QAAR v REFUGEE REVIEW TRIBUNAL

the reasons of the tribunal 25 The R R T evaluated the claims of the Appellant, the evidence before it and approached the determination of the issues in this way. (a) The history of the events relied upon by the Appellant was the basis of a claim that the Appellant would be killed if he returned to Kampala. The claim was that, "the LRA was looking for him in case he revealed anything about them" and that the Appellant feared "the government would mistake him for a rebel spy and would charge him with treason". (b) The statement of the Appellant in support of the review was reproduced in the decision in full in order to "do justice" to the claim, in undertaking the review. (c) The supplementary comments in the Appellant's letter of 21 January 2005 responding and answering criticisms of the delegate were considered. Those matters included the adverse inference concerning the long delay between obtaining a passport and first leaving Uganda, the apparent geographic anomaly of studying in Kampala and living in Lira (for an overlapping time), the explanation of the use of disguises and pseudonyms whilst nevertheless working full time and a matter of the Appellant's transfer from a boarding school in a safe region in Jinja, southern Uganda to Lira in the north. (d) As to the oral evidence of the Appellant about the core events, the Tribunal found the Appellant's account was "unusual in several respects" and the Tribunal had "difficulty" accepting the Appellant's evidence. The evidence seemed, to the Tribunal, inconsistent with reports of LRA rebel behaviour generally. The Appellant's evidence of his escape, return to the Lira village and suspicion of being a rebel, seemed inconsistent with a pattern of other individuals rescued from LRA activity, continuing to live peacefully in Lira and other towns affected by LRA activity. (e) The Appellant's evidence of living in Kampala uneventfully for 18 months before departing to Australia seemed inconsistent with a genuine fear of persecution. The evidence of living in fear, using false names and false identity seemed inconsistent with documents submitted to the R R T such as land title documents, car registration papers, correspondence from the Appellant's University, a letter from Euroflex Ltd and other documents all in the name of the Appellant and not an assumed name or names (but for one document, an ID card). (f) Although the Appellant had submitted a letter in support of the visa application written by the Appellant's brother and sister-in-law on his behalf, the Appellant conceded that he had no brother and that "he had to do anything to get out of the country". (g) The Appellant was tested on his evidence of leaving Uganda to go to Kenya and return and the urgency to leave Uganda to go to Australia. (h) The Appellant contended that he had additional evidence which he could not give to the Tribunal without a guarantee of protection and the Tribunal encouraged him to provide that evidence as it would be to his advantage. The Tribunal observed that the Appellant had lived in Kampala for almost two years without anything happening to him and the Appellant's conduct in Kampala did not seem to be consistent with "a well-founded fear of anything in Kampala". (i) In response to the invitation to provide any additional information, the Appellant responded that he had an article from "The Monitor" of 16 October 2003 with his picture in it. The Tribunal notes its concern about the genuineness of the article, the letter of concern to the Appellant of 15 June 2004, the Appellant's further assertion of the genuineness of the article in his letter of 26 June 2004 and the Tribunal's letter of 23 July putting the Appellant on notice of its continuing concern which would be damaging to the Appellant on questions of credibility concerning the claims in general unless comments from the Appellant could properly deal with the concern. (j) The Tribunal notes that the Appellant's letter of 26 June addresses the conduct of LRA collaborators and the extent to which, in order to survive, the Appellant had to engage with the rebels which, in turn, brought the Appellant into contact with "double faced" … "top government officials". The Appellant's contention was that the rebels and their collaborators, within government, would hunt him down and kill him. (k) The Tribunal notes the Appellant's request for time to respond to the letter of 23 July in particular with a view to the Appellant providing the Tribunal with a copy of the warrant of arrest and original copies of newspaper cuttings. The Tribunal notes the handwritten letter from the Appellant's friend of 12 August 2004 referring to an arrest warrant (Appeal Book 143) and what appears to be the facsimile transmission record of Transworld Property Ltd. (l) The Tribunal notes the Appellant's letter of 25 August 2004 and the failure to address the matter of authenticity and observed, "[the Appellant] attached what purported to be a copy of an arrest warrant for himself dated 12 February 2004 and various newspaper articles on the activities of the LRA and some political commentary on those activities. The warrant was also apparently faxed from Transworld Property Ltd. The newspaper articles do not mention the Applicant". (m) The Tribunal then reviewed country information reports which dealt with the humanitarian issues in Uganda, the routine abduction of children by the LRA to serve as slaves and fighters, atrocities on the part of the rebels, the program of the Ugandan government in its campaign against the rebels, the determination of President Museveni to rid Uganda of the rebels, government failures in that regard, "Operation Iron Fist" by the government aimed at crushing the LRA rebels, the perception that only when the government "picks up its duty to protect and care for its people" that the guns may finally be put down and other matters. 26 Against the background of all of these considerations and this approach to the assessment of the claims, the R R T made a series of findings and reasons for those findings. They are these. The Tribunal had "great difficulty" with all of the Appellant's evidence but for his claim to be a citizen of Uganda. The Appellant's description of his capture, escape and re-capture was found to be "not credible". In particular, the notion that the Appellant, upon re-capture, had not been executed, seemed entirely inconsistent with the reports of the merciless attitude of the LRA. The Tribunal found that it might have accepted the Appellant's evidence, apart from general reservations, but for other inconsistencies. Those were: (a) the Appellant obtained a passport on 1 November 2002 yet did not leave Uganda for Australia until 28 September 2003, without making any alternative attempts to leave Uganda; (b) in August, the Appellant left Uganda to western Kenya but quickly returned. The Appellant made no attempt to reach the capital of Kenya, Nairobi where international welfare agencies including UNHCR have offices; (c) such actions on the part of the Appellant could not be characterised as actions of a person in fear of his life. The explanation that he could not leave Uganda because he did not have enough money seemed inconsistent with a genuine fear for his life especially since other alternatives closer at hand and less expensive were available to him; (d) the Appellant produced no corroborating evidence that while in Kampala he had any reason to fear harm. 27 Apart from these matters, the Tribunal identified specific claims which could not be sustained. The Appellant claimed to have lived incognito in Kampala using a variety of different names. However, apart from a company ID card, every document used the Appellant's correct name. Further, the "copy" of The Monitor newspaper article had been shown to be a forgery which "further undermines his general credibility". 