FEDERAL COURT OF AUSTRALIA

SZQVM v Minister for Immigration and Citizenship [2013] FCA 5

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Magistrate on 8 June 2012 be set aside.

3.    The Refugee Review Tribunal’s decision made on 10 October 2011 be quashed.

4.    The application to the Refugee Review Tribunal for a review of the decision of the delegate of the Minister for Immigration and Citizenship (the Minister) be remitted to the Refugee Review Tribunal for determination according to law.

5.    The Minister pay the applicant’s costs in the Federal Magistrates Court.

6.    The Minister pay the appellant’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from an order of a Federal Magistrate made on 8 June 2012 dismissing the appellant’s application for judicial review and ordering the appellant to pay $6,240 in costs.

2    The appellant is a Fijian citizen who arrived in Australia on 26 August 2010.

3    On 18 November 2010, the appellant applied to the Department of Immigration and Citizenship (the Department) for a Protection (Class XA) visa. On 25 February 2011, a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused the application. On 3 March 2011, the appellant applied to the Refugee Review Tribunal (RRT) for a review of that decision. On 10 October 2011, the RRT affirmed the delegate’s decision not to grant the appellant a Protection (Class XA) visa.

4    On 14 November 2011, the appellant filed an application in the Federal Magistrates Court seeking judicial review of the RRT’s decision. On 8 June 2012, that application was dismissed.

5    The appellant now appeals to this Court.

Proceeding in the RRT

6    The appellant was born in Fiji in 1961. He completed his secondary education in 1977 and between April 1978 and August 1982 he was employed as a jeweller. In December 1982, he commenced as a prison officer and remained a prison officer until October 2010.

7    He is married, but apparently separated. He has four children; two boys and two girls.

8    He rose up through the ranks of prison officers and by 2002 was Officer-in-Charge of Nukulau Island Prison. In 2005, he was transferred to the Ministry of Justice and after the 2006 coup in Fiji he was Chief Investigating Officer and Liaison Officer with the Ministry of Justice. In that role, he had the task of liaising between the Commissioner of Prisons and the Ministry of Justice.

9    In April 2008, he was appointed as Officer-in-Charge of Suva Prison.

10    He said that he did not have any real problems after the 2006 coup until June 2008 when a staff member under his command allowed a prisoner to escape. He said that incident caused very bad feelings between himself and the Commissioner of Prisons, which escalated as a result of personal and political animosity in relation to his treatment at work and his political outspokenness about the actions of the Commissioner and his illegal government.

11    He said that the incident in June 2008 gave rise to the issue of a letter of interdiction and he was ordered to leave his office for a period of four months.

12    In September 2008, he resumed service but as second in command at the Suva Prison, which was a demotion.

13    Subsequently, there was a board of inquiry which he said cleared him. He sought and obtained an audience with the Commissioner of Prisons and told him he was disappointed at being reduced in rank after being cleared of any wrongdoing.

14    He claimed that as a consequence of that complaint, he was transferred to Prisons Headquarters and, in July 2010, was further demoted to Chief Logistic Officer.

15    He said he was an outspoken critic of the coup and the illegal government of Bainimarama.

16    The appellant claimed that he opposed the 5 December 2006 coup. The appellant claimed to have pulled his eldest daughter out of the Cadets of the Fijian Military Forces with her consent because of his dislike of the military and the military regime, and that prior to him pulling her out of the Cadets, his comments and opinions expressed at work concerning the military had made her fear repercussions at training.

17    The appellant claimed that because he held a senior position within the Fijian Prison Service his outspoken opinions of the government and the military have exposed him to risk of harm. The appellant claimed that his demotion in September 2008 from Officer-in-Charge of Suva Prison to Chief Officer and his further demotion in April 2010 from Superintendent Headquarters to Chief Logistic Officer were a direct result of being interdicted on 3 June 2008 without any interview or investigation. He claims he is further exposed to harm because of his continued outspoken dissatisfaction with the military and the Commissioner of Prisons. He has opposed the Yellow Ribbon Program, which is said by the authorities to be designed to give prisoners a second chance, but which the appellant claimed is merely a cover to allow relatives and friends of Frank Bainimarama, the Fijian Prime Minister, to be placed in high profile positions despite their criminal record.

18    The appellant claimed to have taken three months long service leave from his job commencing on 26 August 2010, which is the day he left Fiji and arrived in Australia, travelling on a Fijian passport. He took advantage of changes to the Public Service Commission since the coup, which did not require him to obtain the Commissioner of Prisons’ approval to travel overseas, but only required him to provide evidence of his leave and a letter from his family, which he claimed was provided to him by his wife. He claimed not to have had any problems at the airport on his departure. He said that the customs officer was a family friend, and that no one questioned him as to whether he had the permission from the Commissioner of Prisons to leave the country.

