CTHFCA

Pemaj v Minister for Immigration and Multicultural Affairs

[2001] FCA 635

Federal Court of Australia|2001-05-31|Before: O'Loughlin J

View original source

At a glance

Source facts

Court

Federal Court of Australia

Decision date

2001-05-31

Before

O'Loughlin J

Source

Original judgment source is linked above.

Judgment (37 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The applicant, Engjell Pemaj, who is a citizen of Albania, arrived in Australia on 24 January 1998. On 7 May 1998, a little over three months after his arrival, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 25 May 1998, a delegate of the Minister for Immigration and Multicultural Affairs refused his application. Mr Pemaj then applied to the Refugee Review Tribunal ("the Tribunal") for a review of that decision, but again he was unsuccessful. On 3 March 2000, the Tribunal affirmed the delegate's decision. Mr Pemaj now seeks from this court a review of the Tribunal's decision. 2 The applicant is a thirty-one year old married man from Shkoder in Albania; he said that he had worked there as a self-employed builder. He had come to Australia as part of a music group of seven, leaving his wife behind in Albania. His father, mother and sister also continue to reside in Albania. 3 On 5 February 1998, not long after Mr Pemaj left Albania for Australia, his father was involved in a road accident. The motor car that his father was driving collided with a motor cycle. The motor-cyclist, whose name was Vehbi Beqi, was killed. It was the case for Mr Pemaj that the Beqi family holds his father responsible for this death, even though the police had determined that his father was not at fault. He has further claimed that the Beqi family has insisted that custom dictates that he - as the only son of the father - must be killed as part of a blood debt. He said that he could not look to the State for protection as the police rarely take action in relation to blood debts. Mr Pemaj said that when he received news of the fatality, he was warned that he should not return to Albania. 4 In applying to this Court for an order of review, the applicant has alleged that: · the Tribunal's decision was wrong because procedures that were required by the Migration Act 1958 (Cth) ("the Act") to be observed in connection with the making of the decision were not observed; · the Tribunal's decision involved an error of law, being an error involving an incorrect interpretation of the applicable law and an incorrect application of the law to the facts; · the Tribunal's decision was induced or affected by fraud or actual bias; and · the Tribunal's decision was wrong because there was no evidence or other material that justified the making of the decision.

[3]

6 In the interval before the resumption of the hearing, the Minister filed, without objection, the affidavit of Katherine Matic, the Deputy Registrar of the Melbourne Registry of the Tribunal. Ms Matic explained that once a Tribunal member had made a decision on a review, the decision was signed by that member who forwarded it to a designated staff member within the registry. That staff member would place the Tribunal stamp on all copies of the decision; that decision is then known, within the Tribunal, as "the full version" of the decision. 7 The next step in the procedure is for a staff member of the Tribunal to invite the applicant and a representative of the Minister to be present "when the decision is handed down": see subs 430A(2). (That procedure is not necessary if the applicant is in immigration detention or if the Tribunal's decision is to be delivered orally.) Copies of the full version of the decision are given to the applicant and to the Minister's representative at the time when the decision is handed down. If a party does not attend, a copy of the full version of the decision is supplied to that party in accordance with the requirements of subss 430B(6) or 430B(7) (as the case may be). Another copy of the full version of the Tribunal's decision is placed on the applicant's file that is maintained by the Registry of the Tribunal. 8 There is an officer within the Registry of the Tribunal who has the title "Decision Bulletin Editor". A copy of the full version of the Tribunal's decision is forwarded to that officer who determines whether or not the decision is to be published more widely. The Principal Member of the Tribunal has issued a direction on the subject of publication and a copy of that direction was exhibited to Ms Matic's affidavit. A decision which the Decision Bulletin Editor has determined will be further published is thereafter edited by an appropriate staff member within the Registry to remove any information that is contained in the decision which may identify the applicant or any relative or dependent of the applicant. This editing process is carried out in accordance with the Tribunal's guide to the preparation of Tribunal Decisions for publication ("the Guidelines"), a copy of which was also annexed to Ms Matic's affidavit. 9 Ms Matic next explained that a senior staff member then checks this edited version of the decision to ensure that it complies with the secrecy provisions of the Act and the Tribunal's guidelines. If it does, the staff member certifies that the decision is suitable for publication. A copy of this certified version of the decision, which is known within the Tribunal as the "publication version", is then placed on the applicant's file and another copy is forwarded, electronically, to the Australian Legal Information Institute ("AustLII") for dissemination through the internet. This procedure was followed in Mr Pemaj's case and, in the course of the editing, changes were made to the factual material that appeared in the full version. 10 Following a request that was made on behalf of the applicant on 26 July 2000 under the Freedom of Information Act 1982 (Cth), the Tribunal released a copy of the publication version of the Tribunal's decision in this matter on 3 August 2000. No evidence was led to explain why the Tribunal did not release to the applicant or his authorised representative a copy of the full version, nor was any evidence given by the applicant about the whereabouts of his copy of the full version. 11 The circulation of the full version of the Tribunal's reasons and the later circulation of the edited - or publication - version has led to the submission on behalf of the applicant that the Tribunal's decision has been tainted by a procedural defect. The complaint that was advanced was to the effect that the Tribunal was not empowered to publish two different written statements of its decisions in relation to the same matter. 12 Part 7 of the Act is entitled "Review of Protection Visa Decisions". Divisions 2 to 5 of that Part contain detailed provisions that address the decisions that are reviewable by the Tribunal and manner in which the Tribunal is to exercise its powers, duties and functions in the course of its review. Central to the obligations of the Tribunal is the requirement in s 430 of the Act which requires the Tribunal to record its decisions. Subsection (1) of s 430 is in the following terms: "(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

