Yelda v Minister for Immigration & Multicultural Affairs [1999] FCA 1841
- Document source:
-
Date:
23 December 1999
MIGRATION - Whether Refugee Review Tribunal ("RRT") failed to determine the applicant's claim for refugee status upon the facts as they existed at the time that the RRT made its decision - whether RRT failed to apply the "real chance" test - whether the RRT failed to consider whether the applicant qualified as a refugee sur place on the basis of his imputed political opinion - whether the RRT failed to set out findings on material questions of fact - whether no evidence to justify the making of a decision.
Migration Act 1958 (Cth), ss 36, 65, 430(1), 476(1)(a), 476(1)(e), 476(1)(g), 476(4)(a), 476(4)(b)
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, discussed.
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, cited.
Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288, cited.
Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681, followed.
Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741, referred to.
De Silva v Minister for Immigration and Ethnic Affairs [1999] FCA 1074, discussed.
Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182, cited.
Abebe v Commonwealth (1999) 162 ALR 1, cited.
Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811, cited.
Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940, cited.
Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740, cited.
Direse v Minister for Immigration and Multicultural Affairs [1999] FCA 1626, cited.
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, cited.
Pat Tai Choi v Minister for Immigration and Multicultural Affairs (Lindgren J, 2 December 1998, unreported), cited.
HAITHEN HERMIS YELDA (ESHO) v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1206 OF 1999
JUDGE: SACKVILLE J
PLACE: SYDNEY
DATE: 23 DECEMBER 1999
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
BETWEEN:
HAITHEN HERMIS YELDA (ESHO) APPLICANT
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
DATE OF ORDER: 23 DECEMBER 1999
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent's costs of the proceedings.
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
HAITHEN HERMIS YELDA (ESHO) APPLICANT
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
REASONS FOR JUDGMENT
Background
1. This is an application to review a decision of the Refugee Review Tribunal ("RRT") given on 15 October 1999. The RRT affirmed a decision of a delegate of the respondent (the "Minister") made on 31 May 1999 not to grant the applicant a protection visa. The applicant by his further amended application relies on a number of grounds of review specified in s 476(1) of the Migration Act 1958 (Cth) ("Migration Act"). I refer to the arguments advanced on his behalf later.
2. The applicant is a single male, who is a citizen of Iraq. He was born in September 1971. He is, as the RRT found, a Christian. He arrived at Sydney Airport on 19 April 1999, without a passport.
3. The applicant had previously applied in April 1998 for migration to Australia under the Refugee Humanitarian Program. At that time he was in Greece, having left Iraq in early October 1997. He lodged his application with the Australian Embassy in Athens, but the application was rejected on 30 June 1998.
4. On arrival at Sydney Airport on 19 April 1999, the applicant was interviewed with the assistance of an Arabic speaking Customs Officer. At that time he indicated that he wished to apply for refugee status and was taken into detention. He lodged an application for a protection visa on 27 April 1999. A further, more detailed application was prepared with the assistance of a migration adviser on 8 May 1999. It was this application which was rejected by the Minister's delegate on 31 May 1999.
5. The applicant applied to the RRT to review the delegate's decision and made detailed written submissions in support of that application. The applicant gave oral evidence at a hearing held by the RRT on 21 July 1999. Evidence was also given by two witnesses nominated by the applicant.
6. Following the hearing, the RRT sent a letter to the applicant, dated 28 July 1999. The letter confirmed that the applicant had been given information at the hearing that would, subject to any comments he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The information was identified as his application to the Australian Embassy in Athens and the record of his interview with an Immigration Officer on 28 April 1999. The letter described the information as relevant because the documents contained matters that contradicted and were inconsistent with his claims. The applicant was invited to comment on this information.
7. In response, the applicant's advisers forwarded further documentation. This included a translation of what was said to be a letter from the University of Baghdad, dated 3 August 1999, confirming that the applicant had graduated in 1995 from the College of Sport. The applicant also provided a further statement responding to particular concerns raised by the RRT, including some related to his apparent lack of knowledge of the immediate area in which the University of Baghdad is located.
