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[1999] FCA 1772
Federal Court of Australia
1998-12-21
Merkel JJ, Branson J
Original judgment source is linked above.
INTRODUCTION 1 By an amended application dated 22 October 1999 the applicant seeks review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 18 August 1999. By its decision the Tribunal affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa. 2 The only ground on which the application for review is made is that: "[p]rocedures that were required by the Migration Act 1958 to be observed in connection with the making of the decision were not observed in that the Tribunal did not produce a statement in accordance with s 430 [s 476(1)(a)]." Particulars "The Applicant's case included 2 statements by her uncle about what he had learnt from his mother in Iraq about what had happened to the Applicant's husband and father. That information had the capacity to substantiate the Applicant's claim that her husband had been arrested and that the authorities were interested in her whereabouts. These were important elements of her case. The Tribunal referred to uncles (sic) statements but erred by failing to make a finding as to whether it accepted or rejected his evidence and, if it rejected it, by failing to give its reasons for doing so."
RELEVANT CRITERION 3 Section 36(1) of the Migration Act 1958 (Cth) ("the Act") provides for a class of visas to be known as protection visas. A criterion for a protection visa is that the Minister is satisfied that the applicant for the visa is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together referred to as "the Convention"), (s 36 of the Act and Schedule 2 of the Migration Regulations cl 866.221). Australia has protection obligations to the applicant under the Convention if she is a 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 [her] nationality and is unable or, owing to such fear, is unwilling to avail [herself] of the protection of that country …." (Article 1A(2) of the Convention)
FACTS 4 The applicant is a citizen of Iraq who arrived in Australia on 22 March 1999. On 19 April 1999 she signed an application for a protection visa. On 5 May 1999 a delegate of the respondent refused to grant her a protection visa. As is mentioned above, the Tribunal affirmed the decision of the delegate. 5 The applicant, who is a young married woman, was pregnant when she arrived in Australia. She has subsequently given birth. 6 The applicant was interviewed upon her arrival at Sydney airport with the assistance of the telephone interpreting service. The record of this interview includes the following:
"She escaped from Iraq because she is afraid of 'the trouble' with the government. Her husband, who is a jeweller, bought stolen gold and was arrested. He was kept in prison awaiting (sic) to be sentenced. The security force of Iraqi Government came to her house frequently. She and her parents were questioned about the gold. They confiscated the stolen gold, which her husband bought and thought her husband had hidden some more gold. They thought she knew where the gold was. In November 1998, the security force 'slapped her face and swore at her.' She just wants 'to leave Iraq and get away from the trouble' …. She cannot return to Iraq because she will be insulted and interrogated as she left Iraq and her husband is in prison. She will be 'prone to insults.' The security force 'will be behind her' and will not leave her alone. They will question about the gold again." 7 The applicant had the assistance of the Legal Aid Commission of NSW ("Legal Aid") in the preparation of her application for a protection visa. The formal application was provided to the Department of Immigration and Multicultural Affairs ("the DIMA") under cover of a letter on the letterhead of Legal Aid. By the letter Ms Geraldine Read, solicitor, advised that she acted for the applicant. The letter advised the DIMA that: "Ms Hanna fled from Iraq following the arrest of her husband. Because she was a member of his family she was pursued and interrogated by the Iraqi authorities. She was assaulted and threatened with death. Because of her great fear she arranged to leave Iraq illegally. She fears persecution in Iraq for reason of her membership of her husband's family." The letter concluded as follows: "It is submitted that Ms Hanna has a well-founded fear of persecution in Iraq for reasons of her family membership. In addition, her forced return to Iraq after her irregular departure and in light of her Assyrian background and family history would make the authorities suspect her of being against the regime, causing a well-founded fear of persecution for these reasons." 8 A statutory declaration sworn by the applicant, which formed part of her application for a protection visa, confirmed that her problems in Iraq related to her husband's arrest on the basis of an accusation that he had in his shop jewellery that had been stolen. The statutory declaration referred to her being taken for questioning at the Security Office where the man who questioned her slapped her on the face. The state authorities holding the applicant threatened to kill her and members of her family if she "did not confess." The statutory declaration also referred to two visits, apparently by the state authorities, to her home and a similar visit to her parents' home while she was there. 9 The delegate of the respondent refused to grant the applicant a protection visa on the basis that "any adverse attention that the applicant would receive on returning to Iraq is not Convention-based and any fear of receiving disproportionate punishment due to her Assyrian Christian background is not well-founded." Ms Read assisted the applicant to lodge an application for review by the Tribunal of the decision of the delegate but she was not able to act for the applicant further. A migration agent ("Dr Al-Jabiri") thereafter provided advice to the applicant. 10 Dr Al-Jabiri wrote to the Tribunal on 2 June 1999 apparently seeking to have the applicant's application for review of the decision of the delegate heard and determined by a female Tribunal member. His letter included the following paragraph: "I am uncertain as to the Tribunal's guidelines as to female applicants but I bring to your attention that the lady in question firstly suffered violation by the Iraqi Mukahbarat before she fled and secondly that she is pregnant - mercifully by her husband before he was arrested and disappeared." 