FEDERAL COURT OF AUSTRALIA

Tedella v Minister for Immigration & Multicultural Affairs

[2000] FCA 1643

SOLOMON KAHSAY TEDELLA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 155 OF 2000

NORTH J

11 OCTOBER 2000

MELBOURNE

THE COURT ORDERS THAT:

1.         The decision of the Tribunal made on 18 February 2000 is set aside and the application is referred to the Refugee Review Tribunal for further consideration.

2.         Liberty is reserved to the parties in respect of the submissions concerning the position of Ms Abera.

3.         The respondent is to pay the applicant's costs of and incidental to those aspects of the application determined by the reasons for decision given on 11 October 2000.

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

REASONS FOR JUDGMENT

introduction

1                     This is an application by Solomon Kahsay Tedella, the applicant, for a review of the decision of the Refugee Review Tribunal (the Tribunal) made on 18 February 2000 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs, the respondent, not to grant him a protection visa. This application is to be distinguished from the separate claim brought by the applicant’s wife, Ms Abera.

Background and claims

2                     The applicant is a citizen of Ethiopia, born on 26 April 1967.  He worked for Medecins Sans Frontiers from 1986 to 1995.  In 1995 he began work as a health manager in Babile.  Babile is in Region 4 which is ethnic Oromo and very near where the Oromo Liberation Front (OLF) operated.  The OLF were originally part of the Transitional Government of Ethiopia (TGE) but in due course went their own way and wanted to split Region 4 from the rest of Ethiopia.  As a result, the Government started to round up Oromo people.  In Region 4, there was armed conflict between the OLF and TGE.  Medecins Sans Frontiers attempted to assist the community affected by the conflict by providing medical aid to civilians. 

3                     The applicant claimed before the Tribunal that he was targeted by the military who accused him of supplying medicine for the OLF.  He claimed that, on or about 20 April 1996, he was taken by the military to Central Criminal Investigations in Addis Ababa.  He claimed to have been there detained and interrogated about the supplying of drugs to the OLF.  He claimed that, a few days later, he was beaten until he fell unconscious.  The Tribunal explained what happened then as follows:

“The applicant claimed that on 6 May the commander explained that he was suspected of being involved in the OLF and that he was being released under close supervision provided he could find 40,000 birr for bail.  He claimed that his father provided this money.  He was released on 8 May 1996.  The applicant claimed that he was told he should be available and should not leave the capital.  He claimed he was told he was a spy and they intended to follow him.  The applicant claimed that on 11 May he was asked to attend the prison again to collect the piece of paper attached to his submission.  He claimed that the prison must provide this paper to show how long he was in prison for.” 

4                     The applicant claimed that he had not told Medecins Sans Frontiers about his detention, although he reported back to them in Addis Ababa after his release.  He claimed he could not tell his employer what had happened because he feared that the military would torture him again and he did not trust his colleagues as they were from different ethnic backgrounds. 

5                     The applicant applied for a visa to travel to Australia in March 1996 and his wife arrived in Addis Ababa in May 1996.  They arrived in Australia on 17 July 1996. 

6                     The applicant relied on two documents to support his case and, in particular, his claim to have been detained.  As some doubt had been cast on some aspects of the translation of the documents into English from Amharic, some alterations were made by the translator to the translation on 17 August 1999 and forwarded to the Tribunal on 25 October 1999.  The text of the first of these documents, dated 11 May 1996, is as follows:

“TO WHOM IT MAY CONCERN

Based on the closed follow up and investigation done by the Government that the person called:  Mr Solomon Kahsay TEDELLA had been agitating against the Government then caught by Police Officers.  Therefore, from 22^nd of April up to 8^th of May 1996 he was under police custody in Central Criminal Investigation, while all the necessary investigation and evidence has been taken, then the Government released him on 40000 Ethiopian Birr (Forty Thousand Ethiopian Birr) bail that he should attend the office any time when the Government needs him.

