FEDERAL COURT OF AUSTRALIA

Al Raied v Minister for Immigration & Multicultural Affairs [2000] FCA 1357

EVIDENCE – affidavit filed after conclusion of hearing – whether leave should be granted to allow affidavit to be read – admissibility of evidence of portion of contents of a recording of proceedings before the Refugee Review Tribunal

MIGRATION – refugees – “well-founded fear of persecution” – whether subjective fear a necessary consideration – whether Tribunal failed to comply with the procedure required by s 430 Migration Act 1958 (Cth) – whether particular fact material to decision

PRACTICE – time and place for the presentation of evidence and argument is the hearing – supplementary material may only be filed after close of hearing with leave

Migration Act 1958 (Cth) ss 430, 476

Butera v Director of Public Prosecutions (Victoria) (1987) 164 CLR 180, cited

Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246, cited

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845, followed

ABDULLAH AL RAIED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 662 of 2000

BRANSON J

SYDNEY

22 SEPTEMBER 2000

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal be affirmed.

2.         Any appeal from this judgment may be instituted by filing and serving a notice of appeal within 21 days after 3 October 2000.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The circumstances of this case are unusual, in that it involves an application for review by this Court of a decision of the Refugee Review Tribunal (“the Tribunal”) in respect of an infant of approximately twelve months of age.  The Tribunal affirmed a decision of a delegate of the respondent that the applicant is not entitled to a protection visa under the Migration Act 1958 (Cth) (“the Act”).

2                     The applicant was born in Australia on 12 August 1999.  He is not a citizen of Australia.  The Tribunal found that he is entitled to citizenship of Libya.

3                     The claims advanced on behalf of the applicant are entirely derivative: they arise from claims made by and concerning the applicant’s parents.  The applicant’s parents themselves sought protection visas.  They did so before the applicant was born.  A delegate of the respondent declined to grant the applicant’s parents protection visas and the Tribunal affirmed the decision.  No application was made to this Court under s 476 of the Act for review of the decision of the Tribunal to affirm the decision that the applicant’s parents were not entitled to protection visas.  The applicant’s parents physically resisted attempts to remove them from Australia and they remain in Australia in immigration detention.  The application for a protection visa which has been made on behalf of the applicant by his father may, in my view, be seen as an endeavour to have the applicant’s parents’ claim that they have a well-founded fear of being persecuted for a Convention reason were they to be returned to Libya considered again.  In a judicial setting, the bringing of an application in such circumstances would be likely to be characterised as an abuse of process.  However, the claims made on behalf of the applicant have been considered on their merits both by the delegate of the respondent and by the Tribunal.

4                     Section 36 of the Act provides for a class of visas to be known as “protection visas”.  A criterion for the grant of a protection visa is that the Minister (or on review by the Tribunal, the Tribunal) is satisfied that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together “the Convention”) (s 36(2) of the Act and clause 866.221 of Schedule 2 of the Migration Regulations 1994).  Australia will have protection obligations to the applicant if he is a person who:

“owing to a 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”.  (Article 1A(2) of the Convention)

CLAIMS MADE ON BEHALF OF THE APPLICANT

5                     The original application for a protection visa made on behalf of the applicant referred to a document which purports to be a statutory declaration of the applicant (“the document”).  At the date of the application the applicant was less than 4 months old.  The document reads:

“1.  My name is Abdul Rahman Ahmed Al Raied.  I was born in Sydney Australia on the 12^th of August 1999 in Liverpool Hospital.  I have a father, a mother, a brother and sister.  They have all applied for refugee status in this country and have all been refused protection visas.  My parents and my brother Abdullah are all citizens of Libya.  My sister Fatima was born in Saudi Arabia and is technically stateless.

2.         Even though my parents are nationals of Libya I do not have the right to go to or live in that country.  I am a stateless person.  This is because my parents would be persecuted by the Libyan government as they are considered to be opponents of the Libyan regime.  If they were to be returned to Libya they would face imprisonment, torture and execution at the hands of the Libyan government.  This is because of their past problems with the Libyan government.  I annex to this statement a copy of the statements submitted by my parents to the Australian Department of Immigration to support their claims of asylum in this country.  I wish these statements to be taken into consideration when assessing whether I possess a well founded fear of persecution if I were to be sent to Libya.

