdullah.  He said,

‘Hukum has gone back to Somalia to see her brothers who have been captured by militias.  The militias want money paid for their release.’

or words to that effect.

6.         Some time after that Abdullah telephoned me and said words to the effect,

‘Hukum has been captured by militias.  You will have to pay money to have her released.’

I sent over $ U.S. 1,000.00 for this purpose to Abdullah.  I was extremely angry that she had missed her interview in Nairobi, and even more angry that my children would be away from me for longer than would otherwise have been the case.

7.         I became more angry when Abdullah phoned me in September 1997 and told me, ‘Hukum is pregnant – she was raped when she was captured by the militias’ or words to that effect.  I then telephoned my wife and said words to the following effect,

‘I don’t believe you were raped.  You cheated on me just like you cheated on me many times before.  Why don’t you have an abortion?’

I recall that I was shouting into the phone.  I also recall that I said a lot of other things, but I do not remember exactly what I said.

8.         In early October 1997 Abdullah telephoned me and said words to the following effect,

‘Ayaale (who was my son) is very ill.  You have to send money for medicines.’

9.         I sent money.  A few days later, I think between 15 and 20 October 1997, Abdullah telephoned me at about 10.00 p.m. Perth time and said, ‘Ayaale died’, or words to that effect.  I was shocked.  I asked questions like, ‘How did he die?’ and ‘Where did he die?’.  Abdullah said, ‘He died at home’ or words to that effect.  I was very angry because I knew there were hospitals in Addis Ababa, and I suspected that the child had died of neglect.

10.       I thought about these things for several days.  I then made a tape recording in which I said words to the effect of,

‘You have been deceitful to me and have killed Ayale by not caring for him.  When you came [sic] to Australia I will kill you and the bastard baby.’

I sent this cassette to my wife.

11.       After I found out that my wife was pregnant I started having a relationship with another woman.  In 1997 (I cannot be more accurate) I sent a photograph of myself and the woman with whom I was having the relationship to my family at the community post box used by both my own parents and their family, and by my brother in law and my wife.

12.       I was misinformed as to the details of my wife’s arrival in Australia.  I was at Perth Airport at 5.20 p.m. on 13 July 1998, when I was advised that they would arrive, but they did not come out of the doors in the customs hall.

13.       I found out that my wife and the children with her had arrived in Perth from members of the Somali community in Perth.  I cannot recall who told me, but I recall that I was told that ‘Hukum Mohamed Elmi’ and [sic] arrived and that she was with eight children who were described to me and whose names were told to me.  Those children are named at paragraph 16 of this my affidavit.  I concluded from this that my wife had arrived in Australia.  I knew that they had been moved to Villawood in New South Wales because a friend of mine named Mohamoud Omar Elmi who knew my family and myself in Somalia telephoned me and said to me words to the effect that, ‘I have visited the Immigration Detention Centre at Villawood.  Your wife and the children are in detention at Villawood in Sydney.’

14.       I was interviewed by an officer of the Department of Immigration at the end of July 1998, after Mohamed [sic] Omar Elmi had told me that the family was in Villawood.  I told an officer of the Department that, ‘the person who arrived in Australia with my wife’s visa is not my wife,’ or words to that effect.  I did this because I still felt resentful at what I believed was my wife’s being unfaithful to me, as well as my belief that she let my child die.  I also believed that she was a party to deceiving me as to the time and date of her arrival in Australia.

15.       After this, when I telephoned my wife at the Immigration Detention Centre after they had been transferred to Sydney she refused to speak to me.  She began speaking to me after her rejection by the Refugee Review Tribunal in December 1999.

16.       I admitted that my wife and the children listed below were in Australia at the end of 1998.  I advised the Department of this orally during an interview at their offices in Perth.  Since then I participated in another interview at the offices of the Immigration Department in Perth on 13 October 1999, in which I admitted that my wife and children were in Immigration Detention in Sydney.

17.       I also wrote a letter to the Minister for Immigration on 21 December 1999, a true copy of which is contained within the annexure to this affidavit and numbered 12 to 13.

18.       As to the children who are in the company of my wife in the Villawood Detention Centre, I say as follows,

I am the biological father of Hinda Kayse Sagaale (born about 17 Sept 94) and Asha Sagaale, (born about 20 Feb 96).

