FEDERAL COURT OF AUSTRALIA

Pemaj v Minister for Immigration and Multicultural Affairs [2001] FCA 635

IMMIGRATION – refugees – Tribunal produced two versions of judgment, one for applicant and one for wider publication – whether the Tribunal failed to observe procedure required by Act in publication of two judgments – whether the Tribunal placed too high an evidentiary burden upon the applicant above and beyond the “real chance” test – whether the Tribunal member had a closed mind in determining the credibility of the applicant and authenticity of supporting documentation – whether Tribunal obligated to put to supporting witnesses as a matter of fairness that the Tribunal believes their evidence to be untrue

Migration Act 1958 (Cth)

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited

Brakni v Minister for Immigration and Multicultural Affairs [2001] FCA 48 followed

Minister for Immigration and Multicultural Affairs v Asif [2000] FCA 228 distinguished

Selvadurai v Minister for Immigration and Ethnic Affairs (1984) 34 ALD 347 followed

Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 followed

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to

Abebe v The Commonwealth (1999) 197 CLR 510 cited

Hossain v Minister for Immigration and Multicultural Affairs [2001] FCA 46 referred to

Re the Refugee Review Tribunal;  exparte Aala (2000) 176 ALR 219 cited

Re:  Minister for Immigration and Multicultural Affairs;  ex parte Durairajasingham (2000) 168 ALR 407 approved

Minister for Immigration and Multicultural Affairs v Surjit Singh (1997) 144 ALR 284 referred to

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

Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 cited

Browne v Dunn (1893) 6 R 67 HL discussed

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] NSWLR 1 referred to

Brown v R (1980) Tas R 61 referred to

Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 cited

Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 followed

Minister for Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023 followed

ENGJELL PEMAJ v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO S 26 OF 2000

O’LOUGHLIN J

ADELAIDE

31 MAY 2001

THE COURT ORDERS THAT:

            The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicant, Engjell Pemaj, who is a citizen of Albania, arrived in Australia on 24 January 1998.  On 7 May 1998, a little over three months after his arrival, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 25 May 1998, a delegate of the Minister for Immigration and Multicultural Affairs refused his application.  Mr Pemaj then applied to the Refugee Review Tribunal (“the Tribunal”) for a review of that decision, but again he was unsuccessful.  On 3 March 2000, the Tribunal affirmed the delegate’s decision.  Mr Pemaj now seeks from this court a review of the Tribunal’s decision.

2                     The applicant is a thirty-one year old married man from Shkoder in Albania; he said that he had worked there as a self-employed builder.  He had come to Australia as part of a music group of seven, leaving his wife behind in Albania.  His father, mother and sister also continue to reside in Albania.

3                     On 5 February 1998, not long after Mr Pemaj left Albania for Australia, his father was involved in a road accident.  The motor car that his father was driving collided with a motor cycle.  The motor-cyclist, whose name was Vehbi Beqi, was killed.  It was the case for Mr Pemaj that the Beqi family holds his father responsible for this death, even though the police had determined that his father was not at fault.  He has further claimed that the Beqi family has insisted that custom dictates that he – as the only son of the father – must be killed as part of a blood debt.  He said that he could not look to the State for protection as the police rarely take action in relation to blood debts.  Mr Pemaj said that when he received news of the fatality, he was warned that he should not return to Albania.

4                     In applying to this Court for an order of review, the applicant has alleged that:

·                    the Tribunal’s decision was wrong because procedures that were required by the Migration Act 1958 (Cth) (“the Act”) to be observed in connection with the making of the decision were not observed;

·                    the Tribunal’s decision involved an error of law, being an error involving an incorrect interpretation of the applicable law and an incorrect application of the law to the facts;

·                    the Tribunal’s decision was induced or affected by fraud or actual bias;  and

·                    the Tribunal’s decision was wrong because there was no evidence or other material that justified the making of the decision.

FAILURE TO OBSERVE PROCEDURES

5                     When this matter was first called on for hearing, a state of confusion arose when it became apparent that the reasons of the Tribunal to which counsel for the applicant was referring differed from the reasons that appeared in the agreed book of documents.  As no immediate explanation was forthcoming, the case was adjourned to allow the parties to make further investigations.  It now transpires that it is the practice of the Tribunal to “publish” two versions of its reasons for decision because of the secrecy provisions in subs 431(2) of the Act which reads as follows:

“(2)     The Tribunal must not publish any statement which may identify an applicant or any relative or other dependent of an applicant.”

6                     In the interval before the resumption of the hearing, the Minister filed, without objection, the affidavit of Katherine Matic, the Deputy Registrar of the Melbourne Registry of the Tribunal.  Ms Matic explained that once a Tribunal member had made a decision on a review, the decision was signed by that member who forwarded it to a designated staff member within the registry.  That staff member would place the Tribunal stamp on all copies of the decision;  that decision is then known, within the Tribunal, as “the full version” of the decision.