3.         Another reason why I would face persecution by the Libyan government is because my parents have lodged applications for asylum in this country.  The Libyan government uses spies and networks to obtain information about Libyans living abroad.  It is most probable that at this point the Libyan government would be aware of my parents’ applications for asylum in this country.  On the 1^st of December 1999 the deportation of myself and the rest of my family was arranged by the Australian government.

4.         We were to be deported to Libya.  The deportation was stopped.  When Amnesty International found out about this deportation they issued an “Urgent Action” on our behalf.  My familys’ [sic] claims for asylum were communicated to persons and organisations throughout the world.  In addition, an Arabic newspaper published in London, England contained an article about my family’s circumstances and our deportation.

5.         I fear being imprisoned with the rest of my family, tortured and executed by the Libyan authorities.  This is because the Libyan government is notorious for punishing persons and holding them guilty by association.  I face this persecution because Ahmed Al Raied and Mouna Boushaiba are my parents and are wanted by the Libyan government.

6.         I annex to these submissions the following pieces of evidence to support my claims:

·        My parents [sic] statement supporting their claims of asylum

·        Letters from the NFSL supporting the claim of my parents [sic] fear of persecution

·        A letter from Amnesty International supporting my family’s case

7.    This statement has been prepared with the assistance of my lawyer and my parents.  This is because I am just a newborn baby and I am unable to prepare it on my own behalf.  My parents are willing to speak to the Department of Immigration and Multicultural Affairs on my behalf.”

6                     Like the member who constituted the Tribunal in this matter, I deprecate the artificiality of the document and the apparent attempt made by those responsible for it to exploit the emotive potential of the situation of the applicant.  I assume, however, as it bears what appear to be the signatures of the applicant’s parents, that it refers to all bases upon which it is said that there is a real chance that the applicant will suffer persecution if he travels to Libya with his family.

DECISION OF THE TRIBUNAL

7                     As is mentioned above, the Tribunal did not accept that the applicant is stateless.  It found on the bases of a research document from the Research Directorate, Immigration & Refugee Board Documentation Centre of Canada and Libyan Nationality Law that, as the child of Libyan citizens, the applicant would automatically be eligible for Libyan citizenship.  No basis for challenging this finding has been identified.

8                     The Tribunal noted that there was nothing to suggest that the applicant, or rather persons on his behalf, fear that he will be persecuted for reasons of his race, religion or political belief.  The Tribunal turned to consider whether there was a well-founded basis for any fear that the applicant faces persecution in Libya for reason of his membership of a particular social group, namely his family.  This involved the Tribunal in giving consideration to the claims of the applicant’s parents that they each face persecution should they return to Libya.

9                     The Tribunal gave detailed reasons for rejecting the veracity of the stories of the applicant’s parents.  The Tribunal found that “there is a lack of credibility in their claims of being wanted people in Libya”.

10                  As to the claim of the applicant’s father that he was a member of the National Front for the Salvation of Libya (NFSL), a group opposed to the regime of Colonel Gaddafi, the Tribunal made the following findings:

“On the basis of all the evidence before me, I accept that Mr Al-Raied has had some contact with people linked to the NFSL and that he might have watched, read, and in a limited way passed on to others dissident material propagated by the NFSL, but I am not satisfied that he had a role of any significance in the organisation.  I find that his lack of close involvement with the organisation is reflected in his evidence to UNHCR that he did not belong to any party.  I find it implausible that he was frightened to tell UNHCR the ‘truth’ given public knowledge of UNHCR’s reputation.  I acknowledge that Mr Al-Raied might have been a person of slight interest to the Libyan authorities if they had known that he had been involved in any NFSL activity, but I am not satisfied that the authorities have such knowledge.”

11                  The Tribunal concluded in this regard:

“In all, I am not satisfied that Mr Al-Raied did not leave Libya normally, and for reasons unconnected with a well-founded fear of persecution.”

