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[2000] FCA 236
Federal Court of Australia
2000-03-08
Sundberg J, Kenny JJ
Original judgment source is linked above.
Introduction 1 The appellant, who is a citizen of Turkey, arrived in Australia on 17 May 1997 on a visitor's visa accompanied by his wife and son. On 2 July 1997 the appellant, his wife and son lodged an application for a protection visa under the Migration Act 1958 (Cth) ("the Act"). On 3 October 1997 a delegate of the Minister for Immigration and Multicultural Affairs refused that application. On 13 October 1997 they applied to the Refugee Review Tribunal ("the Tribunal") for a review of that refusal and on 25 February 1998 the Tribunal affirmed the delegate's decision not to grant protection visas to the appellant, his wife and child. The appellant applied for a review of the Tribunal's decision and on 5 July 1999 Sundberg J dismissed that application. 2 The grounds of review as prescribed by s 476 of the Act relied upon before Sundberg J were: (a) that the Tribunal's decision was improper in that it applied a rule or policy without regard to the merits of the case (ss 476(1)(d) and (3)(a)); (b) That the Tribunal's decision was affected by actual bias (s 476(1)(f)); (c) That the Tribunal made an error of law by incorrectly interpreting s 414(1) of the Act which instructs the Tribunal to review a decision. It was contended that the Tribunal had failed to carry out its review function in that it did not put to the appellant issues concerning his claims to have been tortured and refused to take evidence from his wife about an issue relevant to the appellant's case (s 476(1)(e)); (d) That there was no evidence to justify the Tribunal's decision (s 476(1)(g)). These grounds were repeated in the notice of appeal from the judgment of the primary judge in the sense that they were relied upon as errors of law made by him. On the hearing of the appeal, Mr Gibson appeared for the appellant under the pro bono scheme operating under O 80 of the Federal Court Rules. Only two grounds of appeal were relied upon, one of which was a variation of a ground set out in the notice of appeal and the other was based on particulars not set out in the original notice of appeal. Leave was granted to amend the notice of appeal and the grounds relied upon as finally formulated were: "4. The learned trial judge erred in not finding that the Tribunal erred in law [in] refusing to question the appellant's wife as requested by the appellant's solicitor in contravention of s 425(1) of the Migration Act (the Act) thereby failing to observe procedures required by the Act to be observed in breach of s 476(1)(a). 5. That the learned trial judge erred in not finding that there was no evidence to justify the Tribunal's decision. Particulars In breach of s 476(1)(g) and (4)(b) of the Act: (a) The Tribunal based its decision on the existence of a particular fact, that the applicant's claims to be an office‑holder in a local branch of HADEP were not made in his initial submissions, which did not exist; whereas the Appellant stated in his initial application that he had the position of Vice‑President of a branch of HADEP. (b) The Tribunal based its decision on the existence of a particular fact, that in his initial submissions the Appellant made no claims of being politically active until he joined HADEP, alternatively, that he had not been politically involved in the late 1970's, which did not exist. (c) The Tribunal based its decision on the existence of a particular fact, that the strafing incident did not occur in 1996, alternatively, occurred in 1993, which did not exist."
The Appellant's case before the Tribunal 3 The appellant's case before the Tribunal focused on his Kurdish race, his affiliations with the political party HADEP and his membership of a particular social group comprising wealthy Kurdish businessmen. The appellant was born and educated in Kurdish villages in Bitlis Province in the south east of Turkey and in 1989 he moved to Antalya which is in the west of Turkey about 1000 km from Bitlis and about 400 km south west of the capital Ankara. He established a building business. In April/May 1993 the Kurdish village in which the appellant's relatives lived was razed by government security forces and the appellant brought his relatives to Antalya and accommodated them in his hotel. In May 1996 the hotel was sprayed with bullets and his complaint to a security agency was unfruitful. The appellant said he started giving money to the People's Labour Party (HEP) in 1993 and when it was banned it re‑emerged as the Democracy Party (DEP) to which he also gave money. When that party was banned it was succeeded by the People's Democratic Party (HADEP) which the appellant joined in 1994. The appellant said that he became politically active in 1977/1978 and because of his political activity he was arrested and tortured on three occasions. He said that after the 1980 coup he participated in politics in secret but became more politically active after establishing his business in Antalya.
