Kemal Ozberk & Ors v The Minister for Immigration & Multicultural Affairs [1998] FCA 12 (19 January 1998)

FEDERAL COURT OF AUSTRALIA

MIGRATION - appeal from Refugee Review Tribunal ("RRT") decision refusing refugee status - whether fresh evidence not before the RRT can be admitted in proceedings before the Court.

Migration Act 1958 (Cth), ss 48B, 476, 481

Ovali v The Minister for Immigration and Multicultural Affairs, (Finn J, 24 Oct 1997, unreported), followed

Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551; (1997) 145 ALR 532, followed Servos v Repatriation Commission (1995) 56 FCR 377, followed

Festum Habte v Minister for Immigration and Multicultural Affairs (Davies J, 13 Nov 1997, unreported), considered

KEMAL OZBERK, BILGIYE OZBERK, PINAR OZBERK & PERVIN OZBERK v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 36 of 1997

MARSHALL J

MELBOURNE

19 JANUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 36 of 1997

BETWEEN:	KEMAL OZBERK First Applicant BILGIYE OZBERK Second Applicant PINAR OZBERK Third Applicant PERVIN OZBERK Fourth Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MARSHALL J
DATE OF ORDER:	19 JANUARY 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The notice of motion dated 17 November 1997 be dismissed.

2. The directions hearing in the application be adjourned to 10.15 am on 3 February 1998.

3. The applicants pay the respondent's costs of the notice of motion.

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	VG 36 of 1997

BETWEEN:	KEMAL OZBERK First Applicant BILGIYE OZBERK Second Applicant PINAR OZBERK Third Applicant PERVIN OZBERK Fourth Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MARSHALL J
DATE:	19 JANUARY 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The matter the subject of this judgment is a notice of motion dated 17 November 1997 filed on behalf of the firstnamed applicant, Mr Kemal Ozberk. Mr Ozberk sought an order from the Court that the applicants have leave to rely upon two affidavits. The purpose of the notice of motion is to allow fresh evidence before the Court at the hearing of the substantive proceeding. This evidence was not before the original decision maker. The substantive proceeding is an application for an order of review under Part 8 of the Migration Act 1958 (Cth) ("the Act"). It is an application to review the decision of the Refugee Review Tribunal ("the RRT") made on 9 January 1997 that the applicants are not persons to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention").

BACKGROUND FACTS

The applicants are Turkish citizens who entered Australia on 28 October 1995. The secondnamed applicant is the spouse of Mr Ozberk and the other applicants are their children. On 17 January 1996 the applicants applied for protection visas. On 28 May 1996 a delegate of the respondent refused the applications. On 4 June 1996 the applicants applied to the RRT for a review of that decision. The RRT conducted an oral hearing on 20 November and 9 December 1996.

The RRT accepted that the firstnamed applicant may have faced discrimination and harassment in his employment at a military air base in Turkey on account of his religion (Alevi Muslim) and his Kurdish ethnicity. However, the RRT went on to find that:-

" The lengthy period of his employment with the military air base and his constant work history before this satisfies the Tribunal that he will not be deprived a (sic) livelihood should he return to Turkey. Therefore in relation to his claims that relate to his work place the Tribunal is satisfied that there is no real chance that the Applicant will face persecution for a Convention reason should he now return to Turkey."

The RRT was also of the view that had Turkish authorities sought Mr Ozberk they had ample opportunity to find him before his departure from Turkey. It also found that a document purporting to be a Turkish Court document requesting Mr Ozberk's arrest consequent on being sentenced to two years and eight months imprisonment was false ("the first warrant"). Further, the RRT disbelieved Mr Ozberk's allegation that he was arrested and detained by Turkish authorities in 1995. It took the same view of his allegation that he was beaten by the police in January 1994 by reason of the political activities of his brother.

As to Mr Ozberk's claim that he received adverse treatment from Turkish authorities by reason of his membership of the People's Democracy Party ("HADEP"), the RRT found that:

"His involvement seems to have been at a low level and consisted of attending meetings and distributing booklets and seeking donations."