12                  The Tribunal was not satisfied that Mr Al-Raied has a political profile in Libya.  It rejected the evidence of the applicant’s mother that she would be regarded with suspicion by the Libyan authorities as two of her brothers-in-law had been deported from that country.  It was not satisfied that the deported men were relatives of hers.  The overall conclusion of the Tribunal concerning any risk to the applicant because of the activities of his parents, including their attempt to obtain asylum in this country, was as follows:

“… I am not satisfied that the applicant’s father is a wanted person in Libya.  Neither am I satisfied that his mother is a wanted person.  I consider that they left Libya freely for reasons unconnected with a fear of persecution.

I do not consider that Libyan authorities would persecute Mr Al-Raeid for the NFSL-linked activities that I accept he did engage in prior to 1993, as I find on his own evidence that they did not know about these activities.  I am not satisfied that Mr Al-Raeid would volunteer the information unless he felt that it was safe or of benefit to him to do so.  Given the lack-lustre nature of his engagement with the NFSL to date, I am not satisfied that he would begin an activist role with the NFSL on his return to Libya in a way that would cause him to be persecuted under the Convention.

I am not satisfied that Mr Al-Raeid’s activities since leaving Libya in 1993 would have caused Libyan officials to regard him with concern for a Convention reason given his lack of real political activity.  If the Al-Raeids were to attempt to seek publicity over their return to Libya they might gain attention in Libya.  However, since I am not satisfied that they have an adverse political profile in Libya, I consider that the authorities there would simply regard them as opportunists seeking to gain an immigration advantage in foreign countries.  There is no independent evidence before me that suggests that such people are persecuted in Libya.

I consider that Mr Al-Raeid’s difficulties in the various countries he has visited are due to his having engaged in unlawful activities or to his not having renewed lapsed visas.  I am not satisfied that he is known as a Libyan activist in these countries.  I am not satisfied that engaging in petty criminal activities abroad or flouting foreign visa regulations would give the Al-Raeids an adverse political profile in Libya.”

13                  The Tribunal rejected the claim that the applicant would be harmed by the Libyan authorities to ‘punish’ the baby over his parent’s actions and for the purpose of psychologically torturing the father.  It noted independent evidence that the Libyan state promotes equality and the general well being of its citizens.  It also rejected the claim that the applicant would be harmed by being deprived of his mother’s milk and his father’s care if his parents were jailed on return to Libya.  It found that they would not be jailed, and that if they were interrogated he would not be parted from them and, in addition, that he would have the assistance of a close knit extended family.

PROCEEDINGS BEFORE THE COURT

14                  The conduct of the matter before the Court has left much to be desired.  The application was filed on 23 June 2000.  It was signed by the applicant’s father.  The application identifies three grounds of review.  Only two of the grounds are grounds referred to in s 476 of the Act.  They are first, that procedures that were required by the Act or the regulation to be observed were not observed in connection with the making of the decision (s 476(1)(a)) and secondly, 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 Tribunal (s 476(1)(e).  No particulars of these grounds are provided in the application.

15                  At the time that the application was filed, a directions hearing was fixed.  At the directions hearing, which was conducted by a Registrar of the Court, it was ordered by consent that the applicant file and serve a statement of particulars, any affidavit material to be relied upon and written submissions by 24 July 2000.  The hearing of the application was fixed for 10.15am on 3 August 2000.

16                  As the respondent experienced difficulty in preparing the bundle of Relevant Documents, I subsequently extended the time by which the statement of particulars, any affidavit material to be relied upon and written submissions on behalf of the applicant were to be filed and served until 28 July 2000.  Although the record of the Court did not indicate at this time that the applicant was legally represented, there was reason to think that the Refugee Advice and Casework Service (Australia) Inc was providing advice and possibly assistance to the applicant’s parents.

17                  No statement of particulars or written submissions on behalf of the applicant were filed and served by 28 July 2000 or at any time prior to the hearing on 3 August 2000.  However, a request was received to alter the time of the scheduled hearing to 2.15pm on 3 August 2000 to suit the convenience of a counsel briefed to appear for the applicant.  With the consent of the respondent, the hearing time was so altered.  No application was made to adjourn the hearing to another day.