19    The appellant claimed to have come to Australia with the intention of seeking protection. He said he did not resign from his job as he feared for his safety should he contact the Prison Service, that he was scared to communicate with them, and he did not want them to know he had left the country. He claimed that, in the time leading up to his decision to leave Fiji, he was being followed and that his flat was being watched, that the tone of the warnings given to him by the Commissioner was becoming increasingly serious, and that he had been warned by a friend Frederik Elbourne that his name kept coming up during core group meetings and that he should be careful.

20    He claimed that he really wanted to go back to Fiji for the wedding of his eldest daughter on 30 October 2010, but was unable to for fear of what would happen should he return. The appellant claimed that if he did not fear for his life he would have no reason to come to Australia, considering three of his children, two of his brothers and his wife (even though they are separated) are in Fiji, that he has extensive property in Fiji, and that he had a financially comfortable job.

21    The appellant claimed that he has received emails telling him that he will be taken to a military camp should he return to Fiji as he is considered a deserter under the Prison Act of Fiji, and that he fears for his life.

22    The appellant provided two emails. The author of the first email, dated 20 October 2010, was Frederick Elbourne, to whom reference has already been made, who said:

Hi Bro

Good to hear from you. Yes I have transferred to the Police Force, still one of the favored (sic) ones I guess. Bro people have found that you left for Australia without permission for either Corporate Services or the Public Service Commission. [If] I was you I will stay back in Australia – Chaplain Aporosa went to Europe and was sacked in absentia. Your arse will be grass when you come back. Anyways you take care and keep in touch.

Cheers

23    The author of the second email, dated 18 February 2011, was Sevuloni Naucukidi, who said:

Hi Frank, How are you and hows everything? Please if you still have my mobile #, contact me as soon as you get this. The guys from Prison and I think some plain clothes policeman came to my flat a couple of times as soon as they find out where I now live and were asking a lot of questions about you, your work and your family. What’s going on man, they asked me if you came and discussed some stuff about work with me and if you left some documents with me. They threatened me that some people have informed them that we are best mates and you have probably left whatever they are looking for with me. Did something happened (sic) you haven’t told me? God, these guys are really worked up and they have been going on as if you have stolen the crown jewels of the Fiji Prisons. Please give me a holler as soon as you receive this and if you are okay wherever you are, try everything you can to stay, and don’t come back to Fiji whatever you do. The way those guys were going on about you, I think you might reintroduce the death sentence in Korovou prison if they catch you. Call me or get in touch ASAP. Sorry I’m giving it raw if the news upset you but I’m not joking about what is happening here and I’m saving the pleasantries after you explain what is going on. CALL ASAP.

24    The Elbourne email was provided to the Department at or about the time the appellant made his original application for a protection visa. The RRT recorded that it received a copy on 20 June 2011.

25    The Naucukidi email was provided to the RRT before the RRT hearing. The RRT said in its reasons that it received the email on 13 April 2011. The RRT said of the two emails:

The Tribunal has not had the opportunity to speak to the authors of these documents, to test the evidence contained therein or to verify the authenticity of the documents. Accordingly, the Tribunal places no weight on these documents.

26    The appellant called a friend and former colleague, Tupeni Ratutila, who had successfully obtained a protection visa in Australia.

27    The RRT said of Mr Ratutila:

He is not an independent witness. In view of his long term friendship with the applicant, the fact that he had also been an applicant before the Tribunal and the fact that the applicant was a witness in his case before the Tribunal raises some concerns about his motivation in giving evidence on behalf of the applicant. Accordingly, the Tribunal has given little weight to his evidence.

28    The appellant tendered a statutory declaration made by Mr Ted Young and called Mr Young as a witness. Mr Young was a Cabinet Minister in the former democratically elected government of Fiji.

29    Mr Young said he had conversations with other former and current prison officers in which he was informed that the appellant was a known vocal critic of the military regime. He also said that he had been told from a very reliable source the extent of the power and influence of the appellant’s former boss.

30    The RRT said of Mr Young’s evidence:

His evidence about the applicant’s situation in relation to the Fiji Prisons service is not based on his personal knowledge but rather on hearsay and what he has been told to him by the applicant. Accordingly, the Tribunal places little weight on his evidence.

