Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832 MIGRATION – protection visa – appeal from decision of primary judge setting aside decision of Refugee Review Tribunal – whether failure to give proper, genuine and realistic consideration to merits of claim constitutes ground of review under Pt 8 of Migration Act 1958 (Cth) – whether Refugee Review Tribunal failed to consider application for review as required by ss 54, 65 and 414 of the Migration Act 1958 (Cth) – whether failure to observe procedures required to be observed – whether error of law.

Migration Act 1958 (Cth): ss 54, 65, 414, 476(1)(a), 476(1)(e)

Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 applied Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 applied MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v SOLOMON KAHSAY TEDELLA V 851 of 2000 MOORE, TAMBERLIN & GOLDBERG JJ 4 JULY 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 851 of 2000

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

AND: SOLOMON KAHSAY TEDELLA

Respondent

JUDGES: MOORE, TAMBERLIN & GOLDBERG JJ

DATE OF ORDER: 4 JULY 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The order of the Court made on 11 October 2000 be set aside and, in lieu thereof, it be ordered that the respondent's amended application for an order of review be dismissed and that the respondent pay the appellant's costs of and incidental to those aspects of the application determined by the reasons for decision given on 11 October 2000. 3. The respondent pay the appellant's costs of and incidental to the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 851 of 2000

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant

AND: SOLOMON KAHSAY TEDELLA

Respondent

JUDGES: MOORE, TAMBERLIN & GOLDBERG JJ

DATE: 4 JULY 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT THE COURT: 1 The appellant ("the Minister") appeals against a decision of a judge of the Court who ordered that the decision of the Refugee Review Tribunal ("the Tribunal") on 18 February 2000, affirming a decision of a delegate of the Minister on 21 July 1997 refusing to grant a protection visa to the respondent pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act"), be set aside and that the matter be referred back to the Tribunal for further consideration. 2 The respondent, a citizen of Ethiopia, and his wife arrived in Australia on 17 July 1996 and applied for a protection visa on 20 September 1996. The respondent claimed that he worked for Medecins Sans Frontiers ("MSF") from 1986 to 1995 and that at the relevant time conflict developed in Ethiopia between the Transitional Government of Ethiopia ("TGE") and the Oromo Liberation Front ("OLF"). The TGE started to round up Oromo people and the MSF attempted to assist the community affected by the conflict by providing medical aid to civilians. The respondent claimed that he was targeted by the military who accused him of supplying medicine for the OLF and that on or about 20 April 1996 he was detained by the military, kept in detention and beaten for approximately two and a half weeks. He claimed that he was released on 8 May 1996 after his father provided money for bail and he was told by the authorities that he should be available and should not leave Addis Ababa. He said that on 11 May 1996 he was asked to attend the prison again to collect a piece of paper which he said the prison must provide in order to show how long he was in prison. He made a number of other claims not relevant for the purposes of the appeal. 3 The respondent relied upon two documents to support his case that he had been detained which he tendered before the Tribunal. The first document was dated 11 May 1996 and was in the following terms: "Seal Provisional Government of Ethiopia, The Central Police Criminal Investigation Number 09/5/4826/88 Date: 11th of May 1996 TOWHOM IT MAY CONCERN Based on the closed follow up and investigation done by the Government that the person called Mr Solomon KAHSAY had been agitating against the Government then caught by Police Officers. Therefore, from 22nd of April upto 8th of May 1996 he was under police custody in Central Criminal Investigation, while all the necessary investigation and evidence has taken, then Government released him on 40000 Ethiopian Birr (Fourty Thousand Eth. Birr) bail that he should attend the office any time when the Government needs him. 'With greeting' Capitain Tsegaye Mulatu Manager for Criminal Investigation Section Seal Provisional Government of Ethiopia, The Central Police Criminal Investigation" (underlining and bold in original)