Under the customs of my people I am also responsible for five other children,

Sabaad Mohamed Elmi – my wife’s sister (born about 1 Jan 84) who came under my guidance due to the death of her parents in 1996

Yousuf Kayse Sagaale (born about 6 March 86), came under my guidance when his father, my uncle, was killed in 1988.

Zam Zam Kayse Sagaale (born about 20 April 87), Qatan Kayse Sagaale (born about 19 Aug 92), and Mohamoud Kayse Sagaale (born about 15 May 1989) came under my guidance when their mother, my sister, died during childbirth in 1992.

There is another child named Ubah, who my wife says was conceived when she was raped in Ethiopia in 1997.  I have no knowledge as to whether this is true.”

12                  The photograph referred to in par 11 of Mr Sagaale’s affidavit is the large photograph of Mr Sagaale and a woman to which I have already referred.  It was tendered before me.  Counsel for the Minister did not object to the tender; nor was there any objection to the reading of Mr Sagaale’s affidavit.

13                  The applicant submits that I should find that the representation deposed to in par 14 of the affidavit was made and that Mr Sagaale, when he made it, knew that it was false and intended, by making it, to cause disadvantage to his wife in her dealings with the immigration authorities.  I should find also, the applicant submitted, that the Tribunal’s decision was affected by this (fraudulent) representation.

14                  There is little controversy about some matters.  Counsel for the Minister did not suggest that the statement which Mr Sagaale claimed to have made was not made; counsel also accepted that I would find, on the evidence, that the applicant is indeed Mr Sagaale’s wife.  I see no reason why I should not find, as I do, that Mr Sagaale made the statement and that it was untrue.  The Minister submits, however, that I should not find that, when he made the statement, Mr Sagaale knew that it was untrue.  Rather, I should find that Mr Sagaale then believed, on rational grounds, that those who had arrived in Australia were not his wife or the children for whom he was responsible.

15                  The Minister’s submission had two foundations in the evidence.  One was what was said to be an inconsistency between the evidence in par 13 of Mr Sagaale’s affidavit and evidence which he gave in cross‑examination.  I have read the transcript of the cross‑examination, and in my view there is no substantial inconsistency.  Certainly there is not the particular inconsistency suggested by counsel for the Minister; the suggestion seems to have been based on a misreading of the affidavit (counsel submitted: “For example, in paragraph 13 of his affidavit evidence he says that he concluded from the documents concerned that his wife had arrived in Australia” – that is not what par 13 says).

16                  The second basis of the submission was, in substance, that Mr Sagaale’s evidence of his anger caused by what he believed to have been the applicant’s conduct in committing adultery and allowing their child to die, and particularly his evidence that that anger motivated his untrue statement to the departmental officers, is not easy to reconcile with his action in going to the airport to meet his wife and the children.  It was more probable, counsel submitted, that although he was angry with the applicant, he went to the airport because he wished to see the children for whom he was responsible; the applicant and the children did not arrive; he formed the view that they had been substituted in some way; in those circumstances, it was understandable that he would then tell the Department that the people who had arrived were not the people he had sponsored, but some other people.  He continued, counsel’s hypothesis proceeded, in that mistaken belief for quite some time.  Later, however, he discovered that he had made a “terrible mistake;” as a result, he is now “trying to rectify the effect of his error.”  The applicant’s solicitor had submitted that a powerful reason for believing Mr Sagaale was that, by giving his evidence, he had made admissions which might expose him to prosecution.  Counsel for the Minister responded that consciousness of a serious, though genuine, mistake and a desire to undo its very unfortunate consequences would provide a motive at least as strong.

17                  Ultimately, the submission was that I could not be satisfied, to the extent required by the Briginshaw principle (Briginshaw v Briginshaw (1938) 60 CLR 336; Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103) that the fraud alleged had in fact been perpetrated.  In referring to the application of the Briginshaw principle to a case such as the present, Lindgren J said in Wati, at 113:

“The standard of proof according to which Ms Wati must establish that the IRT’s decision to affirm the delegate’s decision was induced or affected by fraud is the civil one, usually referred to as ‘the balance of probabilities’. But an allegation of fraud is a serious one not to be made lightly, and it is perhaps a particularly grave thing to allege, not only that a fraud was perpetrated against the victim of it, but that it was also practised on a court or tribunal conducting a hearing.”