31    In its decision, the RRT found that the appellant’s claims lacked credibility, because some of the material claims of the appellant were inconsistent with country information. The RRT found that this inconsistency between the appellant’s claim and the country information raised concerns as to the appellant’s credibility and the veracity of his claims. The RRT concluded that his problems flowed from the escape of the prisoner and his interdiction in June 2008. The RRT did not accept that the appellant’s daughter left Cadet School because of the appellant, but found that she left for personal reasons. The RRT found further inconsistencies in the appellant’s claims including his claim that he was not targeted between 2006 and 2008 due to the fact he is related to Bainimarama’s wife; inconsistencies between the Memorandum provided to the RRT by the appellant concerning his interdiction and his account of the event; and inconsistencies between the appellant’s claims of personal animosity between himself and the Commissioner of Prisons and the appellant’s evidence of the Commissioner’s willingness to respond positively to the appellant’s grievances concerning his demotions. The RRT found that the appellant’s promotion in April 2010 to the position of Superintendent Headquarters was inconsistent with the appellant’s claim that he was warned his life was at risk should he continue to make comments against the Commissioner and the Government. The RRT did not accept that the promotion was a military tactic to promote people and then demote them in order to humiliate them. The RRT did not accept that the appellant was demoted to the position of Chief Logistics Officer, but found that he was just returned to his substantive position following a period of acting in higher duties. The RRT found that the appellant’s evidence that prison officer’s leave was cancelled during the Hibiscus Festival was inconsistent with the appellant’s claim that he was granted three months leave by the Commissioner during this time. The RRT formed the view that the willingness of the Commissioner to grant the leave was inconsistent with the appellant’s claims of personal animosity between himself and the Commissioner, and did not accept the appellant’s claim that the reason for the Commissioner granting the leave at this time, when other officers were unable to take leave, was to allow the appellant to reconcile with his wife. It found the delay between the granting of the appellant’s visitor visa and the date on which the appellant left for Australia to be inconsistent with the appellant’s claims that he feared for his safety.

32    The RRT found that these inconsistencies raised serious concern about the credibility of the appellant. The RRT did not accept the explanation provided by the appellant for his delay between his arrival in Australia and the lodgement of his protection visa application.

33    The RRT formed the view that the appellant was an unreliable witness prone to exaggeration and misrepresentation. It found that he was not a witness of truth and that he was prepared to fabricate some of his claims to give himself the profile of a refugee. The RRT was of the view that the appellant had resigned from the Prison Service and would not be subject to disciplinary action, but that in the event that the RRT were wrong and the appellant would still be subject to disciplinary action, that the action would not be for a Convention based reason. The RRT was satisfied that the appellant would not be unfairly targeted, penalised or persecuted for a Convention based reason. The RRT found that there was no real basis for the appellant’s claims and was satisfied that if the appellant returned to Fiji there would be no real chance he would be arrested and detained by the Fijian authorities for a Convention reason, or that he would be at risk of persecution for a Convention based reason.

Proceeding in the Federal Magistrates Court

34    The appellant relied upon the following grounds before the Federal Magistrate:

Ground 1

The Tribunal committed jurisdictional error by giving the evidence of corroborative documentation no weight for the reason that: “[t]he Tribunal has not had the opportunity to speak to the authors of these documents, to test the evidence contained therein or to verify the authenticity of the documents” per [216] of the Tribunal’s decision.

Particulars

This has been held not to be a proper basis for rejecting corroborative evidence by Madgwick J in SZIEW v Minister for Immigration and Citizenship [2008] FCA 522, at [14]: “In the context of an inquiry into refugee status it is simply irrational to reject evidence outright merely because it is of a hearsay character and the primary witness is in a far country and unexaminable.”

Ground 2

The Tribunal committed jurisdictional error by misconstruing the evidence of the witness Mr Ted Young and/or making a finding from which there was no evidence.

Particulars

The Tribunal made the finding that Mr Young’s evidence was “not based on his personal knowledge but rather on hearsay and what he has been told to him by the applicant” per [215] of the decision and thus giving it little weight. However, Mr Young stated that he gave his evidence based on conversations with prison officers in Fiji (both former and currently serving ones) and also on his personal knowledge of the Commissioner of Prison.

35    The Federal Magistrate found that the RRT’s decision was not affected by jurisdictional error, and that accordingly, being a privative clause decision, the Court lacked jurisdiction to quash the decision.