28 The Tribunal then comes to a conclusionary finding in these terms, "Accordingly, for this reason and because of my inability to accept his other claims, I do not accept that the warrant for his arrest is genuine. I am reinforced in this view because I find it implausible that such a warrant should be issued five months after he arrived in Australia and two years after he arrived in Kampala". The Tribunal in reliance upon these matters concludes as follows: "For all these reasons, I do not accept that the Applicant's village was attacked by the LRA or that his parents were killed by them. I do not accept that he was captured and tortured by the LRA, or that he escaped in the circumstances he has described or that either the LRA or the government is looking for him, the one to kill him and the other to arrest him. As to the alleged shooting incident in a restaurant in Kampala, no hard evidence (as distinct from the applicant's speculation) is before me as to the reason for the shooting. For this reason and my general problems with the applicant's credibility, I cannot be sure that the incident took place, but, even if it did, as a link to the applicant has not been established, I do not accept that it indicates that a threat exists to the life of the applicant in Kampala. In short, I do not accept that there is a real chance of the applicant suffering harm for a Convention reason should he return to Uganda in the foreseeable future." 29 In consequence, "having considered the evidence as a whole", the Tribunal could not be satisfied that the Appellant is a person to whom Australia has protection obligations under the Convention as amended by the Protocol consistent with the statutory criterion in s.36(2) of the Act.

the application to the federal court of australia 30 On 5 November 2004, the Appellant filed an application in the Federal Court of Australia seeking the issue of the constitutional writs by way of a review of the decision of the R R T. The grounds of the application are first, that the R R T made a jurisdictional error in that it identified a wrong issue or, alternatively, relied upon irrelevant material in a way that affected the exercise of its power, in making a finding that The Monitor newspaper article was not an authentic reproduction of the relevant page of The Monitor without attempting to either determine whether the alleged lack of authenticity was in any way concerned with the article in question or without obtaining a copy of the information supplied to the Australian High Commission in Nairobi which the R R T could have easily obtained by facsimile transmission. 31 Secondly, the R R T made a jurisdictional error in that it identified a wrong issue or, alternatively, relied upon irrelevant material in a way that affected the exercise of its power, in making a finding that the arrest warrant issued on 12 February 2004 was not genuine based on another unconnected finding that The Monitor newspaper article was not genuine. 32 Thirdly, the R R T made a jurisdictional error by identifying a wrong issue or, alternatively, relying upon irrelevant material going to the exercise of the power, in making a finding that the Appellant's credibility was suspect based upon claims made by the Appellant that: (a) the Appellant was abducted by the LRA when the Tribunal concluded that only children are abducted by the LRA whereas contemporary country information indicated that young adults such as the Appellant as well as children are routinely abducted by the LRA; (b) the Appellant had escaped from the LRA and been re-captured without execution whereas it was the unsubstantiated position of the Tribunal that immediate execution was the inevitable result of an attempted escape; (c) the Appellant had lived incognito in Uganda whereas it was the position of the Tribunal that as the Appellant still had significant formal documentation in his own name, incognito living was not likely. 33 Fourthly, the R R T denied the Appellant procedural fairness in that the Appellant was not provided with nor had explained to him particular written materials. 34 Fifthly, the materials referred to for the purposes of ground 4 were generalised, not contemporaneous and gave an unbalanced view of the true state of affairs in Uganda nor had any bearing on a Contravention ground. 35 Sixthly, the R R T denied the Appellant procedural fairness in that the Tribunal failed to allow the Appellant the right to make submissions on his grounds and comment upon adverse material sourced by the Tribunal during the course of the hearing. 36 On 3 December 2004, Dowsett J remitted the hearing of the application to the Federal Magistrates Court of Australia.

the decision of federal magistrate jarrett 37 His Honour reviewed the background facts. As to ground 1, the Appellant abandoned the ground once it became clear that the R R T had obtained on 27 July 2004 a copy of the authentic page 12 of The Monitor newspaper for 16 October 2003 from the Australian High Commission. As to the question of findings concerning the credibility of the evidence given by the Appellant, His Honour found that in relation to the matters referred to at [31], the R R T was entitled to form the view of the facts that it did based upon the evidence before it. As to the question of the warrant of arrest, His Honour found that whilst it was open to the R R T to make its own enquiries as to the authenticity of the warrant, it had no obligation to do so. The R R T was entitled to rely upon the findings of credibility generally as a basis for determining that the warrant was not authentic. His Honour took the view that the Appellant was "simply trying to overturn the findings of credibility by demonstrating that there might be some evidence that shows that the Tribunal's determination was wrong". His Honour took the view that even if the Tribunal had made an error of fact, the error did not establish a jurisdictional error. As to grounds 4 and 5, His Honour took the view that the material had been put to the Appellant and that proper particulars of those matters had been given to the Appellant. As to ground 6, His Honour took the view that the Appellant was provided with an oral hearing, an opportunity to attend and give evidence, an opportunity to respond to concerns of the R R T and an opportunity to present his case. Since no jurisdictional error or lack of procedural fairness had been demonstrated, the application was dismissed.

