Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 ; (2004) 219 ALR 27
Outcome: cited
It was contended by the appellants that his Honour erred in law in finding that some link must be established between the claims expressly articulated by the applicant and other claims that clearly arise on the material before the Tribunal. It was contended that in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 ; (2004) 219 ALR 27 at [60] , the Full Court confirmed that a Tribunal is required to consider claims that clearly arise on the material before it when conducting a review, and the Full Court did not limit this requirement to those claims the applicant adopted or which were aligned with the claims advanced by the applicant. 45 It was then contended that his Honour erred in finding that there was no evidence which identified the relationship between the statements of the witnesses and the appellants' claims. It was argued that the relationship was clearly made out by the appellants having requested the witnesses give evidence before the Tribunal and by the content of the witnesses' evidence, and that that evidence contained information specific to the appellants and made specific claims about the consequences the appellants faced if they were made to return to Laos. As such, it was submitted, the learned Federal Magistrate erred in finding that the Tribunal had not failed to conduct a review as required by s 414 when it did not consider all the claims that clearly arose on the material before it. 46 It seems clear to me that whether or not it was obliged to do so, it is apparent from the Tribunal's decision that it did have regard to the evidence supplied by the three witnesses. The content of the material supplied by the witnesses was set out comprehensively in the Tribunal's reasons and the Tribunal's substantive consideration of that material is also apparent. In the relevant passage the Tribunal notes that the witnesses' statements were directed to the likely consequences to the appellants of a return to Laos and concludes that the witnesses 'went beyond giving evidence about matters they had knowledge about and speculated about what they thought would happen to the applicants in Laos'. The witness statements were effectively discounted as being speculative. 47 Therefore, even if the statements did cover claims other than those of the appellants, the Tribunal found the statements were speculative and therefore could not be relied upon. It would not matter then whether the evidence of the witnesses purported to support the claims of the appellants; they were of such quality that the Tribunal could not rely upon them for any purpose, even if they did canvass other claims or matters. 48 In the terms of the Full Court decision in NABE , the claims said to arise out of the letters of the three witnesses were not claims that clearly arose from the material before the Tribunal in view of the evidence's speculative nature as found by the Tribunal. The Tribunal, having reviewed all the material before it, including the unreliability of the appellant husband, gave no weight to the three witnesses the appellants sought to rely upon. This, the Tribunal was entitled to do. 49 It is worthwhile setting out the relevant part of the Tribunal's reasons, which in my view show clearly the approach of the Tribunal as outlined above. The Tribunal notes that Mr Sacsady, Mr Arounsavat and Miss Arounsavat made certain assertions in their letters about what the applicants would face if they returned to Laos which the applicants themselves had not explicitly or implicitly claimed to fear . Mr Sacsady stated that the first and second named applicant had 'declared' themselves to be against communism and would be punished as 'political criminals'. However, the second named applicant has made no such claim. The only fear of harm she claimed to have was related to her husband allegedly accommodating members of the underground group in their home in Laos. She did [not] claim that she would be viewed adversely by the Lao government for any other reason or that she feared harm fro any other reason. Mr Arounsavat stated that if the applicants returned to Laos the first named applicant would not be able to return to teaching, the second named applicant would not be able to continue to operate her business and the third named applicant's education would be negatively affected. No such claims were made by the applicants and in fact the second named applicant stated in the protections visa application that her occupation in Laos was 'home duties'. Ms Arounsavat asserted that the applicants would face certain financial and social difficulties if they returned to Laos. Again no such difficulties were claimed by the applicants. There is nothing in the letters to indicate that the applicants had made such claims to Mr Sacsady, Mr Arounsavat or Miss Arounsavat. Although Mr Arounsavat assisted the applicants with their application and was listed as the applicants' adviser in the review application, he was invited to write to the Tribunal in his capacity as a witness not as an adviser. Further, nothing in his letter indicates that he was advancing the matters referred to in the last paragraph of his letter upon the instructions of the applicants in his capacity as their adviser. The Tribunal concludes that Mr Sacsady, Mr Arounsavat or Miss Arounsavat went beyond giving evidence about matters they had knowledge about and speculated about what they thought might happen to the applicants in Laos . The applicants had the opportunity to make their claims in their protection visa application, in their review application, prior to the Tribunal hearing and at the Tribunal hearing. As they neither explicitly nor implicitly made claims about the above matters raised by Mr Sacsady, Mr Arounsavat and Miss Arounsavat they do not require consideration by the Tribunal. ... On the basis of the above problems with the first named applicant's evidence the Tribunal has concluded that he is thoroughly lacking in credibility and invented the claims that he joined the underground government group. The Tribunal does not accept that he did so or that he assisted the group in any way. Having found him to be an unreliable witness, the Tribunal gives no weight to the second named applicant's evidence or the letters from the first named applicant's father and godfather. There is nothing in the evidence of Mr Sacsady or Miss Arounsavat which indicates that they have independent or personal first hand knowledge of the applicant's involvement with the group thus their evidence is of no weight in that regard. In his written evidence, Mr Arounsavat states '... in knowing that Khongmany has proactively helped his uncle ...'. It is not clear from this whether Mr Arounsavat is claimed to know that the first named applicant was involved with the uncle in Laos because that is what the first named applicant has told him or because he has some other independent knowledge of this. Given that Mr Arounsavat states he came to Australia in 1988 and has not been able to return to Laos it seems unlikely he would have any first hand knowledge that the first named applicant was associated with his uncle's group in Laos. In any event, as the Tribunal has found the first named applicant to be an unreliable witness, it gives no weight to this aspect of Mr Arounsavat's evidence. The Tribunal accepts on the basis of the receipts, the copy of the article and the evidence of Mr Sacsady that the first named applicant joined some Lao organisations in Australia and wrote at least one article critical of the Lao government. However, as it has found the first named applicant to be an unreliable witness who invented his claims about his political activities in Laos, it is not satisfied that he engaged in that conduct other than for the sole purpose of strengthening his claim that he is a refugee . Accordingly, pursuant to s 91R(3) the Tribunal must disregard the first named applicant's conduct in Australia in assessing his claim to be a refugee. (own emphasis added) 50 I do note that the Tribunal did observe that as the appellants did not make claims about certain matters raised by the three witnesses, 'they do not require consideration by the Tribunal'. Having regard to the passages referred to above, this may have been one basis for the decision, but a fair reading of the Tribunal's reasons as set out above indicates that the Tribunal did in fact consider the evidence and that the substantive basis for disregarding the evidence was its speculative nature.