36    The Federal Magistrate found, in relation to the first ground, that the case was not analogous to SZIEW v Minister for Immigration and Citizenship [2008] FCA 522; 101 ALD 295 (“SZIEW”), as the emails were sent to the RRT for consideration by the appellant after the conclusion of the hearing and consequently there was no opportunity for the RRT to test the evidence in any way at the hearing. The Federal Magistrate accepted the submissions of the first respondent that, to the extent that ground one suggested the RRT had acted irrationally or unreasonably, the decision would need to be one that no rational or logical decision maker could have arrived at on the same evidence, and that this had not been made out before the Court. The Federal Magistrate dismissed that ground.

37    The Federal Magistrate also held ground two was not made out, as the RRT’s findings and conclusions were open to it on the evidence, including the adverse credibility findings, and as credibility findings “are a matter par excellence for the Tribunal”.

38    The Federal Magistrate also held ground two was not made out, as the RRT’s findings and conclusions were open to it on the evidence, including the adverse credibility findings, and that credibility findings “are a matter par excellence for the RRT”.

39    Ground three was not pressed and was withdrawn at the hearing. That ground complained of jurisdictional error by the RRT for breaching s 425(1) of the Migration Act 1958 (Cth) (the Act) by failing to inform the appellant that it was not satisfied of the independence of the witness Mr Ratutila.

The Appeal Proceeding

40    In his amended notice of appeal, the appellant advanced the following grounds:

1.    The Federal Magistrate erred in finding that the Refugee Review Tribunal (“Tribunal”) had not committed jurisdictional error by giving the oral evidence of the witness Mr Ted Young little weight for the reason that Mr Young’s evidence was: “not based on his personal knowledge but rather on hearsay and what he has been told to him by the applicant” per [215] of the Tribunal’s decision.

Particulars

This has been held not to be a proper basis for rejecting corroborative evidence by Madgwick J in SZIEW v Minister for Immigration and Citizenship (2008) 101 ALD 295 at [14]: “In the context of an inquiry into refugee status it is simply irrational to reject evidence outright merely because it is of a hearsay character and the primary witness is in a far country and unexaminable.”

2.    The Federal Magistrate erred in finding that the Tribunal had not committed jurisdictional error by giving the evidence of corroborative documentation, namely 2 emails received by the appellant, no weight for the reason that: “[t]he Tribunal has not had the opportunity to speak to the authors of these documents, to test the evidence contained therein or to verify the authenticity of the documents” per [216] of the Tribunal’s decision.

Particulars

(a) This has been held not to be a proper basis for rejecting corroborative evidence by Madgwick J in SZIEW v Minister for Immigration and Citizenship (2008) 101 ALD 295 at [14]: “In the context of an inquiry into refugee status it is simply irrational to reject evidence outright merely because it is of a hearsay character and the primary witness is in a far country and unexaminable.”

(b) The Federal Magistrate erred in distinguishing the facts in this case to that of SZIEW by reason that “the emails were sent to the Tribunal for consideration following the conclusion of the hearing” (at [41], [47] & [48] of the FMC judgment) when in fact both of the emails were sent to the Tribunal prior to the hearing.

41    No complaint was made on appeal nor could there have been that the RRT had erred in its assessment of the evidence of Mr Ratutila. That ground, which had been ground three of the application, had not been pressed before the Federal Magistrate.

42    On 11 October 2012, the Minister filed a notice of contention, which claimed that the judgment of the Federal Magistrate should be affirmed on the basis that the decision in SZIEW was wrongly decided and that it is not irrational to place little weight on evidence on the basis that it is hearsay in nature.

43    The notice of appeal was filed on 29 June 2012. Rule 36.24 of the Federal Court Rules 2011 (the Rules) requires any notice of contention to be filed within 21 days after the notice of appeal is served.

44    At the hearing, the Minister applied for an extension of time within which to file the notice of contention. I refused that application.

45    The Minister did not give any explanation for the failure to file a notice of contention in accordance with the Rules. Where a model litigant is seeking an indulgence from the Court, the model litigant must explain why there is a need for such an indulgence and, if the model litigant has not complied with the Rules, the reason for the model litigant’s failure to comply with the Rules. No attempt has been made by the Minister to do so. For that reason, I refused the Minister’s application.

46    On this appeal, the failure does not matter so much because the Minister could not have put before the Federal Magistrate the proposition in the notice of contention because the Federal Magistrate would have been bound to follow the decision in SZIEW.

47    It is only at this level that the proposition can be successfully put. For that reason, I do not think that the Minister was bound to file a notice of contention to put the argument which is sought to be advanced.

48    The Minister accepted that the Federal Magistrate had erred in distinguishing the decision in SZIEW on the ground that the emails were not sent to the RRT until after conclusion of the hearing. The respondent Minister accepted that the RRT was in possession of both emails prior to the RRT hearing.