The RRT found that Mr Ozberk faced no real chance of persecution on return to Turkey as a result of his membership of HADEP or his membership of an Alevi Association.

The RRT concluded by saying:

"... the Tribunal accepts that there is discrimination against both Kurds and Alevis. It is also clear that both Alevis and Kurds do blend into the broader Turkish community. Having rejected the Applicant's specific claims in relation to his political profile and in relation to his brother the Tribunal is satisfied that the Applicant does not face a real chance of persecution as a result solely of his Alevi religion or Kurdish ethnicity."

Central to the RRT's adverse findings on the credibility of Mr Ozberk was its view that the arrest warrant document was false. In coming to that view it relied upon a report from the Document Examination Unit ("DEU").

The substantive application in this Court was filed on 30 January 1997. At the first directions hearing on 24 February 1997 a consent order was made for the filing and serving of contentions of fact and law and a Court Book with the matter being adjourned to a further directions hearing on 10 June 1997.

On 6 June 1997 a consent order was made allowing further time for compliance with the order of 24 February 1997 and adjourning the directions hearing to 15 September 1997. On 24 June 1997 an amended application was filed in which the applicants clarified that they relied upon
s 476(1)(a), (e) and (g) of the Act.

On 12 September 1997 a further consent order was made granting the parties additional time to file and serve a Court Book and contentions of fact and law and adjourning the directions hearing to 27 October 1997. On 24 October 1997 the directions hearing was, by consent, adjourned to 10 November 1997 as the respondent had failed to file and serve his contentions of fact and law. On 10 November 1997 the substantive application was listed for hearing on 21 November 1997. The Court indicated on 10 November 1997 that any notice of motion which the solicitor for the applicants then foreshadowed should be made returnable at the commencement of the trial of the substantive matter. On 21 November 1997 the Court heard submissions regarding the notice of motion. By agreement counsel for the parties were content that the Court first rule on the notice of motion and after judgment has been delivered regarding the notice of motion a further directions hearing would be held at which time the hearing of the substantive application would be programmed.

THE NEW EVIDENCE SOUGHT TO BE INTRODUCED BY THE NOTICE OF MOTION

The first order (and only substantial order) sought by the notice of motion is that:

"The applicants have leave to refer to the evidence contained in the Affidavit of Kemal Ozberk sworn the 14th day of November 1997 and the exhibits thereto and the Affidavit of Karyn Anderson sworn the 17th day of November 1997."

The affidavit of Mr Ozberk referred to a telephone conversation that had occurred between Mr Ozberk and his mother in Turkey in mid July 1997. Mr Ozberk deposed that in this telephone conversation his mother informed him that Turkish police had handed her a warrant for his arrest ("the second warrant"). Mr Ozberk further deposed that his uncle travelled to Australia on 22 August 1997 bringing with him the second warrant. Mr Ozberk obtained the second warrant and an English translation of that warrant.

Ms Anderson is an employee solicitor who has the care and conduct of Mr Ozberk's application. Ms Anderson's affidavit explained how the second warrant came into her possession. It also referred to Ms Anderson's intention on behalf of the applicants to "adduce ... fresh evidence" before this Court, that "fresh evidence" being the second warrant. In addition the applicants' solicitors have caused to be filed two certificates of expert evidence under s 177(1) of the Evidence Act 1995 . The first certificate went to the authenticity of the first warrant which was found by the RRT to have been concocted. The second certificate went to the authenticity of the second warrant which was not before the RRT.

THE COMPETING SUBMISSIONS

Ms Mortimer, of counsel, appeared for the applicants. Mr Mosley, of counsel, appeared for the respondent. Ms Mortimer identified two purposes for the notice of motion. The first purpose was to found an application that the Court should remit the matter to the RRT regardless of whether the Court finds that the RRT made an error of law. The second purpose was to support the applicants' submission that errors of law were made by the RRT.