The second document was dated 28 January 1997 and was in the following terms: "Seal Provisional Government of Ethiopia The Central Police Criminal Investigation Number 09/5/5642/89 Date: 28th January 1997 To: Mr Solomon Kahsay TEDELLA Unknown Address According to the Government's follow up carried in the past that you were agitating against the government. It was cleared that you were caught by Police Officers and keep as a prisoner in Central Criminal Investigation, from 22nd of April up to 8th of May 1996. Investigations has done while in police custody and then he was released based on, to be appear in the office when an order send to him. In addition the Government released him on 40000 Ethiopian Birr (Forty Thousand Eth. Birr) bail. Based on the follow up done by the Government that he was called several times to attend the office and he could not be found at his home for further investigation. Although the Criminal Investigation Section has decided that your private property which is found with the family and the 40000 Ethiopian Birr (Forty Thousand Eth. Birr) bail should be paid to the Government. We want to let you know that within one month of this letter served, you have to go and report to the Criminal Investigation Section, otherwise the peace squad will search you and the necessary measure will be taken. 'With greeting' Captain Tsegaye Mulatu Manager for Criminal Investigation Section Seal Provisional Government of Ethiopia The Central Police Criminal Investigation" (underlining and bold in original) 4 The documents were examined by the Document Examination Unit and the Unit provided a written report to the Tribunal. The report concluded: "Examination of these letters raises more questions that it answers. It is impossible to state categorically whether both of these letters are authentic or fake. They could have been typed anywhere and by anyone. … Any scenario is possible but I believe it is impractical to rely on the letters at face value and, unless supported by further and more reliable information, each should be viewed with caution." 5 Before the Tribunal, the respondent adduced evidence from Mr Leul Gebreyesus who had been an Ethiopian national and a member of the Ethiopian Army. He came to Australia in late 1991. He gave evidence of his experience in the Ethiopian Army and his work with the police and the military police. He had been shown the two documents relied upon by the respondent and expressed a number of opinions about the documents. He concluded that the documents were genuine and were standard letters in language used by security forces. 6 The Tribunal rejected the respondent's claim that he had been detained in April 1996 and set out its reasons for rejecting that claim. A number of those reasons were not challenged on the appeal. The issue which gives rise to the appeal arose out of the Tribunal's findings in relation to the two documents. The Tribunal did not accept that Mr Gebreyesus was qualified to offer an opinion as to the genuineness of the two documents. The Tribunal continued: "Whilst his statements about his personal knowledge of procedures may be capable of having some weight attached to it, 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 then made further findings and observations in relation to the contents of the two documents. 7 The primary judge rejected the respondent's submission that the Tribunal failed to observe the procedures required to be observed by s 430(1) of the Act because it failed to set out the process of reasoning, or the findings on material questions of fact, which led to the Tribunal's conclusion that the two documents were not genuine. His Honour's rejection of this ground of review was not challenged on the appeal. 8 What was challenged on the appeal was his Honour's finding that the Tribunal did not give proper, genuine and realistic consideration to the merits of the respondent's case on the question of the genuineness of the two documents. His Honour held that it was undoubted that such a failure was a ground of review, relying upon the decision of the primary judge in Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368. His Honour analysed the Tribunal's reasoning in relation to the genuineness of the two documents and concluded that the deficiencies in the Tribunal's reasoning indicated that it failed to give proper, due and realistic consideration to the merits of the respondent's case. 9 The primary judge expressed his conclusion in the following terms: "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." 10 The Minister appealed on the grounds that the primary judge erred in holding that a failure by the Tribunal to give proper, genuine and realistic consideration to the merits of the respondent's case constituted reviewable error within the meaning of s 476(1)(e) of the Act, and alternatively that the primary judge erred in holding that the Tribunal failed to give proper, genuine and realistic consideration to the merits of the respondent's case. 11 Between the date of the judgment (11 October 2000) and the hearing of this appeal a Full Court upheld the Minister's appeal in Anthonypillai v Minister for Immigration and Multicultural Affairs (supra): Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274. The Full Court held that it was not an available ground of review under Pt 8 of the Act that the Tribunal failed to give proper, genuine and realistic consideration to the merits of the case of an applicant for a protection visa. 12 The respondent recognised the effect of this Full Court decision on the appeal and at the