Karnafi v Minister for Immigration & Multicultural Affairs

Argument in support of application: standard of proof 7 The applicant's principal argument in support of his claim for review under both s 476(1)(a) and s 476(1)(e) was that the Tribunal, in evaluating the evidence, had applied a wrong standard of proof. The essence of a lengthy and detailed submission made by the applicant's solicitor was that the Tribunal should have applied the "real chance" test (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379)to all aspects of its inquiry into the question whether the applicant had a well‑founded fear of persecution for a Convention reason. Particularly, the "real chance" test was not one to be applied only to assess the probability of future events once past facts were found: the same test, or standard, should be applied in making findings of past fact. There was, it was said, no authority binding on the Court precluding it from adopting that submission. It was said that there were a number of reasons arising from the history of the Convention, its purposes and the circumstances in which decisions about refugee status are to be made which suggest that: "… it cannot have been intended that those who drafted and those who undertook the obligations of the Convention intended that a refugee, in seeking to avoid serious human rights abuses, would face the same standard of proof as a citizen or corporation of the asylum state, in a civil claim." 8 The applicant's solicitor submitted that because the Convention concerns (and because it was expected when the Convention was signed that it would concern) persons fleeing from conditions of repression and lawlessness, decisions as to the status of persons claiming to be refugees must (and it must have been expected that they would) be dealt with in conditions of "evidentiary uncertainty". An applicant's account of events may appear self‑serving; but it could hardly be otherwise; and it is not surprising that in many cases it is impossible to produce corroborating evidence. Building on those observations, it was submitted (based on a passage in J C Hathaway, The Law of Refugee Status, 1991, p 80) that persons who flee countries known to be serious abusers of human rights should have the benefit of a rebuttable presumption that they have a genuine need of protection. Additionally, the applicant cited the well‑known passage in the United Nations' Handbook on Procedures and Criteria for Determining Refugee Status, 1992, at par 196 and par 197: "Often however an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all these statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed in some cases it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may be statements that are not susceptible of proof. In such cases if the applicant's account appears credible, he should unless there are good reasons to the contrary, be given the benefit of the doubt." 9 Finally, the applicant submitted that it was illogical to apply a higher standard to the proof of past facts than to satisfaction as to prospective risk, because to do so would leave open the possibility that the Tribunal might accept evidence showing objectively that there was a real chance that an applicant had a well‑founded fear of being persecuted for a Convention reason in the future, but nevertheless refuse the application because the Tribunal was not satisfied, applying a higher standard, as to past facts.

Standard of proof: reasoning and conclusion 10 It is, perhaps, convenient to consider that last point first. The authorities to which I shall refer establish, in my view, that the process to be undertaken by the Tribunal involves two stages. First, the facts are found. It may be that, at that stage, the Tribunal will accept some parts of the evidence tendered by the applicant and will reject others. On the footing of the facts as found the Tribunal will then, applying the "real chance" test, decide whether the applicant's fear (if established) of persecution for a Convention reason is well‑founded. 11 The matters canvassed by the applicant are, to a large extent, covered by authority which binds the Court. Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 is of particular importance. In that case the joint judgment of Brennan CJ and Dawson, Toohey, McHugh and Gummow JJ, at 574, explicitly rejected the proposition that it is not a correct approach to refugee cases "to assume that there is always a well‑founded fear of persecution unless the facts negate it". Their Honours proceeded to hold that the Tribunal in that case made no error, in the course of determining whether there was a real chance of persecution, by making findings about past events and using those findings as the basis for its conclusion that there was no chance of future persecution. The joint judgment continued, at 575: "Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not "differentially at risk for a Convention reason". Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC." 12 Thus, at 575, 576: "… The Tribunal was entitled to weigh the material before it and make findings before it engaged "in any consideration of whether or not Mr Guo's fear of persecution on a Convention ground was well‑founded."" 13 Their Honours added this, at 576: "It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well‑founded fear of future persecution." 14 The judgment in Guo does, certainly, support the proposition that, where the Tribunal is doubtful as to whether asserted past events occurred, that doubt is a relevant matter to be taken into account in determining whether there is a well‑founded fear (a real chance) of future persecution. Guo, however, offers no support for the proposition that findings about past facts are to be made by applying the "real chance" test; indeed, in my view, it is authority directly to the contrary of any such proposition. 