Al Saqaf v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|1996-11-21|Before: North J, Carr J

INTRODUCTION 1 This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 31 May 2001, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant. The applicant, who is a citizen of Yemen, arrived in Australia on 6 January 2001. On 28 January 2001 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ("the Act"). On 16 March 2001 a delegate of the respondent refused to grant a protection visa and on 20 March 2001 the applicant applied for review of that decision.

the applicant's claims and the Tribunal's decision 2 The applicant claimed fear of persecution in Yemen for reasons of his political opinion. His claims, in summary, were as follows: · He was a graduate in "sea mechanics" who studied at a fisheries institute and had grown up in what used to be the Peoples Democratic Republic of Yemen (South Yemen). · His father and mother were divorced. His father, who had remarried, lived in Yemen. His mother, who had also remarried, lived in Egypt. · His father used to be a manager in the Ministry of Culture and Information under the Socialist Government of former South Yemen. His father was a poet who was highly respected in South Yemen before unification. · His father lost his job in the Ministry after unification and had not worked since. · His father was politically and socially marginalised after unification, his poetry was no longer published, appreciated or respected. This had, so the applicant claimed, serious implications in relation to his own situation in Yemen. · The applicant had been a mid to high-level member of an opposition party called the "League of the Children of Yemen" ("the League") led by Mr Abdulrahman Aljifri. The League, so the applicant claimed, was known as a separatist party in Yemen. · In 1995, at the age of 19, just after unification, he was arrested and beaten and then detained for 2 months after falling into an argument with a security official and cursing the regime. He was never charged or convicted in relation to any association with dissident forces. · He continued to work with the League and as a result was banned from other employment. He was harassed wherever he went and he and his comrades were treated as low-grade citizens. · He always had to go into hiding during arrest campaigns. · The government would not process any of his or his comrades' (unspecified) applications to government departments. · He went to Egypt in May 2000 primarily to visit his mother but also to deliver letters personally to the League's exiled leader, Mr Aljifri. He was unable to find Mr Aljifri and instead handed over the letters to one of Mr Aljifri's relatives. While in Egypt he asked League representatives for protection because he had been "totally singled out" by the government in Yemen. He was told that the League could do nothing for him. He then returned to Yemen. · After he returned from Egypt the Yemeni government cracked down on another group "The Movement of Self-Determination". He was advised to hide lest the crackdown engulfed other groups such as the League. · He had been harassed upon return to Yemen because the authorities were aware that he had visited an exiled member of the League (this was a new claim introduced at the interview with the respondent's delegate). · Due to his fear of arrest by the Yemeni government he fled Yemen on a false passport in October 2000. In his primary application the applicant acknowledged having initially had a genuine passport, saying that he sought a false one for his last departure from Yemen out of fear that he would be prevented from departing on the genuine one.

3 I shall not attempt to summarise the Tribunal's findings and reasons. I set them out below in full. I have added numbers to the paragraphs to facilitate the references which I make later in these reasons. 'FINDINGS AND REASONS

The Tribunal accepts that the Applicant is a Yemeni national. The Tribunal has some difficulty accepting that the Applicant is of the Alsaqaf clan. Given what is found to have been the overwhelmingly poor quality of his evidence, it is conceivable to the Tribunal that he solicited fake documents in order to argue that he is an Alsaqaf. Opposing that impression is the evidence of the witnesses who claim to know the Applicant's father and who solemnly declare that he is an Alsaqaf.
Inspite of its difficulties, the Tribunal is prepared to accept that the Applicant is an Alsaqaf. This alone does not mean that he has been active in politics or that he faces persecution for reason of carrying the clan name of many people who have been. In fact, his evidence leaves the strong impression of an overall lack of awareness of the political misfortunes of some quite famous Alsaqafs, leaving the Tribunal with the view that this fisheries institute alumnus who graduate (sic) in "sea mechanics" has paid scant attention to the national and regional politics of his clan. His evidence regarding the League satisfies the Tribunal that he has paid scant attention to its status and activities as well.
