Jama v Minister for Immigration & Multicultural Affairs

Application for judicial review 11 The applicant makes no complaint about the way in which the Tribunal dealt with her claim. She accepts that the inconsistencies in her evidence were such that the Tribunal's decision was clearly open to it and, but for the fraud which Mr Sagaale is said to have committed, would not be open to attack. The allegation of fraud is supported by an affidavit sworn by Mr Sagaale on 16 March 2000. In the present proceedings, Mr Sagaale gave some further evidence in chief orally and was cross‑examined. He has a reasonable command of English but gave his evidence, in part, through an interpreter. Although the affidavit is lengthy, I think it is desirable to set out most of it in full. Mr Sagaale did not, in cross‑examination, depart from his affidavit evidence although there was a degree of confusion about the precise chain of events immediately following the arrival of the applicant and the children in Perth. The relevant section of the affidavit reads: "1. I am the husband of Amina Hussein Jama (whose real name is Hukum Mohamed Elmi). We were married according to Islamic law at Odwein in Somalia in 1985. I do not know the exact date, because dates were not important in our society in Somalia. We were not issued with a marriage certificate, because such certificates were not issued to anybody in Odwein unless a formal request is made. 2. I escaped from Somalia to Ethiopia, and was recognised as a refuge in Australia in May 1996. I then applied through the Australian High Commission in Nairobi, using my wife's brother as a contact, for my wife and children to join me in Australia. 3. After I was recognised as a refugee I sent money for my wife and the children who were with her to move from the refugee camp called 'Daroor' in Ethiopia to Addis Ababa. This was in late 1996. After this I sent about $ U.S. 300.00 per month to my wife in Addis Ababa. 4. There was a telephone in the house where my family was staying on rent in Addis Ababa. I know from speaking to my wife and my brother in law named Abdullah, that he was staying with my family. The manner in which I maintained contact with my family was that Abdullah would telephone me and speak for a minute of two, and I would then telephone back and speak for longer. 5. Some time before my wife's scheduled interview with the Australian High Commission in Nairobi, which I believe was to be in about September 1997, I telephoned my wife and spoke to Abdullah. He said, 'Hukum has gone back to Somalia to see her brothers who have been captured by militias. The militias want money paid for their release.' or words to that effect. 6. Some time after that Abdullah telephoned me and said words to the effect, 'Hukum has been captured by militias. You will have to pay money to have her released.' I sent over $ U.S. 1,000.00 for this purpose to Abdullah. I was extremely angry that she had missed her interview in Nairobi, and even more angry that my children would be away from me for longer than would otherwise have been the case. 7. I became more angry when Abdullah phoned me in September 1997 and told me, 'Hukum is pregnant - she was raped when she was captured by the militias' or words to that effect. I then telephoned my wife and said words to the following effect, 'I don't believe you were raped. You cheated on me just like you cheated on me many times before. Why don't you have an abortion?' I recall that I was shouting into the phone. I also recall that I said a lot of other things, but I do not remember exactly what I said. 8. In early October 1997 Abdullah telephoned me and said words to the following effect, 'Ayaale (who was my son) is very ill. You have to send money for medicines.' 9. I sent money. A few days later, I think between 15 and 20 October 1997, Abdullah telephoned me at about 10.00 p.m. Perth time and said, 'Ayaale died', or words to that effect. I was shocked. I asked questions like, 'How did he die?' and 'Where did he die?'. Abdullah said, 'He died at home' or words to that effect. I was very angry because I knew there were hospitals in Addis Ababa, and I suspected that the child had died of neglect. 