‘With greeting’

Captain Tsegaye MULATU

Chief of Central Criminal Investigation Section”

7                     The text of the second document, dated 28 January 1997, stated:

“To: Mr Solomon Kahsay TEDELLA

Where at his Address

According to the Government’s follow up carried in the past that you were agitating against the government.  It was cleared that you were caught by Police Officers and keep as a prisoner in Central Criminal Investigation, from 22^nd of April up to 8^th of May 1996.  Investigations has done while in police custody and then he was released based on, to be appear in the office when an order send to him.  In addition the Government released him on 40000 Ethiopian Birr (Forty Thousand Eth. Birr).  Based on the follow up done by the Government that he was called several times to attend the office and he could not be found at his home for further investigation.

Although the Criminal Investigation Section has decided that your private property which is found with the family and the 40000 Ethiopian Birr (Forty Thousand Eth. Birr) bail should be paid to the Government.

We want to let you know that within one month of this letter served, you have to go and report to the Criminal Investigation Section, otherwise the peace squad will search you and the necessary measure will be taken.

‘With Greeting’

Captain Tsegaye MULATU

Chief of Central Criminal Investigation Section”

8                     The documents in the form of the first translation were examined by the Document Examination Unit which provided a report dated 18 June 1997 as follows:

“I have examined the documents referred to above and make the following observations:

·        they are two documents typed in Ethiopian script on white, non watermarked paper.  One is A4 size, which is 297mm X 210mm, while the other is 295mm X 211mm.,

·        there is a definite probability that the same typewriter has been used in the preparation of both documents.  This is evidenced by the overlaying of segments of typing which are common to both letters in the Video Spectral Comparator (VSC). (Refer to Attachment 1),

·        different reference numbers are used on both letters which I would consider unusual given that both letters allegedly contain official information from the Central Police Criminal Investigation Section, are about the same person and set of circumstances, and are written by the same person.  However, not being aware of Ethiopian police practices in this regard I cannot comment with any certainty whether this is irregular or not,

·        whilst I am not a handwriting expert it is obvious, under microscopic examination, that the reference numbers and dates written on both documents have been placed on those documents by two different hands.  For example, on the letter of 19/5/1989 [sic] the eights are commenced at the top left hand side of the upper body of the number, and on the other letter they are started and finished on the lower right hand side of the upper body of the digit.  The four and nine are also completed differently on both letters.  All the written details on the letter of 19/5/1989 appear to be written in a more flowing or relaxed style,

·        the signatures are similar although not identical, however, both appear to be written fluidly and neither displays characteristics of being copied from the other,

·        the text of the letter dated 2/9/1988 [sic] has been altered by white-out and then overtyped.  The significance of this is not known.

CONCLUSION

Examination of these letters raises more questions than it answers.  It is impossible to state categorically whether both of these letters are authentic or fake.  They could have been typed anywhere and by anyone.  The one thing I believe to be feasible is that they were most probably typed on the same typewriter.  If this is so then why have the reference numbers and dates been placed on the documents by different people when the author of each letter is supposed to be the same person?

Why also would a police department use irregularly sized paper when preparing correspondence?  Although the difference in paper size is minimal it would be expected that the same size paper would be readily available within this government organisation.

The actual content of and purpose of each letter seems strange.  Would a captain in the Criminal Investigations Section of the Ethiopian police write a ‘TO WHOM IT MAY CONCERN’ letter and end it with the expression of ‘With greeting’.  Similarly, would the same source write what is basically an intimidating letter to an offender, address unknown, and end it with the same expression?

Any scenario is possible but I believe it is impractical to rely on the letters at face value and, unless supported by further and more reliable information, each should be viewed with caution.”

9                     Mr Niall of counsel, who appeared on behalf of the applicant, explained that there had been an earlier Tribunal hearing in which the Tribunal had rejected the applicant's claim for a protection visa.  Although that decision had been remitted for re-hearing by consent, the applicant was concerned that the Tribunal had not accepted him as a witness of credit.  In order to satisfy the Tribunal in the new hearing, the applicant sought an independent witness to testify in relation to the genuineness of the two documents.  In the result, the applicant submitted a statutory declaration from Mr Leul Gebreyesus and also called him to give evidence at the hearing. 