the notice of appeal 38 A Notice of Appeal was filed by the Appellant on 4 April 2005. At the commencement of the hearing of the appeal, Counsel for the Appellant sought leave to file an Amended Notice of Appeal. The grounds relied upon in the Amended Notice of Appeal are these: "1. The court erred in failing to find that the Tribunal had fallen into jurisdictional error, failed to exercise its jurisdiction, failed to review the decision and identified a wrong issue, or asked the wrong question or alternatively relied on irrelevant material in a way that affected the exercise of its power in that: (a) the Tribunal based its decision and reasoning process on the Appellant's claims for status as a refugee upon the cumulative grounds of fear of persecution from the LRA instead of the correct basis of the distinct and discrete claims of fear of persecution from LRA and fear of persecution from Government authorities; (b) the Tribunal identified a wrong issue or alternatively relied on irrelevant material in a way that affected the exercise of its power in making a finding that the arrest warrant issued on 12 February 2004 was not genuine based on another unconnected finding that The Monitor newspaper article was not genuine; (c) the Tribunal failed to make findings in relation into the warrant of arrest in the context of the basis of the claims made by the Appellant for a well-founded fear of persecution from Government authorities for a Convention reason 2. The court erred in failing to find that the Appellant was denied natural justice and procedural fairness when the Tribunal did not give to the Appellant an opportunity to make submissions or be heard on: (a) the authenticity of the warrant for arrest; (b) the Appellant's claims in relation to the warrant for arrest as evidence that the Government authorities were looking for him and to arrest him; (c) the Tribunal's reliance on country information which was not directly relevant to the issues raised by the Appellant nor had any direct bearing on the proper considerations for a Convention ground." 39 These grounds of appeal represented a substantial reformulation of the Notice of Appeal particularly in relation to the contention that the Tribunal had fallen into jurisdictional error by failing to conduct a review of the decision and therefore failed to exercise the statutory jurisdiction of review since the Tribunal had misdirected itself as to the basis of the Appellant's claim to be a refugee (Ground 1(a)). The contention is that the R R T asked itself the wrong question and addressed the wrong issue by analysing simply whether the Appellant held a well‑founded fear of persecution from LRA rebels and failed to ask whether the Appellant held a well-founded fear of persecution from government authorities. This notion of a failure to comprehend the true scope of the Appellant's claim thus causing the exercise of the jurisdiction to miscarry was not raised in the initial Notice of Appeal nor in the application before His Honour Federal Magistrate Jarrett. It arose for the first time in the proposed Amended Notice of Appeal. 40 The Appellant contends that grounds 1(b) and (c) were raised before the Magistrate in argument. Essentially, the contention is that the R R T evaluated a body of evidence, made adverse findings about the credibility of the Appellant, rejected the Appellant's evidence and then, without testing the contention that the Appellant was the subject of a valid and subsisting warrant of arrest issued by the Government of Uganda, applied its findings on credit to reject the warrant as genuine. Thus, the R R T took into account an irrelevant consideration in deciding the authenticity of the warrant and denied the Appellant procedural fairness in failing to provide the Appellant with an opportunity to demonstrate the authenticity of the warrant and the claims evidenced by the warrant. Those matters also go to grounds 2(a) and (b) of the proposed Amended Notice of Appeal. 41 As to grounds 1(a) and (c), concerning the contention that the R R T failed to recognise a discrete claim based upon a fear of persecution from government authorities, the Appellant sought leave to introduce these grounds in reliance upon the principles expounded by the Full Court of the Federal Court; Hill, Madgwick & Conti JJ in Najt v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 (24 August 2005), paras. [154] to [175] and, particularly, at para. [166]. Madgwick J identified the relevant questions in determining whether leave should be given to introduce new grounds as these. "1) Do the new legal arguments have a reasonable prospect of success? 2) Is there an acceptable explanation of why they were not raised below? 3) How much dislocation to the Court and efficient use of judicial sitting time is really involved? 4) What is at stake in the case for the appellant? 5) Will the resolution of the issues raised have any importance beyond the case at hand? 6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? 7) If so, can it be justly and practicably cured? 8) If not, where, in all the circumstances, do the interests of justice lie?" 42 As to these questions the Appellant says: 1) That matter needs to be tested before the Court on the appeal to form a view and in any event it was raised before the Federal Magistrate in submissions as revealed by the transcript. 2) The Appellant was not represented before the R R T although it is true that the Appellant was represented before the Federal Magistrate. 3) Introducing this ground will not occupy a larger amount of time or result in longer judgment writing time. 4) The "stakes" here, in the case of a refugee are very high. An adverse decision might have very serious consequences. 5) Probably not. 6) In reliance upon the comments of Hill J in Najt v Minister for Immigration & Multicultural & Indigenous Affairs (supra) to the effect that the Respondent Minister is not in the frequent position of a personal litigant at private risk of costs, prejudice may not be significant. 7) There are no wasted costs and the Respondent is not calling further evidence. In any event, there can always be liberty to apply for appropriate orders. 8) The serious consequences for the Appellant weigh the interests of justice in favour of the Appellant. 