The Legislation
8. Under s 65(1) of the Migration Act 1958 (Cth) ("Migration Act"), the Minister may grant a visa only if satisfied that the criteria prescribed by the Migration Act or the Migration Regulations have been satisfied. A criterion for the grant of a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention: Migration Act, s 36(2). That criterion for a protection visa is fulfilled where, at the time of the decision, the Minister "is satisfied that the applicant is a person to whom Australia has protection obligations under the [Convention]": Migration Regulations 1994 (Cth), Sch 2, reg 866.221.
9. Article 1A(2) of the Convention defines a refugee as 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."
Sections 430(1) and 476 of the Migration Act provide as follows:
"430(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based."
...
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;
...
(g) that there was no evidence or other material to justify the making of the decision.
...
(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."
The Applicant's Claims
10. It is not altogether easy to glean from the thirty-one pages of the RRT's reasons the precise claims ultimately put forward by the applicant. The RRT quoted at considerable length from various statements prepared by or on behalf of the applicant and from his interviews and evidence, but the RRT did not provide a clear or concise summary of the applicant's case as finally advanced. Nor did the RRT set out a chronological account of events. However, it identified the specific claims advanced by the applicant that it was not prepared to accept.
11. It appears that the major claims made by the applicant were as follows:
(i) On 1 July 1987, the applicant (then aged about sixteen) was forced to join the Ba'athist Youth Brigades of the People's Army. After intensive training, he was sent to the front line in the Iran-Iraq war. He remained there for three months, experiencing danger almost every moment.
(ii) In October 1989, the applicant commenced studies in the Faculty of Sports Education at the University of Baghdad. He ultimately obtained his degree in August 1995.
(iii) The applicant was a skilled soccer player, who played with the University of Baghdad's soccer team. Shortly after commencing his university studies, he came to the attention of the Iraqi Olympic Union, presided over by Odai' Saddam Hussein, the son of the Iraqi dictator, Saddam Hussein. The applicant was asked by the Deputy of the Olympic Union to leave his studies to join the soccer club headed by Odai Hussein, on condition that he join the Ba'ath Party and sign an affiliation form. The applicant's family warned him against this course of action, in view of cases of torture and assault against players when the team lost. The applicant therefore declined the offer.
(iv) On 1 November 1990, a Ba'ath Party symposium was held at the University in support of Iraq's occupation of Kuwait. The applicant did not attend this symposium. He was summoned before the Dean of the Faculty in the presence of an official of the Ba'ath Party. The applicant was subsequently detained in the office of the National Students' Union for three days. He was subjected to insults and forced to sign an undertaking to attend all activities of the Union and to join the Ba'ath Party. He was subsequently obliged to attend meetings of the Ba'ath Party.
(v) On 15 April 1994, the applicant was accused of "instigating the students against the Party and the Regime". He was accused of disseminating news about Party meetings and "obfuscat[ing]" the Party and its leadership. He was detained by General Security and tortured. He was forced to sign a personal undertaking to return to the Party, not to divulge its secrets and to be faithful in carrying out its tasks and missions. According to the applicant, he was imprisoned for four months in the Public Security Directorate in Ala Baladiyat in Baghdad. Because of his detention, he was unable to complete that year of study at the University of Baghdad.
(vi) At about midnight on 3 January 1995, the applicant was summoned from his home to the Batawiya Branch of the Party. He was taken to the Security Department in Baghdad, where he was interrogated and tortured because the authorities believed that "Christians of the area" were responsible for an assassination attempt that had taken place. While in detention, he was severely beaten. After 113 days, he was finally released. He left detention totally demoralised, afraid of being killed and fully aware of the great danger presented by the Ba'ath Party.
(vii) The applicant graduated from the University of Baghdad on 15 August 1995. He then commenced his compulsory military service. Three months later, he was forced to join the Republican Guard/Intersection 70. The Intersection was responsible for interior operations and for providing support to the 10th Armoured Brigade in its operations in the middle and south of Iraq. According to the applicant, these brigades of the Republican Guard were chosen from the ordinary populace and were deprived of the advantages accorded to elite brigades. They were created as a camouflage to deceive the enemy and were given the most dangerous missions. The applicant claimed that in March 1997 he had been captured in an ambush prepared by rebel tribes in the Al Jabayish area of Aliwar. He was released after about six weeks. Subsequently, he completed his military service in May 1997.
