Eliki Bill Abako v Minister for Immigration & Multicultural Affairs [1998] FCA 508 (27 March 1998)

Last Updated: 18 May 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 40 of 1998

BETWEEN:	eliki bill abako Applicant
AND:	minister for immigration and multicultural affairs Respondent

JUDGE:	EMMETT J
DATE:	27 MARCH 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR: This matter was first heard on 18 March 1998. On that day Eliki Bill Abako ("the Applicant") appeared in person. There had been no submissions filed on his behalf, contrary to the direction which I gave on 6 February 1998. After I had heard submissions, a woman purporting to be a solicitor addressed me and indicated that she had received instructions to act on behalf of the Applicant but needed some time to consider the papers. Accordingly, after I expressed the reasons for my reaching the provisional conclusion that the application should be dismissed with costs, I adjourned the proceedings until today part heard. I gave the Applicant liberty to file and serve no later than 24 March any further submissions which he wished to make in the light of the reasons which I then expressed and in the light of the written submissions made on behalf of the Minister.

No such submissions were received. However, there was filed on 24 March 1998 a document which was expressed to be submissions. It was signed by Mary Andrawis as solicitor for the Applicant. No appearance has been filed by Mary Andrawis or any other solicitor. The document said that an application was being made to the Minister seeking to have the Minister review his decision not to afford the Applicant refugee status. Attached to the document was a copy of a letter to the Minister seeking assistance in having the actions of the Tribunal reviewed. The basis upon which such a review could occur is not clear.

The document went on to say that an initial conference had been held between the Applicant and Mary Andrawis on 21 March 1998. The document also stated that on 23 March 1998 the services of counsel had been engaged who was said to have given preliminary advice. The document said that the view of the solicitor was that an extension of any stay for a period of 14 days would provide an opportunity for complete research and preparation.

The document also asserted that there has been a problem to date because, although the Applicant has from time to time had access to accredited interpreters, the interpreters have spoken a different dialect from the Applicant. There had been no previous indication of any difficulty in interpretation and at the hearing before me, the interpreter present appeared to be able to communicate perfectly well with Mr Abako in the Swahili language.

When the matter was called on this morning Mr A.S. Aquilina, an Immigration Consultant, sought leave to speak on behalf of the Applicant and that leave was granted. Mr Aquilina referred to a further application being made under the Act to the Minister but also said that further time was sought in order to make further submissions to the Court. Mr Aquilina, however, was unable to indicate to me the nature of the submissions which were to be made and why further time was now required.

The proceedings were stood down to 2.15pm to enable Mr Aquilina to contact a legal representative of the Applicant. When the matter was called on again, Mr Debuse of counsel appeared for the Applicant, indicating that he was doing so on a pro bono basis. He sought an adjournment to give the Applicant the opportunity of filing further evidence. Some debate took place thereafter as to the utility of being given such an opportunity. Mr Debuse indicated that such an adjournment would enable him to adduce evidence in support of the ground in section 476(1)(g) as qualified by section 476(4)(b).

As I have already indicated, the basis of the Tribunal's decision was that it did not believe the Applicant when he asserted that his origin was Zaire and that it did not believe the evidence which he gave concerning his alleged departure from Zaire. For the reasons to which I have referred, the Tribunal concluded that it simply did not accept the Applicant as a credible witness. Therefore the Tribunal concluded that it was unable to be satisfied that the Applicant was from Zaire and had the relevant fear required for a protection visa.

Mr Debuse contended that the conclusion of the Tribunal was tantamount to a finding of fact that the Applicant came from some place other than Zaire. That may be an appropriate characterisation of the finding. However, even if that be so, there are still difficulties in endeavouring to establish facts which were canvassed before the Tribunal and in respect of which adverse findings were made. In Szelagowicz v Stocker [1994] FCA 1110; (1994) 35 ALD 16, Davies and Einfeld JJ said in relation to equivalent provisions in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (at 22):

They provide a ground of review where there was before the decision maker no evidence of a fact, the decision was based on the existence of that fact and the fact did not exist. On this ground a decision may be challenged but only if evidence is called which positively establishes that the fact did not exist. They do not permit evidence to be adduced to contradict either evidence or material which was before the decision maker or an inference which was available to be drawn from that evidence or material.

As I understand the submission on behalf of Mr Debuse, he wishes to be in a position to adduce evidence to contradict the findings made by the Tribunal. In particular he wishes to adduce evidence to contradict the finding that the journey in question could not have been made in the short period of time asserted by the Applicant and to prove that a person in the position of the Applicant in Zaire may not be French speaking.

There are two bases why I should not grant a further adjournment to enable consideration to be given to an application for leave to re-open to adduce such evidence. The first is that, in the light of the observations made in Szelagowicz, to which I have referred above, such evidence simply would not be admissible. This is not a case in which there was before the decision maker no evidence of a fact on the existence of which the decision was based. Rather it is an instance of an attempt to contradict evidence or material which was before the decision maker or to contradict an inference which was available to be drawn from that evidence or material.

The second reason is that there is no evidence before me to suggest that any such evidence is likely to be available even if some time were given. The Tribunal's decision was given in January 1998 and the Applicant has been in Australia since July 1997. Certainly during that time the Applicant has been in detention and the opportunity to make inquiries which he would have had must be taken to have been very much constrained. On the other hand, there is evidence that he has had some assistance from a consultant in relation to the matters in issue.

As I indicated in my earlier reasons, the Tribunal corresponded with the Applicant's adviser in relation to the very matters which were the subject of concern to the Tribunal, being the matters upon which the Tribunal based its conclusion. It was therefore apparent at that stage that there was a prospect that the Tribunal would make the decision which it made. There has been nothing put before me to indicate why the adviser did not, at that stage, take steps along the lines on which Mr Debuse says the Applicant would now like further inquiries made. I have already granted an indulgence of 10 days in circumstances where the request for an indulgence was made by somebody purporting to be a solicitor. Nothing has been submitted to me to indicate that steps have been taken during that time to initiate inquiries. Mr Debuse was not in a position to indicate that steps would be taken or what steps would be taken.

I therefore have nothing before me to indicate that there is any likelihood of evidence being available in the near future or even in the distant future which might contradict the findings made by the Tribunal. I have, in the course of argument, indicated that I am troubled by the matter to some extent. The source of that trouble is the basis upon which the decision was made. The Applicant was regarded as an unreliable witness as to the primary matters necessary to be established before refugee status could be established and the decision in effect was based on inferences. However, questions of credibility are matters of fact and a finding has been made against which the only possible ground of review contended for on behalf of the Applicant today is that under section 476(1)(g). For the reasons which I have indicated I do not consider that it is appropriate that time be given to adduce further evidence in support of an application for leave to re-open. There being no other ground advanced as to why the decision of the Tribunal was in error I consider that I have no option but to reject the application for a further stay of the orders which I made on the last occasion.

It follows on my refusing any further stay that the orders which I made on 18 March 1998 will take effect after today.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett

Associate:

Dated: 27 March 1998

Counsel for the Applicant:	B. Debuse
Counsel for the Respondent:	T. Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 March 1998
Date of Judgment:	27 March 1998