11 Dr Al-Jabiri provided to the Tribunal a "supplementary statement" of the applicant. In that statement it is asserted for the first time that the applicant's husband bought a ring from a woman who was driven to his shop in "a Mercedes car fully equipped with antennas with curtains covering its windows which is typical of the cars used by the government and Ba'ath Party officials." 12 The supplementary statement also gives details of a search of the applicant's home by four persons who arrived in a white car the day after the arrest of her husband. Following the search, which took more than an hour, gold jewellery and other small and valuable assets were stolen from the applicant's house. 13 In addition the applicant asserted in her supplementary statement that two days after the search of her house, a similar white car came to her house and a man in plain clothes alighted from the car and insisted that she accompany him in the car to "the Department". She was not allowed to change out of her sleeping robes but was driven in the company of men to a big building. There she was punched in the face, ordered to shut up or face death, and after a period of discussion and argument, raped by three men. After promising never to tell what had happened to her and to return, presumably with information, after her recovery, she was driven home haemorrhaging. She obtained treatment from a gynaecologist who was able to stop the haemorrhage. After three days in hiding at her uncle's house, she fled to the north of Iraq and then left the country.
REASONS OF THE TRIBUNAL 14 It was contended before the Tribunal that the applicant has a well-founded fear of persecution for reasons of her being a member of the Christian minority in Iraq and for reasons of political opinion in that the authority's actions against the applicant were politically motivated. 15 A statutory declaration made by the applicant's uncle, Mr Yaqo, a resident of New South Wales, was placed before the Tribunal. This statutory declaration includes the following paragraphs: "8. I have received suggestions from people coming from our villages in Northern Iraq that Dalal's husband's arrest is known in that area and they believe he is still missing. 9. I have contacted my mother - Dalal's grandmother - more than once in Dahouk in the Simmel district, an area under the control of the Kurds. She informed me that Dallal's (sic) husband is still in prison and has become one of the 'disappeareds.' But she does not know the exact reasons for his arrest. She also informed me her Dalal's father had been summoned to the Mukhabarat offices several times for interrogation and came under strong pressure to supply information about the whereabouts of Dalal and the reasons why she had not contacted the Mukhabarat as she had promised." 16 The "two statements" of the applicant's uncle which are referred to in the application for review assumed significance before the Tribunal for reasons which appear from a letter sent by the Tribunal to the applicant following the review hearing before the Tribunal. The letter sought the applicant's comments on two matters arising out of statements made by Dr Al-Jabiri at the Tribunal hearing. For present purpose the relevant matter was that: "Your adviser … stated that your uncle had informed him that your husband is still missing. The member pointed out your evidence that you did not think your uncle had been in contact with your family in Iraq, to which your adviser replied 'she did not understand the question.' The Member told your adviser that he did not want to take evidence of this nature from the adviser and allow two weeks for a written submission on the matters from you. A further statement has been received from you but it does not address … your knowledge of your uncle's contacts with your family in Iraq. A statement has been received from your uncle stating he has been in contact with your grandmother in Iraq, more than once, who has informed him that your husband is in prison and that your father has been summoned several times to the Mukhabarat offices for questioning. This information is relevant because it is inconsistent with previous evidence you have given … about your knowledge of the fate of your family and of your knowledge of your uncle's contact with your family in Iraq. As a consequence, it may adversely affect the assessment of your credibility." 17 The applicant did not provide a statement to the Tribunal in response to the opportunity given to her by the Tribunal's letter. Dr Al-Jabiri provided to the Tribunal a letter from Mr Yaqo in which he disclosed that he is able to contact his mother (the applicant's grandmother), who lives in the north of Iraq, by telephone. Communication between Mr Yaqo's mother and the applicant's family in Baghdad, the letter states, relies on written and verbal messages carried by friends. In his letter, Dr Al-Jabiri expressed the opinion that there was no inconsistency between the applicant's evidence and the information provided by her uncle. 18 The Tribunal in its written reasons for decision observed that: "[t]here are substantial matters of inconsistency and implausibility in the applicant's claims. When pressed on these matters, her responses were vague and evasive and gave the clear impression that she was not telling the truth. I am satisfied that her claims are fabrications." 19 In outlining in more detail its reasons for concluding that the applicant's claims were fabrications, the Tribunal stated: "I find it implausible that an applicant would not know that her uncle had been in contact several times with her grandmother in Iraq by telephone. I find it implausible that her uncle would not have informed her of news of her family in Iraq, including her husband, which he obtained from those telephone calls." 20 The Tribunal concluded that it was "not satisfied that the applicant or her husband are of any particular interest to the Iraqi authorities". The Tribunal was not satisfied that the applicant has a well-founded fear of persecution for political, religious or any other Convention related reason.
