Zaltni v Minister for Immigration & Multicultural Affairs

Procedural History 5 It is common ground that the proceedings of the Minister and the Tribunal were governed by the Act as it stood before the 1998 Amendments. Review of the Minister's decision is governed by Pt 7 of the Act. By s415 the Tribunal may exercise all the powers and discretions that are conferred by the Act on the person who made the decision and may affirm the decision, vary the decision, remit the matter for reconsideration in the case of certain matters or set the decision aside and substitute a new decision. Section 420 is in the following terms: "The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (1) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case." 6 As s424 did not apply, s425 provided: "(1) Where section 424 does not apply, the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; and (b) may obtain such other evidence as it considers necessary. (2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review." 7 Section 427(1) is in the following terms: "(1) For the purpose of the review of a decision, the Tribunal may: (a) take evidence on oath or affirmation; or (b) adjourn the review from time to time; or (c) subject to sections 438 and 440, give information to the applicant and to the Secretary; or (d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination." 8 Sections 438 and 440 deal with restrictions upon supply of information or publication of information in certain particular circumstances. 9 The applicant's case was that he was regarded by the Tunisian authorities as connected with a group known as Al Nadha and so liable to persecution if he returned to Tunisia. He supported that case (inter alia) by providing copy documents which he said verified that he and his wife had suffered incarceration and persecution on that account, a psychological assessment which supported the fact that he and his wife had been traumatised and a letter from one Mr Memmiche which corroborated the interest by the Tunisian authorities in the applicant. 10 It is apparent that the Tribunal had gathered some relevant information concerning Tunisia and Al Nadha in particular by the time the applicant gave evidence on 1 July 1998 and some of this material was referred to by the Tribunal during this evidence. The applicant and his wife gave further evidence on 9 September 1998. 11 The Tribunal was not satisfied by the applicant's account and caused further inquiries to be made. Advice was received by the Tribunal to the following effect: "1. What was the Arabic name of the Movement de la Tendance Islamique? In your opinion would it be possible for a relatively well educated young man who was an active member of the MTI in the late 1980s to know the group only by its Arabic name? Mrs Helene Gill, University of Westminster, supplied the following response: The Arabic name of the MTI is El- (or Al-) Nahdah. It is always referred to as such, even in newspaper articles [Helena Scott, University of Westminster, 1998, Information Requested, sourced from Helene Gill and the Maghreb specialist at Le Monde', Fax to the RRT, 15 October][Attachment 2] 2. Who the current leader of Al Nahdah and where is he based? According to Mrs Helene Gill, University of Westminster: the current leader of Al Nahdah is Rachid Ghannouchi, who is based in London. [Helena Scott, University of Westminster, 1998, Information Requested, sourced from Helene Gill and the Maghreb specialist at Le Monde', Fax to the RRT, 15 October][Attachment 2] 3. Was La'aridh ever President of Al Nahdah, and if so for what period? Where is he today? What is his current role in the organisation? The fax response supplied by the University of Westminster comments that the name Al La'aridh is not known to either Mrs Helene Gill or to the Maghreb specialist at Le Monde. [Helena Scott, University of Westminster, 1998, Information Requested, sourced from Helene Gill and the Maghred specialist at Le Monde, Fax to the RRT, 15 October][Attachment 2] 4. Were people charged with membership of Al Nahdah tried in civil courts and held in civil jails? According to Mrs Helene Gill, University of Westminster: There were, and are, plenty of Islamists in Tunisian jails, but it is unclear to outsiders whether they went through civil or military courts. [Helena Scott, University of Westminster, 1998, Information Requested, sourced from Helene Gill and the Maghreb specialist at Le Monde, Fax to the RRT, 15 October][Attachment 2] 5. In your opinion would it be possible for an individual who had previously been jailed for involvement in Al Nahdah, had been denied a passport through normal legal channels and was still under surveillance to obtain a legal passport which contained his correct full name, date of birth and profession by bribery and to use it to travel to and from Tunisia on regular commercial flights several times in recent years without experiencing difficulties? According to Mrs Helene Gill, University of Westminster: This would be difficult but not impossible. There have been two recent cases of people travelling with such ID, but extensive travelling would be very difficult. Tunisian authorities are very thorough and those two were caught (they had fake passports). However, bribery is "always a possibility". [Helena Scott, University of Westminster, 1998, Information Requested, sourced from Helene Gill and the Maghred specialist at Le Monde, Fax to the RRT 15 October][Attachment 2] 6. Are Al Nahdah members/supporters still at risk of detention in Tunisia, and if so can you comment on the level of detentions currently taking place and who is at risk of being detained (all suspected supporters? Only prominent members, only those still active in some way?) According to Mrs Helene Gill, University of Westminster: There are no reliable figures, official or otherwise, Anyone with the flimsiest association with El-Nadah is at risk, even relatives or vague acquaintances of members/supporters. Withdrawal of passport is very common. Any supporters would be likely to be subject at least to incessant surveillance and intimidation. [Helena Scott, University of Westminster, 1998, Information Requested, sourced from Helene Gill and the Maghreb specialist at Le Monde, Fax to the RRT, 15 October][Attachment 2]" 12 The Tribunal then on 30 October 1998 wrote to the applicant in the following terms: "Re: Application for review of decision to refuse protection visa (refugee status)- Larbi Ben Mohamed Dit Ham Zaltni; Amel Bent Mohamed Zalltni; Zakaria Ben Larbi Zaltni; Najia Zaltni Please note that you must tell all persons named above about this letter and, if they wish, reply to the Tribunal for them. The presiding Member has asked me to advise you that, as advised at the hearing, she has conducted further investigations regarding your claim that the current leader of Al Nahda is Mr Ali La'aridh. A search of the Nexis World Newspaper database located a number of articles which state that Rachid Ghannouchi is the leader of the organisation, but no mention at all of Mr La'aridh. The Tribunal also contacted Ms Helene Gill from the University of Westminster who has written on Tunisia in the past. Neither she, nor the Maghreb specialist on the Le Monde newspaper (Paris), with whom she consulted, had heard of Mr La'aridh. She also advised that in her view it would be difficult for someone wanted by the authorities to obtain a legal passport and leave the country and very difficult for them to use such a document to travel in and out of the country several times. This information will be taken into account when deciding your case. Should you wish to make any comments on these issues, please forward them to the Tribunal in writing by close of business on Friday 13 November 1998." 13 Following this, the applicant, by his solicitor, on 24 November 1998 responded as follows: "I refer to your letter of 30 October 1998 in regard to investigations carried out by the presiding Member. The Tribunal contacted Mrs Helene Gill from the University of Westminster who claimed not to have heard of Ali La'aridh. We are surprised and amazed at this claim and attach a copy of "Revolutionary and Dissident Movements" published by the Longman Group UK Ltd, who clearly know of Mr La'aridh and that he exists and was in fact the President of Al Nahda. We therefore, respectfully, submit that the information supplied to the Tribunal by H Gill should not and cannot be used in assessing this application."