7                     The next step in the procedure is for a staff member of the Tribunal to invite the applicant and a representative of the Minister to be present “when the decision is handed down”:  see subs 430A(2).  (That procedure is not necessary if the applicant is in immigration detention or if the Tribunal’s decision is to be delivered orally.)  Copies of the full version of the decision are given to the applicant and to the Minister’s representative at the time when the decision is handed down.  If a party does not attend, a copy of the full version of the decision is supplied to that party in accordance with the requirements of subss 430B(6) or 430B(7) (as the case may be).  Another copy of the full version of the Tribunal’s decision is placed on the applicant’s file that is maintained by the Registry of the Tribunal.

8                     There is an officer within the Registry of the Tribunal who has the title “Decision Bulletin Editor”.  A copy of the full version of the Tribunal’s decision is forwarded to that officer who determines whether or not the decision is to be published more widely.  The Principal Member of the Tribunal has issued a direction on the subject of publication and a copy of that direction was exhibited to Ms Matic’s affidavit.  A decision which the Decision Bulletin Editor has determined will be further published is thereafter edited by an appropriate staff member within the Registry to remove any information that is contained in the decision which may identify the applicant or any relative or dependent of the applicant.  This editing process is carried out in accordance with the Tribunal’s guide to the preparation of Tribunal Decisions for publication (“the Guidelines”), a copy of which was also annexed to Ms Matic’s affidavit. 

9                     Ms Matic next explained that a senior staff member then checks this edited version of the decision to ensure that it complies with the secrecy provisions of the Act and the Tribunal’s guidelines.  If it does, the staff member certifies that the decision is suitable for publication.  A copy of this certified version of the decision, which is known within the Tribunal as the “publication version”, is then placed on the applicant’s file and another copy is forwarded, electronically, to the Australian Legal Information Institute (“AustLII”) for dissemination through the internet.  This procedure was followed in Mr Pemaj’s case and, in the course of the editing, changes were made to the factual material that appeared in the full version.

10                  Following a request that was made on behalf of the applicant on 26 July 2000 under the Freedom of Information Act 1982 (Cth), the Tribunal released a copy of the publication version of the Tribunal’s decision in this matter on 3 August 2000.  No evidence was led to explain why the Tribunal did not release to the applicant or his authorised representative a copy of the full version, nor was any evidence given by the applicant about the whereabouts of his copy of the full version.

11                  The circulation of the full version of the Tribunal’s reasons and the later circulation of the edited – or publication – version has led to the submission on behalf of the applicant that the Tribunal’s decision has been tainted by a procedural defect.  The complaint that was advanced was to the effect that the Tribunal was not empowered to publish two different written statements of its decisions in relation to the same matter.

12                  Part 7 of the Act is entitled “Review of Protection Visa Decisions”.  Divisions 2 to 5 of that Part contain detailed provisions that address the decisions that are reviewable by the Tribunal and manner in which the Tribunal is to exercise its powers, duties and functions in the course of its review.  Central to the obligations of the Tribunal is the requirement in s 430 of the Act which requires the Tribunal to record its decisions.  Subsection (1) of s 430 is in the following terms:

“(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.”

13                  When one considers the provisions of subs 430(1) of the Act, it is easy to see that the preparation of the full version of the Tribunal’s reasons would be intended to address the requirements of that sub-section.  Furthermore, the distribution of the full version of a decision to the applicant and to a representative of the Minister would satisfy the provisions of s 430B – the section dealing with the handing down of the Tribunal’s decision and its distribution to the parties.  The publication (if that is the correct word) of the publication version was not required by or authorised by the Act, but I do not see how its publication can amount to a failure to observe a procedure that was required by the Act.  One might ask rhetorically:  what procedure?  The practice of the Tribunal in distributing the publication version is both sensible and practical.  It avoids a breach of the secrecy provisions of the Act but it serves to disseminate information about the Tribunal’s decisions which are of great value to practitioners and agents who work in the field.

14                  There can be no doubt that the decision of the Tribunal in this case was the full version and it has not been suggested that the applicant did not receive the full version.  I reject the attempt of counsel for the applicant to portray the published version as an official decision of the Tribunal.  It is unfortunate that the publication version was given to the applicant’s representative in answer to the request under the Freedom of Information Act, but the applicant must take some of the blame for that occurring.  His advisers would not have needed to make the request if the applicant had given them his copy of the full version.

15                  Mr Collett, counsel for the applicant, submitted that the object of the Tribunal’s reasons must be certainty and clarity but, so he claimed, in this case, the two sets of reasons only created confusion.  I do not agree.  Once the initial confusion had evaporated and the practice of the Tribunal had been explained through the affidavit of Ms Matic, it seemed to me that the applicant’s complaint in this area had likewise evaporated.