10                  Mr Gebreyesus was an Ethiopian national of Tigrayan ethnicity but born and raised in an Oromo area of Ethiopia.  He lives in Australia but has no personal connection with the applicant.  He joined the Ethiopian army at age 17 and graduated from an army training college at the age of 19 in 1983.  For two years he was a commanding officer in Eritrea and in 1985 was sent to central Ethiopia until May 1989.  In this period, he regularly worked in conjunction with the police and military police in a section responsible for internal security.  He regularly saw correspondence emanating from the central police and worked in close liaison with them.  He claimed a familiarity with official documents within the military, the military police and the ordinary police and claimed a familiarity with the administrative procedures of the departments.

11                  Mr Gebreyesus examined photocopies of the two documents and read a copy of the report of the document examination unit.  In his statutory declaration, he responded to each of the issues raised in the document examination unit report.  He gave a lengthy explanation of the questions raised about the size of paper and the procedures relating to the reference numbers on the two documents.  The statutory declaration made by Mr Gebreyesus included the following: 

“16.     The first letter dated the 11^th May 1996 is addressed ‘To Whom it May Concern’ as it was a letter apparently provided to the applicant following his release certifying the fact that he was detained and questioned and was subsequently released on the payment of bail totalling 40,000 Birr (approximately $8,000.00 AUD).  It appears therefore that the document was given to Solomon as an official record of what had taken place.  If Solomon were stopped by military or security police again, he would have been required to show them a copy of this letter concerning his previous arrest and discharge.  The letter is a fairly standard letter provided to people upon their release from custody and it is that person’s responsibility to show the document as soon as possible if required.  Similarly, it might be necessary for Solomon to provide evidence of his arrest to his employer to explain his absence or for any other official purposes.  It is for that reason that the correspondence is addressed ‘To Whom it May Concern’ as it is to be provided by Solomon to any number of people in response to any enquiries or for any of his own purposes even though the document is strictly speaking directed to him.

17.              Whilst Solomon’s name and address does not appear on the letter, this is because the letter was given to him by hand and, in any event, such official letters rarely contain an address as they are delivered by hand to a person or their family’s home as there is no adequate residential postal service within Ethiopia.  It is also quite possible that the police did not know Mr Tedella’s home address in any event.  In my experience, government departments use only internal mail and documents that are to be given to outside persons are never sent but are delivered in person to either themselves or their families.

…

19.       With regard to the second letter which does not contain an address, I repeat what I stated earlier and wish to clarify that in my view the translation of the document is not entirely accurate.  In fact the translation should be something like “where at his address”; meaning that the document is for Solomon and will be delivered to him wherever he might be.  As I stated earlier, it is not common for government departments to have peoples’ addresses, even those who are their own employees.  As there is no adequate residential postal system, it is unusual for a person’s address to be noted on correspondence in any event.  If a person has a post office box this might be noted and if a person is an employee of a particular department the name of the office and the town in which the department is located might be noted on the correspondence.  Otherwise, it is extremely uncommon for an address to appear on an official document, particularly one which is to be served personally in any event.

…

28.       In addition to the matters already raised, I consider the documents are genuine not only because of the layout and use of seals but because the language and style of the letters is consistent with the many other documents I have seen.  In particular, there are a number of different words in the Amharic language that can be used to express the same meaning, depending upon the region or the purpose of the document.  For example, I know from my experience working with the security forces in conjunction with the police, that the word used in the documents for the word ‘arrest’ is the one that would be used within the police or security departments.  Whilst there are no official guidelines as to what language to use, the use of certain words is consistent throughout and officers simply know what language to use.”

12                  The Tribunal rejected the applicant's claim that he was detained in April 1996.  As the applicant said he was detained while he was working for Medecins Sans Frontiers and said he was taken from his place of employment, the Tribunal found it implausible that Medecins Sans Frontiers would not have known of his detention.  The Tribunal also did not accept that he would not have told Medecins Sans Frontiers of the details of his arrest after his release and it rejected the contention that the applicant would not have been able to report such a serious detention to Medecins Sans Frontiers and would not expect their support.  No complaint is made by the applicant about this aspect of the Tribunal's decision and consequently it is not necessary to explain more elaborately the process of reasoning in this part of the decision.