commencement of the appeal sought, and was granted, leave to amend the particulars of the grounds of his application for an order of review of the Tribunal's decision to include the particular that: "The Tribunal failed to consider the application for review as required by ss 54, 65 and 414 of the Act". This particular was relied upon for the purposes of ss 476(1)(a) and (e) of the Act, that is that procedures required by the Act and the Migration Regulations 1994 to be observed in connection with the making of the decision were not observed, and that the decision involved an error of law. The respondent did not seek to uphold the reasoning of the primary judge that the Tribunal failed to give proper genuine and realistic consideration to the merits of his claim but rather submitted that the Tribunal did not consider the respondent's application at all. The respondent submitted that the Tribunal had not reviewed the decision of the delegate of the Minister, as required by ss 54, 65 and 414 of the Act, and that as a result there had been a constructive failure by the Tribunal to exercise its jurisdiction. 13 This analysis was challenged by the appellant who submitted that the Tribunal did review the decision of the delegate of the Minister, consider the case made by the respondent, and grapple with the material before it. 14 In Minister for Immigration and Multicultural Affairs v Anthonypillai (supra) the Full Court recognised that in certain limited circumstances it would be open to an applicant before the Tribunal to submit that the Tribunal had failed to "review" the decision of the Minister because it could properly be said that the Tribunal had not "considered" the application for a visa at all. However, it is apparent from pars 79 and 80 in Anthonypillai that the scope for the submission that the Tribunal failed to perform its statutory duty is narrow and limited. 15 Although the respondent submitted that the Tribunal had failed to consider the respondent's case on the basis of all the material before it, an analysis of the Tribunal's reasoning demonstrates that this submission cannot be sustained and that the primary judge erred in concluding that the Tribunal had failed to determine the question before it on the merits. The respondent's complaint was limited to the manner in which the Tribunal assessed the two documents and, properly analysed, the complaint fell over the line into merits review as it related to the quality of the Tribunal's consideration and evaluation of the evidence. The Tribunal considered and analysed the two documents in some considerable detail and gave particular attention to a number of issues which it said arose from the documents and set out a number of reasons why it concluded that the two documents were not genuine. 16 The respondent submitted that the Tribunal did not address or consider the independent corroboration of the documents which the respondent placed before the Tribunal. A reading of the Tribunal's decision belies that submission. The Tribunal summarised Mr Gebreyesus' evidence in the following passage in its reasons: "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 also makes comments on the form of the letter, including the greeting. 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. Finally the witness expressed the opinion that the risk to the applicant of persecution is increased by his remaining in Australia for an extended period of time because this will give rise to a suspicion that he has been critical of the government during his absence. The witness states that during his recent visit to Ethiopia he saw and heard of a number of Oromo people, particularly educated and business people who have been arrested on false charges of helping Eritreans." 17 It will be remembered that the Tribunal had before it a report from the Document Examination Unit. In the Findings and Conclusions section of its reasons, 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, 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 then made further specific findings in relation to the documents in support of its conclusion that they were not genuine and had been fabricated. 18 The respondent was critical of the logical analysis undertaken by the Tribunal but it does not follow, as the passages to which we have referred demonstrate, that the Tribunal did not discharge its statutory function, nor can it be said that the Tribunal failed to consider the documents in a substantive or meaningful way. 19 We are satisfied that the Tribunal did not fail, in any sense of the term, to consider the respondent's case or the claims made by him. In our view, the ground of review upon which the respondent succeeded before the primary judge amounted in substance, to a review on the merits, and a criticism of the Tribunal's analysis of the factual material before it with which the primary judge disagreed. We are satisfied that the Tribunal considered whether the respondent was entitled to the visa sought on the totality of the material before the Tribunal. The Tribunal rejected the two documents relied upon by the respondent as genuine documents. The Tribunal did not disregard those documents but analysed their contents and the circumstances in which it was said by the respondent that they came into existence in considerable detail. It took into account, but rejected, the evidence as to the genuineness of the documents. Views may differ as to the cogency of the Tribunal's reasoning and the views it formed on various aspects of the documents. But to consider those matters on review is to cross the boundary between permissible grounds of review and impermissible merits review. A constructive failure to exercise jurisdiction may be found where a Tribunal misunderstands the statutory task committed to it or misconstrues applicable legislation. But that is not this case. In particular, this is not a case which falls within any of the types of cases considered in pars 78 and 79 of Minister for Immigration and Multicultural Affairs v Anthonypillai (supra). 