Reasoning of the Tribunal 4 The Tribunal did not accept the appellant's claim that he had been politically active since 1977/1978 and concluded that these aspects of his claims were fabricated. 5 The Tribunal did not accept the appellant's claim that his hotel had been strafed with bullets in 1996 and if it had been the Tribunal had grave doubts that the reason for such an occurrence was that the appellant sheltered his relatives there. Further, the Tribunal concluded that if the hotel was shot at for harbouring the appellant's relatives the event occurred in 1993 and the appellant remained there for a further four years without further attack. 6 The Tribunal rejected other claims made by the appellant which are not relevant for the purposes of this appeal. 7 The Tribunal noted that there was a discrepancy between the dates on which the appellant claims to have joined HADEP, namely June and November 1994. The Tribunal did not accept that the appellant was a member of or an office holder in HADEP, although he may have supported its causes.
Reasoning of the primary judge 8 Sundberg J summarised the appellant's case and the Tribunal's reasons and concluded that there was no foundation for the submission that the Tribunal had applied rules or policies without regard to the merits of the case or that there had been any actual bias on the part of the Tribunal. 9 Sundberg J rejected the submission that the Tribunal had failed to carry out its review function in that it did not question the appellant concerning his claims to have been tortured and refused to take evidence from his wife about the bullets fired at the hotel. His Honour did not regard either of these complaints, if established, as constituting an incorrect interpretation of the Act. His Honour reasoned in the following terms: "Mr Fisher asked the Tribunal to question the applicant's wife about the details of the strafing - what side of the hotel was shot at and where the shots hit. He told the Tribunal he wanted these questions asked because he sensed that it doubted the applicant's claim about strafing. The Tribunal declined to question the wife on the point. The applicant asserted that notwithstanding this refusal the Tribunal found against him on this issue. That is not so. The Tribunal accepted that the hotel had been strafed. What it rejected was that it was attacked because the applicant housed his relatives there, and that the incident occurred in 1996 rather than in 1993. Nothing turned on the Tribunal's refusal to allow questioning of the wife as to the details of the strafing. The questions Mr Fisher wanted asked were not directed to the reason for the strafing or its date." 10 Sundberg J rejected the submission that there was no evidence to justify the Tribunal's decision that: · the appellant had adequate assistance in preparing his initial application; · there was an inconsistency between the claim that Ferhat Tepe was a cousin and the claim that he was a nephew; · the appellant had fabricated certain aspects of his defence; · Leyla Zana was a member of HADEP. His Honour found that the Tribunal made no finding that the appellant had adequate assistance in preparing his initial application. His Honour found that the Tribunal did not make the finding that there was an inconsistency between the claim that Tepe was a cousin and that he was a nephew. His Honour said: "As I have said elsewhere, the Tribunal assumed that Tepe was related to the applicant, but found that nothing had ever happened to the applicant as a consequence of the relationship, and that any fears he harboured that he may be adversely affected by that relationship are groundless. Further, even if what the Tribunal said did amount to a finding of inconsistency, and there was no evidence to support it because nephew and cousin are interchangeable terms, the case does not fall within either limb of s 476(4). Paragraph (a) does not apply. Nor does par (b) - the decision that the applicant was not a person to whom Australia had protection obligations was not based on the fact that there is a difference between a nephew and a cousin." 11 His Honour found that the Tribunal's finding that the appellant had fabricated certain aspects to his evidence did not fall within s 476(4)(a) or (b) of the Act. His Honour said: "The Tribunal's findings were based on listening to and observing the applicant as he gave his evidence in the light of the inconsistencies between the various parts of his evidence. The Tribunal's disbelief of the applicant is not a 'particular matter' within par (a) or a 'particular fact' within par (b). Cf Doan v The Minister (unreported, 9 April 1997, Olney J)." 12 His Honour found that in the appellant's statutory declaration he had stated that Leyla Zana was a member of the HADEP, a member of Parliament and in prison.