[7]

13 When one considers the provisions of subs 430(1) of the Act, it is easy to see that the preparation of the full version of the Tribunal's reasons would be intended to address the requirements of that sub-section. Furthermore, the distribution of the full version of a decision to the applicant and to a representative of the Minister would satisfy the provisions of s 430B - the section dealing with the handing down of the Tribunal's decision and its distribution to the parties. The publication (if that is the correct word) of the publication version was not required by or authorised by the Act, but I do not see how its publication can amount to a failure to observe a procedure that was required by the Act. One might ask rhetorically: what procedure? The practice of the Tribunal in distributing the publication version is both sensible and practical. It avoids a breach of the secrecy provisions of the Act but it serves to disseminate information about the Tribunal's decisions which are of great value to practitioners and agents who work in the field. 14 There can be no doubt that the decision of the Tribunal in this case was the full version and it has not been suggested that the applicant did not receive the full version. I reject the attempt of counsel for the applicant to portray the published version as an official decision of the Tribunal. It is unfortunate that the publication version was given to the applicant's representative in answer to the request under the Freedom of Information Act, but the applicant must take some of the blame for that occurring. His advisers would not have needed to make the request if the applicant had given them his copy of the full version. 15 Mr Collett, counsel for the applicant, submitted that the object of the Tribunal's reasons must be certainty and clarity but, so he claimed, in this case, the two sets of reasons only created confusion. I do not agree. Once the initial confusion had evaporated and the practice of the Tribunal had been explained through the affidavit of Ms Matic, it seemed to me that the applicant's complaint in this area had likewise evaporated. 16 I agree with Ms Maharaj, counsel for the respondent, that the distribution of the publication version to the public at large was for a purpose that differed from the purpose for the distribution of the full version. The purpose for the distribution of the latter was personal to and specifically for the applicant and the Minister. As such, it had to comply with the provisions of the Act. That was a "procedure" that was required by the Act and it was a "procedure" that was followed in this case. The purpose for the distribution of the publication reasons was for general information for the public at large. I cannot see how it could be said that the Tribunal failed to observe a procedure that was required by the Act or the regulations to be observed in connection with the making of its decision. It would, however, be desirable for the Tribunal to endorse its publication reasons with a statement that it is an edited copy of its full reasons because of the secrecy provisions of the Act, but that is an administrative issue. It is not a reason to justify the intervention of the Court. 17 For these reasons, I am of the opinion that there is no substance in this complaint.

