Tedella v Minister for Immigration & Multicultural Affairs

tribunal's findings concerning documents 13 The complaints made in this review concern the Tribunal's treatment of the two documents submitted by the applicant which followed the discussion referred to in the previous paragraph of these reasons. On the question of the documents, the Tribunal said: "The applicant has provided two documents that purport to support his arrest. The document examination unit has pointed out problems in the documents that point to their lack of genuineness. In response the applicant claims that they are genuine and has produced a witness who has given various opinions about them. Firstly the Tribunal should indicate that it does not accept that the applicant's witness is qualified to offer an opinion as to the genuineness of the documents. Whilst his statements about his personal knowledge of procedures may be capable of having some weight attached to it [sic], this witness goes well beyond them. In the end however the Tribunal has concluded that an examination of the contents of the documents themselves leads to the conclusion that they have been contrived to support the applicant's case and are not capable of having any weight attached to them. In doing so the Tribunal does not find persuasive the evidence of the applicant's witness that the language used is normal for these kind of documents and so rejects this evidence. The Tribunal does not accept that the Ethiopian Central Criminal Investigation would release the applicant on 40,000 birr bail to attend when the government needs him. The Tribunal does not find this wording plausible and considers such wording in a document to be inherently unlikely. The Tribunal also considers that the heading 'to whom it may concern' also makes its genuineness inherently unlikely. The Tribunal notes Dr Gow's statements about 'rehabilitation cards' being issued and then functioning as proof of arrest/detention and rehabilitation. However the Tribunal does not accept that this falls into this category. It does not seem to be a rehabilitation card. Nor does the Tribunal find it plausible that the applicant would have to return to the police office a few days later to collect this. If the applicant was detained and released on 40,000 birr bail the Tribunal considers that any necessary paperwork would be completed at this stage. The second document both confirms and reinforces the Tribunal's view that they have been fabricated. Whether the translation is 'unknown address' or is meant to mean wherever the applicant is found as suggested by the applicant's witness and the re-translation provided, the Tribunal considers it inherently unlikely that a document would commence in this way. Secondly the Tribunal considers it implausible that the document would recite that the applicant was called several times to attend at the office but could not be found. Thirdly the Tribunal does not accept that such failure would lead to the applicant's private property being forfeited to the Government upon the decision of the Criminal Investigation Section. The suggestion in the document that the applicant should report within a month of service of the letter is again an implausible demand. As a result the Tribunal does not accept that this document is genuine and considers that the problems in this document indicate that the first document is also not genuine. As a result of these findings the Tribunal does not accept that the applicant was detained as claimed or that he was imputed with a political opinion of supporting the OLF. Whilst the Tribunal accepts that anyone suspected of supporting the OLF whether in Addis or elsewhere will face difficulties, as evidenced by the country information provided by the applicant's advisers, the evidence from Dr. Gow and from Amnesty International, the Tribunal does not accept in this case that this applicant was so suspected or that he faced the difficulties he has claimed to face." (Emphasis added) 14 Following this discussion, the Tribunal referred to two further matters not relevant to this review.