Reasoning on the appeal 13 There is no merit in the submission that the Tribunal erred in law in refusing to question the appellant's wife as requested by the appellant's solicitor on the issue of the strafing of the hotel. We accept that a failure to give a genuine opportunity to appear before the Tribunal and to give evidence can, in appropriate circumstances, constitute a ground for review having regard to the provisions of s 425(1) and s 476(1)(a) of the Act. The issue of the strafing of the hotel was the subject of evidence by both the appellant and his wife. Both the appellant and his wife gave evidence that the house had been strafed in 1996. What the appellant's solicitor sought to do in the hearing was to invite the Tribunal to ask questions about the detail of the strafing, not the time or date at which it occurred. The primary judge did not err when he found that the Tribunal had accepted that the hotel had been strafed but that what it rejected was that the hotel had been strafed because the appellant housed his relatives there and that the incident occurred in 1996 rather than 1993. 14 However, the grounds which are based upon s 476(1)(g) and (4)(b) are of more substance. We should point out immediately that the argument proceeded on a basis which was not put in the same way to the primary judge. Before the primary judge it was apparently submitted that there was no evidence to justify the Tribunal's conclusion that the appellant fabricated parts of his evidence and that there was no evidence to justify the adverse findings in relation to the appellant's claims concerning his political activities in the late 1970's and his house being sprayed with bullets in 1996. It was submitted that the Tribunal had not given proper consideration to the manner in which the appellant's initial application had been prepared and that the Tribunal had presumed that any inconsistency between the initial application and later statements was to be explained or understood as a fabrication of the later claims. It was said that as a result the Tribunal had acted in accordance with a rule or policy without regard to the merits of the particular case, namely that statements in the initial application would bind the appellant in relation to subsequent claims and that the Tribunal had been guilty of actual bias. It does not appear to have been put to the primary judge that the Tribunal erroneously based its decision on the existence of particular facts, which facts did not exist. Before us the appellant submitted that three such situations had in fact occurred. These were: (a) The Tribunal said: "In his initial submissions, the Applicant made no claims of being politically active until he joined HADEP. His later claim that he was active in the late 1970's and was recorded as a person who was required to supply a photograph to the authorities every year for that reason is not accepted by the Tribunal. It finds that such a significant part of his history would not have been overlooked in setting out the core of his claims and concludes that this aspect of the Applicant's claims was fabricated after his initial application was refused, in order to bolster his efforts to be recognised as a refugee." The appellant submitted that the fact said to exist which did not exist was that in his initial application the appellant made no claims of being politically active until he joined HADEP. It was said that the initial application which he was required to fill out did not require or oblige him to make any such claims. In the relevant part of that application he was asked the question "Why did you leave that country?" which did not require a response referring to his claims of being politically active in the 1970's. (b) The Tribunal said: "He says he was nominated for Presidency of his local branch [of HADEP] but that he only agreed to stand for the vice‑presidency. His claims to be an officer‑holder were not made in his initial submissions and, given the enhanced public profile that holding high office in an active and legal political party would most likely bring, it is not credible that such information would have been overlooked in setting out the basis of the claim to be a refugee." The appellant's initial submissions are found in two forms entitled "Application for a Protection Visa (866)". The form headed "Application for an applicant who wishes to submit their own claims to be a refugee" was signed; the form headed "Persons included in this application and family composition" was not signed. In this latter application from the appellant was asked to list all the documents he was not providing with his application but would be providing later. The form stated: "Membership card of HADEP Correspondence/documentation regarding his position as Vice-President of HADEP, Antalya BR Court papers regarding sentence." The appellant submitted that this demonstrated that in his initial application he had claimed to be an officer‑holder of HADEP. (c) The Tribunal did not believe that the appellant's hotel was shot at for harbouring relatives and if it was the event occurred in 1993. The appellant submitted that the fact that the event occurred in 1993 did not exist as a fact. 15 It is important to recognise the clear distinction between establishing that there was no evidence or other material to justify the making of the decision because the person who made the decision based their decision on the existence of a particular fact and that fact did not exist, which is reviewable under s 476(1)(g), and a claim that the Tribunal should not have made the finding of fact which it did which, in general