Accepting that the Applicant is an Alsaqaf is, of course, to accept that his father is also of that clan. The Tribunal accepts that the Applicant's father was a high official in the former South Yemen ministry as claimed and that he was a poet whose works were propagated by the former state. It accepts that he does not enjoy the same currency now and that this neglect must be a source of misery for him. It also accepts that he has occasionally written for Opposition newspapers. However, no part of the Applicant's or his witnesses' evidence satisfies the Tribunal that his father has been subjected to serious harassment for reasons of his name, his poetry, his political past or his present political activities, or that he faces any real prospect of such treatment. This reinforces the Tribunal's conclusion to the effect that the Applicant does not face a real chance of persecution owing to his father's legacy or connections, either real or perceived.
The Tribunal accepts that the Applicant was detained for two months after the confrontation with the officer in 1995, but it is satisfied that that incident had nothing to do with politics, let alone secessionist politics. The Tribunal is satisfied that the political/social and security climate in which the incident occurred was peculiar to 1994-5 and is now long since passed. The Tribunal is also satisfied that the incident was isolated, arising out of individual and, it was eventually disclosed, quite tawdry issues, and that it has not compounded with any other fact in the Applicant's life, whether real or claimed, let alone in such a way as to indicate a real chance of persecution in the future, let alone for a Convention-related reason. The Tribunal further notes that the Applicant's initial claims regarding this incident can reasonably be said to have concealed the true nature of the specifics, the better to make the matter look like a political one with potentially ongoing ramifications. The facts satisfy the Tribunal that the Applicant tried to manufacture a Convention-related claim from material that does not support one.
The Tribunal notes that in spite of explicit reservations, the primary decision-maker ultimately decided to accept that the Applicant was a member of the League. It seems to the Tribunal quite immaterial to make a conclusion on this particular question as, on the evidence cited above, it finds that the Applicant has been highly inaccurate as to the League's standing with the authorities in Yemen, notwithstanding itsleader's 1998 suspended sentence for specific activities. The evidence before it leaves the Tribunal satisfied that membership of the League or of itsaffiliates is not attracting any kind of crackdown or other mistreatment from the Yemeni authorities. The Tribunal is satisfied that even if he werea member or, as he claims, some kind of leaderof the League there is no factual basis on which it could accept that he would face persecution for such association, not even in cumulation with perceptions about his name or his father's profile.
The Tribunal is not satisfied on the evidence before it that there was in 2000 any serious crackdown on the Movement of Self-determination, let alone any that has spilled over into repression of the League's members or its affiliates. It dismisses the Applicant's claims on this particular issue as being inaccurate.
If the Tribunal accepts that the Applicant was a member of the League, it has to ask why he seems to know so little about it and why his evidence about involvement with it, particularly at the senior level he claims, is so implausible. One entirely reasonable way to deal with this would be to conclude that he simply was not a member of the League. However, there is the membership card, which one could construe to be a fake but perhaps only on the basis of other claims being found to be unreliable. If the Tribunal accepts that the Applicant was a member of the League at the time he last departed Yemen, the card says he was only a member from 7 April 2000 onwards. This fact seems consistent with the fact that the Applicant could not identify in detail any of his activities as a leader of the League from its earlier years and could not provide any satisfactory detail as to the conflicts and difficulties he faced for reasons of his involvement. After full consideration, the Tribunal is prepared to accept that the Applicant was a member of the League, but it will not accept that he was a member prior to 7 April 2000, for the claim is not corroborated and the evidence to the effect that he was a member, and a regularly endangered one at that, is overwhelmingly inconsistent, vague and unsatisfactory.