The Tribunal decision 14 On 25 February 1999 the Tribunal rejected the application because it disbelieved the applicant in relation to his alleged connection with Al Nadha. The Tribunal was unimpressed with the applicant's knowledge of Al Nadha, and found inconsistencies between the evidence of the applicant and his wife. However, the principal basis for rejecting the applicant's claim was that the Tribunal took the view that if the applicant and his wife were in real jeopardy of persecution because of his association with Al Nadha he and his wife could not have conducted themselves as they said they had - for example, the applicant left Tunisia and returned on more than one occasion without hindrance, and his wife had obtained a passport. The Tribunal did not accept the applicant's evidence that he had achieved his ends through bribery, and indeed did not refer to that part of the advice which it had received which accepted that bribery was a possibility. 15 One of the supporting documents produced by the applicant was a letter from a Mr Memmiche, reading as follows: "To whom it may concern Re: Mr Larbi Zaltni This is to confirm that I know that the above named Larbi Zaltni is wanted by the Tunisian Authorities. I enclose copies of letters concerning my detention in Tunisia last January whilst paying a visit to my family. His name was mentioned to me whilst I was interrogated there and also upon my return to the UK I heard that he was wanted by the Tunisian authorities in the UK as well." 16 Although the Tribunal accepted that Mr Memmiche existed and, indeed, had suffered at the hands of the Tunisian authorities because of his connection with Al Nadha, it rejected that part of the letter which related to the interest of the authorities in the applicant, as the applicant had said he was in Tunisia at the relevant time. Indeed, the Tribunal found that the applicant had procured false evidence in this respect. 17 The Tribunal did not accept the veracity of copies of other apparently official documents which supported the applicant's claim of incarceration and persecution at the hands of the Tunisian authorities on account of his connection with Al Nadha. 18 The Tribunal listed the sources and material to which it had referred. It is clear that much of this was not put to the applicant. It will also be seen that the summary of advice which it had received which was given to the applicant was incomplete. It is also clear that it was not put to the applicant squarely during his evidence that he had procured a false document from Mr Memmiche or had produced false copy official documents.