16                  I agree with Ms Maharaj, counsel for the respondent, that the distribution of the publication version to the public at large was for a purpose that differed from the purpose for the distribution of the full version.  The purpose for the distribution of the latter was personal to and specifically for the applicant and the Minister.  As such, it had to comply with the provisions of the Act.  That was a “procedure” that was required by the Act and it was a “procedure” that was followed in this case.  The purpose for the distribution of the publication reasons was for general information for the public at large.  I cannot see how it could be said that the Tribunal failed to observe a procedure that was required by the Act or the regulations to be observed in connection with the making of its decision.  It would, however, be desirable for the Tribunal to endorse its publication reasons with a statement that it is an edited copy of its full reasons because of the secrecy provisions of the Act, but that is an administrative issue.  It is not a reason to justify the intervention of the Court. 

17                  For these reasons, I am of the opinion that there is no substance in this complaint.

ERROR OF LAW

18                  The applicant claimed that the Tribunal applied the wrong test in assessing his evidence in support of his claim for a protection visa.  In particular, it was alleged that the Tribunal placed upon the applicant a burden of proof which he, given the nature of his claims, could not possibly meet.  It was also said that the Tribunal placed on the applicant an onus of proving each part of his case instead of assessing, overall, whether the applicant’s statements were coherent and plausible.  The Tribunal should have, so the applicant maintained, adopted a liberal attitude towards proof, given the difficulties faced by the applicant in proving his claim;  the Tribunal, additionally, should have provided the applicant with the benefit of any doubt in the course of evaluating his evidence.  It was said that the Tribunal did not apply the “well founded” or “real chance” test to the numerous subsidiary issues that were listed in over five pages in his amended application for an order of review.

19                  I do not think that it is necessary to list, seriatim, each of the complaints that were advanced in support of this ground of review.  Most of them, no matter what name may be given to them, amount to “nothing more than a number of reasons for disagreeing with the Tribunal’s views on the merits of the case”: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [56] per Gleeson CJ and McHugh J.  The task of the court in an application such as this is not easy;  it is necessary to constantly remind oneself that this is not a merits review.  As Spender J (with whom Carr and Tamblin JJ agreed) said in Brakni v Minister for Immigration and Multicultural Affairs [2001] FCA 48 at [10]:

“It is not an error of law, within the grounds of review set out in s 476 of the Act, that conclusions of fact drawn by the Tribunal are unreasonable or may seem to be unreasonable to another, or that other minds would not have reached the same conclusion.”

Paragraph 2.2.6 of the applicant’s amended grounds is an example of the applicant’s attempt to achieve a merits review.  It was in these terms.

“2.2.6  the Tribunal found that:

            ‘as a result (of its rejection of the claim that the applicant was the target of revenge) the Tribunal does not accept that any of the documents provided by the applicant represent the truth of the situation’ (emphasis added)

            This statement demonstrates the claim that the Tribunal applied an evidentiary standard which effectively required the applicant to prove or produce independent corroborative evidence on all subsidiary issues before it accepted the veracity of his claim.  The Tribunal rejected all verbal and documentary evidence supplied by the applicant on the basis that it was not satisfied that if the Applicant’s father was involved in a motor vehicle accident the Applicant would become the prime target for revenge.  This rejection was not based on an adverse finding of credit relating to the applicant or the Applicant’s witnesses.”

20                  There are, in my opinion, two misconceptions in that paragraph which are indicative of a misunderstanding of the Tribunal’s reasons.  In the first place, the passage that has been extracted from the Tribunal’s reasons does not demonstrate that an inappropriate evidentiary standard was used nor did it suggest that there was some onus on the applicant to produce independent corroborative evidence.  What has been overlooked in the preparation of that ground is the fundamental fact that the Tribunal did not believe the applicant’s prime claim that a blood feud existed between his family and the Beqi family.  Once that fact is accepted, the rest of the Tribunal’s reasons fall into place.  The second criticism relates to the contents of the last sentence.  It was wrong to claim that the Tribunal’s rejection was not based on an adverse finding of credit.  It was because of an adverse finding about the applicant’s credit that his evidence and all other evidence that was said to corroborate the existence of the blood feud was rejected.

21                  I do not regard the conclusion that the Tribunal reached as unreasonable, but even an unreasonable conclusion will not, without more, permit an inference to be drawn that the decision-making process involved an error of law:  Brakni v Minister for Immigration and Multicultural Affairs (see above).

22                  In my opinion, there is nothing in the Tribunal’s reasons that point to it having accepted an incorrect approach in the compilation of its reasons.

Bias

23                  In its concluding remarks the Tribunal said:

“Since the applicant’s claim turns on the existence of a blood feud and the Tribunal is not satisfied that there is one, the Tribunal concludes that there is no real chance the applicant will face persecution should he now return as a result of his being a member of a particular family or for any other Convention reason.  The Tribunal finds that the applicant does not have a well founded fear of persecution for a Convention reason.”