(viii) On 27 September 1997, an incident took place which, on the applicant's account resulted in him fleeing from Iraq. On that day, he took a passenger in his father's taxi from Baghdad to Al Mosul. The passenger was unknown to him, but was apparently regarded by the authorities as an assassin. The taxi was stopped at a checkpoint. The passenger was taken off for questioning and not seen again. The taxi was impounded and the applicant detained for questioning, but was released three days later after his father paid a large bribe. During his detention, the applicant was tortured and subjected to threats directed against his family.
(ix) After his father had paid a bribe, the applicant was released on bail subject to a referral to the Security Court at Al Mosul. However, he was not sentenced by that court prior to his departure from Iraq.
(x) Fearing for his life, the applicant decided to leave Iraq. He travelled to the Turkish border, accompanied by his father. There he paid a Kurdish smuggler to take him across the border into Turkey. He remained in Turkey for about forty-five days. He then paid another smuggler US$2,000 to travel into Greece. He reached Athens on 24 November 1997.
(xi) On 15 April 1998, the applicant lodged an application for a permanent visa with the Australian Embassy in Athens. That application was accompanied by a handwritten statement prepared on behalf of the applicant by an Arabic-speaking friend. According to the applicant, the friend did not read back in Arabic what had been written and the applicant was never given a copy of the statement. The applicant claimed that he expected that he would be given an opportunity in Greece to set out in detail his claims in an interview with the case officer. However, his application was rejected without him being afforded any such opportunity.
(xii) Following the rejection of his application to the Australian embassy, the applicant agreed to pay a further US$8,000 to another smuggler in order to travel to Australia. He was given false papers. He flew to Australia via Italy and Singapore. He destroyed his false passport en route.
(xiii) The applicant claimed to fear torture and death if he were to return to Iraq. He feared that the Ba'ath Party would ensure his execution as a traitor and General Security would also regard him as a deserter of the country for leaving Iraq illegally.
The RRT's Reasons
12. The RRT noted that the applicant claimed to have been detained by the authorities on several occasions for reasons of imputed political opinion and that he had left Iraq illegally after being arrested with a person who turned out to be a wanted assassin. The applicant's oral and written evidence, according to the RRT, was in large measure confused, inconsistent, contradictory and implausible. The RRT stated that it drew the clear impression that the applicant was not telling the truth. Accordingly, the RRT did not accept the applicant's claims.
13. The RRT found that the claims made by the applicant to the Australian Embassy in Athens were substantially at variance with his later evidence. It rejected the applicant's claims that these discrepancies were to be explained by mistakes or deliberate representations on the part of the person who had assisted him in preparing his statement in Greece. The RRT found it implausible that the friend who had provided assistance would have made the mistakes claimed, either through incompetence or through some unexplained ulterior motive.
14. On arrival in Australia, the applicant had chosen to refer only to "pressure from government radicals" as his reason for seeking protection. He did not mention other more serious matters, such as the events of September 1997. The RRT again considered it implausible that a person in the applicant's circumstances "would not immediately attempt to convey the gravamen of his claims". The RRT also found other aspects of the applicant's claims to be implausible and to be internally inconsistent.
15. The RRT specifically rejected a number of the applicant's claims. Its findings may be summarised as follows:
(i) The applicant's claim relating to the incident at the Mosul checkpoint and its aftermath was "fanciful". The RRT was satisfied that the claim was a fabrication in its entirety.
(ii) The applicant's claim that he had been detained for four months in 1994 was a recent invention designed to bolster his claims.
(iii) The RRT was not satisfied that an Iraqi identification card produced by the applicant some time after his arrival in Australia was genuine. Certain other documents, including what purported to be a certificate of graduation from Baghdad University, produced by the applicant after his arrival in Australia, also were not genuine.
(iv) After noting a number of inconsistencies in the applicant's account concerning his having absconded from bail, the RRT said that it gained the clear impression that he was not telling the truth in relation to this issue. Accordingly, it was satisfied that he had fabricated the claim of absconding from bail. Moreover, the RRT was satisfied that he was not wanted by, or of any particular interest to, the Iraqi authorities.