tribunal’s findings concerning documents

13                  The complaints made in this review concern the Tribunal's treatment of the two documents submitted by the applicant which followed the discussion referred to in the previous paragraph of these reasons.  On the question of the documents, the Tribunal said:

“The applicant has provided two documents that purport to support his arrest.  The document examination unit has pointed out problems in the documents that point to their lack of genuineness.  In response the applicant claims that they are genuine and has produced a witness who has given various opinions about them.  Firstly the Tribunal should indicate that it does not accept that the applicant’s witness is qualified to offer an opinion as to the genuineness of the documents.  Whilst his statements about his personal knowledge of procedures may be capable of having some weight attached to it [sic], this witness goes well beyond them.  In the end however the Tribunal has concluded that an examination of the contents of the documents themselves leads to the conclusion that they have been contrived to support the applicant’s case and are not capable of having any weight attached to them.  In doing so the Tribunal does not find persuasive the evidence of the applicant’s witness that the language used is normal for these kind of documents and so rejects this evidence.

The Tribunal does not accept that the Ethiopian Central Criminal Investigation would release the applicant on 40,000 birr bail to attend when the government needs him.  The Tribunal does not find this wording plausible and considers such wording in a document to be inherently unlikely.  The Tribunal also considers that the heading ‘to whom it may concern’ also makes its genuineness inherently unlikely.  The Tribunal notes Dr Gow’s statements about ‘rehabilitation cards’ being issued and then functioning as proof of arrest/detention and rehabilitation.  However the Tribunal does not accept that this falls into this category.  It does not seem to be a rehabilitation card.  Nor does the Tribunal find it plausible that the applicant would have to return to the police office a few days later to collect this.  If the applicant was detained and released on 40,000 birr bail the Tribunal considers that any necessary paperwork would be completed at this stage.

The second document both confirms and reinforces the Tribunal’s view that they have been fabricated.  Whether the translation is ‘unknown address’ or is meant to mean wherever the applicant is found as suggested by the applicant’s witness and the re-translation provided, the Tribunal considers it inherently unlikely that a document would commence in this way.  Secondly the Tribunal considers it implausible that the document would recite that the applicant was called several times to attend at the office but could not be found.  Thirdly the Tribunal does not accept that such failure would lead to the applicant’s private property being forfeited to the Government upon the decision of the Criminal Investigation Section. 

The suggestion in the document that the applicant should report within a month of service of the letter is again an implausible demand.  As a result the Tribunal does not accept that this document is genuine and considers that the problems in this document indicate that the first document is also not genuine.

As a result of these findings the Tribunal does not accept that the applicant was detained as claimed or that he was imputed with a political opinion of supporting the OLF.  Whilst the Tribunal accepts that anyone suspected of supporting the OLF whether in Addis or elsewhere will face difficulties, as evidenced by the country information provided by the applicant’s advisers, the evidence from Dr. Gow and from Amnesty International, the Tribunal does not accept in this case that this applicant was so suspected or that he faced the difficulties he has claimed to face.”

(Emphasis added)

14                  Following this discussion, the Tribunal referred to two further matters not relevant to this review. 

ground of review – Breach of s 430

15                  The first ground of review relied upon s 476(1)(a) of the Migration Act 1958 (the Act) and alleged that the Tribunal failed to observe the procedures required to be observed by s 430.  Section 430(1) of the Act provides as follows:

“(1)     Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

            (a)        sets out the decision of the Tribunal on the review; and

(b)               sets out the reasons for the decision; and

(c)                sets out the findings on any material questions of fact; and

(d)               refers to the evidence or any other material on which the findings of fact were based.”

16                  The applicant submitted that the Tribunal had failed to set out the process of reasoning or the findings on material questions of fact which led to the conclusion that the two documents were not genuine.  Mr Niall focused attention on the sentence:

“Whilst his [Mr Gebreyesus] statements about his personal knowledge of procedures may be capable of having some weight attached to it, the witness goes well beyond them.” 

17                  Counsel submitted that the procedures there referred to included the procedures adopted in Ethiopia for issuing documents such as the two documents in question.  On that basis, he argued, the Tribunal gave some credence to Mr Gebreyesus' view but did not specify - that is to say, make findings - which evidence was accepted and which was rejected.  Further, the applicant contended that the Tribunal did not disclose its process of reasoning which led to the rejection of the documents by reference to their contents. 