43 As to these matters, the Respondent's position is this. First, the Respondent has not sought to demonstrate prejudice because the proposal to introduce the new ground (and the Amended Notice of Appeal) arose after submissions by the Respondent were completed and served. Secondly, if the Appellant is simply amending its grounds of appeal on jurisdictional error, the Respondent does not assert prejudice because the question of whether the R R T fell into jurisdictional error requires an examination of the evidence that was before the decision-maker. Thirdly, if by ground 2 the contention is that the Court erred in failing to find a denial of natural justice because the Tribunal did not give the Appellant an opportunity to make submissions or be heard on the authenticity of the warrant, then the Respondent does not assert prejudice. As to the primary question of the new ground based on a failure to comprehend a discrete basis for a well-founded fear of persecution from government authorities, the Respondent says that the persuasive basis for an objection is the answer to the first of the questions identified at para. [166] of the judgment of Madgwick J in Najt v Minister for Immigration & Multicultural & Indigenous Affairs, namely, that the proposed ground of appeal has no reasonable prospect of success. The difficulty, of course, is that no sensible understanding of the merits of the ground can be determined without examining the content of the ground. The appropriate course then is to conduct the appeal on the assumption that leave has been given, determine the prospects of success of the ground and then determine whether leave to introduce the new ground should be given. 44 Accordingly, I propose to take that course. Ground 2(c) of the Amended Notice of Appeal is not pressed. 45 In addition to the application for leave to amend the Notice of Appeal, the Appellant sought leave to read and file two further affidavits. The first is an affidavit by Ann Davis sworn 27 August 2005 who describes herself as a business manager. The evidence sworn by Ms Davis seeks to address three matters. The first concerns details relating to the warrant of arrest (paras. 5 to 9 inclusive, particularly). The second concerns details relating to the genuineness of the controversial article published in The Monitor on 16 October 2003 concerning the Appellant (paras. 10 to 14) and the third concerns the formal admission of the transcript of the Tribunal proceedings. No objection is made to the admission of the transcript. The second is an affidavit sworn by the Appellant and the aim of that affidavit is to put before the Court what is described as the original arrest warrant. 46 As to the first matter, Ms Davis says this: "2. I further know of the doubts held by the Tribunal and the Federal Magistrate regarding the authenticity of certain records and in particular the Arrest Warrant issued by the Uganda Government for [the Appellant] and certain "Wanted" advertisements which appeared in The Monitor Newspaper in Uganda. 3. … 4. Sometime after the review by the Federal Magistrates Court, I had cause to be in contact with these certain people in Uganda for the purposes of obtaining evidence in relation to the authenticity of the abovementioned documents. 5. I was informed by the Appellant's former solicitor Mr Andrew Rouyanian, and I verify believe, that one Mr John Wagaba had been contacted by him through the Law Society of Uganda whereby Mr Wagaba was requested to search the Ugandan Court records for a copy of the Arrest Warrant relating to the Appellant. In this regard, I seek to rely on the Affidavit of Mr Andrew Ardashir Rouyanian, sworn 28 February 2005, at AP 8-35 herein. 6. In or around the month preceding the Federal Magistrates Court appeal, I was informed by Mr Rouyanian and I verily believe that he had not yet received an original copy of the said Arrest Warrant. 7. On or around 4th April 2004, I made contact with one John Wagaba by email at an address I obtained from Mr Rouyanian. I directly contacted Mr Wagaba in order to assist in obtaining the requested documentation from him, namely an Affidavit and the original Arrest Warrant. I received an email from Mr Wagaba within a short time which stated words to the effect that he had, in fact, attended on the Court House and viewed a copy of the original Arrest Warrant but was yet to provide an Affidavit verifying such as he had not received sufficient funds for payment of his services. Now produced and exhibited hereto marked with the letter "A" is a true and correct copy of my email and the email in response from Mr Wagaba. 8. Some further discussion ensued by email between Mr Wagaba and myself regarding the costs involved in obtaining certain evidence from him, in particular the affidavit and original arrest warrant. 9. Mr John Wagaba at my request provided me with a copy of his Affidavit sworn in Kampala Uganda on 5 April 2005 verifying his search in the Court records for the Arrest Warrant and verifying its authenticity. Now produced and exhibited hereto marked with the letter "B" is a true and correct copy of the Affidavit of Mr John Wagaba." 47 Mr Wagaba says in his affidavit sworn 5 April 2005: "I, WAGABA JOHN of Ssengooba & Co. Advocates, Plot 4 Parliament Avenue DESAI HOUSE, Kampal - Uganda do hereby solemnly swear and state as under:

1. THAT I, am a Lawyer in the said Firm. … 4. THAT I have searched the Court record in the referred Chief Magistrate's Court and have found the said Arrest Warrant to be in existence and reads in part: 'To: Every Police Officer In Uganda Police Force Whereas [the Appellant's name] of Atuke Village Lira District stands charged with the offence of treason C/S 25 of the Penal Code Act. You are hereby directed to arrest the said [the Appellant's name] and produce him before me as soon as possible. Herein fail not'. 5. The said Arrest Warrant was issued by the Magistrate on 12th day of February 2004 and it appears in Court records under CR1952/2002. …" 48 The Appellant by para. [7] of his affidavit sworn 27 August 2005 says "7. I note in particular that the copy arrest warrant I originally provided to the Tribunal did not disclose the Ugandan official seal which was an impressed seal which was only apparent upon viewing of the original warrant. In or about April 2005 I arranged for my friend Colin Kironbe in Uganda to obtain a copy of the original warrant for my arrest. Now produced and exhibited hereto marked with the letter 'A' is the original arrest warrant received from my friend." 49 The Appellant further says: "9. In the event that I had the above further material in my possession at the time of the Refugee Review Tribunal hearing or at the time that this matter was on appeal before the Federal Magistrates Court, namely the original arrest warrant with the seal apparent … I would have used this evidence to further establish and to provide further grounds on which the Refugee Review Tribunal Member and the Presiding Magistrate could have founded legitimacy in my fear of persecution for a convention reason. Further, I would have used the further material to establish that it was the government of Uganda not just the Lord Resistance Army that I sought to bring to the attention of the abovementioned decision-makers to support my fear of persecution for a convention reason. 10. Furthermore, the abovementioned material on which I seek to rely bolsters my credibility and also would have rendered more implausible the decision of the original decision-maker and a tribunal wherein they held that the authenticity of the evidence was questionable. The evidence as herein provided for assists in demonstrating the authenticity of the documents which were before the original decision-maker." 50 This evidence is said by the Appellant to be admissible on the appeal because the evidence of the warrant of arrest before the R R T included a copy of the warrant but the copy failed to reveal the impressed expression of a Court seal. Had the Court seal been an ink or black marked based identifying seal, it would have been obvious and apparent and "It's only to that extent that it's sought to be relied upon. It doesn't go any further than that" (Transcript, page 4, lines 2 and 3) 51 The Respondent opposes the admission of either affidavit. So far as the warrant is concerned, the questions alive on appeal are these: (a) Was the R R T entitled to rely upon adverse findings on credit arising out of its evaluation of other evidence to find the warrant of arrest was not genuine (1(b))? (b) Did the R R T appreciate in its evaluation of the genuineness of the warrant, its relationship to the Appellant's claim of a well-founded fear of persecution from government authorities (1(c))? (c) Should the R R T have given the Appellant an opportunity to make submissions and be heard on the authenticity of the warrant and its evidential relationship to a claimed Convention ground (2(a) and (b))? 52 The Respondent says, if the two affidavits are designed to demonstrate that the original arrest warrant is the same as the copy put to the R R T but bears a seal, Ms Davis's affidavit does not achieve that result. Ms Davis describes a sequence of steps to obtain a copy of the filed warrant from the Court in Kampala. The affidavit does not attach a copy but does attach Mr Wagaba's affidavit describing the warrant. The Respondent says the extract in Mr Wagaba's affidavit is inconsistent with the version before the R R T and the alleged original warrant attached to the Appellant's affidavit. No copy of the arrest warrant is attached to Mr Wagaba's affidavit and so the contended basis for receiving it through Ms Davis, is not made out. 53 As to the Appellant's affidavit attaching a warrant, the Respondent says the issue is, did the Tribunal look at the arrest warrant and not put its view to the Appellant. The Appellant is entitled to say it didn't and had it done so, the Appellant would have responded. Since it is not disputed the Appellant would have responded, evidence of the response on judicial review based on a denial of procedural fairness concerning what the Tribunal actually did is inadmissible. 54 In Waco v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171; 131 FCR 511; Lee, Hill and Carr JJ found the Tribunal had failed to afford procedural fairness to the applicant for a Protection Visa by finding letters central to the applicant's claim (submitted after the conclusion of the hearing) were not genuine, without giving the applicant an opportunity to be heard on that issue. Their Honours at para. [58] observed: "There can be a denial of natural justice where a decision-maker makes a finding on an important issue in a case without notice that the issue is the subject of any dispute and where the party affected adversely by that finding is not given an opportunity to be heard. That is because so to do will itself be unfair". 55 On the question of the evidential burden, Their Honours said, also at para. [58]: "It will not be necessary for the party alleging unfairness to put before the Court the evidence which he would have presented had there not been a miscarriage of justice. It is sufficient in such a case that the party has not been afforded an opportunity to put his or her case. Only where the case is one where it can be shown that the Appellant could not, even if given the opportunity to do so, affect the outcome would it be held that there was no denial of procedural fairness. If the possibility exists that the Appellant, if given the opportunity might be able to make submissions or call evidence which could affect the outcome, the Appellant will not fail merely because the Appellant has not proved that the submissions or evidence would affect the outcome". 56 Accordingly, although it is not necessary for a party to put on evidence of the content of a possible response in the face of a demonstrated failure to afford an opportunity to be heard on material question, evidence of that response or the possibility of a response that might reveal evidence affecting the outcome is admissible not with a view to establishing, on appeal, a controversy of fact or merits but simply as evidence of what might have been put had fairness been afforded. 57 Therefore leave is given to read the affidavit of the Appellant on the narrow ground contended for by Counsel for the Appellant. Since the affidavit of Ms Davis does not establish the matter sought to be established by its reception, leave is refused.

