FEDERAL COURT OF AUSTRALIA

Delia v Minister for Immigration and Multicultural Affairs [2001] FCA 1702

MIGRATION –application for an order of review – where applicant claimed that if he returned to Albania, there was a real chance that he would be persecuted by reason of the revival of an old blood feud – where documents provided by the applicant were rejected by the Refugee Review Tribunal (“the RRT”) – whether the RRT erred in principle or law by failing to make inquiries into the authenticity of the documentary evidence advanced by the applicant – the RRT is not under an obligation to make independent inquiries to test the authenticity of documents provided by the applicant – whether the RRT failed to take into account a relevant consideration – allegation of actual bias by the decision-maker

Migration Act 1958 (Cth) s 427(1)(d)

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1

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

MARASH DELIA v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 115 OF 2001

TAMBERLIN J

ADELAIDE

21 NOVEMBER 2001

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the costs of the respondent of the application.

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

REASONS FOR JUDGMENT

1                     This application concerns a citizen of Albania, who arrived in Australia on 20 March 2000.  He lodged an application for a protection visa, which was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 28 November 2001.  The applicant applied on 7 December 2000 to the Refugee Review Tribunal (“the RRT”) for review of that decision.  The ground on which the applicant claimed to be a refugee was that he had a well‑founded fear of being persecuted by reason of his membership of a particular social group.  On 21 June 2001, the RRT affirmed the decision of the delegate not to grant a protection visa to the applicant.  The findings and reasons for that decision are set out in the concluding section of the RRT reasons for decision. 

2                     The RRT accepted that blood feuds existed in Albania.  The relevance of this finding was that the applicant claimed that if he returned to Albania, there was a real chance that he would be persecuted as a consequence of the revival of an old blood feud that gave rise to a danger that he would be killed. 

3                     The RRT did not accept the veracity of five documents and an e-mail that were provided to it by the applicant and that were said to confirm his involvement in a blood feud.  The RRT did not accept that the applicant was in a blood feud, nor did it accept that the applicant was shot in the manner claimed for reasons related to a blood feud.  The approach taken by the RRT was to set out six grounds for doubting the evidence and case that had been advanced by the applicant.  This was by reference to what the RRT considered to be the unlikelihood or implausibility of events taking place in the manner recounted by the applicant.

4                     In addition, the RRT referred to country information and specifically referred to a World Bank report relating to corruption in Albania, which does not seem directly to bear on the present case.  However, reference was also made to a DFAT cable of 15 January 1999, which advised that document fraud was rife in Albania. 

5                     It is fair to say that the reasoning of the RRT in rejecting the documents was based on two considerations.  First, the facts asserted by the applicant could not be accepted. A firm finding was made to this effect.  Those essential facts were the existence of the blood feud and the attempt which had been made on his life, as recounted in his evidence.  The second consideration was the country information.  In addition, the RRT referred to the documents provided by the applicant as being both inconsistent with the country information and also, as in some cases, as being contrived and containing more detail than was necessary to constitute the type of document that it purported to be.

6                     The applicant submits that the RRT erred in principle and law by failing to make inquiries in relation to the authenticity of the documentary evidence which had been advanced by the applicant.  Reliance was placed on s 427(1)(d) of the Migration Act 1958 (Cth) (“the Act”), which reads as follows:

“427 Powers of the Refugee Review Tribunal etc.

(1)               For the purpose of the review of a decision, the Tribunal may:

…

(d)               require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.”

As the courts have pointed out, the power conferred by s 427(1) is a discretionary power to be exercised by the RRT if it thinks it is appropriate or useful in its discretion to seek further information and make further inquiries as set out in that section.

7                     There are a number of authorities which have considered the application of that section and which have held that, in the circumstances of those cases, the RRT is not required to issue directions necessitating arrangements for the making of investigations or medical examinations that the RRT thinks necessary.  Again, the use of the words “that the RRT thinks necessary” indicates that the matter is one for the discretion of the RRT.

8                     In support of this proposition, reference was made by counsel for the respondent to the decision of O’Loughlin J in Pemaj v Minister for Immigration and Multicultural Affairs [2001] FCA 635.  In that case, his Honour came to the conclusion, at [40], that the RRT was not under an obligation to make independent inquiries to test the authenticity of documents that came from various signatories in Albania. 

9                     In the present case, the approach taken by the RRT was to make a firm finding as to the unacceptability of the version of events recounted by the applicant and then to take the view that the documents were so doubtful as not to be accepted.  In those circumstances, having regard to the considerations which the RRT took into account, I am not persuaded that there has been any error of law in the nature of any failure to make inquiries under s 427 of the Act.

10                  The three bases on which the documents were rejected, namely, credibility based on implausibility, together with country information and the contrived nature of the documents, in my view, left it open to the RRT both to infer that the documents could not be safely relied on and to reject the documents.  In so doing, the RRT exercised judgment in the nature of a finding of fact in regard to a question of fact and degree, and this does not amount to an error of law or principle that would make the decision reviewable.

11                  The second argument raised by the applicant was that the RRT had failed to take into account a relevant consideration, namely, the documents which have been referred to.  Again, for the same reasons, I am of the view that this ground has not been made out.  This is not a case that falls within the parameters of the criteria which were set out in Yusuf by the members of the High Court, at 21-22, as follows:

“It is necessary, however, to understand what is meant by ‘jurisdictional error’ under the general law and the consequences that follow from a decision-maker making such an error.  As was said in Craig v South Australia, if an administrative tribunal (like the tribunal):

… falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive.  Those different kinds of error may well overlap.  The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material.  What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.  Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”

12                  In this case, the ground of jurisdictional error has not been made out because regard was had to the documents and they were rejected.  It is not a case where any failure took place to look at the documents or in which the documents were ignored.

13                  Moreover, it is important to note that the decision‑maker noted that, while the country information was cogent evidence of the widespread use of false documents, it did not mean that all documents were fraudulent.  Clearly the decision‑maker applied his mind to the circumstances of the particular case, as evidenced by the following sentence in which reference is made to the country information and the numerous implausibilities in the applicant’s account, which clearly led to the rejection.  As a general principle, it is not an error of law to engage in a false reasoning process or an illogical reasoning process.  In any event, it seems to me that there is no error shown in the line of reasoning adopted by the RRT in the present case.

14                  A third matter that was raised on behalf of the applicant was an allegation of actual bias by the decision‑maker.  This is said to arise from statements made in the course of the hearing concerning the version of events given by the applicant in relation to having been locked up in his residence for a period in excess of seven or eight years and then coming out of the house on one occasion and having been shot.  It is correct, as counsel for the applicant has pointed out, that these remarks were not referable to any evidence that had been given by the applicant in relation to the applicant’s views of Mr Tomar, the person who shot him, having been outside his door for eight years.

15                  Nevertheless, I think, fairly read, the comments that have been relied on concerning the shooting incident were made in an endeavour to evoke a response as a consequence of the decision‑maker expressing a view that the version given was implausible.  I think that it falls far short of any possible basis for suggesting that there was actual bias in this case, and, of course, it is necessary to show actual as opposed to perceived or ostensible bias in order to succeed on this ground.

16                  Accordingly, for the above reasons, I have come to the conclusion that there was no reviewable error of law disclosed in the decision of the RRT in this case, and accordingly I dismiss the application.  In accordance with the normal principle then, there being no special circumstances in this case, I order that the applicant pay the respondent’s costs of this application for review.

Associate:

Dated:              6 December 2001