(v) The RRT rejected the applicant's claim that he had served as a young teenager in the Iran-Iraq war. That claim was inconsistent with assertions made in his application prepared in Greece.
(vi) The RRT accepted that the applicant had been a talented soccer player and that he had refused an invitation to join the team of Odai' Hussein. However, on his own evidence, nothing had happened to him because of that refusal. In particular, he was not punished for it.
(vii) The RRT accepted that the applicant underwent military service in 1995, as he claimed. It did not accept his claims that he had been detained at various times during the course of his military service.
(viii) The RRT did not accept that the applicant had attended the University of Baghdad. It was influenced in reaching this conclusion by the applicant's inability to identify major streets surrounding the University, bearing in mind that he claimed to have attended the University on a daily basis for nearly six years. The RRT also found that the certificate of graduation produced by the applicant to the RRT was not genuine.
(ix) The RRT rejected the applicant's claim that in 1994 he had been accused of inciting students against the regime, interrogated and tortured for four months. It regarded that claim as a fabrication.
(x) The claimed detention of the applicant in 1995 for a period of 113 days was also regarded as "fanciful and far-fetched".
(xi) The applicant's claim to have entered military service with the Republican Guard within a few weeks of being released from this detention was also rejected. Independent evidence established that the Republican Guard Divisions were regarded as an elite force within Iraq and were closely aligned with Saddam Hussein. The RRT did not accept that a person with the applicant's claimed history of suspected anti-regime activity would be drafted into such an elite regiment.
(xii) The RRT was not satisfied that the applicant had ever been of adverse interest to the Iraqi authorities.
16. The RRT dealt separately with the question of whether the applicant could be regarded as a refugee sur place. The RRT addressed this question in the following way:
"there is a degree of variation in the independent evidence about the likely treatment of returnees by the Iraqi authorities. It seems that in the past returnees were likely to be questioned. The applicant claims to have left Iraqi illegally and to have no travel documents and to be at risk of harm because of this. There is recent evidence of an amnesty for Iraqis who left illegally. There is also some evidence that previous amnesties were not fully respected. I am satisfied from the independent evidence that the treatment of returnees will depend upon their particular facts, personal circumstances and history. The applicant claims to be a Christian and to fear harm for that reason. I am satisfied, on the basis of the independent evidence, that being a Christian is not of itself sufficient reason to give rise to a well-founded fear of persecution. I am not satisfied that the applicant is of adverse interest to the Iraqi authorities for any other reason and in view of the recent amnesty, I am not satisfied that he faces a real chance of harm for leaving illegally, or for any other reason. Furthermore, the evidence indicates the applicant has family and community links in Northern Iraq and in view of the recent UNHCR report, I am satisfied the applicant could also return and live safely in Northern Iraq. I am not satisfied the applicant has a well-founded fear of persecution for political, religious or any other Convention related reason."
Submissions
17. Ms Sharp, on behalf of the applicant, made a number of submissions, although some seemed to be essentially the same point put in different ways.
18. First, it was said that the RRT's decision involved an error of law, being an error involving an incorrect interpretation of the law: Migration Act, s 476(1)(e). Three separate errors of law were identified under this heading:
The RRT had failed to consider the question of the applicant's status as a refugee (by which I take it is meant his claim to have a well-founded fear of persecution for a Convention reason) upon the facts as they existed at the time the RRT made its decision.
The RRT had failed to apply the "real chance" test as required by the decision in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.
The RRT failed to consider whether the applicant might qualify as a refugee sur place on the basis of a political opinion imputed by him by virtue of his membership of the Ba'ath Party in Iraq, his illegal departure from Iraq and his having to apply for a passport to return to Iraq.
19. Secondly, the RRT had failed to set out its findings on material questions of fact or to refer to the evidence on which the findings of fact were based, as required by s 430(1)(c) and (d) of the Migration Act. The RRT had therefore failed to observe procedures required to be observed in connection with the making of the decision within s 476(1)(a) of the Migration Act.