This means that the Tribunal cannot accept that the Applicant was given in May 2000 the task of personally spiriting important letters out of Yemen, let alone to the League's leader who may well have been residing in, or travelling to or from England at the time. The Applicant's evidence about his mission to Egypt was in its own terms nonsensical. It should not be necessary to repeat earlier concerns here, but suffice it to say that it is inconceivable that that (sic) a mission in which he was supposed to deliver these letters in person to Aljifri foundered when the Applicant simply could not locate the latter, not even with the help of Aljifri's relatives. The Tribunal must also emphasise that the claimed discussion about the Applicant's prospects for exile in Egypt along with the various Aljifris made no sense. It also made no sense that in his claimed state of desperation he did not raise the matter with his mother. Lastly, it seems ridiculous in the cyber age that communications with Aljifri could not be managed by some other means. The Yemen Observer, for example, has quite obviously demonstrated that one can just get on the telephone or online and communicate with Aljifri that way.
The Tribunal concludes that the Applicant went to Egypt to visit his mother and for no other reason. It does not accept that she was married at the time to an Opposition figure, or that if she was, this had any bearing on his visit or how the authorities in Yemen viewed it.
The Tribunal is satisfied that the Applicant obtained his valid and genuine passport because, as he himself said, the authorities were not interested in him. It does not accept that they ever singled him out over anything except his performance on that single, isolated occasion in 1995. The Tribunal concludes that the authorities lack of regard for the Applicant upon his return from Egypt is a strong indication as to the reception he would receive in the event of return. He might face some kind of penalty for not having his valid passport with him in the course of his return to Yemen but the Tribunal finds that this would at worst be a generally-applicable criminal issue, if even that, not attracting Convention-related suspicions about the Applicant. The Tribunal is not satisfied that a temporary travel document could not be obtained to replace his "lost" passport and assist him in re-entering Yemen.
On the evidence before it, taking into account the Applicant's initial failure to make any mention at all about the existence of a genuine passport or his trip to Egypt, and also taking into account his overall lack of consistency and detail in the present matter, the Tribunal does not accept that the Applicant used a false passport to depart Yemen the second time. His own evidence indicates that his advisers at the League considered it entirely safe to depart Yemen on his own genuine passport, and he did so in May 2000. The Tribunal thus concludes that the Applicant departed Yemen legally. Even if it were wrong, and he did depart on a false passport, and therefore illegally, the Tribunal would conclude on the evidence before it that his reasons for doing so were not as claimed, and that any penalty he might face for doing so were not Convention-related.
The Tribunal does not accept that the Applicant is a satisfactorily reliable witness in the present mater (sic). It can accept that he had the name "Alsaqaf" omitted from a few of his documents out of concern that it might not be the best recommendation for government work in the unified state, but this is not a Convention-related matter. Yemen is not a state- dominated workplace.
The Tribunal is not satisfied on the evidence before it that the Applicant faces a real chance of Convention-related persecution in Yemen. He is not a refugee. CONCLUSION
Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Convention. Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa."

GROUNDS OF APPlication 4 There were three grounds in the amended application. I summarise Ground 1 as follows: 5 The Tribunal fell into error, reviewable under s 476(1)(a), (b) and/or (c) of the Act, in that it ignored material relevant to whether the applicant had a well-founded fear of persecution by reason of being a member of a particular social group, or having a political opinion, or being imputed with a political opinion. The relevant material was said to be contained in the evidence of Mr Ahmed Ibrahim. The following relevant evidence was said to have been ignored by the Tribunal: (a) that the applicant was a target of the government because of his tribe or clan; (b) members of the applicant's clan were targets of the government; (c) undercover police had persecuted the applicant and his father; (d) the applicant was under suspicion by the government; (e) the applicant was identified with groups which are opposed to the government; and (f) the applicant was unsafe in Yemen and could be killed or arrested.