Ms Mortimer submitted that the Court should make an order under s 481(1)(b) of the Act referring the matter to which the decision relates to the person who made the decision. Ms Mortimer said that the Court would be justified in making such an order if it was satisfied that had the new evidence been available to the RRT it is reasonably clear than an opposite result would have been reached.

In the alternative it was submitted that even if the Court was not so satisfied, the demands of justice in the circumstances of the case required the receipt of the new evidence.

Ms Mortimer conceded that:

"... fresh evidence cannot be adduced on review to contradict the evidence before the Tribunal nor to invite the Federal Court to make findings of fact and thus turn the review into a review on the merits ..."

If the new evidence is admitted by the Court the applicants will submit that it adds weight to their contention that the RRT erred as to the authenticity of the Turkish documents which were before it.

Mr Mosley submitted that the RRT made its decision on the material before it and is now functus officio. He also submitted that it is "inappropriate" to refer a matter back to the RRT for it to reconsider on the basis of fresh evidence.

Mr Mosley relied on the following passage in the judgment of Finn J in Ovali v The Minister for Immigration and Multicultural Affairs, 24 October 1997, unreported:

"I note at the outset that the applicant sought at the hearing to adduce fresh evidence in this matter. The motion was refused, as I then indicated, primarily for the reason that the Tribunal itself had no power to reconsider the matter in the light of that evidence after it made its decision: Shanta Karunaratna Jayasinghe v Minister for Immigration and Ethnic Affairs, Federal Court of Australia, 25 June 1997, Goldberg J."

In Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551; (1997) 145 ALR 532 Goldberg J said at 533:

"The application before the court raises the unusual issue whether the Refugee Review Tribunal (the tribunal) can reopen or reconsider its substantive decision on its review of an RRT-reviewable decision after it has made and published its decision or whether, on the making of that decision, it is functus officio."

After he referred to the judgment of Sackville J in Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 and his analysis of the explanatory memorandum which accompanied the Migration Reform Bill 1992, Goldberg J said at 539 - 540:

"... access to the Federal Court was intended to be limited to that point at which there has been a determination by a tribunal of the substantive issue involving the applicant.

It is consistent with the reasoning in Ozmanian that the only `decisions' to be judicially-reviewable under Pt 8 of the Act are those which resolve the substantive issue before the tribunal and are specifically provided for in the Act."

Mr Mosley acknowledged that Jayasinghe involved an application to the RRT for it to reopen a matter rather than an application for the Court to receive fresh evidence and remit the matter to the RRT on account of that evidence.

Mr Mosley also referred the Court to the judgment of Spender J in Servos v Repatriation Commission (1995) 56 FCR 377. One issue before Spender J was described by him in the following way at 380:

"... whether, and to what extent, an applicant for review pursuant to s 44 of the Administrative Appeals Tribunal Act can adduce evidence which was not before the Tribunal at the time of its decision."

At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal ("AAT") "... are only on questions of law." His Honour held at 382 that the Court had no power to receive the fresh evidence.

At 385 Spender J said:

"The policy of the legislation in my opinion is to make the decision of the Tribunal final on questions of fact. It is inconsistent with that policy to seek to adduce evidence before the Federal Court for the consideration of the Court on an application pursuant to s 44 of the Act, the object of which is to invite the Court to disagree with a factual conclusion reached by that Tribunal."

In reply Ms Mortimer submitted that it was not the object of the applicants to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the RRT.

Ms Mortimer referred the Court to the finding of Spender J in Servos at 386 that, in any event, the evidence sought to be adduced was "... not ... shown to be such that no reasonable diligence would have enabled the evidence to have been adduced before the Tribunal." Ms Mortimer also relied on the following sentence in Spender J's judgment at 386:

"... It is also moot whether that evidence has the quality that, had it been adduced, an opposite result would have been achieved."

Ms Mortimer contended that all Spender J was saying was that the fresh evidence test identified in cases such as Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, 140 had not been met.