20. Thirdly, there was no evidence or other material to justify the making of the decision in that the RRT based its decision on the existence of certain facts and those facts did not exist: Migration Act, s 476(1)(g), (4)(b). In particular, the RRT had found that the applicant's imprisonment for four months in 1994 was a "recent invention designed to bolster [his] claims". This claim (as the Minister conceded) had in fact been made by the applicant in his application to the Australian Embassy in Athens in April 1998.
21. As Ms Sharp explained the error of law contentions, they rested on the proposition that the RRT had failed to take into account the "facts" that the applicant had been a member of the Ba'ath Party and that he had left Iraq illegally. She pointed out that the applicant, in his application for a protection visa, had claimed that the Ba'ath Party would ensure his execution
"because they regard me as [having] become a traitor after the pledge I signed on joining. General Secretary would also have an interest in me for leaving Iraq illegally".
She also pointed to a written submission made on behalf of the applicant to the RRT, in which it was said that he feared that he would be arrested at the border and executed "principally as a Ba'ath Party violator and secondarily as a despised Christian and therefore a traitor against the regime".
22. The second ground of review (that is, the RRT's alleged failure to comply with s 430(1) of the Migration Act) was said to be attracted principally by the RRT's failure to make findings on the following material questions of fact:
The question of the applicant's membership of the Ba'ath Party and the consequences of that membership.
The consequences of the applicant's illegal departure from Iraq considered in the light of his membership of the Ba'ath Party.
The fact that the applicant was a talented soccer player in Iraq who had come to the attention of the son of Saddam Hussein together with the consequences of his illegal departure from Iraq.
Reasoning
23. It will be seen that at the heart of the applicant's submissions was his contention that the RRT had failed to address, or address adequately, critical aspects of his claims, in particular that he was a member of the Ba'ath Party and had left Iraq illegally. It was this failure, so Ms Sharp argued, which showed that the RRT had committed the various errors identified in the applicant's submissions.
24. To some extent the applicant's submissions, in my opinion, were misplaced. Assuming the RRT's reasoning to have been defective in the manner identified by the applicant, the result would not necessarily be that the RRT had erred in law in the manner identified by Ms Sharp. For example, it is clear that the RRT was bound to assess whether the applicant had a well-founded fear of persecution for a Convention reason by reference to circumstances prevailing at the time of the RRT's decision, not at some earlier time: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 (FC), at 293. But a failure by the RRT to take into account the applicant's alleged membership of the Ba'ath Party (whatever other grounds of review might thereby be enlivened) would not of itself mean that the RRT had considered the application otherwise than by reference to circumstances prevailing at the date of the decision. Similarly, a failure by the RRT to address a particular factual claim made by the applicant would not demonstrate that the RRT had misapplied the so-called "real chance" test laid down in Chan.
25. In my opinion, the RRT in the present case did not err either by failing to address circumstances in existence at the date of its decision or by misapplying the Chan test. The RRT's reasons show that it understood it had to take account of current circumstances in assessing the applicant's claim to satisfy the Convention definition of refugee. If it overlooked aspects of the applicant's case (a matter to which I shall return) it was not because it failed to appreciate the temporal aspects of its duties. So, too, the RRT correctly identified the criteria for determining whether an applicant has a "well-founded fear of persecution" for a Convention reason. Furthermore, having rejected the applicant's principal factual claims, the RRT specifically considered whether he faced "a real chance of harm for leaving [Iraq] illegally or for any other reason". It answered this question in the negative. There is nothing to suggest that the RRT misunderstood or misapplied the tests laid down in Chan or Guo.
26. The core of the applicant's complaint was that the RRT had failed to address critical aspects of his claims and had therefore failed to make findings on all material questions of fact, as required by s 430(1)(c) of the Migration Act. There is a stream of Full Court authority to the effect that a contravention of s 430(1) gives rise to a ground of review under s 476(1)(a) of the Migration Act, since there is a failure to observe procedures required "in connection with the making of the decision". That line of authority has recently been re-affirmed by a Full Court in Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 (Heerey, Merkel and Goldberg JJ).