18                  When the matter was called on for hearing at 2.15pm on 3 August 2000, a barrister announced an appearance on behalf of the applicant.  The barrister did not apply for an adjournment of the hearing.  He handed to the Court a document which it was agreed would be treated as providing particulars of the grounds on which review of the decision of the Tribunal was sought.  The document relevantly reads:

“1.       S.476(1)(a) of the Migration Act 1958

- the decision of the Refugee Review Tribunal was made in breach of the requirements of s 430 of the Migration Act 1958

2.                  S.476(1)(a) of the Migration Act 1958

- the decision of the Refugee Review Tribunal was made in breach of the requirements of s 427(1)(d) of the Migration Act 1958

3.                  S.476(1)(e) of the Migration Act 1958

- the decision of the Refugee Review Tribunal involved an error of law being an error involving the incorrect application of the law to the facts as found.”

19                  Written submissions on behalf of the applicant were also handed to the Court.  They comprised contentions:

(a)                that the Tribunal had not observed the procedures concerning the preparation of written reasons required by s 430 of the Act to be observed;

(b)               that the Tribunal had not observed procedures required by s 427(1)(d) of the Act to be observed in that the Tribunal had not considered requiring the Secretary to arrange for a medical examination of the applicant’s mother; and

(c)                that the Tribunal had erred in law in failing to draw and consider inferences arising from the physical resistance put up by the applicant’s family when the respondent sought to remove the family from Australia on 1 December 1999.

20                  Counsel for the applicant made brief oral submissions to the Court during the course of which he indicated that he had only recently been briefed in the matter and was not in a position properly to argue his client’s case.  He said:

“I have approached the submissions on the basis of satisfying your Honour that there is properly an arguable case here, and I’d ask that the matter be only short – that I only present the matter in the broad this afternoon, and that thereafter the applicant simply put some written submissions to the Court to flesh out the matters that are addressed.”

21                  Counsel for the respondent contended that as the case of the applicant plainly lacked merit the giving of judgment should not be delayed for the purpose of allowing supplementary written submissions to be filed on behalf of the applicant.  However, as it was apparent that the applicant’s counsel was not sufficiently familiar with the principal authorities touching on the contentions which he had advanced to the Court to provide the Court with any real assistance, I reluctantly agreed to give the applicant leave to file and serve supplementary written submissions.  The applicant was given until Monday, 14 August 2000 to file and serve supplementary written submissions.  The respondent was given three days after his receipt of the applicant’s supplementary submissions to file answering written submissions.  No leave was sought or given to amend the application or the particulars of the grounds of review, or to supplement the evidence and other material before the Court.

22                  Nonetheless, when the applicant’s supplementary written submissions were filed by facsimile transmission on 14 August 2000 they made numerous references to the transcript of the hearing before the Tribunal.  Neither the audio tape of the hearing before the Tribunal nor any transcript prepared from it had been placed in evidence.  The written submissions on behalf of the applicant also included a submission that the Tribunal had failed to exercise its jurisdiction.

23                  On 16 August 2000, an affidavit dated merely “August 2000” apparently affirmed on 15 August 2000 by Sonia Di Mezza, Case Worker, of Refugee Advice and Casework Service (Australia) Inc (“Ms Di Mezza”) was filed in this proceeding by Ms Di Mezza.  In the affidavit, Ms Di Mezza deposes to having listened to the audio tape of the proceeding before the Tribunal.  She goes on to set out in the affidavit some of the matters which she asserts are recorded on the audio tape.  The audio tape itself is not exhibited to the affidavit.

24                  The respondent filed supplementary written submissions by which he contended that the Court could not have regard to the contents of the Ms Di Mezza’s affidavit.

25                  On 18 August 2000, a solicitor filed a notice of appearance as solicitor the for applicant.

26                  As the time that I had earlier scheduled for the preparation of my reasons for judgment in this matter was not able to be used for that purpose, judgment in this matter had not been pronounced on 12 September 2000.  On that day, without reference to my chambers, a notice of motion was filed seeking orders that:

“1.       Leave be granted for the affidavit of Sonia Di Mezza, affirmed 15 August 2000, and filed in these proceedings, to be read in these proceedings.

2.                  The affidavit of Sonia Di Mezza, affirmed 15 August 2000, and filed in these proceedings, be read in these proceedings.”

No order was sought by the notice of motion that the hearing be reopened.  The Court was not requested to delay the pronouncement of judgment.