ground of review - Breach of s 430 15 The first ground of review relied upon s 476(1)(a) of the Migration Act 1958 (the Act) and alleged that the Tribunal failed to observe the procedures required to be observed by s 430. Section 430(1) of the Act provides as follows: "(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 16 The applicant submitted that the Tribunal had failed to set out the process of reasoning or the findings on material questions of fact which led to the conclusion that the two documents were not genuine. Mr Niall focused attention on the sentence: "Whilst his [Mr Gebreyesus] statements about his personal knowledge of procedures may be capable of having some weight attached to it, the witness goes well beyond them." 17 Counsel submitted that the procedures there referred to included the procedures adopted in Ethiopia for issuing documents such as the two documents in question. On that basis, he argued, the Tribunal gave some credence to Mr Gebreyesus' view but did not specify - that is to say, make findings - which evidence was accepted and which was rejected. Further, the applicant contended that the Tribunal did not disclose its process of reasoning which led to the rejection of the documents by reference to their contents. 18 The operation of s 430 has recently been explained in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 at par 44 as follows: "Section 430 does not impose any obligation on the RRT to come to a correct decision or to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it reached. Subject to the qualification referred to in paragraph 47 below, the section calls for a recording of matters that are essentially matters of fact, namely, the decision to which the RRT came, the actual reasons for coming to that decision, the findings of fact that were actually made and the material on which those findings were based." 19 In the portion of the decision of the Tribunal extracted in par 13 of these reasons, the Tribunal commenced by indicating its view of the limits of the evidence of Mr Gebreyesus. It found that he is not qualified to give a view on the genuineness of the documents. 20 Then there is reference to his knowledge of procedures. I take this to refer to the procedures dealt with in his statutory declaration, namely, procedures concerning the recording of document numbers and the like. The Tribunal found that some weight could be given to that evidence but noted that the witness went beyond that type of evidence. 21 That the Tribunal used procedures in this narrow sense is revealed by the earlier summary by the Tribunal of the evidence of Mr Gebreyesus as follows: "Mr. Leul Gebreyesis [sic] who has been in Australia for eight years gave evidence and provided a statutory declaration commenting in detail on documents provided by the applicant. He was previously an army officer. In it he comments on the report of the document examination unit. He states that the reference number relates to the sending out of the correspondence and that there is one book for doing this. This provides an explanation for the differing numbers in different handwriting. He gives the opinion based on his experience with the military police that the documents are genuine. He states that 'unknown address' means to be delivered to him wherever he may be living. In the hearing he stated that the letters from the police captain were standard letters in language used by security forces. He stated that it was common practice for there to be checks at the airport even if people had exit permits. He states that the officials at the airport do have the power to prevent people from leaving." 22 This summary divides Mr Gebreyesus' evidence into evidence as to the procedures, evidence of opinion concerning genuineness and evidence of other matters. 23 The Tribunal next reasoned that it could determine that the documents are contrived as a result of its own examination of the contents of the documents. As that examination was conclusive in the mind of the Tribunal, it rejected the contrary evidence as to genuineness of the contents of the documents given by Mr Gebreyesus. 24 Then the Tribunal turned to the first document and gave a series of reasons why it regarded that document as contrived. Similarly, it dealt with the second document by setting out the reasons which led it to say that the document was contrived. I will return to the question of those reasons in due course, but for the present it is sufficient to note that the reader is able to understand the process followed by the Tribunal in reaching the conclusion that the documents were contrived. As the reference to Singh above indicates, the question is not whether the reasons are satisfactory but whether the process of reasoning is exposed, so that the reader can follow the steps taken by the Tribunal to arrive at its conclusion. In my view, there has been no breach of s 430(1) as alleged.