27. A difficulty has been placed in the applicant's path by an even more recent decision of a Full Court in which two members of the Court (Whitlam and Gyles JJ, RD Nicholson J not deciding) have held, notwithstanding uniform earlier authority, that a failure by the RRT to comply with s 430(1) of the Migration Act does not constitute a ground of review under s 476(1)(a): Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741.
28. Mr Elliott, on behalf of the Minister, submitted that I should follow Xu in preference to Yusuf. That submission presents a number of questions. One is whether the reasoning of the majority in Xu can be regarded as part of the ratio decidendi, bearing in mind that their Honours' agreed with the reasoning and conclusion of RD Nicholson J, who decided the case on other grounds. Another question is how a single Judge should deal with conflicting Full Court decisions, the last of which is inconsistent with an otherwise unbroken line of authority and ultimately turns on a narrow construction of a particular statutory phrase. Fortunately, I do not need to resolve these and other questions in the present case. I am content to adopt the approach most favourable to the applicant, namely that Yusuf correctly states the law.
29. In De Silva v Minister for Immigration and Multicultural Affairs [1999] FCA 1074, at [46] I summarised the principles applicable to the requirement laid down by s 430(1)(c) of the Migration Act as follows:
"(i) A failure by the RRT to comply with the requirement in s 430(1)(c) activates the ground of review provided for in s 476(1)(a) of the Migration Act: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 (FC), at 414-415, per Sackville J; Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 (FC), at 37, per Lindgren J; at 63, per Merkel J; Logenthiran v Minister for Immigration and Multicultural Affairs (Full Court, 21 December 1998, unreported), at 13.
(ii) Section 430(1)(c) does not require the RRT to make findings about every factual matter raised by the applicant. Findings need only be stated in relation to questions material to the ultimate decision: that is, in relation to substantial issues on which the application turns: Paramananthan, at 27, per Wilcox J; Muralidharan, at 414.
(iii) The reasoning and findings of the RRT are to be given a beneficial construction and are not to be scrutinised in an overly critical manner: Minister v Wu Shan Liang (1996), at 271-272. The RRT's reasons, read as a whole, may suggest that, although findings have not been made on a particular issue, they have nevertheless been made implicitly: A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 (FC), at 557.
(iv) The purposes underlying provisions such as s 430(1)(c) include ensuring that the RRT's reasoning process is disclosed and that an unsuccessful applicant understands why he or she failed: Muralidharan, at 414-415, Paramananthan, at 27."
30. The reference in the second principle to the "substantial issues on which the application turns" makes it clear that what is material in a given case will depend on the claims advanced by an applicant. This is reinforced by the observation of the Full Court in Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182, at [37], that s 430 requires the RRT to "make findings on the questions which are central to the case raised on the material and evidence before it". It is therefore necessary to consider the nature of the claims made by the applicant to the RRT in support of his application for a protection visa.
31. The applicant claimed that he had been detained on a number of occasions and severely ill-treated. On his account, he had been forced to join the Ba'ath Party in 1990 following his failure to attend the symposium held at the University. He had been detained for three days and forced to sign an undertaking to attend all activities of the Party. One of the forms he claimed to have signed in order to gain his release accepted that he would be considered a traitor if he violated the conditions of the undertaking and would thus be exposed to imprisonment or death. According to the applicant, it was his signing of the undertaking that made him "the captive of the Party". Similarly, the applicant said that he had signed a second undertaking to the Party in 1994 in order to gain his release from a further period of detention and torture brought about by his breach of Party requirements.
32. The applicant's claim to the RRT that he feared imprisonment or death on his return to Iraq must be understood in this context. This expressed fear was based on what he said was the likelihood that the Ba'ath Party would regard him as a traitor because of his contravention of the undertakings he had given. His case was never that he had joined the Ba'ath Party voluntarily, or that he was at risk simply by reason of such a voluntary association with the Party.