18                  The operation of s 430 has recently been explained in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 at par 44 as follows: 

“Section 430 does not impose any obligation on the RRT to come to a correct decision or to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it reached.  Subject to the qualification referred to in paragraph 47 below, the section calls for a recording of matters that are essentially matters of fact, namely, the decision to which the RRT came, the actual reasons for coming to that decision, the findings of fact that were actually made and the material on which those findings were based.” 

19                  In the portion of the decision of the Tribunal extracted in par 13 of these reasons, the Tribunal commenced by indicating its view of the limits of the evidence of Mr Gebreyesus.  It found that he is not qualified to give a view on the genuineness of the documents. 

20                  Then there is reference to his knowledge of procedures.  I take this to refer to the procedures dealt with in his statutory declaration, namely, procedures concerning the recording of document numbers and the like.  The Tribunal found that some weight could be given to that evidence but noted that the witness went beyond that type of evidence. 

21                  That the Tribunal used procedures in this narrow sense is revealed by the earlier summary by the Tribunal of the evidence of Mr Gebreyesus as follows:

“Mr. Leul Gebreyesis [sic] who has been in Australia for eight years gave evidence and provided a statutory declaration commenting in detail on documents provided by the applicant.  He was previously an army officer.  In it he comments on the report of the document examination unit.  He states that the reference number relates to the sending out of the correspondence and that there is one book for doing this.  This provides an explanation for the differing numbers in different handwriting.  He gives the opinion based on his experience with the military police that the documents are genuine.  He states that ‘unknown address’ means to be delivered to him wherever he may be living.

In the hearing he stated that the letters from the police captain were standard letters in language used by security forces.  He stated that it was common practice for there to be checks at the airport even if people had exit permits.  He states that the officials at the airport do have the power to prevent people from leaving.”

22                  This summary divides Mr Gebreyesus' evidence into evidence as to the procedures, evidence of opinion concerning genuineness and evidence of other matters. 

23                  The Tribunal next reasoned that it could determine that the documents are contrived as a result of its own examination of the contents of the documents.  As that examination was conclusive in the mind of the Tribunal, it rejected the contrary evidence as to genuineness of the contents of the documents given by Mr Gebreyesus. 

24                  Then the Tribunal turned to the first document and gave a series of reasons why it regarded that document as contrived.  Similarly, it dealt with the second document by setting out the reasons which led it to say that the document was contrived.  I will return to the question of those reasons in due course, but for the present it is sufficient to note that the reader is able to understand the process followed by the Tribunal in reaching the conclusion that the documents were contrived.  As the reference to Singh above indicates, the question is not whether the reasons are satisfactory but whether the process of reasoning is exposed, so that the reader can follow the steps taken by the Tribunal to arrive at its conclusion. In my view, there has been no breach of s 430(1) as alleged.

Ground of review - error of law

25                  The applicant also relied on the error of law ground in s 476(1)(e) of the Act.  The applicant contended that the Tribunal erred in law in failing to give proper, genuine and realistic consideration upon the merits to the question of the genuineness of the two documents.  It is undoubted that such failure is a ground of review.  In Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368, Merkel J said at par 17:

“It is also well established that, in arriving at its decision, the RRT is under a duty to determine the material questions of fact before it for its determination after giving ‘proper, genuine and realistic consideration upon the merits’ to those questions of fact: see Kahn v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 at 12-15 per Sheppard J; Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472 at 483 per Gummow J; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 96 per Hill J; Mocan v Refugee Review Tribunal (1997) 42 ALD 241 at 245 per Merkel J and Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 28 at 64 per Merkel J.”

26                  His Honour also said at par 27:

Of course, in an application for review under Part 8 of the Act, unsatisfactory reasoning or illogicality do not of themselves constitute errors of law: see Singh at [44]; Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411 at 420-422 and Hill v Green (1999) 48 NSWLR 161 at 174 and 176.  However, unsatisfactory reasoning or illogicality may nevertheless be indicia which, together with other factors, might persuade a court that the RRT has purported to give but has not given proper, genuine and realistic consideration to the issues it is required to determine.” 