49    In SZIEW, the applicant for a protection visa claimed to be the former wife of a Maoist. She claimed a fear of prosecution by the authorities whom would suspect her of Maoist sympathies and by the Maoists whom would suspect her of being a police informant. She produced a witness to the RRT who said that she knew the applicant’s history. The witness said that one of the witness’s relatives was caught as a Maoist and had told the witness that the applicant’s husband was a Maoist. The RRT said that it accepted that the witness’s relative had told the witness that the applicant’s husband was a Maoist but the RRT said “the Tribunal does not consider that this is reliable evidence of that fact; the Tribunal had no opportunity to test the evidence of the relative and how he knew or why he said that the applicant’s husband is a Maoist”. The RRT did not accept that the applicant’s former husband was a Maoist.

50    The question Madgwick J said was whether the RRT had made a jurisdictional error in proceeding in the way that it did. He said at [14]-[19]:

[14]    … In the context of an inquiry into refugee status it is simply irrational to reject evidence outright merely because it is of a hearsay character and the primary witness is in a far country and unexaminable.

[15]    Even in a court of law, bound by the rules of evidence (unlike the Tribunal: cf s 353(2) Migration Act 1958 (Cth) (the Act)), first-hand hearsay evidence is admissible under Commonwealth, New South Wales, Australian Capital Territory and Tasmanian law if the maker of the original statement is “unavailable”, as defined: eg Evidence Act 1995 (Cth) s 63. In other States hearsay evidence is admissible of statements by persons “beyond the seas” whom it is not reasonably practicable to have attend the hearing, and even simply where undue expenses or delay would be involved in having the maker of the statement called: see generally J D Heydon, Cross on Evidence (7th Australian ed, Butterworths, 2004). There would be little difficulty in persuading a court that a Maoist rebel in Nepal could not reasonably be brought to the court room.

[16]    The significance of this is that while the proposition that the original maker of the statement is unexaminable was a justification for the exclusion of such evidence from any consideration under the old common law hearsay rule, there is no justification for simply disregarding such evidence out of hand when it is permissible to receive it, and it has been received, as material to be weighed in assessing a claim. When the evidence is legally available for consideration notwithstanding that the person who was the original source of the information is not present, the Tribunal must do its best to assess the weight to be given to the evidence of the absent person. This will involve such questions as the likely truthfulness and means of knowledge of that person and how accurately the witness actually before the Tribunal is likely to have reported the original statement. The absent person in this case was a Maoist rebel leader, speaking to a relative and naming another person as a fellow Maoist rebel leader. This, on the face of it, can only be inferred to have been a conversation between trusted intimates in which the original maker of the statement is likely to have known what he was talking about.

[17]    In such a case, it would be, and was here, perverse not to accord the reported statement considerable weight, unless the witness reporting it appeared untruthful or unreliable. But the Tribunal made no criticism at all of the reporting witness and may safely be inferred to have had none.

[18]    There may of course be other reasons that might have emerged upon inquiry of the reporting witness or otherwise as to why the weight prima facie to be accorded to the reported statement should not, in the end, by placed upon it. But no such reason was given. Indeed, as the transcript shows, no such inquiry was made.

[19]    Thus there was, in my opinion, certainly an error of law in the way in which an important witness’ testimony was rejected. The nature of the Tribunal’s task in relation to that evidence was misconceived.

(Emphasis in original)

51    He also held the RRT had made a jurisdictional error because it misconceived its duty and its performance was in law no performance.

52    He also analysed the RRT’s decision by reference to apprehended bias. He said at [25]-[27]:

[25]    The relevant key question here is: by the time the Tribunal Member came to assess the value of the material reported by the witness whose own credibility she did not question, which material consisted of information from a relative close to that witness and apparently in a position to know what he was talking about, would a fair-minded observer apprehend, as a real and not remote possibility, that the Member could not bring a mind open to persuasion and willing and able to evaluate all the material in the case, including crucially that material? In my opinion, a fair-minded and informed observer would so apprehend.

[26]    The consequence is that such an observer would apprehend that there was a possibility that the appellant had been refused refugee status because she was thought to be a liar and not because the Tribunal had considered all of the material which might have given rise to a conclusion favourable to her in the fair-minded way she was entitled to.

[27]    Thus, in the end, in my view, however the matter be analysed, as counsel for the applicant in NADH 214 ALR 264 put it, the Tribunal “misconceived the role of the hearing and[/or] failed to afford a hearing of the character contemplated by the Act”, and the Tribunal “came to its state of satisfaction … in a manner … which require[s] the Court to conclude that there was no relevant absence of satisfaction for the purposes of ss 36 and 65 of the Migration Act according to law”.