10. I thought about these things for several days. I then made a tape recording in which I said words to the effect of, 'You have been deceitful to me and have killed Ayale by not caring for him. When you came [sic] to Australia I will kill you and the bastard baby.' I sent this cassette to my wife. 11. After I found out that my wife was pregnant I started having a relationship with another woman. In 1997 (I cannot be more accurate) I sent a photograph of myself and the woman with whom I was having the relationship to my family at the community post box used by both my own parents and their family, and by my brother in law and my wife. 12. I was misinformed as to the details of my wife's arrival in Australia. I was at Perth Airport at 5.20 p.m. on 13 July 1998, when I was advised that they would arrive, but they did not come out of the doors in the customs hall. 13. I found out that my wife and the children with her had arrived in Perth from members of the Somali community in Perth. I cannot recall who told me, but I recall that I was told that 'Hukum Mohamed Elmi' and [sic] arrived and that she was with eight children who were described to me and whose names were told to me. Those children are named at paragraph 16 of this my affidavit. I concluded from this that my wife had arrived in Australia. I knew that they had been moved to Villawood in New South Wales because a friend of mine named Mohamoud Omar Elmi who knew my family and myself in Somalia telephoned me and said to me words to the effect that, 'I have visited the Immigration Detention Centre at Villawood. Your wife and the children are in detention at Villawood in Sydney.' 14. I was interviewed by an officer of the Department of Immigration at the end of July 1998, after Mohamed [sic] Omar Elmi had told me that the family was in Villawood. I told an officer of the Department that, 'the person who arrived in Australia with my wife's visa is not my wife,' or words to that effect. I did this because I still felt resentful at what I believed was my wife's being unfaithful to me, as well as my belief that she let my child die. I also believed that she was a party to deceiving me as to the time and date of her arrival in Australia. 15. After this, when I telephoned my wife at the Immigration Detention Centre after they had been transferred to Sydney she refused to speak to me. She began speaking to me after her rejection by the Refugee Review Tribunal in December 1999. 16. I admitted that my wife and the children listed below were in Australia at the end of 1998. I advised the Department of this orally during an interview at their offices in Perth. Since then I participated in another interview at the offices of the Immigration Department in Perth on 13 October 1999, in which I admitted that my wife and children were in Immigration Detention in Sydney. 17. I also wrote a letter to the Minister for Immigration on 21 December 1999, a true copy of which is contained within the annexure to this affidavit and numbered 12 to 13. 18. As to the children who are in the company of my wife in the Villawood Detention Centre, I say as follows, I am the biological father of Hinda Kayse Sagaale (born about 17 Sept 94) and Asha Sagaale, (born about 20 Feb 96). Under the customs of my people I am also responsible for five other children, Sabaad Mohamed Elmi - my wife's sister (born about 1 Jan 84) who came under my guidance due to the death of her parents in 1996 Yousuf Kayse Sagaale (born about 6 March 86), came under my guidance when his father, my uncle, was killed in 1988. Zam Zam Kayse Sagaale (born about 20 April 87), Qatan Kayse Sagaale (born about 19 Aug 92), and Mohamoud Kayse Sagaale (born about 15 May 1989) came under my guidance when their mother, my sister, died during childbirth in 1992. There is another child named Ubah, who my wife says was conceived when she was raped in Ethiopia in 1997. I have no knowledge as to whether this is true." 12 The photograph referred to in par 11 of Mr Sagaale's affidavit is the large photograph of Mr Sagaale and a woman to which I have already referred. It was tendered before me. Counsel for the Minister did not object to the tender; nor was there any objection to the reading of Mr Sagaale's affidavit. 13 The applicant submits that I should find that the representation deposed to in par 14 of the affidavit was made and that Mr Sagaale, when he made it, knew that it was false and intended, by making it, to cause disadvantage to his wife in her dealings with the immigration authorities. I should find also, the applicant submitted, that the Tribunal's decision was affected by this (fraudulent) representation. 14 There is little controversy about some matters. Counsel for the Minister did not suggest that the statement which Mr Sagaale claimed to have made was not made; counsel also accepted that I would find, on the evidence, that the applicant is indeed Mr Sagaale's wife. I see no reason why I should not find, as I do, that Mr Sagaale made the statement and that it was untrue. The Minister submits, however, that I should not find that, when he made the statement, Mr Sagaale knew that it was untrue. Rather, I should find that Mr Sagaale then believed, on rational grounds, that those who had arrived in Australia were not his wife or the children for whom he was responsible. 