27                  For the purpose of this argument, it is necessary to consider carefully the reasoning adopted by the Tribunal.  It rejected the evidence of Mr Gebreyesus that the form of the first letter was "fairly standard" and in relation to the second document, that it was "extremely uncommon" for an address to appear on an official document.  The Tribunal said that it was able to reject this evidence by reference solely to the contents of the documents themselves.  It is therefore necessary to scrutinise what aspects of the contents of the documents the Tribunal found persuasive.

28                  In relation to the first document, the Tribunal said that the release of the applicant on bail to attend "when the government needs him" was wording which was not plausible and was inherently unlikely.  It is not at all clear to me why such wording is implausible or inherently unlikely.  Mr Fairfield, who appeared as counsel for the respondent, invited the Court to take into account certain parts of the transcript to demonstrate that the Tribunal had in mind that a document which effected the release of a person on something like bail would normally require the person to reappear on a fixed date.  Thus, the failure to specify a fixed date for reappearance should be accepted as the Tribunal's reason for its conclusion.  It is not legitimate to resort to the transcript in order to determine whether the reasons for decision can be explained or expanded.  It is the function of the reasons to explain the Tribunal's process of reasoning and it is from the reasons that it must appear that the Tribunal has given proper, genuine and realistic consideration to the case on the merits.

29                  In any event, recourse to the transcript in this case merely heightens the sense of concern over the Tribunal's approach.  On the question of the lack of a date for reappearance, the following exchange occurred at page 18 of the transcript:

“MR KISSANE:   Yes, well, if you're charged with that and you're bailed, you're usually given a date ---

MR TEDELLA:   They put it like a bond, you know, that money.

MR KISSANE:   A bond?

MR TEDELLA:   Yes, like, you put it somewhere.  For example, like, in a bank or something, from my father or something, so if because they told me that they will maybe require any time when they need me, so if I'm not presenting at that moment, that bail will go.

MR KISSANE:   I don't know about Ethiopia but normally in that sort of situation, where money is put up to have somebody released, it's not just a matter of you turning up when they want you, it's a matter of being a court date or a date that you attend to have the charges heard or something like that.” [emphasis added]

30                  The reference to the lack of a date for reappearance seems to have had no probative value and no connection with the issue then under consideration. 

31                  The Tribunal next considered that the heading “To Whom It May Concern” also made the genuineness of the document inherently unlikely.  Again, there is no satisfactory explanation why this should be so.  The nature of the heading appears to have no probative value, nor any connection with the issue under consideration.  The evidence of Mr Gebreyesus on the issue had been rejected on the basis that the document itself told against its genuineness.  The lack of probative value and logic and the circumstances in which this finding was made, namely, by putting aside the evidence of Mr Gebreyesus, indicate that the Tribunal did not give proper, genuine and realistic consideration to the question of the genuineness of this document. 

32                  Although the Tribunal had earlier determined that it would decide the question of genuineness by reference to the contents of the document alone, its next reason strayed from this course.  The Tribunal referred to evidence of Dr Gow that rehabilitation cards functioned as proof of arrest and detention.  The Tribunal observed that the document in question was not a rehabilitation card.  The question, however, was not whether this was a rehabilitation card but whether it was a genuine document.  Dr Gow's evidence was not said to indicate that only rehabilitation cards could qualify as evidence of arrest or detention.  Only if this was so would the Tribunal's reference to Dr Gow's evidence have any connection with a genuine assessment of the applicant's case.

33                  Finally, the Tribunal, again venturing outside the contents of the document alone, found it implausible that the applicant would have to return to the police office a few days after his release to collect the document.  It considered that such paperwork would have been available upon release.  This conclusion appears entirely speculative and again, a result of attributing probative value to a circumstance which had none, as there was no connection between this factor and the issue under consideration.  There is no reason why the availability of the document immediately or a few days later bears upon the question of the genuineness of the document. 

34                  Thus, in relation to the first document, the reasoning is so lacking in any logical or satisfactory basis or any probative value or connection with the matter under consideration that this is one of the few cases in which one can say that the circumstances indicate that the Tribunal failed to give proper, genuine or realistic consideration to the merits of the case put by the applicant. 