[8]

ERROR OF LAW 18 The applicant claimed that the Tribunal applied the wrong test in assessing his evidence in support of his claim for a protection visa. In particular, it was alleged that the Tribunal placed upon the applicant a burden of proof which he, given the nature of his claims, could not possibly meet. It was also said that the Tribunal placed on the applicant an onus of proving each part of his case instead of assessing, overall, whether the applicant's statements were coherent and plausible. The Tribunal should have, so the applicant maintained, adopted a liberal attitude towards proof, given the difficulties faced by the applicant in proving his claim; the Tribunal, additionally, should have provided the applicant with the benefit of any doubt in the course of evaluating his evidence. It was said that the Tribunal did not apply the "well founded" or "real chance" test to the numerous subsidiary issues that were listed in over five pages in his amended application for an order of review. 19 I do not think that it is necessary to list, seriatim, each of the complaints that were advanced in support of this ground of review. Most of them, no matter what name may be given to them, amount to "nothing more than a number of reasons for disagreeing with the Tribunal's views on the merits of the case": Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [56] per Gleeson CJ and McHugh J. The task of the court in an application such as this is not easy; it is necessary to constantly remind oneself that this is not a merits review. As Spender J (with whom Carr and Tamblin JJ agreed) said in Brakni v Minister for Immigration and Multicultural Affairs [2001] FCA 48 at [10]: "It is not an error of law, within the grounds of review set out in s 476 of the Act, that conclusions of fact drawn by the Tribunal are unreasonable or may seem to be unreasonable to another, or that other minds would not have reached the same conclusion." Paragraph 2.2.6 of the applicant's amended grounds is an example of the applicant's attempt to achieve a merits review. It was in these terms. "2.2.6 the Tribunal found that: 'as a result (of its rejection of the claim that the applicant was the target of revenge) the Tribunal does not accept that any of the documents provided by the applicant represent the truth of the situation' (emphasis added) This statement demonstrates the claim that the Tribunal applied an evidentiary standard which effectively required the applicant to prove or produce independent corroborative evidence on all subsidiary issues before it accepted the veracity of his claim. The Tribunal rejected all verbal and documentary evidence supplied by the applicant on the basis that it was not satisfied that if the Applicant's father was involved in a motor vehicle accident the Applicant would become the prime target for revenge. This rejection was not based on an adverse finding of credit relating to the applicant or the Applicant's witnesses."

[13]

25 In its findings, the Tribunal accepted that there are blood feuds in Albania and that it is possible for a blood feud to arise as a result of a fatal car accident. However, it rejected the applicant's case, dismissing it and the documentary and oral evidence that was advanced in support of it as a fabrication. The Tribunal made the following observations and reached the following conclusions: · it was not satisfied that, if Mr Pemaj senior was involved in a fatal motor car accident, the applicant would become the prime target for revenge; · it would be any male member of the family who would be targeted; · it would be the father who would be most at risk; · it was "far fetched" that the Beqi family would telegraph to the Pemaj family "the person they most want and even more far fetched that they should pick on someone who is not even in the country"; · the fact that the documents that Mr Pemaj produced to the Tribunal (which were sourced some time in 1999) indicated that it was he who was the one who was sought by the Beqi family, when he had not been in the country for almost two years, highlighted "the far fetched nature of this claim". 26 Counsel for the applicant, relied heavily upon the decision of a Full Court of this Court in Minister for Immigration and Multicultural Affairs v Asif [2000] FCA 228 and, in particular, upon the following passage: "In disposing of the case on the basis it did, the Tribunal went beyond making a mere error of law and went beyond adopting an erroneous approach to the task committed to it of finding the relevant facts. Its steadfast refusal to evaluate the probative force of any of the evidence from sources other than the respondent himself that was relevant to the issue on which it based its decision shows that once it became convinced that the respondent was a wholly untruthful witness the case was over: from that point, the respondent had to lose, irrespective of how cogent the body of evidence he produced from others was on the issue of his attitude to his marriage and to his wife at the earlier (as well as the later) relevant date." [32]

[18]