15 The Minister's submission had two foundations in the evidence. One was what was said to be an inconsistency between the evidence in par 13 of Mr Sagaale's affidavit and evidence which he gave in cross‑examination. I have read the transcript of the cross‑examination, and in my view there is no substantial inconsistency. Certainly there is not the particular inconsistency suggested by counsel for the Minister; the suggestion seems to have been based on a misreading of the affidavit (counsel submitted: "For example, in paragraph 13 of his affidavit evidence he says that he concluded from the documents concerned that his wife had arrived in Australia" - that is not what par 13 says). 16 The second basis of the submission was, in substance, that Mr Sagaale's evidence of his anger caused by what he believed to have been the applicant's conduct in committing adultery and allowing their child to die, and particularly his evidence that that anger motivated his untrue statement to the departmental officers, is not easy to reconcile with his action in going to the airport to meet his wife and the children. It was more probable, counsel submitted, that although he was angry with the applicant, he went to the airport because he wished to see the children for whom he was responsible; the applicant and the children did not arrive; he formed the view that they had been substituted in some way; in those circumstances, it was understandable that he would then tell the Department that the people who had arrived were not the people he had sponsored, but some other people. He continued, counsel's hypothesis proceeded, in that mistaken belief for quite some time. Later, however, he discovered that he had made a "terrible mistake;" as a result, he is now "trying to rectify the effect of his error." The applicant's solicitor had submitted that a powerful reason for believing Mr Sagaale was that, by giving his evidence, he had made admissions which might expose him to prosecution. Counsel for the Minister responded that consciousness of a serious, though genuine, mistake and a desire to undo its very unfortunate consequences would provide a motive at least as strong. 17 Ultimately, the submission was that I could not be satisfied, to the extent required by the Briginshaw principle (Briginshaw v Briginshaw (1938) 60 CLR 336; Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103) that the fraud alleged had in fact been perpetrated. In referring to the application of the Briginshaw principle to a case such as the present, Lindgren J said in Wati, at 113: "The standard of proof according to which Ms Wati must establish that the IRT's decision to affirm the delegate's decision was induced or affected by fraud is the civil one, usually referred to as 'the balance of probabilities'. But an allegation of fraud is a serious one not to be made lightly, and it is perhaps a particularly grave thing to allege, not only that a fraud was perpetrated against the victim of it, but that it was also practised on a court or tribunal conducting a hearing." But the circumstances in which that principle is usually applied are not those of this case, where the evidence of the alleged fraud is that of the perpetrator. More commonly where an applicant alleges fraud, the alleged perpetrator vigorously denies it and, in weighing allegation against denial and the evidence supporting each, the Court applies the Briginshaw principle. Where fraud is admitted, commonly there will be little difficulty in accepting the admission, at least if it is one clearly made against interest. Here, no doubt, although the admission is against interest in the sense that it may expose Mr Sagaale to prosecution, it may be inferred that he has powerful countervailing motives which have induced him to make it. For that reason, it is necessary, in the public interest, to weigh it carefully against any other evidence bearing on the matter and against what may be regarded as the inherent probabilities. But, although there were some difficulties in communication, in my view cross‑examination did not reveal any significant inconsistency in Mr Sagaale's own evidence; there is no other evidence (in which I include the material in the green bundle of relevant documents) which particularly bears upon the question whether his false representation that those who had arrived in Australia were not his wife and children was fraudulently made, accepting, as I do, the high probability that Mr Sagaale is indeed the applicant's husband. Nothing in the way in which Mr Sagaale gave his evidence suggests any reason to doubt the truth of what he said. And, in the highly unusual circumstances of this case, I do not think that any consideration of inherent probabilities should lead to a rejection of his evidence. I see nothing particularly improbable about the evidence that, by the time he was interviewed by the departmental officers, he had found out, through contacts in the Somali community, that his wife and the children for whom he was responsible had indeed arrived and had been taken to Villawood. Nor do I see anything particularly improbable in his evidence that he concluded, reigniting his anger, that his wife had been a party to deceiving him as to the date and time of their arrival. 