(Emphasis in original)

53    His Honour has described in [14] the RRT’s decision to reject the evidence as “simply irrational”. In [17] he said it was “perverse” not to give the evidence “considerable weight, unless the witness reporting it appeared untruthful or unreliable”.

54    For the reasons that follow, I would not describe the decision as irrational or perverse. There might be good reasons for rejecting hearsay evidence; for example relevance, probity and unreliability. The hearsay rule was developed by the courts to guard against the receipt of evidence that might be unreliable and which cannot be tested. However, I think to reject relevant and probative hearsay evidence without notice to the applicant and without any explanation for the rejection other than the evidence is hearsay amounts to jurisdictional error.

55    The RRT is established by Division 9 of Part 7 of the Act. It has been constituted for the purpose of reviewing RRT-reviewable decisions. An RRT-reviewable decision is a decision of the kind referred to in s 411 of the Act. In particular, an RRT-reviewable decision includes, relevantly, a decision to refuse to grant a protection visa.

56    Section 36 establishes a class of visas known as protection visas.

57    A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention (the Convention relating to the Status of Refugees done at Geneva on 28 July 1951) as amended by the Refugees Protocol (the Protocol relating to the Status of Refugees done at New York on 31 January 1967): s 36(2)(a).

58    The protection obligations owed by Australia to non-citizens are identified in Article 1A(2) of the Refugees Convention by defining the term “refugee” as any person who:

… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

59    The only persons who may apply for a protection visa are non-citizens in Australia. The Minister has the responsibility of considering a valid application for a visa: s 47. The Minister may delegate that responsibility: s 496.

60    An applicant must establish that the applicant fears persecution. Section 91R of the Act identifies what is necessary to make out “persecution” for the purpose of an application. In particular, an applicant will not be successful unless the persecution complained of involves serious harm to the applicant. A non-exhaustive list of instances of “serious harm” is given in s 91R(2) of the Act.

61    Next, the Minister must be satisfied that the persecution is for a Convention reason including race, religion, nationality, membership of a particular social group, or political opinion. The Convention reason for the persecution must be the essential and significant reason: s 91R(1)(a).

62    Assuming that the Minister is satisfied that the applicant has a fear of persecution for a Convention reason, then Minister must be satisfied that that subjective fear is objectively well-founded.

63    Lastly, the Minister must be satisfied that the applicant is unable or, as a result of the fear, unwilling to avail himself or herself of the protection of the country of the applicant’s nationality, or to return to that country.

64    If the Minister is satisfied that the criteria for the grant of a protection visa have been satisfied, the Minister must grant the application for a visa: s 65(1)(a). If not satisfied, the Minister must refuse the application for a visa: s 65(1)(b).

65    If the Minister refuses an applicant’s application for a protection visa, it is likely that the applicant will be returned to the applicant’s country of nationality. If the Minister has erroneously refused a protection visa, the applicant for that visa will be liable, on return to the applicant’s country of nationality, to persecution for a Convention reason which will involve the applicant in the risk of serious harm. The return of an applicant, who is a person to whom Australia owes protection obligations under the Refugees Convention, to that person’s country of nationality necessarily is a breach of Australia’s protection obligations.

66    Thus it is that the assessment of a claim for protection under s 36(2)(a) of the Act involves serious responsibility for the Minister and for the RRT when sitting on review where the Minister has refused the application for a protection visa. Ordinarily, a non-citizen can only make one application for a protection visa: s 48A.

67    Section 414 of the Act requires the RRT to review an RRT-reviewable decision whenever a valid application for review is made.

68    On review, the RRT has all of the powers of discretion that are conferred by the Act on the Minister or the Minister’s delegate who made the decision refusing the application for a protection visa: s 415(1).

69    The RRT may affirm the decision, or vary the decision, or in certain circumstances remit the matter for reconsideration in accordance with such directions or recommendations of the RRT as are permitted by the Regulations, or set aside the decision and substitute a new decision: s 415(2). If the RRT varies the decision or sets the decision aside and substitutes a new decision, the decision as varied or substituted is taken to be the Minister’s decision: s 415(3).

70    Section 420 of the Act provides for the way in which the RRT should operate. It provides:

(1)    The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)    The Tribunal, in reviewing a decision:

(a)    is not bound by technicalities, legal forms or rules of evidence; and

(b)    must act according to substantial justice and the merits of the case.