34 There is a fundamental illogicality in the applicant's story. It is his claim that, although the Beqi family regard the applicant's father as the person who was responsible for the death of Vehbi, the Beqi family has vowed that they will take revenge and seek the death of a member of the Pemaj family who was not in Albania at the time of the death and who continues, to this day, to remain outside that country. Instead of seeking their revenge against the father - the person who allegedly was responsible for the death and who continues to live in Albania - the Beqis proclaim that they will seek revenge against the father's only son. Presumably, the Beqis know that the applicant is living in Australia, but how are the Beqis to know whether the son will ever return to Albania? There is, of course, on the other hand, a fundamental illogicality about the thinking of people who engage in blood feuds; one must be careful not to lose sight of that fact. Nevertheless, if there was a fatal accident and if the Beqis are determined to have their revenge, why not attempt to extract that revenge on Mr Pemaj senior when they have no way of knowing whether they will ever have the opportunity to kill the absent son? 35 These were the sentiments that are apparent from a reading of the transcript and the Tribunal's reasons and, in my opinion, it was reasonably open to the Tribunal to make findings in terms that are consistent with those sentiments. They led the Tribunal to the conclusion that the applicant's story about the Beqi blood feud was a fabrication. This in turn meant that the blood feud documents were also fabrications. The Tribunal was prepared to take that extra step because of the country information that pointed to extensive corruption in Albania. 36 It is not to the point to contemplate that another person might have reached a different conclusion. The primary judge in Hossain v Minister for Immigration and Multicultural Affairs [2001] FCA 46 held that he was not entitled to interfere with or reverse a factual finding of the Tribunal where the Tribunal had said that the applicant was lacking in credibility. The Full Court said that the primary judge in coming to that conclusion was "plainly correct". As Gleeson CJ pointed out in Re the Refugee Review Tribunal; exparte Aala (2000) 176 ALR 219 at par 4: "Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive."

[23]

I do not consider that the circumstances to which the Full Court referred are present in this case in view of the Tribunal's basic finding that it rejected Mr Pemaj's evidence. 41 In criticising the reasoning of the Tribunal, Mr Collett pointed out that the Tribunal had said that it did not accept that any of the documents provided by the applicant represented the truth of the situation: the Tribunal had said that the documents had been concocted. In fact there were some documents, such as a "Certificate of Family" and a certificate that dealt with the applicant's educational status, which, by their nature, were quite innocuous. Another document was his wife's birth certificate and yet another was Mr Pemaj's marriage certificate. Nothing in the reasons of the Tribunal pointed to these documents, or any of them, being false in a material particular. The applicant also provided a number of newspaper articles about the code of Lek Dukagjini and about "blood" killings in Albania. The articles referred to the subject of violence and blood feuds but they did not refer to the Pemaj-Beqi accident. As the Tribunal had not denied the existence of blood feuds in Albania, a reasonable interpretation of its reasons requires one to conclude that it was not suggesting that the newspaper articles were fabrications. 42 There were therefore three sets of documentary evidence before the Tribunal. The first of them, the documents that alleged the existence of a Pemaj-Beqi blood feud and the danger to the applicant can be called, for convenience, "the blood feud documents". The second group will be referred to as "the family certificates" and the last will be called "the newspaper articles". 43 It is true, as Mr Collett has claimed, that the Tribunal, in its reasons, did not differentiate between the three groups of documents when stating its conclusions. Thus the Tribunal said: "As a result the Tribunal does not accept that any of the documents provided by the applicant represent the truth of the situation."

[33]

NO EVIDENCE 58 In Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181, a Full Court of this Court discussed at length the "no evidence" ground for review. In that case the applicants for protection visas were a Sinhalese couple - a husband and his wife. Their claimed fear of political persecution was based on them having permitted Tamils to reside in their house in Colombo from time to time. In rejecting their claims for refugee status, the Tribunal relied primarily on inconsistencies in the evidence that the applicants had adduced about the length of time that the Tamils had stayed in their house. Thus Mr Indatissa said that about twice a month various Tamil friends had stayed overnight. However, the translation ("the first translation") of a letter that his father had written, and which was tendered before the Tribunal, read that the friends "stayed at our house several times for a month". When the matter came before a single judge of this Court on review, he received, without objection from the Minister, another translation ("the second translation") of the father's letter which relevantly said that the friends stayed "several times a month". The word "for" did not appear in the second translation. The Full Court noted that there was no suggestion before the primary judge that the second translation was other than accurate. The Court also went on to say that: "No attempt was made by the Minister to adduce evidence to rebut that evidence. His Honour concluded, therefore, that the Minister tacitly conceded that Mr Jayakody's translation '(i.e. the first translation)'was erroneous and that the supposed discrepancy between Mr Indatissa's account and that of his father did not exist. His Honour concluded, on the basis of the new translation evidence and what was said by the interpreter during the course of the hearing before the Tribunal that there was 'in fact no discrepancy of the type referred to by the Tribunal in its reasons for decision'. His Honour concluded, therefore, that the ground provided for in s 476(1)(g) was established by the respondents. [22] Section 476(1)(g) provides as follows: '(g) that there was no evidence or other material to justify the making of the decision'."