18 On the other hand, the only readily apparent alternative hypothesis is that offered by counsel for the Minister. Two aspects of that hypothesis seem to me quite improbable. One is that, in circumstances where he did not know who, if anyone, had arrived, he was not only prepared to accept a statement by the Department that people had arrived and they were not his family but positively to assert, in an interview, that "the person who arrived in Australia with my wife's visa is not my wife." There is, after all, no dispute that he made a statement substantially in that form: it is reflected in the Tribunal's reasons and no evidence was called to contradict Mr Sagaale's evidence of what he said. Secondly, there is Mr Sagaale's affidavit evidence, which was not challenged by other evidence or in cross‑examination, that subsequently he twice admitted to the Department that the people who had arrived were his wife and the children listed in his affidavit. But there is no suggestion of any wish at that stage to do whatever he could to undo the consequences of a "terrible mistake." Curiously, there is no indication in the material before me that the admissions referred to in par 16 of Mr Sagaale's affidavit came to the notice of the Tribunal, the Minister did not challenge his evidence of them and neither party placed any particular reliance on them or suggested that any inference might be drawn from them. In the circumstances, however, Mr Sagaale's evidence of them - uncontradicted and unchallenged - is consistent with the rest of his evidence and sits, in my view, uneasily with the alternative hypothesis. 19 Accordingly, I accept Mr Sagaale's evidence that, when he told the officers at the interview that the people who had arrived were not his wife and children, he knew that what he was saying was untrue. Substantial cross‑examination was directed to the question why, or for what purpose, Mr Sagaale lied to the Department. The following answer adequately sums up his evidence on the subject: "For two reasons, one that she provoked me and I became very upset on her. The other reason that the Immigration Department misinformed me and I got very frustrated and I was very angry at the time. They treated me in a bad way, very bad way." The effect of the evidence is, in my view, that Mr Sagaale lied to the Department with a view to harming his wife, particularly in her dealings with the Department (counsel for the Minister referred particularly, in this context, to the statement of principle, in Peters v The Queen (1998) 192 CLR 493 at 508). I find that he did indeed lie to the departmental officers for that purpose and that, therefore, his false representation was fraudulently made. 20 The remaining question is whether the decision of the Tribunal was induced or affected by that fraud. Section 476(1)(f) of the Migration Act provides that a decision of the Tribunal may be reviewed on the ground: "(f) that the decision was induced or affected by fraud or by actual bias." The verb "was induced" naturally describes an effect of fraud on a decision. It does not naturally describe the effect of actual bias: "was affected" performs that role. It might be possible to read the ground in s 476(1)(f) as relating to a decision induced by fraud or affected by actual bias, not one affected by fraud or induced by actual bias. The point, in relation to fraud, is of some significance because "affected" is a considerably broader term than "induced" and may be regarded as setting a substantially lower hurdle. In Wati, however, Lindgren J adopted (at 112) a construction of the provision, certainly open on the language and perhaps the more natural construction, to the effect that the decision was reviewable if it was either induced or affected by fraud: in order to make out the ground in par (f) it was necessary, his Honour held, to show that the decision was actually induced or affected by fraud. His Honour continued at 113: "It is, of course, necessary in the present context to distinguish between what must be proved and the means of proving it. A finding that a decision was influenced by fraud may be arrived at by a process of inference. If it is proved that something apt to influence a decision came to attention, it may be appropriate to infer that it influenced the decision in fact. Such an inference may be more readily drawn in some cases than in others. Moreover, in particular circumstances, an evidentiary onus may shift to the party contending that there was no influence. But, at the end of the day, as a matter of principle there is no ground for interference in the absence of actual influence." 