20 After we reserved our judgment on the appeal, the High Court handed down judgment in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 in which it allowed the Minister's appeal and disapproved of the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469. The majority of the High Court held that s 430(1)(c) of the Act only required the Tribunal to set out such findings as it had made. It was not obliged to set out findings on what the Court regarded as objectively determined material questions of fact. The majority held that a complaint that the Tribunal had not made a finding of fact on a material question was not a failure to observe a procedure required by the Act for the purposes of s 476(1)(a). The reasoning of the majority in relation to the construction of s 430(1) is not relevant for present purposes. We have addressed this reasoning in Pollocks v Minister for Immigration and Multicultural Affairs [2001] FCA 689. 21 However, the majority recognised that a failure to make a finding on a material issue might fall within s 476(1)(b), (c) or (e) of the Act. McHugh, Gummow and Hayne JJ said at [83], [84] and [85]: "All this being so, there is no reason to give either par (b) or par (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it 'exceeds its authority or powers'. If that is so, the person who purported to make the decision 'did not have jurisdiction' to make the decision he or she made, and the decision 'was not authorised' by the Act. … If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out. Paragraphs (b), (c) and (e) would thus each be engaged in such a case and the Federal Court would have jurisdiction under Pt 8 of the Act to review the Tribunal's decision. …" Gleeson CJ agreed with those reasons and also suggested that a failure to make a finding on a material question of fact might give rise to a ground of review under the provisions in s 476(1) other than s 476(1)(a). His Honour said at [10]: "By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s 476(1) other than s 476(1)(a), or may provide some other ground for judicial review." (see also Gaudron J at [46]‑[51]). 22 The parties were given the opportunity to make further written submissions in the light of Yusuf. The respondent, relying on the reasoning in Yusuf, sought leave to add the following grounds to his application for an order of review: "1. The Tribunal did not have jurisdiction to make the decision. PARTICULARS The Tribunal lacked jurisdiction because it failed to take into account the arrest and detention of the applicant which matters were considerations relevant to the exercise of the power and duty to review the decision of the Delegate of the Minister for Immigration. 2. Alternatively, the decision was not authorised by the Act. PARTICULARS The decision of the Tribunal was not authorised because it failed to take into account the arrest and detention of the applicant which matters were considerations relevant to the exercise of the power and duty to review the decision of the Delegate of the Minister for Immigration." In the circumstances, we grant leave to the respondent to add these grounds to his application. 23 The respondent submitted that the manner in which the Tribunal dealt with the evidence in support of the genuineness of the documents demonstrated that the Tribunal failed to take into account in any real sense the applicant's claim that he had been arrested and detained for the reason of a political opinion imputed to him. This submission was predicated upon the contention that there was such a paucity of analysis in respect of the two documents that the conclusion was that the Tribunal did not take into account the evidence in relation to the two documents in any real sense. However, to come within the reasoning of the majority in Yusuf, it is necessary to demonstrate that the Tribunal identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material. For the reasons given in pars 15‑19 above we are satisfied that the Tribunal did not fall into such an error. The submission that the Tribunal did not properly consider the evidence of detention does not give rise to the application of the reasoning of the majority in Yusuf, and in any event, we reject it for the reasons already given. The Tribunal did not fall into jurisdictional error and the added grounds are not made out. 24 The order of the Court will be that the appeal will be allowed, the orders of the primary judge on 11 October 2000 be set aside and, in lieu thereof, it be ordered that the respondent's amended application for an order of review be dismissed and the respondent pay the Minister's costs of that application to the extent to which it related to the hearing on 11 October 2000. The respondent should pay the Minister's costs of the appeal. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 4 July 2001 Counsel for the Applicant: A L Cavanough QC and C G Fairfield

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: R M Niall

Solicitor for the Respondent: Erskine Rodan & Associates

Date of Hearing & filing of further submissions: 16 May, 14 June 2001

Date of Judgment: 4 July 2001