NARU v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2004-07-07|Before: Stone J

Introduction 1 The applicants, a mother and son from Rift Valley Province in Kenya, arrived in Australia on 25 June 2001. They applied for protection (class XA) visas on 3 August 2001. The son makes no claim independent of those of his mother and I will therefore refer to her as the applicant. The application was refused successively by a delegate of the respondent and the Refugee Review Tribunal ('Tribunal'). They now apply, under s 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal's decision. The applicant's half-sister, who arrived in Australia on the same date as the applicant, made an independent claim for a protection visa, on claims almost identical to those of the applicant. The sister's application for review is the subject of a separate judgment; see NART v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 865. 2 The applicant is an elite athlete who, since 1977, has travelled extensively outside Kenya. She represented Kenya in the 1984 Olympic Games and has also competed in other international events. Between 1981 and 1984 she studied at the University of Arizona. In 1996 she went to the United States as a coach with the Kenyan Paralympics team. She came to Australia in 2001 to compete for Kenya in the World Veterans' Athletics Championships.

The Tribunal's decision 3 Before the Tribunal, the applicant based her claim to have a well-founded fear of persecution for a Convention reason on two grounds: the adverse political opinions imputed to her by the government as a result of her work with street children; and by the Mungiki sect as a result of her opposition to female circumcision. Initially the applicant also based her claim on her being of the Kikuyu race but she abandoned this claim before the Tribunal.

Work with street children 4 The applicant claims to have been involved, with her half-sister, in work with street children from the mid to late 1980s until her departure from Kenya in 2001. The applicant says that the work with street children, which was funded by the Catholic Church, received national and international publicity that embarrassed the Kenyan government and resulted in a number of problems that made it difficult for her to continue this work. The applicant claimed that she feared she would be killed if they returned home because of her criticisms of the government in relation to street children. She claimed that her high profile as an athlete meant that she would be found wherever she went in Kenya. 5 The Tribunal rejected this claim. The Tribunal member who considered the applicant's claim to fear persecution because of her work with street children also considered the claims of her sister and noted that the applicant's evidence regarding the involvement of the Church in the work with street children was at odds in some respects with the evidence given by her sister. Despite this the Tribunal accepted that the applicant and her sister had worked with street children, but did not accept that this work or the subsequent publicity would cause the applicant any significant problem with Kenyan authorities if she were to return home. 6 The Tribunal said that there were a number of groups working with street children in Kenya and there was no evidence that they were generally at risk of harm because of this. The Tribunal concluded: 'In any event … there has recently been a change of government and there is no reason to suppose that the new government, which appears to be making some efforts to assist street children, would harm [the applicant] because of her criticism of the previous government.'

Public opposition to female circumcision 7 The applicant also claimed to fear persecution from non-government sources because she and her sister were publicly opposed to female circumcision. In particular, she claimed that members of the Mungiki sect, who advocate traditional Kikuyu values and practices including the circumcision of women, had threatened them because of their involvement in this cause. She said that the police knew about the activities of the Mungiki but were afraid of them and could not, or would not help. 8 In support of her claim the applicant produced a letter signed by Wawira, Assistant Coach of the Nyahururu Athletic Training Camp of the Street Boys and Girls Sports Club in Nyahururu, Kenya ('Wawira letter'). The Wawira letter, which was addressed to both sisters, states that the training sessions for the girls whom the applicant and her half-sister used to coach had been suspended as a result of frequent harassment by members of the Mungiki sect, who had decided that the girls should undergo female circumcision according to Kikuyu tradition. According to the letter, the district coordinator of the Mungiki sect named the applicant and her half-sister as persons hindering the circumcision of the girls. The letter stated that if the applicant or her sister were to return home they would be arrested by the Mungiki and forced to undergo circumcision 'so that the young girls will follow suit'.