71    Division 4 of Part 7 provides for the way in which the RRT must conduct the review process and identifies the statutory obligations which must be observed by the RRT for the purpose of ensuring that the applicant is accorded procedural fairness on the review.

72    In particular, the RRT is empowered to take evidence on oath or affirmation: s 427(1)(a). It can require the Secretary of the Department to arrange for the making of any investigation or any medical examination that the RRT considers necessary with respect to the review and to provide a report of that investigation or examination to the RRT: s 427(1)(d). The RRT can summon persons to appear before the RRT to give evidence or to produce documents: s 427(3). The RRT also has power to have a person who is qualified under s 428(1)(a) to take evidence on oath or affirmation on behalf of the RRT. That power may be exercised by the RRT inside or outside Australia: s 428(2). A person authorised to take that evidence on oath or affirmation has all the powers of the RRT: s 428(3). The person taking that evidence must cause a written record of the evidence to be made and sent to the RRT: s 428(4). The RRT can also take evidence by telephone, closed circuit television, or any other form of communication: s 429A.

73    When the RRT makes its decision on a review, the RRT must prepare a written statement that sets out the reasons for the decision, the findings on any material questions of fact, the evidence or any other material on which the findings of fact were based, and the decision of the RRT: s 430(1).

74    The RRT performs an administrative function and is not a judicial body. Its purpose is to review an administrative decision of the Minister’s delegate not to grant an applicant for a protection visa, a protection visa, to determine whether the correct or preferable decision has been made: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. The review is a full merits review.

75    Although the RRT takes evidence on oath or affirmation, it is not bound by the rules of evidence: s 420(2). Instead, it must act according to substantial justice and the merits of the case. In doing so, it must provide a mechanism of review that is fair, just, economical, informal and quick: s 420(1).

76    At common law, hearsay evidence was inadmissible in a court of law to prove the truth of the fact asserted in the hearsay statement. The hearsay rule applies to out of court statements which are tendered for the purpose of establishing the truth of those statements. The rule applies not only to oral statements, but also statements contained in documents.

77    Section 59 of the Evidence Act 1995 (Cth) (the Evidence Act) identifies the hearsay rule in the following terms:

(1)    Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can be reasonably supposed that the person intended to assert by the representation.

78    A statement contained in a representation made out of court can be admissible for any other purpose other than to prove the truth of the fact asserted in the representation: s 60 of the Evidence Act.

79    The rationale for excluding hearsay evidence was because of the perception that the evidence may be unreliable and is not capable of being tested, and because the person who made the representation, which is used for the proof of the fact contained in the representation, is not available for cross-examination: Lee v The Queen (1998) 195 CLR 594 at 602.

80    The hearsay rule has been relaxed in a number of ways by the Evidence Act providing for a number of exceptions.

81    Division 2 of Part 3.2 of the Evidence Act deals with first-hand hearsay where a reference to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact: s 62(1).

82    Sections 63 and 64 permit the tender of hearsay evidence where the person who made a previous representation is not available to give evidence about an asserted fact (s 63), or where the person is available, but it would cause undue expense or undue delay, or it would not be reasonably practicable, to call the person who made the representation (s 64).

83    However, the Evidence Act does not regulate the admissibility of evidence in an RRT hearing.

84    The RRT is not bound to exclude hearsay evidence, because it is not bound by the rules of evidence. The purpose of a provision providing for a tribunal not being bound by technicalities, legal forms or rules of evidence is to permit a tribunal to receive evidence without requiring strict proof. The purpose is to allow for the proof of a fact without the degree of formality required by a court of law. The RRT would be acting inconsistently with s 420 if it required an applicant for a protection visa to formally prove the facts upon which the applicant relies.

85    The evidence that must be considered by the RRT is not only the evidence which would be admissible in a court of law but evidence that is relevant and probative of a fact or issue. It must be relevant for otherwise the evidence is of no assistance in determining a fact or issue. But relevance by itself is not enough. It must also be logically probative of the fact or issue sought to be proved or resolved: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 257.

86    That does not mean, however, that because those criteria are satisfied and because the RRT is not bound by the rules of evidence that all evidence that satisfies those criteria should be acted upon and given some weight. The rules of evidence cannot be wholly disregarded. The rules of evidence have been developed over hundreds of years to provide a coherent system of rules that provide for the admissibility of the most reliable evidence and for the rejection of evidence that is likely to be unreliable. The hearsay rule is one of these rules. So if the RRT is provided with relevant probative evidence which is hearsay it must consider what weight it can put upon that evidence.