21 As Lindgren J also pointed out in Wati (at 113), the Court's jurisdiction in relation to judicially reviewable decisions is a statutory one. The question is whether relief is available under Pt 8 of the Migration Act on the basis that one of the grounds listed in s 476(1) is made out. There is no complete analogy either with the Court's equitable jurisdiction to set aside its own judgment on the basis that it has been obtained by fraud or with appellate jurisdiction to set aside a judgment and order a new trial on the basis of fresh evidence (compare, for example, Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 and Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234 at 238‑242). The existence of fraud (or, alternatively, actual bias) by which a decision was induced or affected is simply one of a number of grounds on which the statute permits judicial review. And proceedings before the Tribunal are not adversarial or, importantly, inter partes. So for example, Lindgren J held in Wati, at 113, that a decision may be reviewable although the fraud affecting the decision is not attributable to a party or to the Tribunal itself. Equally, I think, there can be no particular scope, in exercising the statutory jurisdiction, for applying a principle of finality. The elements of the ground must be made out to the level of satisfaction demanded by the serious matters which enliven the ground in par (f): but, subject to any residual discretion, that is all. 22 Counsel for the Minister submitted that a finding that a decision was affected by fraud required, at the very least, that "the subject matter of the fraud must be a central factor in the decision with a real likelihood that the decision was different to what it might otherwise have been." That proposition reflects the caution with which courts approach an application to set aside a judgment on the ground that it was obtained or procured by fraud: Wentworth v Rogers at 539 per Kirby P. I do not think that a proposition stated in those terms is properly applicable to a claim for judicial review under Pt 8 of the Migration Act relying on the ground in s 476(1)(f). Its application, in my view, would give too little weight to the ordinary meaning of "affect" and to a context in which the policy in favour of the conclusive nature of a final judgment has no application. Lindgren J spoke, in Wati at 113, of "actual influence": a paraphrase which indicates, correctly in my view, that the Court must be satisfied that the fraud had a material effect in relation to the decision which the Tribunal reached. 23 The statement which Mr Sagaale made to the Department plays no overtly significant role in the Tribunal's reasons. The Tribunal refers to it only very briefly. Immediately before its account (which I have quoted) of the applicant's initial claims, the Tribunal describes one of the departmental files provided to it: "it is an investigations file of the Department on the applicant. The file contains documents relating to the man Sagaale advising the Department that the woman who he sponsored and his children had not arrived in Australia. He claims that he does not know the woman who arrived." 24 Mr Sagaale plays no further role in the Tribunal's reasons until the Tribunal comes to the letter which it wrote to the applicant after the second hearing. The following passage in that letter is somewhat curious: "When you arrived at Perth Airport in Australia you advised the Tribunal that you were met by a black African man who spoke Somali. You did not know who he was though he took you and all of the children to his house. You stayed on his verandah for two days and he then took you and the children to the Catholic migrant centre. The husband of Hukun Mohamed Elmi states that he was at the airport on the day he expected his wife and children to arrive, that he saw a Somali woman and children but did not recognise them. He claims that he spoke to the woman and asked if there were other Somalis on the flight and the woman he spoke to said no. The Tribunal has serious difficulty in accepting that a black African man who understood but could not speak Somali would happen to be at Perth airport on the day of your arrival and that he would take you and the children home without knowing you. The Tribunal considers it as reasonable to believe that you were met by your husband, that he took you to his house for two days, and in that time that something happened. After this event you claimed a different identity. Please comment." Mr Sagaale did not refer in his affidavit evidence to meeting a Somali woman and children at the airport (though he did claim to have gone to the airport for the purpose of meeting his wife and the children) and the topic