27                  The affidavit filed by the applicant’s solicitor “in support” of the notice of motion is laconic.  Curiously, and in view of its contents it would seem almost certainly wrongly, it bears the date 28 June 2000.  It provides no explanations for the late filing of the affidavit of Ms Di Mezza.  Its numbered paragraphs read as follows:

“          Re Affidavit of Sonia Di Mezza

1.         The applicant has filed an affidavit in these proceedings being the affidavit of Sonia Di Mezza affirmed on 15 August 2000.

2.                  The contents of that affidavit are relied upon in the Applicant’s written submissions.

Re Availability of Counsel

3.         Counsel advises that he is not available before 3 October 2000.”

28                  The initial return date on the notice of motion was 3 October 2000 “for directions only”.  On 13 September 2000, I directed that the return date by varied to 19 September 2000.  The solicitor for the applicant was so advised on 13 September 2000.

29                  Late in the afternoon of 18 September 2000, a letter on the letterhead of the applicant’s solicitor was received by facsimile transmission in my chambers.  The body of the letter reads as follows:

“I refer to your facsimile of 13 September 2000 and note return date for this matter to be 9.30am. Tuesday, 19 September 2000.

As advised, I confirm all legal representatives associated with our client’s case are presently overseas.

We have previously requested an adjournment until a date after 4 October 2000 and advise that if the case proceeds before that date my client will have no legal representation and will thereby be prejudiced.

Please let me know the Court’s position as soon as possible.”

30                  Shortly after the letter of 18 September 2000 was received in my chambers, my associate telephoned the office of the applicant’s solicitor to confirm that the notice of motion would be called on at 9.30am on 19 September 2000.

31                  When the notice of motion was called on 19 September 2000, the respondent appeared by counsel but there was no appearance on behalf of the applicant.  I do not accept that a proceeding before this Court is to be brought to a halt because all of one party’s legal representatives are overseas.  I note that the letter of 18 September 2000 from the applicant’s solicitor contains no suggestion that any attempt was made to obtain alternative representation for the applicant for the return date of the notice of motion.

32                  On 19 September 2000, in reliance on O10 r 3(2) of the Federal Court Rules, I made the following orders on the notice of motion of 8 September 2000:

1.                  That there be no orders in terms of paragraphs 1 and 2 of the notice of motion;

2.                  That the notice of motion otherwise stand over to a date to be fixed to allow consideration to be given to the issue of costs;

3.                  Each party to be at liberty on three day’s notice to the other to apply to have the notice of motion relisted on the issue of costs.

33                  I considered it appropriate to make the above orders for the following reasons.

34                  First, counsel for the respondent indicated that had the applicant sought to read the affidavit of Ms Di Mezza on the hearing of this matter objection would have been taken to its being received as evidence of what was said at the hearing before the Tribunal.  For this reason it was appropriate to give consideration to the admissibility of the evidence contained in the affidavit.

35                  Ms Di Mezza does not by her affidavit purport to give evidence of what she heard at the hearing before the Tribunal; it may be inferred from her affidavit that she was not present at the hearing.  This is therefore not a situation in which recollection has been assisted by a recording; it is an attempt to give secondary evidence of what is recorded on the audio tape.  The audio tape itself could have been received at the hearing as evidence of what was said at the hearing.  It seems unlikely in the circumstances that any issue would have arisen as to the circumstances in which the recording of the hearing was made, or as to the custody in which the audio tape was thereafter kept (see Butera v Director of Public Prosecutions (Victoria) (1987) 164 CLR 180 at 184).  However, the audio tape was not tendered at the hearing and no later attempt has been made to put it before the Court.

36                  Commonly in matters of this kind, a transcript of what was said at the hearing before the Tribunal, prepared by an independent transcript service provider, is received in evidence with the consent of the parties.  It appears that no such transcript has been prepared in this case.  Rather, Ms Di Mezza’s affidavit has been filed well outside the time fixed for the filing of affidavit evidence on behalf of the applicant.  Even if the Court were prepared to receive secondary evidence of what is recorded on the audio tape, the respondent has not been given the opportunity to compare the contents of Ms Di Mezza’s affidavit with the contents of the audio tape to satisfy himself as to the accuracy of the affidavit.  In view of the history of this matter, I was not satisfied that would be in the interests of justice to further delay this matter by giving the respondent time to obtain and review the audio tape and, if necessary, to apply to reopen the hearing to allow Ms Di Mezza to be cross-examined.  Further the respondent has not been given the opportunity to consider whether any additional parts of what is recorded on the audio tape should be placed in evidence to supplement, or to give the full context of, those parts of the recording of which Ms Di Mezza has sought to give evidence.  Again, in view of this history of this matter, I did not consider it appropriate in the interests of justice to further delay this matter by giving the respondent time to give consideration to this issue and, if necessary, to apply to reopen the hearing to place further evidence before the Court.