24                  The Tribunal rejected Mr Pemaj’s evidence about the blood feud, notwithstanding the contents of certain documents that Mr Pemaj presented in support of his application for refugee status.  For example, he produced a certificate dated 25 April 1998, the effect of which was to state that the applicant’s family remains within their home because the head of the family caused the accidental death of Vehbi Beqi.  The Tribunal, in summarising the certificate wrote:

“It states that in spite of all the efforts of the district and the ‘Association of Blood Reconciliation’ the revenge is not acquitted and the Beqi family have declared that they will take revenge on the only son of the applicant’s family.”

That certificate was signed by Luke Gega who was described as the “Bourgmaster of Dajc District”.  In addition to this last mentioned document, Mr Pemaj supplied the Tribunal with nine more statements or statutory declarations that were in similar terms to Mr Gega’s certificate.  Two of those declarations were provided by Alek Doci and Cesk Doci.  They are now living in Australia but are Albanians by birth.  Each had recently visited Albania and each reported that, whilst in Albania, they had heard of the fatal accident and of the Beqi family’s intention to extract their revenge on the applicant.  In addition to this written material, Mr Cesk Doci also gave evidence before the Tribunal in support of Mr Pemaj’s application.  The Tribunal said that Mr Doci had stated in his evidence:

“… that Mr Beqi came and saw him after his arrival [in Albania] and asked about the applicant.  He stated that the aim of the revenge was to have the maximum possible impact on the applicant’s family.  This is why the applicant is targeted.  When asked why if this is the case the applicant’s father has to stay indoors, he stated he thought he had to do this out of respect for the death.”

25                  In its findings, the Tribunal accepted that there are blood feuds in Albania and that it is possible for a blood feud to arise as a result of a fatal car accident.  However, it rejected the applicant’s case, dismissing it and the documentary and oral evidence that was advanced in support of it as a fabrication.  The Tribunal made the following observations and reached the following conclusions:

·                    it was not satisfied that, if Mr Pemaj senior was involved in a fatal motor car accident, the applicant would become the prime target for revenge;

·                    it would be any male member of the family who would be targeted;

·                    it would be the father who would be most at risk;

·                    it was “far fetched” that the Beqi family would telegraph to the Pemaj family “the person they most want and even more far fetched that they should pick on someone who is not even in the country”;

·                    the fact that the documents that Mr Pemaj produced to the Tribunal (which were sourced some time in 1999) indicated that it was he who was the one who was sought by the Beqi family, when he had not been in the country for almost two years, highlighted “the far fetched nature of this claim”.

26                  Counsel for the applicant, relied heavily upon the decision of a Full Court of this Court in Minister for Immigration and Multicultural Affairs v Asif [2000] FCA 228 and, in particular, upon the following passage:

“In disposing of the case on the basis it did, the Tribunal went beyond making a mere error of law and went beyond adopting an erroneous approach to the task committed to it of finding the relevant facts.  Its steadfast refusal to evaluate the probative force of any of the evidence from sources other than the respondent himself that was relevant to the issue on which it based its decision shows that once it became convinced that the respondent was a wholly untruthful witness the case was over:  from that point, the respondent had to lose, irrespective of how cogent the body of evidence he produced from others was on the issue of his attitude to his marriage and to his wife at the earlier (as well as the later) relevant date.” [32]

27                  Mr Collett argued that the Tribunal, in this case, like the Tribunal in Asif’s case “became convinced” that the applicant was a wholly untruthful witness and that, from that point, the applicant “had to lose, irrespective of how cogent the body of evidence he produced on the issue …”.

28                  Persuasive though this argument may be, it fails to give credit to the reason why the Tribunal rejected the applicant’s evidence.  The rejection was based on the implausibility of the applicant’s story.  That finding, which was open to the Tribunal, had a domino effect.  The implausibility was not, in the eyes of the Tribunal, removed by the written and oral evidence that supported it;  on the contrary, having come to the conclusion that it could not accept the applicant’s evidence about the existence of a blood feud, the Tribunal was compelled, as a matter of logic, to dismiss the written material that purported to claim that such a feud existed.  It might be thought by some that the Tribunal, notwithstanding its views about the applicant’s credibility, ought to have been persuaded by the quality and quantity of the written evidence.  For this Court to engage in that analysis would mean that the Court would be undertaking a review of the Tribunal’s findings about the applicant’s credibility and that is not permissible. 

29                  It is reasonable that applicants, whose claims are plausible and credible should, unless there are good reasons not to do so, be given the benefit of the doubt (UNCR Handbook on Procedures and Criteria for Determining Refugee Status, re-edited, Geneva, January 1992 pars 196-197 and 203-204).  However, it is necessary and appropriate that the Tribunal assess the specific claims advanced in support of an applicant’s case, bearing in mind that:

“A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.”