15 In Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 Brennan CJ and Toohey, McHugh and Gummow JJ held that in the context of administrative decision‑making the use of terms such as "balance of probabilities" and "evidence" provides little assistance: particularly, at 283: "The term "balance of probabilities" is apt to mislead in the context of s 22AA, even if it be used in reference to "what has already happened"." 16 See also per Kirby J at 294. But it was held that, in reaching conclusions as to past facts, it was appropriate for the Tribunal to consider the weight appropriate to be given to the various material before it and to have regard to probabilities and likelihood: see particularly the majority judgment at 281. 17 This question has been considered very recently by the Full Court in Minister for Immigration and Multicultural Affairs v Ebeabaka [1999] FCA 1. At par 18 the Court summarised its conclusions, based on an extended analysis of Guo and Wu: "Findings of fact based on likelihood will usually be findings made on the balance of probabilities arising from the available information before the decision‑maker. However, when dealing with the claims of an asylum seeker, the available evidence might not imbue findings so made with the degree of confidence that justify the conclusion that an asylum seeker does not have a well‑founded fear of being persecuted. It is for this reason that the civil standard cannot be universally applied to the fact finding process in claims of this kind. It is necessary to recognise the risk of error in adopting such a fact finding process, and to make allowance for it." 18 In this case, the Tribunal proceeded explicitly on the basis that the applicant's claim to a well‑founded fear of persecution was based upon the events which he described: his opposition to attacks on Kurdish villagers; the circumstances of his detention; and his escape and the way in which he travelled to Australia. In order to decide whether the applicant had a well‑founded fear of persecution for a Convention reason, it was necessary for the Tribunal to make findings about those events. That is the process which the Tribunal undertook. There is nothing in its reasons, which I have quoted extensively, which suggests that it took any approach other than that required by the authorities; nor, in my view, is there anything in the transcript of the proceedings before the Tribunal which suggests that the Tribunal member misunderstood what he was required to do. Indeed it is evident, I think, that the Tribunal member well understood what the authorities required. In the course of a lengthy exchange between the Tribunal member and the solicitor for the applicant, the Tribunal member said this: "I've got to make a decision, I've got to make findings of fact, I've got to establish in my own mind whether I can be satisfied that certain facts are true. Then I've got [to] consider, given my findings on those facts, the facts that are relevant to this application. I've got to look at that and then speculate, then inquire in my own mind as to whether any fear of persecution in the future is well‑founded, and that includes taking account of the possibility that my findings of fact may be incorrect. But in terms of findings of fact, in terms of looking at the evidence, there are no presumptions either for or against an applicant based on their country of origin." 19 The question then arises whether there was any reviewable error within s 476(1)(a) or (e) in the way in which the Tribunal dealt with particular aspects of the material before it. Matters about which the applicant complained were, particularly, the failure (as it was said) of the Tribunal to give proper weight to the statutory declaration of the applicant and that of his companion; the treatment by the Tribunal of the declaration of the person who spoke of the applicant's position as a member of the army and his "retirement" from it; the treatment by the Tribunal of the declaration that the applicant and his companion had made prior statements which were consistent with what they told the Tribunal; the way in which the Tribunal considered the letter from the applicant's wife, the military "summons" and the photographs of the applicant showing him, apparently, as a member of the army; and the weight (or lack of it) given by the Tribunal to the circumstances (which I shall describe shortly) of the companion's conversion to Christianity. 20 These were all matters to be evaluated by the Tribunal as part of the process of finding the facts and (apart from questions of actual bias, to which I shall return) were matters peculiarly for the Tribunal in the absence of any misapprehension on its part of the effect of any of the material. About all of them, I think, it is sufficient to say that I have considered the reasons and the transcript and I do not see any basis on which it can be said that the Tribunal misapprehended the effect of any of the material. In particular, the Tribunal accepted that the applicant and his companion had been in the army (and presumably that the applicant had been a member of the army in February 1995). It was open to the Tribunal, in my view, to conclude that that circumstance threw no particular light on the veracity of the accounts given by the applicant and his companion of the circumstances leading to their arrival in Australia. Equally, I think it was open to the Tribunal to conclude that the letter written by the applicant's wife regarding her questioning threw no particular light on that essential question. The statutory declaration about the applicant's army career was capable of being viewed in the same light. And it is not possible, I think, to find that the Tribunal was in error in giving little weight to the statutory declaration as to prior consistent statements. As for the statutory declarations of the applicant and his companion: undoubtedly, as a general proposition, sworn evidence is entitled to greater weight than unsworn evidence. But the fact that the applicant and his companion made declarations