33. The fundamental difficulty facing the applicant is that the RRT addressed the specific claims made by him and rejected them. In particular, it refused to accept that the applicant had been detained in 1990 or 1994. Indeed, the RRT was not satisfied that the applicant had ever attended Baghdad University. Whether or not the RRT was correct in forming such an unfavourable view of the applicant's evidence is not for this Court to decide. The point is that the RRT's findings effectively destroyed the very foundations of the applicant's claims that he had been forced both to join the Ba'ath Party and to give undertakings breach of which would have exposed him to being treated as a traitor. The case is similar to Abebe v Commonwealth (1999) 162 ALR 1, where the RRT's finding that the applicant had never been arrested made her further claims of detention and rape "logically irrelevant": at [85], per Gleeson CJ and McHugh J. If the applicant had neither attended Baghdad University nor been detained as he had claimed, he could hardly have joined the Ba'ath Party or given undertakings, in the circumstances he described. In other words, it was implicit in the RRT's findings that it rejected the applicant's account that he had joined the Ba'ath Party and had given undertakings to be faithful to the Party's tasks and missions.
34. In essence, the applicant's submissions in this Court involved recasting his claims, so as to suggest that he had joined the Ba'ath Party in some manner other than the way he described. But that was not the case the applicant presented to the RRT. The RRT was not required to make any further findings concerning the applicant's membership of the Ba'ath Party other than those made by it. The findings made by the RRT necessarily implied that it rejected the applicant's claim, as presented by him, to be a member of the Ba'ath Party. The RRT therefore did not contravene s 430(1)(c) of the Migration Act by failing to make findings concerning his membership of the Ba'ath Party and the consequences of that membership.
35. Similar considerations answer the applicant's contention that the RRT had failed to consider whether he might qualify as a refugee sur place by reference to the cumulative effect of his membership of the Ba'ath Party, his illegal departure from Iraq and his having to apply for a passport to return to Iraq. As I have already said, the RRT applied the correct test to determine whether the applicant had a well-founded fear of persecution for a Convention reason. It was not bound to consider the applicant's membership of the Ba'ath Party since it had rejected his claims on that score. The RRT assessed the chances that the applicant would experience harm on his return to Iraq, having regard to his illegal departure from the country. It rejected the claim that the applicant was at risk because of his Christian beliefs and was not satisfied that the applicant was of interest to the Iraqi authorities. It found that he did not face a real chance of harm for leaving Iraq illegally or for any other reason. The RRT addressed the question it was required to consider.
36. There is no substance to the applicant's complaint that the RRT failed to make findings about the fact that the applicant had come to the attention of Saddam Hussein's son by reason of his talent as a soccer player. The RRT addressed this issue and found that no harm had come to the applicant in consequence of that fact. The RRT was plainly aware of the claim and did not think that the incident exposed the applicant to any risk of harm.
37. Despite these conclusions, I must confess to a sense of unease about the RRT's findings, particularly having regard to the independent evidence concerning the lack of protection for human rights in Iraq and the apparent scope for the infliction of arbitrary punishment for a variety of reasons, including the return of someone who has left the country illegally. But the High Court has repeatedly made it clear that the role of a court exercising the power of judicial review of administrative action is not to set aside a decision merely because of misgivings about the decision-maker's assessment of the facts. To take this course in the present case would be to transcend the boundaries of judicial review.
38. Ms Sharp advanced some further arguments which can be dealt with briefly. She submitted that the RRT had erred by failing to explain why it rejected apparently probative evidence from witnesses called by the applicant which supported his claim to have been imprisoned and to have attended Baghdad University. That evidence was given by two friends of the applicant. The RRT expressly referred to this evidence, the effect of which was that they had heard that the applicant had had difficulties with the authorities at the University and that he had been imprisoned. The RRT, after recounting their evidence, observed that neither witness could provide any details of the nature of the difficulties to which he referred.
39. The authorities disagree as to whether a failure by the RRT to give reasons for rejecting evidence inconsistent with the findings made constitute non-compliance with s 430(1). The preponderance of recent authority is to the effect that s 430(1) merely obliges the RRT to refer to evidence on which findings of fact are based, not to evidence inconsistent with its findings: Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 (FC); Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 (FC); Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740 (FC): cf Direse v Minister for Immigration and Multicultural Affairs [1999] FCA 1626 (Hely J), at [48]. If those authorities are to be applied to the present case, the applicant's contention must fail.