Ground of review - error of law 25 The applicant also relied on the error of law ground in s 476(1)(e) of the Act. The applicant contended that the Tribunal erred in law in failing to give proper, genuine and realistic consideration upon the merits to the question of the genuineness of the two documents. It is undoubted that such failure is a ground of review. In Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368, Merkel J said at par 17: "It is also well established that, in arriving at its decision, the RRT is under a duty to determine the material questions of fact before it for its determination after giving 'proper, genuine and realistic consideration upon the merits' to those questions of fact: see Kahn v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 at 12-15 per Sheppard J; Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472 at 483 per Gummow J; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 96 per Hill J; Mocan v Refugee Review Tribunal (1997) 42 ALD 241 at 245 per Merkel J and Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 28 at 64 per Merkel J." 26 His Honour also said at par 27: Of course, in an application for review under Part 8 of the Act, unsatisfactory reasoning or illogicality do not of themselves constitute errors of law: see Singh at [44]; Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411 at 420-422 and Hill v Green (1999) 48 NSWLR 161 at 174 and 176. However, unsatisfactory reasoning or illogicality may nevertheless be indicia which, together with other factors, might persuade a court that the RRT has purported to give but has not given proper, genuine and realistic consideration to the issues it is required to determine." 27 For the purpose of this argument, it is necessary to consider carefully the reasoning adopted by the Tribunal. It rejected the evidence of Mr Gebreyesus that the form of the first letter was "fairly standard" and in relation to the second document, that it was "extremely uncommon" for an address to appear on an official document. The Tribunal said that it was able to reject this evidence by reference solely to the contents of the documents themselves. It is therefore necessary to scrutinise what aspects of the contents of the documents the Tribunal found persuasive. 28 In relation to the first document, the Tribunal said that the release of the applicant on bail to attend "when the government needs him" was wording which was not plausible and was inherently unlikely. It is not at all clear to me why such wording is implausible or inherently unlikely. Mr Fairfield, who appeared as counsel for the respondent, invited the Court to take into account certain parts of the transcript to demonstrate that the Tribunal had in mind that a document which effected the release of a person on something like bail would normally require the person to reappear on a fixed date. Thus, the failure to specify a fixed date for reappearance should be accepted as the Tribunal's reason for its conclusion. It is not legitimate to resort to the transcript in order to determine whether the reasons for decision can be explained or expanded. It is the function of the reasons to explain the Tribunal's process of reasoning and it is from the reasons that it must appear that the Tribunal has given proper, genuine and realistic consideration to the case on the merits. 29 In any event, recourse to the transcript in this case merely heightens the sense of concern over the Tribunal's approach. On the question of the lack of a date for reappearance, the following exchange occurred at page 18 of the transcript: "MR KISSANE: Yes, well, if you're charged with that and you're bailed, you're usually given a date --- MR TEDELLA: They put it like a bond, you know, that money. MR KISSANE: A bond? MR TEDELLA: Yes, like, you put it somewhere. For example, like, in a bank or something, from my father or something, so if because they told me that they will maybe require any time when they need me, so if I'm not presenting at that moment, that bail will go. MR KISSANE: I don't know about Ethiopia but normally in that sort of situation, where money is put up to have somebody released, it's not just a matter of you turning up when they want you, it's a matter of being a court date or a date that you attend to have the charges heard or something like that." [emphasis added] 30 The reference to the lack of a date for reappearance seems to have had no probative value and no connection with the issue then under consideration. 31 The Tribunal next considered that the heading "To Whom It May Concern" also made the genuineness of the document inherently unlikely. Again, there is no satisfactory explanation why this should be so. The nature of the heading appears to have no probative value, nor any connection with the issue under consideration. The evidence of Mr Gebreyesus on the issue had been rejected on the basis that the document itself told against its genuineness. The lack of probative value and logic and the circumstances in which this finding was made, namely, by putting aside the evidence of Mr Gebreyesus, indicate that the Tribunal did not give proper, genuine and realistic consideration to the question of the genuineness of this document. 32 Although the Tribunal had earlier determined that it would decide the question of genuineness by reference to the contents of the document alone, its next reason strayed from this course. The Tribunal referred to evidence of Dr Gow that rehabilitation cards functioned as proof of arrest and detention. The Tribunal observed that the document in question was not a rehabilitation card. The question, however, was not whether this was a rehabilitation card but whether it was a genuine document. Dr Gow's evidence was not said to indicate that only rehabilitation cards could qualify as evidence of arrest or detention. Only if this was so would the Tribunal's reference to Dr Gow's evidence have any connection with a genuine assessment of the applicant's case. 33 Finally, the Tribunal, again venturing outside the contents of the document alone, found it implausible that the applicant would have to return to the police office a few days after his release to collect the document. It considered that such paperwork would have been available upon release. This conclusion appears entirely speculative and again, a result of attributing probative value to a circumstance which had none, as there was no connection between this factor and the issue under consideration. There is no reason why the availability of the document immediately or a few days later bears upon the question of the genuineness of the document. 34 Thus, in relation to the first document, the reasoning is so lacking in any logical or satisfactory basis or any probative value or connection with the matter under consideration that this is one of the few cases in which one can say that the circumstances indicate that the Tribunal failed to give proper, genuine or realistic consideration to the merits of the case put by the applicant. 35 The Tribunal set itself a difficult task because it rejected the evidence of an independent witness in favour of a process of determining the genuineness of the document primarily by reference to the contents of the document itself. Such a process could only amount to a proper, realistic and genuine consideration of the merits of the case if the contents of the document were so out of place in a document of that type such that it could confidently be said that the document was contrived. For instance: where a death certificate stated that the cause of death was "political assassination" and was tendered by a relative of the deceased to show he or she was at risk of persecution by reason of his or her political opinion, the specification of a political reason for the death is so out of keeping with the ordinary nature of a death certificate that it would be open to use the nature of the contents of the document to conclude that it was not genuine. Nothing of that nature presents in this case. 36 In relation to the second document, the Tribunal again concentrated on the contents of the document. It considered it inherently unlikely that a document would commence, addressed to the applicant, "where at his address". The phrase was explained to refer to whatever address at which the applicant was to be found. Again, there is no probative value or connection with the issue under consideration or any logical basis for the Tribunal's observation. On the contrary, at the time the letter was written, the applicant was in Australia and the purport of the letter was that because the applicant could not be found, he had forfeited his bail and other property. The contents of the letter, if anything, provide reasons for the manner in which it is addressed. Having rejected Mr Gebreyesus' evidence that it was common practice not to provide addresses on such documents, it was necessary for the Tribunal to discover within the document itself some foundation for doubt on this aspect. The document does not do so. Again, the use of this element in the Tribunal's reasoning is so lacking in foundation, so reliant upon a matter with no probative value and on a matter with no connection with the issue under consideration that it points to a failure to give proper, genuine and realistic consideration to the merits of the case of the applicant. 37 The Tribunal then considered it implausible that the document would recite that the applicant was called several times to attend the office but could not be found. Again, there is no probative value in this element and no satisfactory basis for such an approach. The document notified the applicant that he had forfeited his bail and other property. The reference to his failure to attend on demand was by way of reason given for the forfeiture. 38 Next, the Tribunal refused to accept that the failure to attend would lead to the forfeiture of the applicant's property on a decision of the criminal investigation authority. That may be a perfectly justified conclusion after the consideration of evidence in relation to the Ethiopian justice system, but it has no foundation in the contents of the document itself. 39 Finally, the Tribunal regarded the requirement that the applicant report within a month of service of the letter as an implausible demand. On the face of the document and without further evidence, this fact is neutral and is of no probative value to the conclusion that the second document was contrived.