The Discrete Claim of Fear of Persecution by Government Authorities 58 The first question is whether His Honour erred by failing to find jurisdictional error in the evaluation of the Appellant's claims of a well-founded fear of persecution for a Convention reason. The contention is that the Tribunal undertook a process of reasoning which reflected a misunderstanding of the articulated basis of the claim by treating the evidence as going to a claim of fear of persecution by LRA rebels and not appreciating a discrete claim of fear of persecution by government authorities. In that sense, the R R T failed to properly exercise its dispositive powers. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 640 [44], their Honours French, Sackville and Hely JJ observed: "It is central to the exercise of the dispositive powers conferred by s.415 that the Tribunal has first conducted a review. That is to say, it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself. So much is contemplated by ss 423, 424, 425 and 426 of the Act." 59 In this case, the Appellant says the R R T misconceived one limb of the claim and the argument in respect of that claim and failed to make findings of fact concerning the second limb. In Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263, Black CJ, French and Selway JJ at [55] noted this "clearly established" ground of jurisdictional error in these terms: "[t]here is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on 'a substantial, clearly articulated argument relying upon established facts' that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction - Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95], Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act". 60 The R R T must consider all elements or "component integers" of the claim or claims Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259 [42]. The Tribunal is required to deal with the case raised by the evidence before it and not limit its determination to the case as articulated by an applicant if evidence and material raises a case not articulated Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63. If the claim is not "actively articulated" by the applicant, the unarticulated claim must nevertheless be raised squarely on the material available to the Tribunal before it has a statutory duty to consider it. In Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (supra) [58], Their Honours said: "The use of the adverb 'squarely' does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal". 61 Fundamentally, the Tribunal must respond to the case the applicant for a visa advances and although the applicant is not to be put, in a pleading sense, in a position of picking the correct "Convention label", the Tribunal ultimately can only deal with the claims actually made before it. In Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (supra) at para. [60], Their Honours embraced the notion that, "The question, ultimately, is whether the case put by the Appellant before the Tribunal has sufficiently raised the relevant issue that the Tribunal should have dealt with it". 62 In this case, the Appellant's application form which was before the R R T raised the notion that government authorities may have thought the Appellant was spying for the rebels and thus try and eliminate him, that government authorities would charge him with treason and seek to impose a death sentence upon him and that the authorities would not be able to protect him, would kill him and blame his death on the rebels [8]. The R R T expressly recognised that the Appellant's claim was based upon concerns that the LRA was looking for him and that the Appellant feared the government would mistake him for a rebel spy and would charge him with treason [25(a)]. The Tribunal referred to the Appellant's letter of 26 June [14] addressing the conduct of the LRA collaborators and the exposure that brought of him to individuals the Appellant described as "double-faced … top government officials" [25(j)]. In addition, the R R T reviewed a body of country information describing the approach of the Ugandan government to combating the rebels both by military means and in other ways. In the context of its review of these matters, the R R T expressly referred to the arrest warrant submitted by the Appellant and newspaper articles which, in turn, mention and describe aspects of the engagement between the military and the government. In making its conclusionary findings, the Tribunal expressly rejects the Appellant's evidence that either the LRA or the government is looking for him, the one to kill him and the other to arrest him [28]. The Tribunal then concludes, taking account of the entirety of the evidence as a whole [29], that it is not satisfied that the Appellant has a well-founded fear of persecution from anti‑government rebels in Uganda or from government authorities. 63 These findings are influenced substantially by adverse findings of credibility on a range of the factual matters put before the Tribunal by the Appellant. The findings represent the determinative foundation of the application but the material demonstrates that the Tribunal was astute to the two limbs to the Appellant's claims and dealt with each of them. It is apparent on the face of the material before the Tribunal that the Appellant raised claims of a fear of persecution on two grounds and that the Tribunal addressed each ground.

Reliance upon Findings of Credibility in the Determination of the Authenticity of the Warrant of Arrest 64 The next question is whether His Honour erred by failing to find jurisdictional error when the R R T applied its view of the Appellant's credit and truthfulness on particular facts, to determine the authenticity of the warrant of arrest. The contention is that the R R T failed to consider and make findings about the warrant based on a proper process of reasoning and assessment of the probability of the warrant being genuine and simply rejected the warrant based upon the Tribunal's assessment of the Appellant's evidence generally. The Tribunal undertook a consideration of the Appellant's documentary evidence and his oral evidence together with material put by him to the Tribunal. The Tribunal evaluated each of the factual allegations and was unpersuaded as to the truthfulness of the Appellant. A number of aspects of the claims made by the Appellant seemed inconsistent with other evidence and difficult to accept [25]. The Tribunal had "great difficulty" with all of the Appellant's evidence [26]. Although reservations were expressed on all these matters, the Tribunal might have accepted the Appellant's evidence but for the matters identified at [26]. The matters at [27] affected the Appellant's general credibility. For the reasons at [27] and the Tribunal's inability to accept the Appellant's other claims, the Tribunal concluded that the warrant for his arrest was not genuine. The Tribunal said it was reinforced in that view (arising out of its assessment of the Appellant's claims generally) because the Tribunal found it "implausible that such a warrant should be issued five months after he arrived in Australia and two years after he arrived in Kampala" [28]. For the reasons identified at paras. [28] and [29], the Tribunal concluded that the Appellant had not established a well-founded fear of persecution for a Convention reason in which event, the R R T is taken to have concluded that the warrant of arrest was not evidence of a well-founded fear of persecution by government authorities [29]. 65 It is clear from the exchange between the Appellant and the R R T concerning the article of 16 October 2003 from The Monitor that the R R T had serious reservations about the honesty of the Appellant, whether the article submitted by the Appellant was a forgery and the failure of the Appellant to explain or answer the R R T's concerns set out in the letter of 23 July 2004 [15]. The findings on credibility by the R R T were sufficiently pervasive that they affected the approach of the Appellant's entire evidence. In consequence, the submission of the warrant of arrest was viewed with suspicion and ultimately the document was treated on the same footing as the article from The Monitor. The Tribunal did not fail to make a finding about the warrant or fail to make a finding about it in the context of a claim by the Appellant of a well-founded fear of persecution from government authorities. Rather, the Tribunal rejected the warrant, finding it not to be genuine. It may be that the warrant is genuine. If it is, the Respondent contends that the Tribunal has made an error of fact within jurisdiction, not an error of law. The Tribunal was confronted with a controversy of fact in respect of a claim of fear of persecution by government authorities supported, in part, by the submission of the warrant of arrest. The Tribunal considered the claim and the warrant and rejected it, in the balance, because the Appellant had shown himself to be in the Tribunal's view, dishonest. 66 This is not a case where the Tribunal failed to make a finding. Rather, the challenge is to the finding that the warrant was not authentic on the basis of a finding going to the Appellant's credibility. Thus, the Appellant seeks to undermine the factual finding. In Re The Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67], McHugh J observed: "In addition, the prosecutor alleges that the Tribunal breached s.430(1) by failing to set out reasons for its finding that the prosecutors claim that members of PLOTE tried to recruit him were 'utterly implausible'. However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decisions, not the subset of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word 'implausible'. The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged." 67 These observations reflect the character of the findings on credibility in the present case. Once the Tribunal of fact has seen the Appellant, evaluated the evidence put to the Tribunal and tested his claims and the view is reached that the Appellant has fabricated or concocted a significant element of the factual evidence (and other matters exist which call into question the plausibility of the Appellant's evidence at large), the rejection of corroborative evidence in the form of the warrant of arrest is open to the Tribunal based upon its disbelief of the Appellant generally. It is not necessary in order to reject that evidence for the Tribunal to test and be satisfied that there is an independent reason for concluding that the document is to be rejected: Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59. 68 Accordingly, it was open to the Tribunal to reject the warrant of arrest by relying upon its findings without identifying an independent and separate basis for rejection of the document.