9 In relation to this issue, the Tribunal referred to 'serious inconsistencies' between the sisters' evidence, stating: '[The sister] claimed that children in the care of the church were frequently kidnapped and circumcised by Mungiki from about 1987 onwards. [The applicant] did not claim that the problems started so long ago and said that children in church care were protected, although others were sometimes taken by Mungiki.' 10 The Tribunal also put to the applicant its concerns that neither she nor her sister had referred to the issue of female circumcision until they were before the Tribunal. In particular the claim was not raised before the Minister's delegate. Both sisters explained that this was because they had been too ashamed to speak about the matter. The Tribunal did not accept this explanation, saying: 'I do not believe that someone who had actively campaigned against circumcision in Kenya would have been embarrassed to say so in her protection visa application.' 11 The Tribunal concluded that the applicant and her sister had concocted the claims regarding their problems with the Mungiki because, after the change of government in Kenya, they realised that they would not be successful in obtaining a protection visa on the basis of their Kikuyu race. The Tribunal continued: 'In reaching this conclusion, I have noted that letter from Wawira. I believe that this letter was prepared according to instructions from [the applicant and her sister] and I have given it no weight.' 12 The Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Kenya for a Convention reason and rejected her application for a protection visa.

This application 13 The amended application filed on 3 May 2004 lists three grounds, all of which relate to the Tribunal's treatment of the Wawira letter. They may be summarised as follows: 1. The Tribunal denied the applicants procedural fairness by not providing an opportunity for the applicant to respond to the Tribunal's assessment of the Wawira letter. 2. The Tribunal failed to take into account a relevant matter and relevant material by failing to consider the improbability of the Wawira letter being prepared under the instruction of the applicants when the Wawira letter referred to forcing the applicant to undergo circumcision although there was evidence before the Tribunal that the applicant and her half-sister were already circumcised. 3. The Tribunal's decision was irrational in failing to attach any weight to the Wawira letter.

The Wawira letter 14 At the hearing Dr Griffiths SC, who appeared for the applicant, read an affidavit of the applicant in which she refers to the Wawira letter and the Tribunal's comment in its reasons for decision that the letter was prepared on the instructions of the applicant and her sister. In that affidavit the applicant says: 'At no point during the hearing before the Tribunal or otherwise did the Tribunal Member say to me that she believed that the letter had been prepared according to instructions given by me and my sister or that the Member did not accept that the letter was genuine.' 15 She then lists a number of steps she would have taken had the Tribunal put the issue to her. The respondent did not seek to cross-examine the applicant on these statements and there is no reason not to accept them at face value. 16 Copies of a transcript of the applicant's interview with the Tribunal were annexed to and verified by the affidavits of Richie Rankin and Catherine McCarthy who are clerks in the employ of the solicitors for the respondent. While there are some obvious errors in the transcript it provides a coherent record of the interview with the applicant.

17 The transcript shows that early in the interview the Tribunal member said that she would let the applicant know if she had difficulty understanding or believing her. The Tribunal member added, 'I do this so that you'll have a chance to clarify these things for me and to explain the situation fully.' The Tribunal then questioned the applicant in some detail about the difficulties that were alleged to follow from her public opposition to female circumcision and referred to the Wawira letter asking, 'What's that all about?'

18 There was further dialogue on this issue between the applicant and the Tribunal following which the Tribunal asked why the applicant had not mentioned the circumcision issue and the Mungiki threats at an earlier stage. The applicant replied that she was too ashamed to mention it. The Tribunal then said: 'Right, I'll tell you what I told your sister which is that I have some difficulty believing that that is the case. I find it strange that you didn't mention these things before today and I also after speaking to both you and your sister, you've given a somewhat different picture of what it was like working for the children in Kenya during this time and the problems faced by the children. I have to say it seems to me more likely at the moment that you've raised this issue because there's been a change of government in Kenya and there's now a president who is a Kikuyu and a government that's different from the one you say might have harmed you before and that you raise these matters to try and have a better case for refugee status and that, while I don't doubt that you worked with street children and that there may have been some problems related to that, I think you've exaggerated them and made up a lot of the stuff about this sect and the problems that they've caused you.'