Selvadurai v Minister for Immigration and Ethnic Affairs (1984) 34 ALD 347 at 348.

30                  The Tribunal is not required to accept uncritically all claims made by applicants.  A liberal attitude concerning proof of persecution in the context of an application for refugee status:

“… should not, however, lead to ‘an uncritical acceptance of any and all allegations made by suppliants’.”

31                  Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J.

32                  In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 McHugh J said at 428 when dealing with the 1951 Convention:

“It is unlikely therefore that a State party was expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State’s understanding of conditions in his or her country of nationality.”

33                  More recently in Abebe v The Commonwealth (1999) 197 CLR 510 Gummow and Heyne JJ at 577 observed:

“… the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.”

34                  There is a fundamental illogicality in the applicant’s story.  It is his claim that, although the Beqi family regard the applicant’s father as the person who was responsible for the death of Vehbi, the Beqi family has vowed that they will take revenge and seek the death of a member of the Pemaj family who was not in Albania at the time of the death and who continues, to this day, to remain outside that country.  Instead of seeking their revenge against the father – the person who allegedly was responsible for the death and who continues to live in Albania - the Beqis proclaim that they will seek revenge against the father’s only son.  Presumably, the Beqis know that the applicant is living in Australia, but how are the Beqis to know whether the son will ever return to Albania?  There is, of course, on the other hand, a fundamental illogicality about the thinking of people who engage in blood feuds;  one must be careful not to lose sight of that fact.  Nevertheless, if there was a fatal accident and if the Beqis are determined to have their revenge, why not attempt to extract that revenge on Mr Pemaj senior when they have no way of knowing whether they will ever have the opportunity to kill the absent son?

35                  These were the sentiments that are apparent from a reading of the transcript and the Tribunal’s reasons and, in my opinion, it was reasonably open to the Tribunal to make findings in terms that are consistent with those sentiments.  They led the Tribunal to the conclusion that the applicant’s story about the Beqi blood feud was a fabrication.  This in turn meant that the blood feud documents were also fabrications.  The Tribunal was prepared to take that extra step because of the country information that pointed to extensive corruption in Albania.

36                  It is not to the point to contemplate that another person might have reached a different conclusion.  The primary judge in Hossain v Minister for Immigration and Multicultural Affairs [2001] FCA 46 held that he was not entitled to interfere with or reverse a factual finding of the Tribunal where the Tribunal had said that the applicant was lacking in credibility.  The Full Court said that the primary judge in coming to that conclusion was “plainly correct”.  As Gleeson CJ pointed out in Re the Refugee Review Tribunal;  exparte Aala (2000) 176 ALR 219 at par 4:

“Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.”

37                  The remarks of McHugh J in Re:  Minister for Immigration and Multicultural Affairs;  ex parte Durairajasingham (2000) 168 ALR 407 at [67] bear repeating, for they have particular application, in the first place, to the content of the Tribunal’s reasons and in the second place, to the conclusion that was reached by the Tribunal.  His Honour said:

“If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.  The Tribunal must give the reasons for its decision, not the subset reasons why it accepted or rejected individual pieces of evidence.  In any event, the reason for the disbelief is apparent in this case from the use of the word ‘implausible’.  The disbelief arose from the Tribunal’s view that it was ‘inherently unlikely that the events had occurred as alleged’.”

38                  Stressing the implausibility of the Beqi family picking on a son who was overseas to be the target, when the actual perpetrator was at hand, the Tribunal went on to hold:

“… that the applicant has fabricated the entire evidence about his family being involved in a blood feud.  The Tribunal concludes that all the documents he has provided, from April 1998 until December 1999, are also fabrications designed to support his claim.  As stated above the fact that they refer to the applicant being the target indicates to the Tribunal that there is not a genuine blood feud but that one has been fabricated to support the applicant’s desire to remain in Australia.”

39                  In coming to that conclusion, the Tribunal relied upon a World Bank Report of 1 July 1998 which was exceptionally critical of the widespread corruption in Albania.  The Tribunal said: 

“It confirms the Tribunal’s view that the most likely scenario is that the documents have been concocted to support the applicant’s claims for refugee status and the Tribunal so finds.”

40                  The Tribunal was not, in my opinion, under any obligation to make independent inquiries to test the authenticity of the documents that came from various signatories in Albania.  A Full Court of five of this Court addressed that question in Minister for Immigration and Multicultural Affairs v Surjit Singh (1997) 144 ALR 284 at 291:

“Although we have concluded that there may be circumstances in which the tribunal’s obligation to act according to substantial justice requires it to make inquiries, we are respectfully unable to agree with the primary judge’s general proposition that where an applicant produces a document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by the tribunal through official channels, if by that her Honour intended to convey (as the respondent suggested) that the tribunal was under a duty to verify in such cases.  In a particular case the tribunal may indeed be obliged to verify a document in this fashion, but there is no general rule to that effect.”