cannot require their acceptance; the Tribunal must still find the facts; and finding the facts is a matter for it. 21 The same may be said in relation to the companion's conversion to Christianity. The companion gave evidence at the second hearing before the Tribunal that he had converted to Christianity and the Tribunal accepted that evidence. The applicant had not converted. It was put both that the conversion itself, combined with the companion's refusal to rely upon it initially on his own application, indicated that particular weight should be given to his testimony and that the refusal of the applicant himself conveniently to embrace Christianity indicated his own integrity. Again, however, these in my view were matters of weight for the Tribunal. The transcript makes it evident that the Tribunal member took them into account and did not misunderstand either the evidence or the submissions. 22 It will be recalled that the reasons of the Tribunal included, in their concluding section, the following passage: "The Tribunal is not satisfied, after hearing the evidence of the Applicant and [his companion] and considering the documents which they submitted, that they are Iranian army deserters who are considered by the Iranian army to be disloyal to the Iranian republic because of their reluctance to participate in military action against Iranian Kurds." 23 It is wrong to assume that the Tribunal's findings on credibility "were based entirely on its view that the applicant's claims were implausible, and not at all on its assessment of his demeanour": Pandari v Minister for Immigration and Ethnic Affairs (Sackville J, Federal Court of Australia, 23 December 1998, unreported). It is unnecessary to refer to the earlier authorities for the proposition that the Tribunal may take account of the demeanour of witnesses; Sackville J considers a number of those authorities in Pandari. It is legitimate, I think, to note that in this case, although the Tribunal member evidently had formed a clear view by the conclusion of the first hearing before him, he informed the applicant of that view and afforded him the opportunity of a second hearing at which additional material might be used. The Tribunal member made it clear in the second hearing that he had not merely heard the evidence during the first hearing but had, subsequently, listened to the tapes of the hearing more than once. Allowing for the fact that the accounts were given through an interpreter, it is evident that the Tribunal member had regard not merely to the bare circumstances recounted but to the way in which they were recounted as well. 24 There is one remaining matter, which arises on the grounds of review under s 476(1)(a), about which I have some concern. That matter is the way in which the Tribunal member dealt with two "credibility tests" to which he subjected both the applicant and his companion. I shall consider that matter separately. Subject to that, however, for the reasons I have given, in my view neither the s 476(1)(a) ground nor the s 476(1)(e) ground of the attack on the Tribunal's decision is made out.

Actual bias? 25 This ground is dealt with briefly in the applicant's written submissions and was only touched upon in oral argument. The matter was left on the footing that I would consider this ground on the written submissions together with the authorities referred to in them and the transcript of the two hearings before the Tribunal. 26 For present purposes the leading authority in this Court is Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71. That was a very different case, and a much more complex one, than this. Wilcox J (who left the question of actual bias open) relied on the description of bias in Re JRL; ex parte CJL (1986) 161 CLR 342 at 352: a disposition to "approach the issues in [the] case otherwise than with an impartial and unprejudiced mind". His Honour added this, at 122: "Parties are advantaged by learning what is going through the mind of the person hearing their case; this enables them better to target their evidence or submissions. The proviso, of course, is that the person must be, and remain, willing to be persuaded out of any express or implied tentative view." 27 Burchett J identified, at 127, a particular matter as indicative of bias: "A notable feature of the tribunal's reasons is the repeated drawing of extremely adverse conclusions against the appellant on what, upon examination, turn out to be the flimsiest grounds." 28 North J, who like Burchett J found that the ground of actual bias was made out, said at 134: "Actual bias exists where the decision‑maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision‑maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant … ." 29 In this case the Tribunal member questioned both the applicant and his companion quite closely as to the events which they described. Although the questioning was close and, in some respects, critical, I do not think it is possible to say that it demonstrates prejudgment. Towards the end of the applicant's evidence the Tribunal member put to him the proposition that the combination of events described was inherently unlikely, and concluded: "I mean, I'm not saying that can't be true but nor am I persuaded that it … has to be true and I'm not yet satisfied that it's true because, as I say, all we know about you two - are that you are probably Iranian or that you are Iranians, and that you appeared in Sydney." 