was not explored in cross‑examination. At all events, the applicant, as I have mentioned, conceded that she had adopted a false identity and that several of the Tribunal's surmises were correct. Then, during the third hearing, the Tribunal questioned the applicant about a number of apparent inconsistencies, particularly inconsistencies between her account of her clan membership and an account given by Mr Sagaale to the Department; a difficulty of reconciling with her account of her detention and rape by the Igal militia the fact that an Interpol certificate of good conduct, bearing her photograph, was issued to her at Addis Ababa during the period of her alleged detention; discrepancies in her evidence about her children; and the evidence about the photograph to which I have already referred. 25 The Tribunal, towards the end of its reasons, considers a number of accounts of conditions in Somalia and neighbouring countries but draws no particular conclusions from them. Instead, it proceeds to deal with the claims made by the applicant and the perceived discrepancies in them. I have already quoted the Tribunal's conclusion as to the applicant's lack of credibility and, of particular importance for present purposes, its conclusion that it did not know who the applicant was, who the children were or what relationship they had to her or where they were from. Notably, despite the suspicions clearly expressed in its letter to the applicant and the applicant's subsequent admissions, the Tribunal found itself unable to conclude that the applicant was Mr Sagaale's wife. 26 In the absence of an express statement in the reasons, there is, of course, no direct evidence that, in reaching those negative conclusions, the Tribunal was actually influenced by what Mr Sagaale had said to the Department. But a finding that a decision was influenced by fraud may be arrived at by a process of inference (Wati at 113). The Tribunal had formed strong suspicions, on entirely reasonable grounds, about the applicant's identity. The applicant had admitted that the Tribunal's suspicions were substantially correct. It should be inferred, I think, that, in finding itself nevertheless unable to decide who the applicant was, the Tribunal was influenced by Mr Sagaale's claim. Indeed, it seems to me probable that, but for Mr Sagaale's fraud, the Tribunal would have reached a conclusion as to the applicant's identity: despite the applicant's denials, the Tribunal was - its letter shows - strongly inclined before the third hearing to believe that she was Mr Sagaale's wife. Absent his denial, the Tribunal might well have maintained that view. 27 Of course, the decision of the Tribunal was to affirm the decision to refuse protection visas and that decision proceeded from an ultimate finding that the Tribunal was not satisfied that the applicant had a well‑founded fear of persecution for Convention reasons. But the terms of the Tribunal's reasons make it clear, I think, that, in coming to that ultimate finding, the Tribunal was at least influenced by its inability, as it saw the matter, even to be satisfied as to the applicant's identity. Once that conclusion is reached, it becomes apparent, in my view, that a further submission on behalf of the Minister should not be accepted: that relief should as a matter of discretion be refused because, even if Mr Sagaale's fraud influenced the Tribunal's findings about the applicant's identity, nevertheless her particular claims to fear persecution for Convention reasons were disbelieved because she had demonstrated, in the Tribunal's words, an inability to tell the truth. But for the fraud, the Tribunal might, on the material before it, have found itself able to come to a conclusion not only about the identity of the applicant and the children but also about the applicant's clan membership; and it might well, in those circumstances, have been able to give some focused consideration to the country information before it, of a kind which the finding as to the identity of the applicant which it actually reached made inappropriate and, perhaps, impossible.

Conclusion 28 The case is, no doubt, very close to the borderline. For the reasons I have given, however, in my view the ground of review on which the applicant relies is made out. The orders of the Court will therefore be that the decision of the Refugee Review Tribunal be set aside and that the matter be referred to the Tribunal for further consideration. In the circumstances, it is in my view inappropriate, despite the success of the application, to order that the Minister pay the applicant's costs. There will be no order as to costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate: Dated: 20 April 2000 Solicitor for the Applicant: McDonnells Solicitors

Solicitor for the Respondent: Australian Government Solicitor