[35]

61 The Full Court then proceeded to examine and analysis the provisions of par 476(1)(g) and par 476(4)(b), emphasising that the power of the Court under subs 476(1) generally and par 476(1)(g) in particular does not extend to "a re-examination of any of the factual matters ventilated before the Tribunal". As the Full court explained there are three requirements for establishing the ground of par 476(1)(g) as qualified by par 476(4)(b); first there must be no evidence or other material to justify the making of the decision; secondly, the decision that is under review must be based on the existence of a particular fact; finally, there must be a finding that the particular fact did not exist. The Full Court went on to point out that the presence of the last two requirements - reliance on a fact that did not exist - is not sufficient. In other words, there might be a case where a Tribunal relied on a non-existent fact but there was other evidence or other material that justified the making of the decision. 62 Applying those principles to the facts in the Indatissa case, the Full Court concluded that if the Tribunal's decision was based on the existence of a particular fact, namely the discrepancy between the evidence of Mr Indatissa and the translation of his father's letter, there was evidence in the form of the first translation that was capable of supporting the existence of such a fact. That was the end of the matter. The Full Court held it was impermissible for the primary judge to take account of the second translation to contradict the evidence that was before the Tribunal. The appeal of the Minister to the Full Court was allowed and the decision of the Tribunal was thereby restored. 63 There is no reason why a credibility issue should not be encompassed by the "no evidence" ground. That is clear from the decision of a Full Court in Minister for Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023 at 217 "Often, the Tribunal rejects a visa applicant's claims because the applicant is found not to be a credible witness. There is no reason in principle why a finding of fact upon which that conclusion as to credibility is made should not constitute a particular fact as that expression is used in s 476(4)(b). Whether or not such a finding does so qualify will depend on the circumstances of a particular case. Similarly, there is no reason in principle why, if it is shown that that fact did not exist, the ground of review available under s 476(1)(g) and (4)(b) should not be made out."

[36]

That statement does not, of course, suggest that the first of the three requirements can be overlooked. The case for the applicant was advanced upon the premise that the Tribunal had erroneously stated that all documents presented to it - that is, not only the blood feud documents, but also the family documents and the newspaper articles were false. Thus it was argued that: · the Tribunal's decision was based on the existence of a particular fact - that is, that all three categories of documents were false; · the particular fact did not exist in that it was reasonably obvious that the family documents and the newspaper articles were genuine; · there was no evidence or other material to justify the making of the decision that all three categories of documents were false. 64 There are, in my opinion, two answers to this complaint. In the first place, I have concluded that a fair and reasonable reading of the Tribunal's reasons justifies a conclusion that the Tribunal was not referring to all three categories of documents but only to the blood feud documents. If that conclusion is correct then it completely answers the "no evidence" ground. If, however, I am wrong and if the Tribunal did intend, erroneously, to include all three categories of documents in its findings, then there is still a problem which, in my view, is an insurmountable problem for Mr Pemaj. The decision at which the Tribunal arrived was a decision that Mr Pemaj was not entitled to the grant of a protection visa. The evidence and other material that was before the Tribunal and which justified its decision was the evidence of Mr Pemaj which the Tribunal classified as a fabrication. So expressed, it leads to the conclusion that the "no evidence" ground is not available to Mr Pemaj even if the Tribunal erroneously classified all three categories of documents as false. 65 I have therefore come to the conclusion that this application must be dismissed with costs. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.

Pemaj v Minister for Immigration and Multicultural Affairs - [2001] FCA 635 - FCA 2001 case summary — Zoe

Pemaj v Minister for Immigration and Multicultural Affairs

At a glance

Court

Decision date

Before

Source

Judgment (37 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (15)

Cited By (1)