37                  Regrettably, I did not have the benefit of hearing submissions on behalf of the applicant on the admissibility of Ms Di Mezza’s affidavit.  However, for the purpose of determining the orders appropriate to be made on the notice of motion on 19 September 2000, I was satisfied that, having regard to the above matters, I would have upheld the respondent’s objection to Ms Di Mezza’s affidavit being read in the proceeding.

38                  Secondly, the submissions on behalf of the applicant which are sought to be based on the contents of Ms Di Mezza’s affidavit are submissions which go beyond the matters concerning which the applicant sought and was given leave to file and serve supplementary written submissions.  That leave did not extend beyond the grounds of review of which particulars had been provided.  No application to vary that leave has been made.

39                  In any event, had such an application been made I would have refused it on the basis that the submissions are without merit.  The relevant contention advanced on behalf of the applicant in the supplementary written submissions is that the Tribunal failed to exercise its jurisdiction to review the decision of the delegate because it proceeded to make a decision:

“(i)      against conflicting assessment of [the applicant’s mother’s] participation in the proceedings; and/or

(ii)        in light of [the applicant’s mother’s] situation of being psychologically sick”.

40                  The written statement of the Tribunal reveals that the applicant’s father gave evidence before it but that the applicant’s mother “was unwilling to communicate directly with the Tribunal and did not give evidence”.  There is no evidence before me or, to the extent that it is relevant, contained in the affidavit of Ms Di Mezza, to suggest that the applicant’s mother did give oral evidence to the Tribunal.  The written statement of the Tribunal reveals that the Tribunal had before it, and had regard to, the Department and the Tribunal files relating to the applicant’s parents’ earlier application for protection visas.  The applicant’s mother had also, as is mentioned above, apparently signed the document which was submitted to the Department in support of the applicant’s application for a protection visa.  The Act does not place the Tribunal under an obligation to obtain oral evidence from a person who is not an applicant (s 426 of the Act).  The basis on which the applicant’s mother claimed to fear persecution in Libya was well known to the Tribunal.  I see no reason to conclude that the Tribunal constructively failed to exercise its jurisdiction because the applicant’s mother did not wish to communicate directly with it or because she was too ill to do so.

41                  The circumstances outlined above demonstrate that there is a need to remind practitioners of that which was made clear by Mason J in Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 at 257-258, namely that the hearing is the time and place for the presentation of arguments.  His Honour there said:

“I should express my dissatisfaction with the way in which the appellants’ case has thus far been presented.  …  After argument had concluded in this Court lengthy written submissions dealing with issues not hitherto raised and a further affidavit were filed.  …  The material was submitted without leave having been given by the Court.  The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived.  We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.”

Neither a party nor counsel is entitled to act on an assumption that merely because counsel has agreed to accept a brief at late notice he or she will be relieved of the obligation to present the party’s case fully at the hearing.  While the Court has a discretion in such a case to allow oral argument to be supplemented by written material filed after the conclusion of the hearing, in considering whether the discretion should be exercised it is entitled to take into account, amongst other things, the time that the party has been on notice of the hearing date, the efforts made by or on behalf of the party to secure legal representation in a timely way, whether any reasonable offer of legal assistance was declined by the party and the impact of allowing supplementary written material to be filed after the conclusion of the hearing on the efficient management of the Court’s case load in the interest of all litigants and the public.

CONSIDERATION OF GROUNDS OF REVIEW RAISED AT THE HEARING

42                  The respondent did not contend that the applicant is too young to have any fear, let alone a well-founded fear, of being persecuted within the meaning of Article 1A(2) of the Convention.  For this reason I do not propose to give consideration to the difficulties inherent in seeking to apply the Convention definition of a refugee to a young infant.