Providing the Appellant with an Opportunity to Comment on the Proposed Finding Concerning the Warrant of Arrest 69 The next question, is whether it was open to the Tribunal to make a finding that the warrant of arrest was not genuine without providing the Appellant with an opportunity to respond to the proposed finding and submit such further material as he may have wished. 70 The document put to the Tribunal enclosed with the Appellant's letter dated 25 August 2004 is set out at [19]. That document seems on the face of the comparison with the attachment to the Appellant's affidavit sworn 27 August 2005 to be similar (subject to [74]). 71 The Appellant's letter of 25 August 2005 was responsive to the R R T's letter expressing the Tribunal's concern about the authenticity of the article from The Monitor and the potential damage to the Appellant's credibility of a finding that the article was not genuine. No doubt, the R R T when assessing the Appellant's letter of 25 August 2005 was primarily seeking to determine whether the Appellant had something meaningful and persuasive to say about that concern. The Appellant said nothing on that topic and on one view obfuscated the concern by submitting nine additional articles. However, he enclosed a warrant of arrest and referred to it twice in the body of the letter. First, to draw attention to it as an attachment [18] and secondly to explain his sense of its cause or origin, namely, rebel collaborators [23]. The reference to rebel collaborators is a reference to those individuals who meet the description at [21] and [22]. 72 There can be no doubt, whatever the merits might be, that the document was put to the R R T as the expression of the Appellant's claim that either the government had caused a warrant to issue for his arrest or, individuals sufficiently engaged within government (collaborators), had caused a warrant to issue thus causing the Appellant to be in fear for his life [23]. 73 The document put to the Tribunal purports on its face [19] to be a warrant of arrest, issued in the Chief Magistrates Court of Ruganda Road at Kampala. It bears the title Republic of Uganda and recites a reference number (CR1952/2002) attributed as a "Criminal Offence No". It is addressed to "every police officer" in the "Uganda Police Force" and directs any such police officer to "arrest" the Appellant and produce him before the Magistrate as soon as possible. The document recites the underlying charge supporting the warrant as "[the Appellant] stands charged with the offence of TREASON C/S of the Penal Code Act". 74 The warrant bears a signature above the description "Magistrate". The warrant does not exhibit any seal or mark either across the signature of the Magistrate or at all. The affidavit of the Appellant filed by leave on the appeal exhibits a document described as the original warrant sourced from a friend of the Appellant's. Two things are apparent from the exhibit. First, the signature on AB126 is entirely different from the signature on the exhibit and secondly, the exhibit bears an impressed seal not an ink or black mark based seal. The document before the R R T did not appear (as a photocopy) to have any extant seal of authority endorsed on or within it. It could just as easily have been created by anyone and signed by anyone and be evidence of nothing other than fraud. 75 The R R T found the warrant not genuine, infected by the same class of conduct on the part of the Appellant as that evidenced by the submission of the article said to be from The Monitor of 16 October 2003. The R R T found the warrant not genuine based on a total assessment of the entire evidence given by the Appellant. This conclusion was published on 22 September 2004 in the decision without putting any question or concern about the authenticity of the warrant to the Appellant. 76 There is in one sense an artificiality in the dissection of the decision-making on the facts into a question of whether there was such a pervading rejection of the credibility of the Appellant entitling the R R T to reject the authenticity of the warrant, and a requirement to provide an Appellant with an opportunity to be heard or comment on a potentially adverse finding. Although the finding on credibility and rejection of other evidence provides a proper foundation for a rejection of the warrant (simply another species in the same genus), the R R T before it reached that finding of fact (correct or otherwise) within jurisdiction, might nevertheless, to remain within jurisdiction, have to metaphorically stay its pen in striking a line through the warrant until it has fully discharged the review function by affording procedural fairness on the specific question of the authenticity of the warrant. It might need to put its mind to the content, impact and consequences of the document and challenge the Appellant to comment and respond to concerns before making a finding that would otherwise be open and within power. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at page 351 [82], McHugh, Gummow and Hayne JJ observed: "'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig [Craig v South Australia (1995) 184 CLR 163 at 179] is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of the power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal has given authority to authoritively determine questions of law or to make a decision otherwise that in accordance with the law". 77 It is perfectly clear that "there is no universal proposition that before the Tribunal ever makes a finding adverse to an applicant, it is necessary for the Tribunal to put to the applicant the concerns which are inclining the Tribunal towards such an adverse finding. The procedure is inquisitorial not adversarial"; Gaudron and Gummow JJ with whom Gleason CJ agreed, [76] Re Refugee Review Tribunal, ex parte Aala (2000) 204 CLR 82. 78 In Re Refugee Review Tribunal, ex parte Aala (supra), McHugh J at para. [101] stated the general principle in these terms: "One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is the corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding." 79 In Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59, the Tribunal rejected a claim for a Protection Visa by a Sri Lankan national making significant adverse findings on credibility (including conduct of misleading the Tribunal) and in light of those findings, the Tribunal rejected the corroborating evidence of a particular witness. At para. [49], McHugh and Gummow JJ observed: "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 the case comprises lies by that party. If the critical passage in the Reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the Appellant cannot be believed, it cannot be satisfied with the alleged corroboration." The Appellant's argument in this court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s.430 of the Act. But it is not irrational to focus first upon the case as it was put by the Appellant." 