Grounds of review
11 Mr Heenan QC submitted that RRT failed to make findings with respect to the following:
(a) the nature and condition of the applicant's imprisonment in Syria from February 1999 to March 2000;
(b) there was unchallenged evidence that the applicant's release from prison was secured by the payment of 200,000 Syrian Lire by his father to the Syrian military officials in circumstances where no charges had been laid and a regime of indefinite and unauthorised detention is commonplace;
(c) notwithstanding his release, the Syrian military authorities began making enquiries in an evident attempt to locate the applicant at the restaurant shortly after his release;
(d) as a result of the enquiries by the Syrian military authorities at the restaurant after his release the applicant fled to the countryside where he remained undetected for several months;
(e) it was commonplace for bribes to be paid to secure the safe and "legal" exit of persons who may be wanted by the authorities, and that the applicant claimed that a bribe of this kind was paid to secure his exit from Syria.
In Mr Heenan's submission, the fact that these issues were not addressed by RRT, although evidence of them was before RRT, reveals that errors of law have been made by way of omission in failing to consider whether or not such facts, if they be accepted, constitute grounds for a well-founded fear of persecution, and that RRT has failed fully to exercise its jurisdiction.
12 Grounds (c), (d) and (e) can be shortly disposed of. As to (c) and (d), RRT found that:
- the applicant was of no further interest to the authorities for reasons of his nationality or his political opinion on his release from prison without charge (CB 146);
- the applicant's claims regarding the period after his release from detention in May 2000 were not true (CB 147).
As to (e), RRT found that it did not believe the applicant's claim that he paid a bribe to avoid problems at the airport (CB 148). In the light of that finding, whether or not it was commonplace to pay bribes to secure the safe and "legal" exit of persons who might be wanted by the authorities is beside the point.
13 So far as (a) and (b) are concerned, RRT accepted that the applicant was arrested in 1999 and that his nationality or political opinion, real or imputed, whilst not the main reasons for his arrest or detention, were contributing factors. In the applicant's submission, what RRT's analysis lacks is an appreciation that the long detention, harsh treatment including beatings and release under questionable circumstances, was the typical response of the ruling authorities to actual or suspected political affiliation or national or ethnic membership. Such attributions remain significant in determining the level of risk of similar repercussions if the applicant were to be returned to Syria.
14 In the context of the present case, the issue which RRT was required to address can be stated in the following way: at the time of RRT's determination of the matter was there a real chance that the applicant would be harmed by the authorities by reason of his nationality or political opinion (actual or imputed) if he were to return to Syria. RRT addressed that question and answered it unfavourably to the applicant. RRT found that the applicant was not a person who was of any interest to the authorities.
15 Mr Heenan QC submitted, and it was really his main point, that whether or not the applicant secured his release from prison by means of a bribe was critical to the question of whether the applicant was likely to be of continuing interest to the authorities notwithstanding his release, and although RRT adverted to the evidence on this topic at CB 143, it did not make a finding as to whether or not release was procured by means of a bribe.
16 It is right to say that RRT did not make a specific finding on that issue. But, putting the matter at its highest from the applicant's point of view, that only means that RRT may have made a wrong finding of fact in concluding that the applicant was of no interest to the authorities after his release from prison, if in coming to that conclusion RRT failed to take into account the evidence as to the bribe.
17 In Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [74] McHugh, Gummow and Hayne JJ said:
"This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts."
18 It is not an error of law, within the grounds of review set out in s 476 of the Act, that conclusions of fact drawn by RRT are unreasonable or may seem to be unreasonable to another, or that other minds would not have reached the same conclusion: Brakni v Minister for Immigration & Multicultural Affairs [2001] FCA 48. In Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 there had been criticisms made in theFederal Court that RRT had failed to examine a number of factual matters. Gleeson CJ and McHugh JJ at [54] said that there may or may not be valid criticisms of RRT, but what emerged was nothing more than a number of reasons for disagreeing with RRT's view of the merits of the case. The merits were for RRT to determine, not for the Federal Court.
19 Mr Heenan QC also submitted that RRT's reasons do not deal with the issue of what constitutes a "real chance" of persecution. At CB 132, when considering the definition of a refugee, RRT noted that to be a refugee, an applicant must have a subjective fear of persecution: "and there must also be a real chance that they will be persecuted". At CB 148 RRT said that it was not satisfied that there is a real chance that the applicant would be persecuted in Syria for reason of his actual or imputed political opinion, or because of his Palestinian nationality.
20 I agree with Mr Heenan's submission that it is vital not to conflate the real chance test with a conscious or unconscious adoption of an alternative that there must be a risk of persecution shown on the probabilities because that would involve an incorrect and more onerous test. But I am unable to detect any signs that RRT fell into this error. The applicant's claim failed because of RRT's finding that the applicant was not a person who was of any interest to the authorities for either of the reasons claimed.