CONSIDERATION 21 Section 430(1) of the Act provides: "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 decisions; 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." 22 There is Full Court authority binding on me to the effect that a failure by the Tribunal to prepare written reasons in accordance with the requirements of s 430(1) of the Act constitutes a ground of review under s 476(1) of the Act (Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 at 19, Logenthiran v Minister for Immigration and Multicultural Affairs (Wilcox, Lindgren and Merkel JJ unreported, 21 December 1998), Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165, (1999) 84 FCR 274 per Burchett and Lee JJ at para 22, and Moore J at para 11, Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 at paras 33-4). The respondent did not seek to argue to the contrary. 23 The Tribunal made no express finding that it disbelieved Mr Yaqo. However, as is mentioned above, it concluded that it was "not satisfied that the applicant or her husband are of any particular interest to the Iraqi authorities." The Tribunal, as a matter of logic, could not have failed to be satisfied that the applicant's husband is of interest to the Iraqi authorities if it had accepted that he is in prison and has become one of the "disappeareds." It is a necessary deduction from the Tribunal's conclusion that the Tribunal either did not believe that the hearsay evidence contained in Mr Yaqo's statutory declaration was true (ie it thought that Mr Yaqo had been told something that was untrue) or it did not believe that Mr Yaqo had been given the information set out in his statutory declaration (ie it thought that Mr Yaqo had made a false declaration). 24 Did the Tribunal fail to comply with the requirements of s 430(1) of the Act? The applicant contended that the Tribunal was obliged to deal with Mr Yaqo's evidence as it was directly relevant to the issue of whether the applicant's husband was in detention and whether the Iraqi authorities had asked her father questions about her after she left Iraq. The respondent contended that s 430 of the Act does not require the Tribunal to give reason for rejecting evidence inconsistent with findings made. Counsel for the respondent referred to the Full Court decisions in Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 and Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 per Lee and Marshall JJ. 25 As Hely J pointed out in Direse v Minister for Immigration and Multicultural Affairs [1999] FCA 1626 at para 48, the content of the obligations imposed on the Tribunal by s 430 of the Act has been considered in a number of recent decisions of the Full Court, not all of which are consistent. His Honour noted that the relevant cases were reviewed by Moore J in Li Yue v Minister for Immigration and Multicultural Affairs [1999] FCA 1404 and by Drummond J in Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1126. I do not consider it necessary to review the decisions again. The issue on which Full Courts have taken different views is that of whether s 430(1)(d) imposes on the Tribunal an obligation to refer in its written reasons for decision to apparently probative material which suggests against a finding made by the Tribunal on a material question of fact. I agree with Hely J that the preponderance of authority supports the proposition that the Tribunal must explain why it has rejected apparently probative evidence relevant to a material issue, even though there may be other material capable of justifying the finding made by the Tribunal. 26 In this case, counsel for the respondent contended that if, contrary to her primary submission, the Tribunal was under an obligation to explain why it rejected apparently probative evidence relevant to the issue of whether the appellant and her husband were of interest to the Iraqi authorities, the obligation had no application in respect of the evidence of Mr Yaqo which was "third hand hearsay from a non-official source." It was submitted that Mr Yaqo's evidence could not be said to be "objectively material to whether the applicant was in truth a refugee." 27 It is true, as counsel for the respondent pointed out, that the Tribunal's decision is underpinned by its finding that the applicant was not a credible witness. There was a considerable body of evidence and other material which was capable of supporting the Tribunal's finding in this regard. It was not essential that the Tribunal make a determination as to Mr Yaqo's credibility before it was in a position to make a finding as to the applicant's credibility. It was the applicant who put Mr Yaqo forward as a witness of truth and a witness upon whose evidence she placed reliance. The Tribunal concluded that aspects of the applicant's evidence was "implausible" when viewed in the context of Mr Yaqo's evidence. So far as its finding as to the applicant's credibility is concerned, the Tribunal, in my view, complied with its obligations under s 430 of the Act. 28 However, the Tribunal concluded not only that the applicant was not credible, but also that it was not satisfied that either she or her husband are of any particular interest to the Iraqi authorities. 