But the circumstances in which that principle is usually applied are not those of this case, where the evidence of the alleged fraud is that of the perpetrator.  More commonly where an applicant alleges fraud, the alleged perpetrator vigorously denies it and, in weighing allegation against denial and the evidence supporting each, the Court applies the Briginshaw principle.  Where fraud is admitted, commonly there will be little difficulty in accepting the admission, at least if it is one clearly made against interest.  Here, no doubt, although the admission is against interest in the sense that it may expose Mr Sagaale to prosecution, it may be inferred that he has powerful countervailing motives which have induced him to make it.  For that reason, it is necessary, in the public interest, to weigh it carefully against any other evidence bearing on the matter and against what may be regarded as the inherent probabilities.  But, although there were some difficulties in communication, in my view cross‑examination did not reveal any significant inconsistency in Mr Sagaale’s own evidence; there is no other evidence (in which I include the material in the green bundle of relevant documents) which particularly bears upon the question whether his false representation that those who had arrived in Australia were not his wife and children was fraudulently made, accepting, as I do, the high probability that Mr Sagaale is indeed the applicant’s husband.  Nothing in the way in which Mr Sagaale gave his evidence suggests any reason to doubt the truth of what he said.  And, in the highly unusual circumstances of this case, I do not think that any consideration of inherent probabilities should lead to a rejection of his evidence.  I see nothing particularly improbable about the evidence that, by the time he was interviewed by the departmental officers, he had found out, through contacts in the Somali community, that his wife and the children for whom he was responsible had indeed arrived and had been taken to Villawood.  Nor do I see anything particularly improbable in his evidence that he concluded, reigniting his anger, that his wife had been a party to deceiving him as to the date and time of their arrival.

18                  On the other hand, the only readily apparent alternative hypothesis is that offered by counsel for the Minister.  Two aspects of that hypothesis seem to me quite improbable.  One is that, in circumstances where he did not know who, if anyone, had arrived, he was not only prepared to accept a statement by the Department that people had arrived and they were not his family but positively to assert, in an interview, that “the person who arrived in Australia with my wife’s visa is not my wife.”  There is, after all, no dispute that he made a statement substantially in that form: it is reflected in the Tribunal’s reasons and no evidence was called to contradict Mr Sagaale’s evidence of what he said.  Secondly, there is Mr Sagaale’s affidavit evidence, which was not challenged by other evidence or in cross‑examination, that subsequently he twice admitted to the Department that the people who had arrived were his wife and the children listed in his affidavit.  But there is no suggestion of any wish at that stage to do whatever he could to undo the consequences of a “terrible mistake.”  Curiously, there is no indication in the material before me that the admissions referred to in par 16 of Mr Sagaale’s affidavit came to the notice of the Tribunal, the Minister did not challenge his evidence of them and neither party placed any particular reliance on them or suggested that any inference might be drawn from them.  In the circumstances, however, Mr Sagaale’s evidence of them – uncontradicted and unchallenged – is consistent with the rest of his evidence and sits, in my view, uneasily with the alternative hypothesis.

19                  Accordingly, I accept Mr Sagaale’s evidence that, when he told the officers at the interview that the people who had arrived were not his wife and children, he knew that what he was saying was untrue.  Substantial cross‑examination was directed to the question why, or for what purpose, Mr Sagaale lied to the Department.  The following answer adequately sums up his evidence on the subject:

“For two reasons, one that she provoked me and I became very upset on her.  The other reason that the Immigration Department misinformed me and I got very frustrated and I was very angry at the time.  They treated me in a bad way, very bad way.”

The effect of the evidence is, in my view, that Mr Sagaale lied to the Department with a view to harming his wife, particularly in her dealings with the Department (counsel for the Minister referred particularly, in this context, to the statement of principle, in Peters v The Queen (1998) 192 CLR 493 at 508).  I find that he did indeed lie to the departmental officers for that purpose and that, therefore, his false representation was fraudulently made.

20                  The remaining question is whether the decision of the Tribunal was induced or affected by that fraud.  Section 476(1)(f) of the Migration Act provides that a decision of the Tribunal may be reviewed on the ground:

“(f)      that the decision was induced or affected by fraud or by actual bias.”