I do not consider that the circumstances to which the Full Court referred are present in this case in view of the Tribunal’s basic finding that it rejected Mr Pemaj’s evidence.

41                  In criticising the reasoning of the Tribunal, Mr Collett pointed out that the Tribunal had said that it did not accept that any of the documents provided by the applicant represented the truth of the situation:  the Tribunal had said that the documents had been concocted.  In fact there were some documents, such as a “Certificate of Family” and a certificate that dealt with the applicant’s educational status, which, by their nature, were quite innocuous.  Another document was his wife’s birth certificate and yet another was Mr Pemaj’s marriage certificate.  Nothing in the reasons of the Tribunal pointed to these documents, or any of them, being false in a material particular.  The applicant also provided a number of newspaper articles about the code of Lek Dukagjini and about “blood” killings in Albania.  The articles referred to the subject of violence and blood feuds but they did not refer to the Pemaj-Beqi accident.  As the Tribunal had not denied the existence of blood feuds in Albania, a reasonable interpretation of its reasons requires one to conclude that it was not suggesting that the newspaper articles were fabrications. 

42                  There were therefore three sets of documentary evidence before the Tribunal.  The first of them, the documents that alleged the existence of a Pemaj-Beqi blood feud and the danger to the applicant can be called, for convenience, “the blood feud documents”.  The second group will be referred to as “the family certificates” and the last will be called “the newspaper articles”.

43                  It is true, as Mr Collett has claimed, that the Tribunal, in its reasons, did not differentiate between the three groups of documents when stating its conclusions.  Thus the Tribunal said:

“As a result the Tribunal does not accept that any of the documents provided by the applicant represent the truth of the situation.”

44                  At another stage of its reasons, the Tribunal said:

“The Tribunal concludes that all the documents he has provided, from April 1998 until December 1999, are also fabrications designed to support his claim.”

However, I am of the opinion that it is clear that, in making those all-embracing statements, the Tribunal was referring only to the blood feud documents.  In the sentence immediately following the last of the quoted passages the Tribunal went on to comment:

“As stated above, the fact that they refer to the applicant being the target indicates to the Tribunal that there is not a genuine blood feud but that one has been fabricated to support the applicant’s desire to remain in Australia.”

45                  The reference to the applicant being a target can only be taken to mean the blood feud documents.  Neither the family certificates nor the newspaper articles referred to that subject. 

46                  The Tribunal had been at pains in its reasons to identify and discuss the documents – being the blood feud documents – that addressed the subject of the blood feud and its application to Mr Pemaj.  It was those documents that the Tribunal rejected.  The language that the Tribunal used was loose, but the reference to the blood feud documents that were advanced in support of the claim for refugee status identifies the documents that the Tribunal had in mind when it made those broad statements.  The High Court has warned against an over zealous scrutiny of Tribunal reasons in Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.  A year or so later in Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 the court reiterated that warning;  it disapproved of decisions that have taken an unduly critical approach to the Tribunal’s application of the “real chance” test of persecution.

47                  The applicant claimed that the Tribunal member had approached his task with a closed mind.  It was submitted that the many extracts from the transcript of the proceedings before the Tribunal to which reference was made during the course of an argument pointed to a pre-judgmental attitude on the part of the Tribunal.  At an early stage in the proceedings, the Tribunal member had said to Mr Pemaj, when speaking of the blood feud documents:

“See, I think the emphasis on you in all these statements indicates they have just been prepared for your – to back up your story for your claims for refugee status and that there’s not much truth in them”

48                  A few questions later, when speaking of blood feuds the Tribunal member said:

“Yes, but what I find strange is that – I mean, I know that these things go on for many years, but the emphasis on you as opposed to your father, who was involved in the car accident in any event, seems to indicate that something different is happening than what is in the Kunan, the Kunoon.”

49                  The Tribunal then turned its attention to the question of corruption.  The following exchange established, so it was claimed, that the question of the fabrication of documents was a subject that was already in the mind of the Tribunal member.

“MR KISSANE:          And there is a problem with corruption in Albania, isn’t there?

INTERPRETER:       How do you mean?

MR KISSANE:                      You can get any document you want if you are prepared to pay money for it, whether it’s true or not.

INTERPRETER:       Not that I’m aware of because I worked there until 1997.  Of course you do have to pay to get a document that it’s needed, but …”

50                  The position worsened, according to the submissions of the applicant, when a few questions later the Tribunal said:

“So why should I place any weight on any of these documents that you have provided if you can obtain documents so easily in Albania, just by paying money for them?

51                  That statement was said to point to the Tribunal adopting an impermissible onus of proof, and, as I apprehend the submissions that were made on behalf of the applicant, are said to support the applicant’s argument that the Tribunal’s reasons were affected with bias.