Grounds of review 19 The applicant makes no separate point in these proceedings concerning the matters relating to natural justice to which I referred in the last paragraph. I was told that this was because of s476(2)(a) of the Act and the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577. There is thus no occasion for me to consider the legal consequences (if any) of those circumstances. I note, however, that whilst the High Court may have held that s420 of the Act cannot be used in proceedings such as the present to avoid the effect of s476(2)(a), the Tribunal is bound by the mandatory commands of s420 and must proceed accordingly, s476 notwithstanding. Indeed, the facts of this case illustrate the justice of giving an applicant notice of adverse material. The Tribunal laboured under a misapprehension as to one Ali La'aridh until this was pointed out by the applicant's solicitors. If the Tribunal had expressly referred to the contentions that the letter from Mr Memmiche was a deliberate concoction and that the copy official documents were not genuine, it is possible that the applicant could have taken steps to obtain corroboration. 20 In support of grounds 1, 2 and 3 of the Amended Application, the applicant relied upon what was said to have been a failure by the Tribunal to address the applicant's claims. This argument was put in various ways in both the written and oral submissions on behalf of the applicant, and was founded principally upon the decision of the Full Court in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) FCA 247, 19 March 1999. It was argued that the Tribunal erred because simply rejecting the applicant's evidence was not a sufficient foundation for rejecting the applicant's case. The applicant argued (inter alia) that the Tribunal had not taken account of the applicant's evidence that he was connected with Al Nadha for religious rather than political reasons. 21 Assuming that the reasoning in Sellamuthu v Minister (supra) relevantly survives Eshetu (supra), I agree with the submission of counsel for the respondent that Sellamuthu dealt with a situation which does not arise here. There, the rejection of the evidence of the applicant left a substratum of agreed or proven facts which, it was held, required to be dealt with by the Tribunal. Here, rejection of the evidence of the applicant left no substratum at all - the Tribunal simply did not accept that he was regarded by the Tunisian authorities as having any relevant connection with Al Nadha. If this were so, there could be no legitimate fear of persecution on that account. Furthermore, Sellamuthu does not stand for the proposition that a Tribunal must expressly deal with every matter or argument put on behalf of an applicant. 22 This approach underlay grounds 1, 2 and 3 of the Amended Application and the submissions which were made overlapped submissions in support of the ground 4, namely, that there was no evidence or other material to justify the making of the decision. These arguments were put in various ways in both written and oral submissions. I have considered them all. In my view, they are in substance directed to the merits of the decision and are precluded by s476 as it has been construed by the High Court in Eshetu. 23 Whilst there is force in some of the criticisms of the decision made on behalf of the applicant, they are criticisms of the merits of the decision. There was ample material before the Tribunal on which it could have made the decision it did, including its observations of the applicant and his wife in evidence. It was for the applicant to satisfy the Tribunal of the statutory criterion and, despite giving and calling evidence, he failed to do so. I can detect no errors of the kind argued in the Tribunal decision, nor any failure to state reasons for decision. 24 It was argued for the applicant that I should apply the approach of the English Court of Appeal in R v Secretary of State for the Home Department, The Immigration Officer ex parte Gashi (Besnik) (unreported, 25 March 1999) namely, that: "----- The Court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines." 25 And further: "The more substantial the interference with human rights, the more the Court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above." 26 The respondent argued that this decision has little or no relevance in the present statutory context and referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. I am prepared to accept that the reasons of the Tribunal should be carefully scrutinised, bearing in mind the possibly serious consequences to the applicant of an adverse decision. However, they must be scrutinised, in order to detect any failure relevant to review under the Act. This scrutiny cannot enter upon the general merits of the decision, nor alter the obligation of the applicant to satisfy the Tribunal of the existence of the statutory criterion. I have endeavoured to give the Tribunal's reasons that kind of scrutiny. I reject grounds 1 to 4 inclusive. 27 That leaves the claim of actual bias, which is ground 5. The claim is based solely upon inference from the manner in which the Tribunal went about its task, including the reasons it gave. There is no evidence of actual animus or prejudgment. I have considered all of the matters relied upon in the written and oral submissions on behalf of the applicant to support this claim. The failings of natural justice to which I earlier referred, coupled with some of the Tribunal's reasoning, gave me some concern as to whether the Tribunal had prejudged the issued and had a closed mind in the manner explained and applied in Son Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505. 28 The conclusion I have come to is that to approach the matter in this way would be to give impermissible weight to my view as to the reasonableness or otherwise of the procedures and reasoning of the Tribunal. There is nothing to indicate that such failings as there might have been in relation to natural justice were the result of any bias against the applicant. They are just as likely to have been the result of the way in which the Tribunal, rightly or wrongly, sees its statutory duty. More importantly, the Tribunal did not simply reject the applicant's case on the basis of the first hearing, as it could have. It afforded him another chance to satisfy it by oral evidence and gave the applicant the later opportunity of dealing with some adverse material. This seems to me to answer the argument that the Tribunal had a mind closed against the applicant. 29 In this connection, I must say that there is some prescience in the remarks of Wilcox J in Son Zhan Qui at 551 where he said: "If Eshetu is overruled, disappointed applicants will have no choice but to search among those few grounds for an arguable ground of review. It will not be surprising if, in their disappointment at the Tribunal's decision, many claim actual bias. The result will be to substitute for inquiry into the character of the decision an inquiry into the character of the decision-maker. Not only is such an inquiry invidious, it tends to miss the applicant's grievance." 30 I reject the claim of actual bias. 31 I therefore dismiss the application with costs. I certify that the preceding thirty one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles .

Solicitor for the Applicant: McDonells Solicitors

Solicitor for the Respondent: Australian Government Solicitor