Khogali v Minister for Immigration & Multicultural Affairs [1999] FCA 1076

FEDERAL COURT OF AUSTRALIA

Khogali v Minister for Immigration & Multicultural Affairs [1999] FCA 1076 MIGRATION – application to review decision of Refugee Review Tribunal – whether the interpreting service provided at the Tribunal hearing was inadequate resulting in a reviewable procedural error Migration Act 1958 (Cth), ss 420, 425, 427, 476(1)(a), 476(1)(e) Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507, cited Minister for Immigration and Multicultural Affairs v Guo (1997) 144 ALR 567, cited Kopalapillai v Minister for Immigration and Multicultural Affairs (unreported, Full Federal Court, 8 September 1998), cited Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437, cited Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, cited

ABDLMONEIN KHOGALI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 1324 of 1998 O'CONNOR J SYDNEY

9 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1324 OF 1998

BETWEEN: ABDLMONEIN KHOGALI

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: O'CONNOR J

DATE OF ORDER: 9 AUGUST 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1324 OF 1998

BETWEEN: ABDLMONEIN KHOGALI

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: O'CONNOR J

DATE: 9 AUGUST 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for the review of a decision of a member of the Refugee Review Tribunal ("the Tribunal") dated 25 November 1998 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa. 2 The grounds of the initial application, as summarised, are: 1. That procedures that were required by the Migration Act 1958 (Cth) ("the Act") and the Migration Regulations to be observed in connection with the making of the decision were not observed. (s 476(1)(a)). 2. That the decision involved an error of law being an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal. (s 476(1)(e)). 3. That the Tribunal failed to accept that the applicant has a well founded fear of persecution for a convention reason without any proper explanation whereas the applicant claims that desertion of the military constitutes grounds for execution. 4. That the Tribunal refused to accept the applicant's claims of being the leader of a political group at Neilen University in 1992/93 and a known high level political activist without any evidence supporting its decision. 5. That the Tribunal disbelieved the secret tax of the applicant during his role in the anti-government activities without any concrete proof of evidence. 6. That the Tribunal refused to accept that the applicant was arrested for anti-government demonstrations in 1992 without evidence. 7. That in making her decision the Tribunal member explained that she did not accept that the applicant worked as a prison guard in the security section of Kober in 1994; that he passed information on to prisoners' families but said that the applicant served in the police force as a prison guard which may also have enabled the applicant to pass information on to prisoners' families as well. 8. That the Tribunal's finding that the applicant's information on planning to infiltrate the military to work against the government was false evidence to support his application was unfair. 9. That the Tribunal disbelieved the explanation of the applicant for the transferring of him from the police force to fight in the south of Sudan when the applicant provided a letter supporting this claim and failed to accept the letters as evidence in support of the application. 10. That the Tribunal failed to exercise its power and duty to provide a comprehensive merits review of the application and therefore exercised such power improperly. LEGISLATIVE CONTEXT 3 The relevant provisions of the Act in respect of this application are as follows: "Refugee Review Tribunal's way of operating 420. (1) 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. (2) 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. ... Where review "on the papers" is not available 425. (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. … Powers of the Refugee Review Tribunal etc. 427. (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. (2) The Tribunal must combine the reviews of 2 or more RRT-reviewable decisions made in respect of the same non-citizen. (3) Subject to subsection (4), the Tribunal in relation to a review may: (a) summon a person to appear before the Tribunal to give evidence; and (b) summon a person to produce to the Tribunal such documents as are referred to in the summons; and (c) require a person appearing before the Tribunal to give evidence either to take an oath or affirmation; and (d) administer an oath or affirmation to a person so appearing. (4) The Tribunal must not summon a person under paragraph (3)(a) or (b) unless the person is in Australia. (5) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence that the person will give will be true. (6) A person appearing before the Tribunal to give evidence is not entitled: (a) to be represented before the Tribunal by any other person; or (b) to examine or cross-examine any other person appearing before the Tribunal to give evidence. (7) If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter. … Application for review 476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; … (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;" 4 A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is a person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 5 The applicant seeks an order that the decision under review be set aside and remitted back to the Refugee Review Tribunal for reconsideration according to law. FACTUAL BACKGROUND 6 The applicant is a Sudanese citizen who arrived in Australia on 10 December 1997. 7 The applicant is from Omdurman [the twin city to Khartoum]. He said he attended Cairo University's Khartoum Campus from 1990 to 1995, completing a law degree and he had also worked as a police officer for the Khartoum Prison Administration from 1993 until 1995. 8 The applicant claims he came from a family who supported the Umma Party, which opposed the current government. The Umma Party had a group (with about 100 members) at Cairo University and he said he became the Secretary General of this group. Largely as a result of the group's work there were rallies and demonstrations against the government in April 1992. The applicant was detained by security forces following one of these rallies. He was threatened, but did not confess his involvement in the organisation of the rally. He was forced to sign an undertaking not to participate in political activities and he was released. Following this the security forces came to his house to check on him. 9 While at University the applicant said he and other students were compelled to join the People's Defence Force (PDF) or be conscripted into the military. The applicant did not want to join the PDF. He became a police officer to avoid the PDF and the army. He worked at the head office of the Khartoum prison administration and sometimes at the Kober prison. 10 Apparently, in 1994 the government decided to send students who were seen as "troublemakers" to fight in the south. Regular police officers were not sent to serve in the south, but the applicant said he was considered a troublemaker. The applicant tried to avoid being summoned but eventually received a notice stating that he had to report within 72 hours. At that point the applicant decided to flee the country. 11 The applicant claimed he could not apply for a passport because of the summons and therefore used his older brother's passport to travel to Chad. In March 1996 he travelled on to Libya were he earned money trading. In May 1997 he travelled on to Malaysia and then onto Australia with he claims a stolen passport of a Sudanese person which contained an Australian visa. 12 The applicant's passport and the other identity documents of the applicant were examined on arrival in Australia. A driver's licence was also provided by the applicant's representative. It was noted that the photograph on the university identification card had been substituted and that the driver's licence differed from the one provided by the applicant's adviser. There was no evidence of tampering on the military identity card.