52                  The remaining subject that needs to be mentioned with respect to the allegation of bias is the fact that the Tribunal refused to rely upon the written and oral evidence of Mr Cesk Doci.  Mr Collett submitted that there was an obligation, as a matter of fairness, on the Tribunal (which he likened, by analogy, to the rule in Browne v Dunn (1893) 6 R 67 HL whereby the Tribunal should have put to Mr Doci that his evidence was untruthful.  That failure on the part of the Tribunal, including its failure to look for corroborating evidence, was, so it was claimed, further evidence that the Tribunal member’s mind was closed to the truthfulness of Mr Pemaj’s application.

53                  The rule in Browne v Dunn is a rule of practice that is applied in appropriate cases in civil and criminal litigation.  Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] NSWLR 1 at 16 explained it in these terms:

“It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.  Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.”

54                  The importance of the rule lies in the fact that it gives to a witness the opportunity of being informed of the area or areas in respect of which his or her evidence will be challenged.  In a sense, the philosophy behind the rule is reflected, in part, in the provisions of s 424A of the Act which requires the Tribunal to give to an applicant particulars of any information that the Tribunal considers would be “the reason, or a part of the reason, for affirming the decision that is under review”.  But that is not the case here:  the Tribunal did not have information that contradicted the existence of the Pemaj-Beqi blood feud.  In the case at Bar the Tribunal came to the decision, for the reasons that it gave, that it did not believe Mr Pemaj’s evidence about the existence of such a feud.

55                  The claim that the Tribunal should have adopted an adversarial role by putting contrary propositions to the applicant and his witness as they gave their evidence is somewhat novel.  It would have the potential to place the Tribunal in a position of direct conflict with an applicant.  The duty of the Tribunal member is to inquire dispassionately and with neutrality, but with the additional right to test and probe.  Even in conventional adversarial litigation the rule in Browne v Dunn does not have universal application.  In Brown v R (1980) Tas R 61 at 75 Neasey and Cosgrove JJ explained, for example, that there can be circumstances where it is unnecessary to put an opponent’s case.  They said:

“… it is clear that it is a rule of broad substance rather than a rigid rule which requires every significant fact about which the opposing party intends to give evidence to be put in cross-examination.  What is fair or unfair will depend upon the particular circumstances of the case;  and as Lord Herschell points out, it may be so clear that the witness’ version is to be impeached that specific questions may not even be required.”

56                  The Tribunal’s alleged failure to specifically warn the applicant that it might find that he was not a refugee is, in any event, unfounded.  In my view, the Tribunal’s questioning “was such as to demonstrate to the applicant and to any reasonable observer that it did not necessarily accept any of the key elements of the applicant’s claims”, cf. Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 per Sackville J at [48].

57                  Mr Collett submitted, quite rightly in my opinion, that it is a rare case where one can point to a statement which alone establishes bias.  More often, it is necessary to stand back and examine the totality of all relevant material.  In this case, that calls for a review of the written and oral evidence including the transcript of the proceedings before the Tribunal together with an examination of the Tribunal’s reasons.  Mr Collett submitted that when that exercise is carried out the picture of a closed mind becomes apparent.  I cannot agree.  In fact, by carrying out that exercise I have come to the same conclusion as the Tribunal.  I am satisfied that the Tribunal’s decision was not tainted by bias – either actual or imputed.

NO EVIDENCE

58                  In Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181, a Full Court of this Court discussed at length the “no evidence” ground for review.  In that case the applicants for protection visas were a Sinhalese couple – a husband and his wife.  Their claimed fear of political persecution was based on them having permitted Tamils to reside in their house in Colombo from time to time.  In rejecting their claims for refugee status, the Tribunal relied primarily on inconsistencies in the evidence that the applicants had adduced about the length of time that the Tamils had stayed in their house.  Thus Mr Indatissa said that about twice a month various Tamil friends had stayed overnight.  However, the translation (“the first translation”) of a letter that his father had written, and which was tendered before the Tribunal, read that the friends “stayed at our house several times for a month”.  When the matter came before a single judge of this Court on review, he received, without objection from the Minister, another translation (“the second translation”) of the father’s letter which relevantly said that the friends stayed “several times a month”.  The word “for” did not appear in the second translation.

The Full Court noted that there was no suggestion before the primary judge that the second translation was other than accurate.  The Court also went on to say that:

“No attempt was made by the Minister to adduce evidence to rebut that evidence.  His Honour concluded, therefore, that the Minister tacitly conceded that Mr Jayakody’s translation ‘(i.e. the first translation)’was erroneous and that the supposed discrepancy between Mr Indatissa’s account and that of his father did not exist.  His Honour concluded, on the basis of the new translation evidence and what was said by the interpreter during the course of the hearing before the Tribunal that there was ‘in fact no discrepancy of the type referred to by the Tribunal in its reasons for decision’.  His Honour concluded, therefore, that the ground provided for in s 476(1)(g) was established by the respondents. [22]

Section 476(1)(g) provides as follows:

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

59                  However, s 476(4)(b) qualifies that ground in the following terms:

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

(a)     …

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

60                  The Full Court in Indatissa explained at p 24 that the primary judge had concluded that:

“… the Tribunal’s finding that there was a discrepancy between the account given by Mr Indatissa and that supposedly given by his father was a critical factor in its decision to reject the claim.  His Honour considered that the supposed discrepancy led the Tribunal to take one path in the process of reasoning rather than another, and so to come to a different conclusion.  His Honour considered that the perceived discrepancy was one which was ‘of fundamental importance to the issue of’ Mr Indatissa’s credibility.  Assuming the discrepancy existed, the only possible explanations were that Mr Indatissa was lying or that his father was.  His Honour considered that were the Tribunal to make either of those findings, the case of the respondents would suffer irreparable harm.

The primary judge concluded, therefore, that it was likely that the Tribunal’s finding that Mr Indatissa had deliberately lied about the visits by Tamils to his family home affected its subsequent findings, at least to the extent that they were in any way dependent upon credibility.  His Honour was satisfied that the supposed discrepancy constituted a ‘particular fact’ within the meaning of s 476(4)(b) and that, having regard to the evidence before his Honour, that fact did not exist.  His Honour concluded, therefore, that the Tribunal’s decision to reject the claim of the respondents was relevantly based on the existence of a particular fact that did not exist.”

61                  The Full Court then proceeded to examine and analysis the provisions of par 476(1)(g) and par 476(4)(b), emphasising that the power of the Court under subs 476(1) generally and par 476(1)(g) in particular does not extend to “a re-examination of any of the factual matters ventilated before the Tribunal”.  As the Full court explained there are three requirements for establishing the ground of par 476(1)(g) as qualified by par 476(4)(b);  first there must be no evidence or other material to justify the making of the decision;  secondly, the decision that is under review must be based on the existence of a particular fact;  finally, there must be a finding that the particular fact did not exist.  The Full Court went on to point out that the presence of the last two requirements – reliance on a fact that did not exist – is not sufficient.  In other words, there might be a case where a Tribunal relied on a non-existent fact but there was other evidence or other material that justified the making of the decision.

62                  Applying those principles to the facts in the Indatissa case, the Full Court concluded that if the Tribunal’s decision was based on the existence of a particular fact, namely the discrepancy between the evidence of Mr Indatissa and the translation of his father’s letter, there was evidence in the form of the first translation that was capable of supporting the existence of such a fact.  That was the end of the matter.  The Full Court held it was impermissible for the primary judge to take account of the second translation to contradict the evidence that was before the Tribunal.  The appeal of the Minister to the Full Court was allowed and the decision of the Tribunal was thereby restored.

63                  There is no reason why a credibility issue should not be encompassed by the “no evidence” ground.  That is clear from the decision of a Full Court in Minister for Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023 at 217

“Often, the Tribunal rejects a visa applicant’s claims because the applicant is found not to be a credible witness.  There is no reason in principle why a finding of fact upon which that conclusion as to credibility is made should not constitute a particular fact as that expression is used in s 476(4)(b).  Whether or not such a finding does so qualify will depend on the circumstances of a particular case.  Similarly, there is no reason in principle why, if it is shown that that fact did not exist, the ground of review available under s 476(1)(g) and (4)(b) should not be made out.”

That statement does not, of course, suggest that the first of the three requirements can be overlooked.  The case for the applicant was advanced upon the premise that the Tribunal had erroneously stated that all documents presented to it – that is, not only the blood feud documents, but also the family documents and the newspaper articles were false.  Thus it was argued that:

·                    the Tribunal’s decision was based on the existence of a particular fact – that is, that all three categories of documents were false;

·                   the particular fact did not exist in that it was reasonably obvious that the family documents and the newspaper articles were genuine;

·                   there was no evidence or other material to justify the making of the decision that all three categories of documents were false.

64                  There are, in my opinion, two answers to this complaint.  In the first place, I have concluded that a fair and reasonable reading of the Tribunal’s reasons justifies a conclusion that the Tribunal was not referring to all three categories of documents but only to the blood feud documents.  If that conclusion is correct then it completely answers the “no evidence” ground.  If, however, I am wrong and if the Tribunal did intend, erroneously, to include all three categories of documents in its findings, then there is still a problem which, in my view, is an insurmountable problem for Mr Pemaj.  The decision at which the Tribunal arrived was a decision that Mr Pemaj was not entitled to the grant of a protection visa.  The evidence and other material that was before the Tribunal and which justified its decision was the evidence of Mr Pemaj which the Tribunal classified as a fabrication.  So expressed, it leads to the conclusion that the “no evidence” ground is not available to Mr Pemaj even if the Tribunal erroneously classified all three categories of documents as false.

65                  I have therefore come to the conclusion that this application must be dismissed with costs.

Associate:

Dated:              31 May 2001