80 In S20/2002 (supra), the Tribunal had the benefit of hearing the evidence, testing the witness and assessing the corroborative value of the evidence in the context of the claims and the evidence overall. Having had that advantage, the Tribunal nevertheless rejected the corroborative evidence based upon its view of the Appellant's credibility and his conduct. In this case, the Appellant has not been tested on the specific evidence of the warrant of arrest. 81 In Waco v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171; 131 FCR 511, the Visa Applicant, an Iranian, claimed a close personal relationship with a cleric, Ayatolla Shirazi, which, in part, gave rise to a fear of persecution should he return to Iran. The Tribunal, at the hearing, indicated it would be unlikely to accept the claimed relationship. After the hearing, the Appellant submitted a translation of a personal letter to him by Ayatolla Shirazi and a letter from the Head of the "Notary of Public Office" in Tehran. The letters were central to the Appellant's claim and it was common ground that at no time did the Tribunal indicate to the Appellant that there was any question of the authenticity of those letters or that they might be found to be not genuine. The Appellant was not given any opportunity to comment on the authenticity of the letters or call evidence that the letters were in fact genuine. At para. [53], Lee, Hill and Carr JJ state the principles in these terms: "53. In the present case and in Meadows the question whether the letters were genuine did not directly depend upon the evidence of the Appellant. However, it can be said that a finding that the letters were forgeries could turn upon the credit of the Appellant in so far as a finding is that the letters have been concocted by the Appellant to advance his case. But if this is the case, fairness would require that before a finding of forgery is made, the person so accused be given the opportunity of answering it. A finding of forgery, just like a finding of fraud, is not one that should likely be made. Both involve serious allegations. Forgery, indeed, is a criminal offence. 54. Where the finding of fact made does not turn upon the credibility of the Appellant and where there is nothing on the face of the documents themselves to alert the decision-maker that they are forgeries, it is likewise inherently unfair that the decision-maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it. 55. Nothing in our mind turns here upon the fact that the oral hearing had been concluded before the letters were procured and forwarded to the Tribunal. The Tribunal could easily have re-listed the matter and have arranged for the Appellant to be appraised of its doubts as to the authenticity of the letters and be given the opportunity to comment upon those doubts and call, if possible, evidence to the contrary." 82 In this case, the Appellant put a document, after the hearing, to the R R T in support of a claim of a well-founded fear of persecution from anti-government rebels and from government authorities. It was not just any document or corroborative letter. It purported to be a warrant of arrest signed by a Magistrate, issued by a Court within the jurisdiction of Uganda, directed to the offices of the State's police force to arrest the Appellant on a charge of treason under the Penal Code Act. Although influenced by the Appellant's telling failure to answer the R R T's letter expressing concern about the genuineness of the article from The Monitor newspaper and no doubt persuaded that no weight redemptive of the poisoned well of credibility could be attributed to the warrant of arrest, the Tribunal ought to have asked the Appellant whether the Appellant held the original warrant, how had the original or copy warrant been obtained by the Appellant, could the Appellant produce the original warrant of arrest to the Tribunal, was the Appellant capable of providing any information demonstrating the sequence of steps taken by the Appellant or persons on his behalf to obtain the warrant, who is the moving party issuing the warrant, what is the precise character of the charge reflected in the warrant and other such questions. The Tribunal might ask itself, having heard the Appellant, whether a warrant of arrest can be issued in the State of Uganda on the application of any person (such as a private prosecution), could such a process be simply abandoned or discontinued, has the warrant been issued by the State authorities among other such questions going to the precise status of the document. 83 Whilst there is no "universal proposition" that the R R T can never make a finding adverse to an applicant without putting the contention about the matter to the applicant (especially in the case of material first put to the R R T by an applicant), the Tribunal nevertheless must examine the document, in terms, make a judgment about the gravity of the document should the Appellant be able (perhaps remotely) to demonstrate a basis upon which its authenticity might be established and then plot a point on the continuum in the discharge of its duty which determines whether the particular document in the circumstances of the particular case is one which would require as a matter of procedural fairness, the Appellant being afforded an opportunity to say something about it. This is such a case. 84 Essentially, the question is this. Is there a prospect, albeit remote (perhaps very remote) that a document the Appellant claims to be an authentic warrant of arrest issued by the Government of Uganda is such a warrant of arrest and, if so, is it sufficient to say that a rejection of the document, without calling on the Appellant, was simply an error of fact within jurisdiction which the Tribunal was entitled to make or does the content of our jurisprudence on procedural fairness in these set of circumstances require more?

conclusion 85 Since the decision of the Tribunal was affected by jurisdictional error because the Tribunal failed to afford natural justice to the Appellant by failing to provide him with an opportunity to answer the proposition that the warrant of arrest tendered to the R R T after the hearing, was not genuine, the decision is not a privative clause decision for the purposes of Part 8 of the Migration Act 1958; Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. 86 Accordingly, His Honour Federal Magistrate Jarrett made an error of law by failing to find that the Refugee Review Tribunal had fallen into error in the way described. Accordingly, the orders of His Honour made on 14 March 2005 must be set aside and in place of those orders, orders will be made that a writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 22 September 2004. The Application must be remitted to the Tribunal for further determination according to law. The Respondent must pay the costs of the appeal and at first instance. I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 13 December 2005

Solicitor for the Appellant: Baldwins Lawyers

Date of Hearing: 16 September 2005

Date of Judgment: 13 December 2005