CONCLUSION

I reject Ms Mortimer's submission that Servos does not stand in the way of the Court dismissing the notice of motion. Although Spender J did express doubts about whether he would admit the new evidence if he had the power to do so, his critical finding was that he had no such power. In my view Spender J's finding at 385 in Servos that the Court cannot admit fresh evidence to demonstrate an error of fact before the AAT has relevant application to the matter before me.

A purpose of the admission of the fresh evidence is to show that the RRT was in error in its finding as to the authenticity of the first warrant in relation to which it sought guidance from the DEU. In my view the applicants seek by this notice of motion to admit fresh evidence to demonstrate that the RRT has made an error in its treatment of evidence before it.

I do not believe that the Court has jurisdiction to entertain such an application in the same way that Spender J held it had no jurisdiction to do likewise on appeal from the AAT.

Although Ms Mortimer contended that the applicants do not invite the Court to make factual findings, the logical and realistic conclusion that would be arrived at by the RRT if the Court admitted the new evidence and remitted the matter to the RRT would be that the Court viewed the new evidence as evidence upon which the RRT would be most likely to revisit the issue of the authenticity of the first warrant and come to a different view on that factual issue.

Notwithstanding submissions to the contrary by Ms Mortimer, in my view the real purpose of the fresh evidence is to contradict evidence which was before the RRT. Accordingly the notice of motion will be dismissed. Having come to the view that the Court does not possess the requisite jurisdiction to admit the new evidence, it is unnecessary for it to determine whether the evidence was such that had it been available to the RRT it was reasonably clear that an opposite result would have been reached. It is, however, clear that the evidence concerning the second warrant was not available with due diligence at the time of the decision of the RRT.

In my view the intention of the Act in making decisions of the RRT subject to judicial review is not to involve the Court in doing anything other than considering whether the RRT has erred in law. This is clear from s 476 of the Act which sets out the grounds for review and s 481 of the Act which sets out the orders which the Court may make. An examination of these sections indicates to me that it is not within the scope of the Act for the Court to admit fresh evidence regarding a matter in which a decision has been made by the RRT.

Even if the Court did remit the matter to the RRT with a direction to consider the fresh evidence the utility of it so doing is questionable. If the RRT is functus officio it cannot deal with the fresh evidence in any event. Having read the judgment of Goldberg J in Jayasinghe I see no basis for concluding that it was wrongly decided. Indeed, Ms Mortimer did not invite the Court to so find. Consequently, I agree with the approach of Finn J in Ovali, that there is no utility in remitting a matter to the RRT for it to consider fresh evidence when it is functus officio.

However, it is pertinent to observe that the Act does make some provision to deal with the circumstances in which the applicants find themselves. Under s 48B of the Act the respondent is empowered to allow the applicants to make a further application for a protection visa. The provision of this mechanism in the legislation, although a limited one, reinforces my decision to reject the introduction of fresh evidence before the Court. Where fresh evidence comes to light concerning a matter which was dealt with by the RRT, and that fresh evidence provides a basis for a different conclusion to be drawn than was actually reached by the RRT, the scheme of the Act contemplates that the Minister in her or his discretion may permit a further application for a protection visa. The Court cannot compel the exercise of that discretion.

As Davies J said in Festum Habte v Minister for Immigration and Multicultural Affairs, 13 November 1997, unreported:

"The only function of the Court is to determine whether there was an error of procedure or an error of law in the Refugee Review Tribunal's decision."

The order of the Court is as follows:

1. The notice of motion dated 17 November 1997 be dismissed.

2. The directions hearing in the application be adjourned to 10.15 am on 3 February 1998.

3. The applicants pay the respondent's costs of the notice of motion.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall

Associate:

Dated: 19 January 1998

Counsel for the Applicant:	Ms D S Mortimer
Solicitor for the Applicant:	Erskine Rodan & Associates
Counsel for the Respondent:	Mr W Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 November 1997
Date of Judgment:	19 January 1998