87    Indeed, much of the evidence which the RRT routinely accepts is hearsay evidence and must necessarily be so. For example, much of the country information which is relied upon consists of out of court statements, which are considered by the RRT for the purpose of establishing the truth of those statements. That information may not be admissible in Court (although I have some doubts about that having regard to ss 63 and 64 of the Evidence Act) but, as I have said, the evidence is routinely accepted for the purpose of the administrative decision-making in the RRT.

88    The applicant for a protection visa often relies upon hearsay evidence for the purpose of the application; sometimes for a hearsay purpose and sometimes for other than a hearsay purpose.

89    Because the facts and circumstances which inform the application for the protection visa have necessarily occurred in another country, the applicant must rely upon hearsay evidence for the purpose of establishing that the applicant has a fear of persecution; that the fear is for a Convention reason; and that the fear is well-founded.

90    To exclude evidence simply because it is hearsay, in my opinion, would make the system unworkable. To impose such constraints on an applicant for a protection visa would make it almost impossible to establish, to the RRT’s satisfaction, the elements necessary to make out a claim for a protection visa.

91    It would also mean that the Minister and the RRT could not rely upon country information to establish the facts contained in the country information.

92    That is not to say that all hearsay evidence must be accepted without qualification. The purpose of the RRT conducting the review is for the RRT to get any information that it considers relevant. If the hearsay evidence is relevant, and it is logically probative, then it is evidence that should be weighed and considered by the RRT for the purpose of discharging its statutory obligations: s 424(1).

93    The RRT must conduct a hearing and invite the applicant for the protection visa to appear before the RRT to give evidence and present arguments relating to the issues arising in relation to the decision under review: s 425(1).

94    The purpose of that hearing is to test the evidence which has been adduced and which is relevant for the purpose of the application, so that the evidence can be given such weight as the evidence deserves.

95    In my opinion, it is not appropriate for the RRT to discard evidence which contains hearsay simply for the reason that it does contain hearsay. The RRT is entitled to, and indeed should, make inquiries in relation to the reliability of the evidence adduced by an applicant including hearsay evidence and give the evidence such weight as is appropriate, but simply to dismiss it without further inquiry because it is hearsay is, in my opinion, not to consider relevant aspects of the applicant’s case.

96    The RRT gave no weight to the two emails, notwithstanding they were in the RRT’s possession at the time of the hearing because the RRT said it had not had the opportunity to speak to the author of those documents to test the evidence and to verify the authenticity of the documents.

97    That, in my opinion, is not a satisfactory reason for refusing to give any weight to the two emails. It is the RRT’s responsibility to make inquiries to ascertain whether a document is authentic, if there is any doubt as to its authenticity, and if the makers of the document need to be examined in relation to the contents of the document. In this case, the RRT made no effort at all to determine whether the two emails were authentic. It did not even ask the appellant that question, or suggest to the appellant there were some doubts about the authenticity of the documents, which would have allowed the appellant, if so minded, to bring forward further evidence to prove the authenticity of the two emails.

98    It did not inquire of the appellant, or suggest to the appellant, that the contents of the two emails were false and the representations contained in those emails were also false. The appellant had no notice that the RRT might refuse to put any weight on these emails for the reasons given by the RRT.

99    The RRT did not give itself the opportunity of determining the authenticity of the emails or the truth of the representations made in the emails.

100    The RRT refused to put more than “little weight” on the evidence of former Cabinet Minister in Fiji, Mr Ted Young, who the RRT said gave evidence “not based on his personal knowledge but rather on hearsay and what he has been told to him by the applicant”.

101    It was not put to the appellant or Mr Young at any time during the hearing that Mr Young’s evidence would be given little weight for those reasons.

102    It was not put to Mr Young by the RRT that Mr Young’s evidence did not fairly reflect the representations that had been made to him by other people.

103    The RRT has failed, in my opinion, to consider the oral evidence adduced from Mr Young and the documentary evidence contained in the two emails on the appellant’s application for a protection visa.

104    It has thereby failed to have regard to relevant evidence and thereby failed to discharge its statutory obligation to review the decision of the Minister’s delegate. It has failed to exercise the jurisdiction given to it by the Act.

105    In my opinion, the appeal should be allowed and the orders of the Federal Magistrate made on 8 June 2012 set aside and, in lieu thereof, there should be an order that the RRT’s decision made on 10 October 2011 be quashed, and the applicant’s application for a review of the Minister’s delegate’s decision be remitted to the RRT for further consideration according to law.

106    The Minister should pay the appellant’s costs.

Associate:

Dated:    15 January 2013