conclusion 40 Whether taken separately or together, the reasons given by the Tribunal for its conclusion that the documents reveal on their face that they were contrived so that the Tribunal was able to reject the evidence of Mr Gebreyesus are so unsatisfactory and illogical, and based on matters of no probative value and of no connection with the issue under consideration, that they indicate that the Tribunal did not give proper, genuine and realistic consideration to the merits of the case of the applicant on the question of the genuineness of the documents. 41 It must be emphasised that this judgment of the Court has nothing to say about whether the two documents are genuine or not. That is a question to be determined by the Tribunal alone. It has not been the purpose of this decision to rule on the merits of the claim that the documents are genuine. This decision has been concerned only to assess whether the treatment of the argument by the Tribunal in its reasons was so unsatisfactory that it points to the Tribunal having failed to really determine the question before it on the merits. 42 The ground of review on which the applicant has succeeded sometimes appears to come close to merits to review. There is, however, a discernible line of distinction. In the end, the matter is made plain by observing that nothing in this judgment requires or indicates that the Tribunal which re-hears the matter is bound to come to the conclusion that the documents are genuine. 43 In the result the decision of the Tribunal is set aside and the respondent is to pay the applicant's costs of and incidental to the application. 44 There remains for determination an argument concerning the position of Ms Abera. That issue does not affect the proposed orders in this case, and so it is stood over pending further discussions between the parties. The parties will have liberty to apply in relation to that matter.

I certify that the preceding forty - four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North .

Solicitor for the Applicant: Erskine Rodan & Associates

Solicitor for the Respondent: Australian Government Solicitor