40. In any event, this is not a case where the RRT failed to refer to evidence apparently supporting the applicant's account. It did so, in terms which make it clear enough that the RRT did not consider the evidence sufficiently detailed or cogent to warrant acceptance. In other words, the RRT explained, albeit briefly, why it did not accept the evidence of the two witnesses. In my opinion, if the correct construction of s 430(1)(d) of the Migration Act is that the RRT must refer to evidence inconsistent with its findings, the RRT in this case complied with that obligation.
41. Ms Sharp also invoked the ground of review in s 476(1)(g) of the Migration Act. She pointed out that the RRT had found that the applicant's claim to have been imprisoned in 1994 was a "recent invention", when (as Mr Elliott conceded) he had in fact made this claim in his application to the Australian Embassy in Athens. According to Ms Sharp, this finding was a "link in the chain of reasoning" which was critical to the RRT's ultimate decision: cf Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 (FC), at 221 (per Black CJ). It followed that the RRT's decision was based on the existence of a "particular fact" (that is, the applicant's claim was a recent invention) for the purposes of s 476(4)(b) of the Migration Act.
42. I am inclined to think that this submission reads too much into the word "recent". The RRT placed particular weight on the applicant's failure to refer to a period of four months detention in his protection visa application lodged in Sydney. The RRT pointed out that the record of interview in the file showed that the applicant had expressly been given an opportunity to make corrections or additions and he had given no indication of wanting to correct the omission (even though, on his account, he had previously discussed the omission with his adviser). The RRT did not suggest that the applicant had not made the claim in Greece; nor did it rely on any such omission to support its conclusion. Its point was that the applicant, despite having ample opportunity to advance the claim in Australia, had not done so. Given the need to accord the RRT's reasons a beneficial construction, I would not interpret the RRT as intending to say that the applicant had never previously made the claim, but merely that he invented the claim after his departure from Iraq.
43. In any event, s 476(1)(g) is not satisfied unless the applicant establishes that there is no evidence or other material to justify the making of the decision. Section 476(4)(b) is merely a "gateway" through which an applicant must pass before it is permissible for the Court to hold that s 476(1)(g) is satisfied: Pat Tai Choi v Minister for Immigration and Multicultural Affairs (Lindgren J, 2 December 1998, unreported), at 9. There was clearly evidence or other material on which the RRT based its decision, over and above any mistaken belief on its part that the applicant had failed to make the claims in his application to the Australian Embassy. The RRT relied not merely on its assessment of the applicant's credit, but on his failure to make the factual claim in the application for a protection visa lodged in Australia. The terms of s 476(1)(g) of the Migration Act are not satisfied.
44. Ms Sharp submitted that other findings of the RRT were made without any evidence to support them. But these submissions were basically criticisms of the findings and fell well short of establishing that there was no evidence to support them.
45. Ms Sharp sought to read an affidavit which was said to cast doubt on the RRT's finding that the certificate of graduation produced by the applicant was a forgery. The affidavit was to the effect that the copy certificate produced to the RRT had originated from a fax machine in Iraq, rather than from a source in Australia. But the RRT did not say that the copy certificate had not been sent from Iraq. It based its finding on the evidence that all forms of Iraqi documentation can be fraudulently produced and obtained. The RRT also considered it implausible that the applicant could have obtained a genuine certificate within five days of the RRT sending its letter of 28 July 1999 (in which it gave the applicant an opportunity to respond to concerns about his credibility). In my view the affidavit should not be admitted into evidence, if only because it does not establish that the copy certificate produced by the applicant was genuine.
Conclusion
46. No court can view with equanimity the prospect of someone who has fled Iraq being returned to that country. That is so even in a case where the applicant has been found to have fabricated many of his claims. But, as I have explained, misgivings about the RRT's assessment of factual questions is not enough to justify holding that a ground of review has been established.
47. In my opinion, the applicant's challenge to the decision of the RRT fails. The application should be dismissed, with costs.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.
Associate:
Dated: 23 December 1999
Counsel for the Applicant: Ms P Sharp
Counsel for the Respondent: Mr G M Elliott
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 21 December 1999
Date of Judgment: 23 December 1999
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