29 As is mentioned above, this conclusion, in my view, can only be understood as involving a finding that the applicant's husband is not in detention in Iraq. Whilst it was plainly open to the Tribunal to conclude that the story advanced by or on behalf of the applicant was enhanced over time with an eye to improving her chance of obtaining a protection visa, the arrest of her husband was a consistent element of her story from the beginning. No other explanation for the applicant having fled Iraq alone and while pregnant has been suggested. Against that background, the evidence of Mr Yaqo that people from the family's village in northern Iraq know of the arrest of the applicant's husband, and that the applicant's grandmother has informed him first, that the applicant's husband is still in prison and secondly, that the applicant's father has been pressured by the authorities to supply information about the applicant's whereabouts, is apparently probative. The Tribunal was of course, free to reject the evidence of Mr Yaqo by reason of its hearsay nature or accord it little, if any, weight. However, the Tribunal does not in its reasons deal with evidence of Mr Yaqo so far as it touches upon the applicant's assertion that her husband is in detention in Iraq. Perhaps more worryingly, whilst apparently rejecting the evidence of Mr Yaqo, or perhaps giving it no significant weight, for the purpose of its finding that neither the applicant nor her husband are of any particular interest to the Iraqi authorities, the Tribunal seems to have accepted it (or, at least, significant parts of it) for the purpose of drawing an adverse inference as to the applicant's credibility (see paras 19 and 20 above). 30 I have been troubled by the question of whether the Tribunal's conclusion that it was not satisfied that the applicant or her husband are of any particular interest to the Iraqi authorities is, in the total context of the Tribunal's reasons, a finding on a material question of fact. However, I have concluded that it is. "Material" questions are "questions which are central to the case raised on the material and evidence" (Thevendram at para 37). See also Hill J's consideration in Waugh v Minister for Immigration and Multicultural Affairs [1999] FCA 1464 of what constitutes a material question of fact. The applicant's claim that her husband is in detention in Iraq is central to her case. The claim is a crucial link in a chain of reasoning advanced by her to support her claim to be a person to whom Australia owes protection obligations under the Convention. 31 The Tribunal made no express finding as to whether the applicant has a fear that were she to return to Iraq she would experience persecution for a Convention reason. The finding of the Tribunal that the applicant was not a credible witness does not lead necessarily to the conclusion that she does not have a fear of persecution for a Convention reason were she to return to Iraq. Nor does the finding rule out the possibility of any such fear being well-founded. It was the Tribunal's failure to be satisfied that either she or her husband are of interest to the Iraqi authorities which enabled it to foreshorten its considerations of the applicant's claim that Australia has protection obligations to her under the Convention. 32 Had the Tribunal concluded that the applicant's husband was, or might well be, detained by the Iraqi authorities, it would have been necessary for it to give consideration to the likely background to such detention, and to its likely significance so far as the applicant is concerned should she return to Iraq. Only then would the Tribunal have been in a position to determine whether or not it was satisfied that the applicant has a well-founded fear of persecution for a Convention reason were she to return to Iraq. 33 I conclude that the applicant has made good her claim that the Tribunal did not observe procedures that the Act required it to observe in that it did not produce a statement in accordance with s 430 of the Act.
CONCLUSION 34 The decision of the Tribunal will be set aside and the matter remitted to the Tribunal for determination according to law. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.
Associate: Dated: 17 December 1999 Counsel for the Applicant: C. Colborne
Solicitor for the Respondent: Australian Government Solicitor
Hanna
Minister for Immigration & Multicultural Affairs