30 The Tribunal member then put to the applicant that he and his companion might have been crew members who had "jumped ship": the Tribunal member observed that it was not unusual to encounter Iranian seamen who had done that. The applicant proceeded to give, as a reason why that should not be taken to be so, an account of action which the master of a ship might be expected to take if two seamen were missing, displaying, in the process, what the Tribunal member obviously regarded as a surprising familiarity with such procedures. The reaction of the Tribunal member might be thought to show a degree of impatience: "That's a pathetic answer … because when you were talking before you were talking about agents, you were talking about his responsibility to the port authorities and the agents. If you were a soldier you wouldn't know that …" 31 A similar exchange took place between the Tribunal member and the applicant's companion. The Tribunal member proceeded to express the view that "if I had to make up my mind right now it would be a bad decision for you". He elaborated by describing the accounts as "improbable stacked upon improbable" and lengthy discussion then ensued between the Tribunal member and the applicant's solicitor about the standard of proof. I need not refer further to that discussion; I have already quoted what I regard as the critical part of it. The substance of the conclusion reached is reflected in the following passage: "I am not saying that I'm applying the test on the balance of probabilities, I'm saying at the moment I am not satisfied that what the [applicant and his companion] have told me is true … . Now, I haven't begun to speculate about the future. I am putting you and the [applicant and his companion] on notice that at the moment I am not satisfied that what they have told me is true, and I'm doing that to give you an opportunity … to persuade me otherwise." 32 The Tribunal member made it clear that he was likely to be persuaded not by further argument, but by additional evidence. 33 At the later hearing the Tribunal member had before him the declaration concerning the prior consistent statements (to which, he made it clear, he attributed little weight) and the evidence that the companion had embraced Christianity, whereas the applicant had not. The Tribunal member said that he accepted the genuineness of the companion's conversion and continued: "… but I need to consider whether it's likely to cause you difficulties in Iran. What I'm not satisfied about is the history that you and the applicant have given me as to what happened to you between - I think it was about mid‑1995 and when you got to Australia. I've thought about it, … I've tried to believe it, and I just can't … I can only do the best with what I've got, and I've heard both of you now on three occasions, and I just don't believe it." 34 After some discussion with the applicant's solicitor about the weight to be given to the conversion of the companion and the fact that the applicant had not converted, the Tribunal member, in response to a question from the solicitor as to why the Tribunal was not satisfied that the accounts were true, said: "Because I don't believe it. I've listened to it, heard it. I've probably heard this four or five times now … and I still don't believe it. It's improbable stacked upon improbable. It is just not true in my opinion …" 35 Certainly it is true that there were some vigorous exchanges and sometimes the Tribunal member displayed impatience or irritation. But I do not think it is possible to conclude that actual bias is made out. By the end of the initial hearing the Tribunal member had formed a clear provisional view; during the second hearing evidence was given about the companion's conversion to Christianity; but the Tribunal member concluded that that did not assist him in accepting what he regarded as a highly improbable story. The Tribunal member might have been right or wrong, but I do not think he displayed actual bias as that concept is elucidated in Sun.

"Credibility tests" 36 The Tribunal member put two tests to both the applicant and his companion. First, he questioned each, separately and closely, about the means by which they had left the vehicle after the accident which they had described and as to the precise nature of the injury which the applicant had suffered to his shoulder. As to both aspects of the matter, great difficulties appeared to arise in translation, both as to whether the applicant and his companion managed to leave the van by kicking open the door or by kicking out bars on a window, and as to whether the applicant's shoulder was broken or dislocated. In the end, I do not think that that matter has any particular significance: the Tribunal member appears to have accepted that the account of each was consistent with that of the other. 37 The other test, on which the applicant, in written submissions, placed some reliance, raises rather different considerations. The Tribunal member asked the applicant and his companion to draw both the cabin above which they said they were secreted and the space within which they were concealed. The circumstances in which they were to produce the drawings, and did so, meant that each did so separately from, and without an opportunity of collaboration with, the other. Both produced drawings and handed them to the Tribunal member. Neither drawing is referred to in the reasons of the Tribunal member or in the discussion towards the conclusion of the hearings. 38 On the first day of the hearing before me neither drawing was available. Neither was included in the Tribunal's file. The applicant's solicitor had not seen them. When the hearing resumed, however, two documents were tendered. I was told that they had been found in the Tribunal member's own file. Each appeared to be a copy of a drawing of the cabin only, and in most respects the two drawings were very similar. Neither, however, showed the space in which the applicant and his companion said that they were concealed. The applicant's solicitor accepted that the two drawings, copies of which were tendered, were the only drawings that had been made. On that basis, counsel for the Minister persuasively submitted that the drawings were no more consistent with the accounts given than with an hypothesis that those who made them were familiar with the layout of cabins because they had been seamen; and the applicant's solicitor did not persist, after the tender, in any particular submissions about the drawings. 