The verb “was induced” naturally describes an effect of fraud on a decision.  It does not naturally describe the effect of actual bias: “was affected” performs that role.  It might be possible to read the ground in s 476(1)(f) as relating to a decision induced by fraud or affected by actual bias, not one affected by fraud or induced by actual bias.  The point, in relation to fraud, is of some significance because “affected” is a considerably broader term than “induced” and may be regarded as setting a substantially lower hurdle.  In Wati, however, Lindgren J adopted (at 112) a construction of the provision, certainly open on the language and perhaps the more natural construction, to the effect that the decision was reviewable if it was either induced or affected by fraud: in order to make out the ground in par (f) it was necessary, his Honour held, to show that the decision was actually induced or affected by fraud.  His Honour continued at 113:

“It is, of course, necessary in the present context to distinguish between what must be proved and the means of proving it.  A finding that a decision was influenced by fraud may be arrived at by a process of inference.  If it is proved that something apt to influence a decision came to attention, it may be appropriate to infer that it influenced the decision in fact. Such an inference may be more readily drawn in some cases than in others.  Moreover, in particular circumstances, an evidentiary onus may shift to the party contending that there was no influence. But, at the end of the day, as a matter of principle there is no ground for interference in the absence of actual influence.”

21                  As Lindgren J also pointed out in Wati (at 113), the Court’s jurisdiction in relation to judicially reviewable decisions is a statutory one.  The question is whether relief is available under Pt 8 of the Migration Act on the basis that one of the grounds listed in s 476(1) is made out.  There is no complete analogy either with the Court’s equitable jurisdiction to set aside its own judgment on the basis that it has been obtained by fraud or with appellate jurisdiction to set aside a judgment and order a new trial on the basis of fresh evidence (compare, for example, Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 and Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234 at 238‑242).  The existence of fraud (or, alternatively, actual bias) by which a decision was induced or affected is simply one of a number of grounds on which the statute permits judicial review.  And proceedings before the Tribunal are not adversarial or, importantly, inter partes.  So for example, Lindgren J held in Wati, at 113, that a decision may be reviewable although the fraud affecting the decision is not attributable to a party or to the Tribunal itself.  Equally, I think, there can be no particular scope, in exercising the statutory jurisdiction, for applying a principle of finality.  The elements of the ground must be made out to the level of satisfaction demanded by the serious matters which enliven the ground in par (f): but, subject to any residual discretion, that is all.

22                  Counsel for the Minister submitted that a finding that a decision was affected by fraud required, at the very least, that “the subject matter of the fraud must be a central factor in the decision with a real likelihood that the decision was different to what it might otherwise have been.”  That proposition reflects the caution with which courts approach an application to set aside a judgment on the ground that it was obtained or procured by fraud: Wentworth v Rogers at 539 per Kirby P.  I do not think that a proposition stated in those terms is properly applicable to a claim for judicial review under Pt 8 of the Migration Act relying on the ground in s 476(1)(f).  Its application, in my view, would give too little weight to the ordinary meaning of “affect” and to a context in which the policy in favour of the conclusive nature of a final judgment has no application.  Lindgren J spoke, in Wati at 113, of “actual influence”: a paraphrase which indicates, correctly in my view, that the Court must be satisfied that the fraud had a material effect in relation to the decision which the Tribunal reached.

23                  The statement which Mr Sagaale made to the Department plays no overtly significant role in the Tribunal’s reasons.  The Tribunal refers to it only very briefly.  Immediately before its account (which I have quoted) of the applicant’s initial claims, the Tribunal describes one of the departmental files provided to it:

“it is an investigations file of the Department on the applicant.  The file contains documents relating to the man Sagaale advising the Department that the woman who he sponsored and his children had not arrived in Australia.  He claims that he does not know the woman who arrived.”

24                  Mr Sagaale plays no further role in the Tribunal’s reasons until the Tribunal comes to the letter which it wrote to the applicant after the second hearing.  The following passage in that letter is somewhat curious:

“When you arrived at Perth Airport in Australia you advised the Tribunal that you were met by a black African man who spoke Somali.  You did not know who he was though he took you and all of the children to his house.  You stayed on his verandah for two days and he then took you and the children to the Catholic migrant centre.  The husband of Hukun Mohamed Elmi states that he was at the airport on the day he expected his wife and children to arrive, that he saw a Somali woman and children but did not recognise them.  He claims that he spoke to the woman and asked if there were other Somalis on the flight and the woman he spoke to said no.  The Tribunal has serious difficulty in accepting that a black African man who understood but could not speak Somali would happen to be at Perth airport on the day of your arrival and that he would take you and the children home without knowing you.  The Tribunal considers it as reasonable to believe that you were met by your husband, that he took you to his house for two days, and in that time that something happened.  After this event you claimed a different identity.  Please comment.”