19 In a discussion with the applicant's advisor, after the Tribunal had concluded the interview with the applicant, the Tribunal expressed scepticism about the circumcision claim because it had not been raised earlier. The advisor made some submissions in support of the applicant's claim to have been embarrassed to which the Tribunal responded that there was a credibility issue but, 'I'll take on board what you've said when I look at it again'. The advisor promised to provide additional submissions and the Tribunal said to the applicant that if there was anything that she wanted the advisor to address in those submissions she was free to do so.

20 It is clear that the Tribunal did not put its concerns that the Wawira letter was not genuine to the applicant. Indeed, apart from the initial question about it, the Tribunal made no reference to the Wawira letter, either to the applicant or the advisor. Moreover the Tribunal's final comments to the advisor and to the applicant would have left them with the clear impression that the Tribunal was going to reconsider all of the information, material and submissions that had been presented. 21 If the Tribunal had not concluded that the Wawira letter was prepared on the instructions of the applicant or her sister it would have had substantial corroborative value. It is for this reason that the applicant says that the Tribunal's failure to provide her with an opportunity to respond to her conclusion about the letter is a breach of procedural fairness amounting to jurisdictional error. 22 It is well established that the precise factual circumstances are critical to claims of procedural unfairness. There are a number of cases in which factual circumstances broadly similar to those in this case have been considered and in which the outcome has depended upon the precise details of the relevant facts. The appellant in WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 ('WAHP'), who had also been refused a protection visa, initially based his claim for protection on his fear of persecution by the Taliban. Later, when the Taliban had been defeated and were no longer in control of the country he claimed that he had been imputed with an adverse political opinion by a Jamiat-i-Islami commander, for whom he used to work. At issue was the Tribunal's treatment of a letter from the appellant's mother warning her son not to return to Afghanistan because of this latter danger. The Tribunal held that the letter had been fabricated in light of the changed situation in Afghanistan. 23 Before a Full Federal Court, the appellant claimed that the Tribunal, in failing to put to him its view that the letter was a fabrication, had denied him procedural fairness. By majority the Full Court rejected this claim. The majority, Carr and Tamberlin JJ, were of the opinion that the Tribunal, in the course of questioning the appellant about the letter and the claim with which it was concerned, had raised with the appellant its critical concerns and had given him an opportunity to respond. Their Honours explained their view at [58]-[59]: 'The Tribunal can be seen to have assessed the likelihood that the events described in the Letter had taken place. It made an assessment, based on the other evidence before it, that those events simply did not take place. In effect, it was assessing a piece of evidence. It decided that the Letter contained a series of untruths. That is, the piece of evidence was not to be relied on. Having made that assessment, it was in our view, a logical conclusion on the Tribunal's part that the Letter was a fabrication. … The question for the Tribunal was to assess whether the events recited in the Letter occurred. In our opinion, in the light of the other evidence before it, it was open to the Tribunal to reject the contents of the Letter.'

24 In WAHP Lee J differed from the majority, not on the applicable law but on the approach he took to the facts. While his Honour accepted that the Tribunal had put its concerns about the content of the letter to the appellant, he held that it 'did not deal with the matter in any depth and at no point did the Tribunal put to the appellant that the letter presented by him had been fabricated.' His Honour pointed out at [27] that, 'this was not a case where the credibility of the applicant had been destroyed by comprehensive findings of untruthfulness that permitted the Tribunal to attach no weight to any purportedly corroborative material that person may have sought to rely upon.' In these circumstances, and without there being any probative material, his Honour was of the view that it was not open to the Tribunal to assert that the letter had been fabricated. In his Honour's view the Tribunal could have made further enquiries itself but, if it did not intend to do so, it should have informed the appellant of its assessment of the letter and given him the opportunity to present additional material to the Tribunal.