my reasoning in relation to ground 1 6 The applicant had notified the Tribunal that he wished it to take evidence from two witnesses, namely, Ms Nazrina Ibrahim and Mr Ahmed Ibrahim. The Tribunal referred to this matter at p 1 of its reasons when it said the following: "The Applicant brought forward two Australian residents as witnesses. The proposed witnesses have not resided in Yemen but visited the country from December 1999 to May 2000. In view of the particular area to be covered in their evidence, which for example did not involve comparison with specific events witnessed by the Applicant, the Tribunal elected to grant the two witnesses time to make considered written submissions instead of inviting them to give oral evidence." 7 On 9 May 2001 the applicant's advisers forwarded a letter from Mr Ahmed Ibrahim which included both information and submissions which were substantially along the lines of the particulars to Ground 1. The Tribunal made further references in its reasons to what it described as the applicant's "witnesses" (i.e. in the plural). They included the following: "The Applicant's father remains, however, at large and at home. This fact is confirmed by both the Applicant and his witnesses. The father has not evidently been jailed or intimidated for association with the former South Yemen government or over suspected involvement in dissident or destabilising activities. His lack of access to income from poetry does not evidently prevent him from obtaining income from other sources. One of the Applicant's witnesses states that the father derived a small amount of income from writing for an opposition newspaper. This did not evidently lead to any serious repercussions …" (pp 5-6). "He [the applicant] did not refer to the allegedly many arrests of another Alsaqaf, named by his witness, even though the witness apparently gathered information about these arrests during a visit to Yemen that occurred whilst the Applicant was still residing and supposedly active there." (p 16) 'Given what is found to have been the overwhelmingly poor quality of his [the applicant's] evidence, it is conceivable to the Tribunal that he solicited fake documents in order to argue that he is an Alsaqaf. Opposing that impression is the evidence of the witnesses who claim to know the Applicant's father and who solemnly declare that he is an Alsaqaf." (p 18) "However, no part of the Applicant's or his witnesses' evidence satisfies the Tribunal that his father has been subjected to serious harassment for reasons of his name, his poetry, his political past or his present political activities, or that he faces any real prospect of such treatment. This reinforces the Tribunal's conclusion to the effect that the Applicant does not face a real chance of persecution owing to his father's legacy or connections, either real or perceived." (p 19) 8 Mr M Howard, who appeared for the applicant on a pro bono publico basis, acknowledged that the Tribunal must have read the letter from Mr Ibrahim. He contended that the Tribunal's failure to give consideration to the matters particularised in Ground 1 amounted to jurisdictional error within the principles explained in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. The Tribunal had, so it was put, failed expressly to mention or "grapple" with Mr Ibrahim's evidence. Mr Howard went further and submitted that there was no evidence which "competed" with Mr Ibrahim's evidence. 9 In my opinion, there was such competing evidence. First, there was the country information upon which the Tribunal can be seen to have relied. Secondly, there was what the Tribunal seemed to regard as an inconsistency between Mr Ibrahim's evidence and that of the applicant - see the quotation from p 16 of its reasons set out above. Thirdly, the Tribunal expressed doubts about the credibility of the applicant - see for example pars 4 and 12 of its reasons above. 10 In my view, the Tribunal did not ignore the evidence from Mr Ahmed Ibrahim. On the contrary, it is clear that the Tribunal gave consideration to Mr Ibrahim's evidence and in fact relied upon it to some extent. However, it can also be seen from the last quotation above that it did not accept his evidence completely. 11 In my opinion, this ground has not been made out. The Tribunal did not fall into jurisdictional error or any other reviewable error.