Mr Sagaale did not refer in his affidavit evidence to meeting a Somali woman and children at the airport (though he did claim to have gone to the airport for the purpose of meeting his wife and the children) and the topic was not explored in cross‑examination.  At all events, the applicant, as I have mentioned, conceded that she had adopted a false identity and that several of the Tribunal’s surmises were correct.  Then, during the third hearing, the Tribunal questioned the applicant about a number of apparent inconsistencies, particularly inconsistencies between her account of her clan membership and an account given by Mr Sagaale to the Department; a difficulty of reconciling with her account of her detention and rape by the Igal militia the fact that an Interpol certificate of good conduct, bearing her photograph, was issued to her at Addis Ababa during the period of her alleged detention; discrepancies in her evidence about her children; and the evidence about the photograph to which I have already referred.

25                  The Tribunal, towards the end of its reasons, considers a number of accounts of conditions in Somalia and neighbouring countries but draws no particular conclusions from them.  Instead, it proceeds to deal with the claims made by the applicant and the perceived discrepancies in them.  I have already quoted the Tribunal’s conclusion as to the applicant’s lack of credibility and, of particular importance for present purposes, its conclusion that it did not know who the applicant was, who the children were or what relationship they had to her or where they were from.  Notably, despite the suspicions clearly expressed in its letter to the applicant and the applicant’s subsequent admissions, the Tribunal found itself unable to conclude that the applicant was Mr Sagaale’s wife.

26                  In the absence of an express statement in the reasons, there is, of course, no direct evidence that, in reaching those negative conclusions, the Tribunal was actually influenced by what Mr Sagaale had said to the Department.  But a finding that a decision was influenced by fraud may be arrived at by a process of inference (Wati at 113).  The Tribunal had formed strong suspicions, on entirely reasonable grounds, about the applicant’s identity.  The applicant had admitted that the Tribunal’s suspicions were substantially correct.  It should be inferred, I think, that, in finding itself nevertheless unable to decide who the applicant was, the Tribunal was influenced by Mr Sagaale’s claim.  Indeed, it seems to me probable that, but for Mr Sagaale’s fraud, the Tribunal would have reached a conclusion as to the applicant’s identity: despite the applicant’s denials, the Tribunal was – its letter shows – strongly inclined before the third hearing to believe that she was Mr Sagaale’s wife.  Absent his denial, the Tribunal might well have maintained that view.

27                  Of course, the decision of the Tribunal was to affirm the decision to refuse protection visas and that decision proceeded from an ultimate finding that the Tribunal was not satisfied that the applicant had a well‑founded fear of persecution for Convention reasons.  But the terms of the Tribunal’s reasons make it clear, I think, that, in coming to that ultimate finding, the Tribunal was at least influenced by its inability, as it saw the matter, even to be satisfied as to the applicant’s identity.  Once that conclusion is reached, it becomes apparent, in my view, that a further submission on behalf of the Minister should not be accepted: that relief should as a matter of discretion be refused because, even if Mr Sagaale’s fraud influenced the Tribunal’s findings about the applicant’s identity, nevertheless her particular claims to fear persecution for Convention reasons were disbelieved because she had demonstrated, in the Tribunal’s words, an inability to tell the truth.  But for the fraud, the Tribunal might, on the material before it, have found itself able to come to a conclusion not only about the identity of the applicant and the children but also about the applicant’s clan membership; and it might well, in those circumstances, have been able to give some focused consideration to the country information before it, of a kind which the finding as to the identity of the applicant which it actually reached made inappropriate and, perhaps, impossible.

Conclusion

28                  The case is, no doubt, very close to the borderline.  For the reasons I have given, however, in my view the ground of review on which the applicant relies is made out.  The orders of the Court will therefore be that the decision of the Refugee Review Tribunal be set aside and that the matter be referred to the Tribunal for further consideration.  In the circumstances, it is in my view inappropriate, despite the success of the application, to order that the Minister pay the applicant’s costs.  There will be no order as to costs.

Associate:

Dated:              20 April 2000