35                  The Tribunal set itself a difficult task because it rejected the evidence of an independent witness in favour of a process of determining the genuineness of the document primarily by reference to the contents of the document itself.  Such a process could only amount to a proper, realistic and genuine consideration of the merits of the case if the contents of the document were so out of place in a document of that type such that it could confidently be said that the document was contrived.  For instance:  where a death certificate stated that the cause of death was "political assassination" and was tendered by a relative of the deceased to show he or she was at risk of persecution by reason of his or her political opinion, the specification of a political reason for the death is so out of keeping with the ordinary nature of a death certificate that it would be open to use the nature of the contents of the document to conclude that it was not genuine.  Nothing of that nature presents in this case.

36                  In relation to the second document, the Tribunal again concentrated on the contents of the document.  It considered it inherently unlikely that a document would commence, addressed to the applicant, "where at his address".  The phrase was explained to refer to whatever address at which the applicant was to be found.  Again, there is no probative value or connection with the issue under consideration or any logical basis for the Tribunal’s observation.  On the contrary, at the time the letter was written, the applicant was in Australia and the purport of the letter was that because the applicant could not be found, he had forfeited his bail and other property.  The contents of the letter, if anything, provide reasons for the manner in which it is addressed.  Having rejected Mr Gebreyesus' evidence that it was common practice not to provide addresses on such documents, it was necessary for the Tribunal to discover within the document itself some foundation for doubt on this aspect.  The document does not do so.  Again, the use of this element in the Tribunal's reasoning is so lacking in foundation, so reliant upon a matter with no probative value and on a matter with no connection with the issue under consideration that it points to a failure to give proper, genuine and realistic consideration to the merits of the case of the applicant.

37                  The Tribunal then considered it implausible that the document would recite that the applicant was called several times to attend the office but could not be found.  Again, there is no probative value in this element and no satisfactory basis for such an approach.  The document notified the applicant that he had forfeited his bail and other property.  The reference to his failure to attend on demand was by way of reason given for the forfeiture.

38                  Next, the Tribunal refused to accept that the failure to attend would lead to the forfeiture of the applicant's property on a decision of the criminal investigation authority.  That may be a perfectly justified conclusion after the consideration of evidence in relation to the Ethiopian justice system, but it has no foundation in the contents of the document itself.

39                  Finally, the Tribunal regarded the requirement that the applicant report within a month of service of the letter as an implausible demand.  On the face of the document and without further evidence, this fact is neutral and is of no probative value to the conclusion that the second document was contrived. 

conclusion

40                  Whether taken separately or together, the reasons given by the Tribunal for its conclusion that the documents reveal on their face that they were contrived so that the Tribunal was able to reject the evidence of Mr Gebreyesus are so unsatisfactory and illogical, and based on matters of no probative value and of no connection with the issue under consideration, that they indicate that the Tribunal did not give proper, genuine and realistic consideration to the merits of the case of the applicant on the question of the genuineness of the documents. 

41                  It must be emphasised that this judgment of the Court has nothing to say about whether the two documents are genuine or not.  That is a question to be determined by the Tribunal alone.  It has not been the purpose of this decision to rule on the merits of the claim that the documents are genuine.  This decision has been concerned only to assess whether the treatment of the argument by the Tribunal in its reasons was so unsatisfactory that it points to the Tribunal having failed to really determine the question before it on the merits. 

42                  The ground of review on which the applicant has succeeded sometimes appears to come close to merits to review.  There is, however, a discernible line of distinction.  In the end, the matter is made plain by observing that nothing in this judgment requires or indicates that the Tribunal which re-hears the matter is bound to come to the conclusion that the documents are genuine. 

43                  In the result the decision of the Tribunal is set aside and the respondent is to pay the applicant's costs of and incidental to the application. 

44                  There remains for determination an argument concerning the position of Ms Abera.  That issue does not affect the proposed orders in this case, and so it is stood over pending further discussions between the parties.  The parties will have liberty to apply in relation to that matter.

Associate:

Dated:              17 November 2000