43                  On behalf of the applicant it is contended that the Tribunal failed to comply with the procedure required by s 430 of the Act in that its written statement of reasons does not comply with the requirements of the section.

44                  In Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 the majority of the Full Court of this Court (Black CJ, Sundberg, Katz and Hely JJ, Kiefel J dissenting) held that the preparation of the written statement for which s 430(1) of the Act provides is a procedure which the Act requires to be observed.  Their Honours held (at para 43) that if there is a failure to prepare a statement at all, s 476(1)(a) of the Act is enlivened.  Their Honours also held (at para 43) that if the statement does not comply with s 430(1) because it failed to set out findings on a question of fact which a court holds to be material, then the decision could be set aside under s 476(1)(a) for want of procedural compliance.  However, their Honours noted at para 46 that s 430 does not require the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding if made – subject to the important qualification that if one of the reasons which actually induced the Tribunal to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclose of that element of the Tribunal’s actual reasoning process.

45                  As to what is a “material fact” within the meaning of s 430, the majority in Singh said (at paras 54-55):

“We do not accept that the material facts referred to in s 430(1)(c) are confined to the facts the statute requires to be decided.  Obviously they include those facts, but whether a question of fact is otherwise material may be influenced or determined by the way the Tribunal has approached the case, as revealed by its reasons for decision.

The reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision.  Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c), as the process of reasoning adopted by the Tribunal has made that fact a material fact, since the decision is dependent upon it.  Conversely an applicant may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them.”

46                  It was submitted on behalf of the applicant that the Tribunal was obliged in its written statement to deal with evidence of the “trauma” suffered by the applicant’s mother and other family members “in contemplation of their immediate removal to Libya”.  The evidence referred to concerning the applicant’s mother includes a medical report prepared by a medical practitioner who described herself in her report as “specialising in psychiatry”, but who appears from the letterhead not to be a specialist psychiatrist.  The report records an understanding that the applicant’s mother has “been subjected to a lot of trauma and grief in her life”.  The factual basis for the practitioner’s understanding in this regard appears to be a history provided to her.  Whether the history was provided by the applicant’s mother or by others is not made clear by the report.  The practitioner expresses the opinion that the applicant’s mother is severely depressed and suicidal and “suffers the following diagnosis:

1.                  Post traumatic stress disorder

2.                  Post natal depression

3.                  Major depression

4.                  Prolonged grief reaction

5.                  Psychotic episode i.e. early schizophrenia”.

47                  As to the applicant’s family generally, reliance was placed on the contents of a letter on the letterhead of Amnesty International Australia addressed to the respondent.  The letter refers to a report to Amnesty International touching on the circumstances surrounding an unsuccessful attempt to remove the applicant’s family from Australia.  The letter refers to reports that the applicant’s father resisted attempts to sedate him, that both of the applicant’s parents were assaulted at the airport and that the applicant’s siblings were “terrorised” and “vomiting with fear”.  Reliance was further placed on a letter from Amnesty International Australia to the Tribunal which comments on “the present human rights situation in Libya as that would affect [the applicant] were he and his family to be forcibly returned to that country”.  The letter also expresses the view that the account given by the applicant’s father “is consistent with his membership of the NFSL” and that such membership “would expose [the applicant’s father] to the serious risk of grave human rights abuses if he were forcibly returned to Libya, including arbitrary detention, torture and the death penalty”.

48                  The evidence which suggests that the applicant’s mother is suffering from a multifaceted psychiatric condition is not capable of directly establishing any aspect of the claims advanced on behalf of the applicant.  However, the evidence concerning her psychiatric condition, if accepted, could be seen to be consistent with aspects of those claims.  The “trauma” suffered by the applicant’s family at the time of the attempt to remove them from Australia is capable of establishing a strong desire in the applicant’s parents not to fly at that time from Australia to Libya.