39 After the conclusion of the hearing, however, I noticed two matters which suggested that the applicant's concession may have been incorrect. An exchange between the Tribunal member and the applicant, after the applicant had completed his drawings, included this statement by the applicant, through the interpreter: "On the back side of that page there, … I've drawn the parts - the false ceiling that we were in." 40 Secondly, on the copy of the applicant's drawing there were, towards the top, some faint markings which indicated that something might have been drawn on the back of the original. 41 An inquiry of the parties elicited the response that there was indeed, on the back of the applicant's drawing of the cabin, what purported to be a drawing of the space inside the ceiling, indicating such things as airconditioning ducts and the particular portions of the space said by the applicant to have been occupied by him and his companion. No additional drawing by the companion, however, was found, and I must take it that he did not make a drawing of the space above the false ceiling. 42 The drawings are not mentioned in the reasons of the Tribunal (though the Tribunal does state that it has considered the documents submitted by the applicant). Nor does the transcript indicate that, when the applicant's companion handed his drawing to the Tribunal member, any comment was made on the absence of any attempt to draw the space within the false ceiling. It may be said, in passing, that there are sufficient indications in the transcript of difficulties and ambiguities arising in the translation of questions and answers to suggest that it is quite probable that the initial request to make the drawing was incompletely understood. At all events, it seems clear that the Tribunal member did not persist in his request that the companion draw the ceiling space and his reasons give no explicit attention to the requests for drawings or to the actual drawings produced. 43 In those circumstances, the question which arises (and it was raised by the applicant) is whether the Tribunal's decision is reviewable under s 476(1)(a) on the ground that it failed to comply with procedures required by s 420: that, in this respect, the procedures which it adopted did not provide a mechanism for review that was fair and just or that it did not, in a procedural sense, act according to substantial justice (Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300). In that context the following observations of Burchett J in Eshetu, at 314, 315, may be of particular relevance: "There was debate about the effect of s 425, but some things are quite plain. Subsection (1)(a) was intended to ensure that the primary rule of natural justice, audi alteram partem, requires a measure of recognition. Of course, it would be a very inadequate recognition if the right "to appear … to give evidence" did not extend to the provision of the evidence of witnesses who might, in some cases, perhaps in many cases, be able to give more significant information in support of the applicant's case than he could himself. But there are two answers to this problem: the command in 420 to "act according to substantial justice and the merits of the case" would not permit the Tribunal to ignore available and relevant evidence; and although par (b) of s 425(1) uses the word "may", it provides a clear instance of the use of that word to confer a power which will often involve an obligation. Once the Tribunal "considers [it] necessary" to obtain evidence, Parliament can hardly have meant that it should nevertheless be free to brush aside that necessity." 44 See also Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 120, 121 per Wilcox J and at 125, 126 per Burchett J. 45 Certainly the Tribunal "was not obliged to deal expressly with every item of evidence": Guo at 593 per Kirby J. Nor was it obliged to test the credibility of the applicant, or his companion, in any particular way. However, the crucial finding of the Tribunal was that the story told (however consistently) by the applicant and his companion was so improbable as to defy belief. In those circumstances, the Tribunal member took the entirely appropriate course of setting a test the result of which might assist him in deciding whether an account, which though not impossible he regarded as highly unlikely, should be accepted. While a seaman could easily enough draw the layout of a typical cabin in an Iranian merchant vessel, the prospect that the applicant and his companion would be able to produce, without collaboration, drawings of the ceiling space which were both consistent and not lacking in verisimilitude, might be regarded as remote unless their story was true. The alternative explanation, namely that the groundwork had been particularly well prepared by the applicant and his companion, might be regarded as unlikely. 46 Once the Tribunal had decided that the particular test of credibility would assist it in assessing the veracity of what it had been told and had requested the applicant and his companion to make the drawings, in my view, applying Eshetu, I should hold that the Tribunal, by failing to persist with the test to its completion and by failing to give it any consideration (even any mention) in its reasons, failed to observe procedures which s 420 required it to observe. On that ground, and on that ground alone, the applicant in my view is entitled to succeed.

Conclusion 47 Accordingly, the orders of the Court are that:

1. The decision of the Refugee Review Tribunal dated 31 August 1998 be set aside. 2. The matter be remitted to the Refugee Review Tribunal for further hearing and determination according to law. 3. The respondent pay the applicant's costs of the proceedings in the Court. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate: Dated: 10 March 1999 Solicitor for the Applicant: McDonell & Co

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 2 and 3 February 1999