25 The importance of the Tribunal's assessment of an applicant's credibility in circumstances such as these is highlighted by the comments of McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 70: 'In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.'

26 In WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 ('WAGU'), French J, having referred to the above comments of McHugh and Gummow JJ said at [36], 'Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision. But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party's credibility.'

27 There can be a very fine distinction between the two alternatives put by French J. Mr Wigney, who appeared for the Minister, submitted that the facts in this case are indistinguishable from those in WAHP and that the Tribunal's belief that that letter was prepared on the instructions of the applicant 'flowed from and was a logical conclusion from its finding that the applicant's claims relating to the Mungiki sect were a recent invention.'

28 Not surprisingly, Dr Griffiths put forward a different analysis. He submitted that the Tribunal rejected the corroborative evidence of the letter on the positive basis that the letter was not genuine, without giving the applicant an opportunity to comment. He accepted that the Tribunal had indicated some scepticism about the letter but submitted that this was limited to the contents of the letter. He submitted that such a comment is quite different from saying that the letter was not genuine and that the applicant had arranged for it to be written. According to Dr Griffiths, the crucial aspect of the Tribunal's finding is that it involves not just a rejection of the contents or a decision to accord those contents no weight, but a finding that the letter was concocted, that is, a finding against the applicant's integrity. It is that aspect of the finding, he submitted, that puts the matter into the second category identified by French J in WAGU.

29 In WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 ('WACO') a Full Federal Court set aside a decision of the Tribunal because the Tribunal rejected a document which, on its face, was genuine without giving the applicant an opportunity to comment or to adduce evidence supporting the genuineness of the document. The Court accepted that the Tribunal was not obliged to put to an applicant its views as to the apparent falsity or unreliability of each and every matter raised by the applicant. Nevertheless the Court held that the Tribunal did have a duty to raise clearly 'the critical issues' on which an application might depend.

30 Ultimately, I do not think that one can reliably draw the fine distinction between the two alternatives identified by French J (see [26] above) by trying to find the case that most closely resembles the facts presently under consideration. Although previously decided cases are extremely helpful in alerting one to relevant considerations, it is the application of the fundamental principle of procedural fairness that provides the surest guidance. In WACO the Court said at [43]: 'In the broadest sense procedural fairness requires that an administrative tribunal is bound to hear a person affected by its decision before exercising its powers: FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 360 per Mason J. Underlying it is the entitlement of the person to know the case sought to be made against him or her and to be given the opportunity of replying to it: Kioa v West (1985) 159 CLR 550 at 582. As Mason J pointed out in that case at 583, 'natural justice and fairness are to be equated'. Whether procedural fairness must be afforded and the content of it will, where the decision made arises in a statutory framework depend upon the legislation pursuant to which the decision is to be made and all the circumstances of the case.' 31 The Wawira letter was crucial to the applicant's claims on the circumcision issue. On its face it provided strong corroboration of those claims. If accepted as genuine it may well have led the Tribunal to reconsider its rejection of the applicant's embarrassment as a reason for not raising the circumcision claim earlier. In circumstances where the Tribunal appears to have accepted the applicant's account of her experiences in Kenya other than the circumcision claims, its corroborative value was especially high. In those circumstances procedural fairness required that the Tribunal afford the applicant the opportunity to address its concerns about the genuineness of the Wawira letter. 32 Having regard to this conclusion, it is unnecessary to deal with the other grounds set out in the amended application. I will therefore order that (i) an order in the nature of certiorari be issued, directed to the Refugee Review Tribunal removing its decision in this matter, made on 29 April 2003, into this Court, for the purpose of quashing it; (ii) the decision be quashed; (iii) an order in the nature of mandamus be issued, directed to the Refugee Review Tribunal, requiring it to hear and determine the applicants' application for review according to law; and (iv) the respondent pay the applicant's costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Counsel for the Applicant: Dr J E Griffiths SC (pro bono)

Solicitor for the Respondent: Blake Dawson Waldron

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