terms, is not reviewable. Section 476(1)(g) and (4) of the Act are in identical terms to s 5(1)(h) and (3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). In Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212, Black CJ (with whom Spender and Gummow JJ agreed) said at 220‑221: "Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision‑maker to take one path in the process of reasoning rather than another and so to come to a different conclusion. If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact. Accordingly, I agree with the conclusion of Lee J in Akers v Minister for Immigration and Ethnic Affairs (1998) 20 FCR 363 at 374 that there is no reason to read s 5(3)(b) in a way that would limit its operation to a predominant reason for the decision under review." In Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 the Full Court (Moore, Mansfield and Emmett JJ) cited this passage from Curragh and said at [34]: "Thus, the appellant must show that the decision of the Tribunal was based upon the existence of a particular fact, and that that particular fact did not exist if he is to invoke successfully ss 476(1)(g) and 4(b). The particular fact is to be distinguished from the ultimate fact in issue, or a conclusion based upon a series of particular facts, although one of those particular facts may qualify under s 476(4)(b): Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193; Re Feliciano v Minister for Immigration and Ethnic Affairs (1996) 43 ALD 1; Malik v Minister for Immigration and Ethnic Affairs (1997) 47 ALD 27; Adams v Minister for Immigration and Multicultural Affairs (1998) 70 FCR 591." 16 In our view the first two factual matters relied upon by the appellant fall within the category of matters covered by s 476(1)(g) and (4)(b) of the Act. We should point out that these matters were not the subject of submission in the same way as was submitted to Sundberg J. The respondent did not object to this submission in relation to the first matter but objected to the appellant's application for leave to amend his notice of appeal to rely upon the second matter. We granted that leave on the basis that no prejudice would be suffered by the respondent so long as he was given the opportunity to make further submissions on the matter which, in due course, he did. 17 The first matter to address is the Tribunal's statement to which we have referred earlier that "in his initial submissions, the applicant made no claims of being politically active until he joined HADEP". This statement proceeds on the basis that the appellant should have made such a claim in his initial submission or initial application for refugee status. When one looks at that initial submission or application, which is the initial application for a protection visa, one finds that the only question which is asked in the application, which is relevant to this issue, is "Why did you leave that country?" The reference to that country is a reference to the country to which the appellant does wish to go back, namely Turkey and Cyprus. The appellant's answer to that question explained why he left Turkey. He referred to events which had occurred since 1992. A response to the question "Why did you leave that country?" would seem to require an answer which referred to the events which crystallised the decision to leave or acted as a catalyst in the appellant making that decision. In our view, that question did not warrant an historical analysis or explanation going back over twenty years. Thus, the fact which did not exist was the fact that the appellant was required to set out, in effect, the whole of his case which bore upon the issue of his political persecution. The Tribunal based its decision on that fact when it said: "It finds that such a significant part of his history would not have been overlooked in setting out the core of his claims …" 18 The significance of this approach by the Tribunal can also be found in the manner in which it considered later in its reasons the appellant's claim that he had been detained and tortured. The Tribunal said: "As with other evidence of significance, the claim to be detained and tortured was not made in initial submissions and is not believed." We are therefore satisfied that the first ground relied upon as falling within s 476(1)(g) and (4)(b) is made out. 19 We reach a similar result in relation to the Tribunal's statement that: "His claims to be an office‑holder were not made in his initial submissions and, given the enhanced public profile that holding high office in an active and legal political party would most likely bring, it is not credible that such information would have been overlooked in setting out the basis of the claim to be a refugee." It was not correct for the Tribunal to say that his claims to be an officer‑holder were not made in his initial submissions or that such information was overlooked by him. His initial submissions, which are found in his initial application for a protection visa, not only refer to his membership card of HADEP but also state that he will be providing later "correspondence/documentation regarding his position as Vice‑President of HADEP, Antalya BR.". In a subsequent statutory declaration made for the purposes of the Tribunal hearing, the appellant said that the application for a protection visa was completed by a person from the Kurdish community and that the appellant did not ask that person to write that certain documents would be provided later. Rather the appellant said that he would try and contact the HADEP branch to obtain verification of his membership. Nevertheless, the initial submission or application for a protection visa clearly referred to the appellant's position as Vice‑President of the Antalya branch of HADEP. 