49                  The Tribunal appears to have accepted that if there is a real chance that the Libyan authorities would persecute one or other or both of the applicant’s parents for a Convention reason, then there is a real chance that the applicant would suffer consequentially persecution which could also be characterised as persecution for a Convention reason (ie as a member of a particular social group, namely his family).  It is not necessary for me to determine whether this approach reflects a proper interpretation of the applicable law; it is an approach favourable to the applicant.  The Tribunal analysed carefully the claims of the applicant’s parents upon which they base their asserted belief that they would suffer persecution for a Convention reason if they return to Libya.  The approach adopted by the Tribunal, as revealed by its written statement, involved it considering the extent to which the stories told by the applicant’s parents were consistent with facts capable of independent verification, the consistency in the stories over time, the plausibility of the stories and matters going to the credibility generally of the applicant’s parents.  This approach did not require the Tribunal to make a decision on whether the applicant’s parents in fact fear returning to Libya.  Its concentration was on the objective issue of whether the applicant’s parents have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion should they return to Libya.  As the decision of the Tribunal did not turn on whether the applicant’s parents are subjectively fearful of returning to Libya, it was not required to set out in its written statement its findings concerning the medical evidence as to the psychiatric health of the applicant’s mother or the “trauma” apparently suffered by the applicant’s family “in contemplation of their immediate removal to Libya”.  The view of this Court as to whether the process of reasoning in fact adopted by the Tribunal might have been more satisfactory if the “trauma” evidence had been referred to is irrelevant.  Section 430 does not impose an obligation on the Tribunal to disclose a satisfactory process of reasoning.

50                  The alternative basis upon which the Tribunal proceeded was to consider whether the Libyan authorities would seek to harm the applicant directly – whether to “punish” him as a means of psychologically torturing his father, as a necessary consequence of jailing his parents or simply “because of the nature of the country and its leadership”.  Again, the process of reasoning by which the Tribunal rejected these possibilities did not require it to give consideration to the “trauma” evidence.

51                  The contention that the Tribunal did not comply with the procedural requirement of s 430 of the Act cannot be sustained.

52                  The contention that the Tribunal failed to comply with a procedure that was required by the Act to be observed by failing to consider whether to require the Secretary to arrange for a medical examination of the applicant’s mother “to determine whether her trauma was a manifestation of a well founded fear of persecution” is similarly without merit.  I do not consider it necessary to review the authorities on whether s 427(1)(d) of the Act establishes a procedure that the Act requires to be observed in connection with the making of a decision by the Tribunal.  Even if, contrary to my tentative view, s 427(1)(d) by implication imposes a duty on the Tribunal to adopt the procedure of giving consideration to requiring the Secretary to arrange for the making of an investigation or a medical examination, nothing in this case can be shown to turn on the failure of the Tribunal to require the Secretary to arrange for the medical examination of the applicant’s mother.  First, the Tribunal had before it a medical report concerning the applicant’s mother.  There is no reason to conclude that it rejected its contents.  Secondly, the decision of the Tribunal did not turn on the medical condition of the applicant’s mother.  Thirdly, a medical examination of the applicant’s mother would not reveal “whether her trauma was a manifestation of a well founded fear of persecution” within the meaning of the Convention.  The task of administering the Act would be greatly simplified if such matters could be revealed by medical examinations.  Regrettably, they cannot.  It was for the Tribunal itself to determine whether on the whole of the evidence and other material before it, it was satisfied that the applicant was entitled to a protection visa whether because there was a real chance that his parents would be persecuted if returned to Libya or otherwise.

53                  It was further contended on behalf of the applicant that the decision of the Tribunal involved an error of law of the kind identified in s 476(1)(e) of the Act.  The error was said to be either the failure of the Tribunal to draw an inference, from the evidence before it that the applicant’s parents had suffered “trauma”, that there was a real chance that they would be persecuted in Libya, or the failure of the Tribunal to consider drawing such an inference.  It appears from the particulars given on behalf of the applicant that this alleged error is said to be an error involving “an incorrect application of the law to the facts as found by the person who made the decision” (see s 476(1)(e)).  In my view, the material advanced in support of this contention shows clearly that what is sought thereby is merits review of the decision of the Tribunal.  The potential significance of the “trauma” evidence is discussed above.  However, it was for the Tribunal to decide what, if any inferences, it was prepared to draw from the evidence before it.

CONCLUSION

54                  The decision of the Tribunal will be affirmed.  In view of difficulties that those who are acting on the applicant’s behalf may experience in obtaining legal advice before 3 October 2000, I propose to fix 3 October 2000 as the date from which the 21 day period within which any notice of appeal from this judgment is to be filed and served is to be calculated.

Associate:

Dated:                                          21 September 2000