20 The Tribunal did not accept that the appellant was a member or an office‑holder in HADEP and it is apparent from the Tribunal's reasoning that that finding or conclusion was critical to its decision not to grant a protection visa to the appellant. It can therefore be seen that the Tribunal based its decision on the existence of the fact that the appellant's claim to be an office‑holder in HADEP was not made in his initial submission. That fact did not exist because the claim to be Vice‑President of the Antalya branch of HADEP had been clearly stated. 21 The respondent submitted that the unsigned form could not be said to contain the appellant's "initial" submissions and that the form contained information in the nature of file management data. It was not clear from the evidence why one application form was signed and one was not signed. Nevertheless it is clear that the appellant's file comprised both forms and were before the Tribunal at the time of the hearing. It is immaterial in our view that the documents promised were never provided and that in his later statutory declaration the appellant said that he had not asked the person who assisted him to complete the form to write that certain documents would be supplied later. What is significant in our view is that there was a clear statement in relation to correspondence or documentation "REGARDING HIS POSITION AS VICE PRESIDENT OF HADEP, ANTALYA BR.". 22 The involvement of the appellant in politics in Turkey was a critical part of his claim and the manner in which the Tribunal dealt with that subject was critical to its decision to affirm the delegate's decision not to grant him a protection visa. This is clear from the Tribunal's statement that: "In considering the Applicant's claims that he as a political activist and supporter of the Kurdish cause who attracted the adverse attention [of] the authorities, the Tribunal concludes that he has fabricated a story in an attempt to gain recognition as a refugee. While it is plausible that he made some donations to political parties, it does not believe that he was ever active in politics or that he was harmed for that reason. The chances that he may encounter harm for his political opinions if he returns to Turkey are negligible." We are therefore satisfied that the second ground relied upon as falling within s 476(1)(g) and (4)(b) is made out. 23 We reach a different conclusion in relation to the submission that the Tribunal based its decision on the existence of a particular fact, which did not exist, namely that the strafing incident did not occur or, if it did occur, it occurred in 1993. On this matter there was evidence from which it was open to the Tribunal to find either that the strafing incident did not occur in 1996 and if it did happen it occurred in 1993. It was open to the Tribunal to infer from the account given by the appellant that the strafing of the hotel occurred in 1993. It cannot be said that the fact did not exist that the strafing occurred in 1993, nor can it be said that the fact did not exist, namely that the strafing incident did not occur in 1996. This was an issue before the Tribunal in respect of which it was open to it to make the findings either way. 24 We are not satisfied that the primary judge erred in rejecting this submission that the Tribunal had acted in contravention of s 425(1) of the Act when it refused to take evidence from his wife about the bullets fired at the hotel. Careful reading of the transcript before the Tribunal shows that the appellant's wife gave evidence about this matter and said that it occurred in 1996. Further, we agree with his Honour's conclusion that the questions which the solicitor for the appellant wanted the Tribunal to ask were not directed to the reason for the strafing or its date. 25 For the reasons to which we have referred the appeal will be allowed, the orders of Sundberg J on 5 July 1999 set aside and in lieu thereof it will be ordered that the decision of the Tribunal on 25 February 1998 be set aside and the appellant's application for a protection visa be remitted to the Tribunal for determination according to law. As the points on which the appellant has succeeded were not argued in the same way before Sundberg J there should be no order as to the costs before Sundberg J. The respondent should pay the appellant's costs. Having succeeded in the appeal the appellant should have such costs as are appropriate for the purposes of O 80 r9(2) of the Federal Court Rules. We fix those costs in the sum of $750 plus any disbursements incurred. 26 Again, the Court has been assisted by pro bono counsel and it is appropriate that the Court acknowledge the public service rendered to the Court and to litigants in person by members of the profession who agree to act without fee as solicitor or counsel in the preparation of cases and presentation of argument in order that the interests of justice may be served. It is important to recognise that by undertaking pro bono work not only do members of the profession do that work without reward but they also undertake to discharge the usual professional duties owed by practitioners to the persons for whom they appear and to the Court. I certify that the preceding twenty‑six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee, Goldberg and Kenny JJ.
Counsel for the Appellant: Mr J A Gibson - Counsel appeared pro bono
Solicitor for the Respondent: Australian Government Solicitor
Guden
Minister for Immigration & Multicultural Affairs