ground 2 12 This ground was put on the basis that if the Tribunal had not ignored, but had instead rejected, Mr Ibrahim's evidence, then it ought not to have done so without having considered whether to exercise its powers to obtain further information concerning his evidence. Thus a procedure, required by the Act to be observed, was not observed - see s 476(1)(a). The applicant also relied on s 476(1)(b) and (c). By way of particulars the applicant repeated the particulars of Ground 1 and stated that the evidence was material and supportive of the applicant's case and was from a witness who had recently lived in Yemen and had been forced to leave because of the political situation. The applicant added that the Tribunal had had an opportunity to examine Mr Ibrahim at the hearing before it on 30 April 2001, but did not do so. Mr Ibrahim had indicated to the Tribunal that he was willing to provide further information or to answer any questions which the Tribunal might have, but the Tribunal did not ask Mr Ibrahim any questions concerning his evidence. MY REASONING IN RELATION TO GROUND 2 13 Mr Howard submitted that the Tribunal fell into error by failing to give consideration to whether it should exercise its powers under s 424 or s 427 of the Act. 14 The applicant relied upon the decision of Madgwick J at first instance in Al Shamry v Minister for Immigration and Multicultural Affairs [2000] FCA 1679, and on appeal some observations by members of the Full Court in that case - Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919. 15 It is true that in Al Shamry Madgwick J, at first instance, held that it could be inferred from the Tribunal's silence in that case as to why none of the investigative avenues provided by those sections had been pursued, that it gave no consideration "to whether any such clarificatory exercise of its information-gathering powers was necessary". His Honour considered that to be, in the circumstances, a breach of the Tribunal's duty under the Act - see [37] and [38]. 16 The Full Court allowed the appeal on an alternative ground and did not have to express a view on this particular matter. However, Merkel J at [61] seemed to doubt whether in the circumstances it could be inferred that the Tribunal had failed to consider whether to make further inquiries or that it was under a duty to consider doing so. 17 There is authority, contrary to the view expressed by Madgwick J at first instance in Al Shamry, that the Tribunal is not under a legislative duty to consider whether to exercise its investigative powers. 18 In Awan v Minister for Immigration and Multicultural Affairs [2001] FCA 1036, Weinberg J at [61] expressed the view that s 427(1)(d) of the Act made it clear that the Tribunal was empowered, but not required (in that case) to arrange a medical examination. I respectfully agree with that view. In my opinion the same applies to the powers conferred by s 424. But that is not the precise point at issue here. The precise point is whether the Tribunal was under a duty to consider whether to exercise its investigative powers. 19 His Honour then at [62] set out the following passage from Kulwant Singh v Minister for Immigration and Ethnic Affairs (unrep, North J, 21 November 1996, judgment number 1013/96): "In my view, there is no implicit requirement in s 427(1)(d) that the Tribunal consider whether to have the Secretary arrange a medical examination. The section is permissive. It gives the Tribunal a power. The Act does not require that the power be exercised, and it follows that it does not require the Tribunal to consider whether it should be exercised. Thus, although a failure to consider whether to exercise the power may be unwise in certain circumstances, it is not a failure to observe a procedure required to be observed by the Act." [at p 6] 20 Weinberg J then noted that these comments had been cited with approval by Ryan J in Majeed v Minister for Immigration & Multicultural Affairs [2000] FCA 470 at [21] - [22] and by Finn J in Yusuf v Minister for Immigration and Multicultural Affairs [1999] FCA 1053 at [19] - [20]. My reading of those two cases is that each of the two judges agreed that, although at common law there was a duty to consider whether to exercise such a discretionary power, no such duty was prescribed by the Act or by the regulations, for the purposes of s 476(1)(a). 21 It is not necessary for me to choose between what appears to be a divergence of authority on this point. Had it been necessary, I would have followed the line of authority commencing with Kulwant Singh and including the three subsequent decisions referred to immediately above. 22 That is because counsel for the respondent accepted that there may be some cases where the Tribunal might be required to consider exercising the types of powers conferred upon it under ss 424 and 427. But he submitted that this was not such a case because, in the present case, the Tribunal made a clear finding that even if the applicant was a leader in the League, he did not have a well-founded fear of persecution. 23 I accept that submission. The relevant findings can be seen in the last two sentences of paragraph numbered 5 of the Tribunal's above reasons. In essence, the Tribunal relied upon independent country information for concluding that even if the applicant were a member or leader of the League, he would not face persecution for such an association, not even in cumulation with perceptions about his name or his father's profile. In my opinion, having made those findings, and the other findings set out in the numbered paragraphs above, the Tribunal was not obliged to consider whether to exercise the investigative powers conferred on it by ss 424 and 427 of the Act. 24 In my view Ground 2 has not been made out.

ground 3 25 Ground 3 asserted that procedures set out in s 424A of the Act were not followed by the Tribunal, another reliance upon s 476(1)(a) of the Act. By way of particulars of Ground 3 the applicant claimed that the Tribunal had not given him any particulars of information concerning his knowledge of - (a) the leadership of Mr Abdulrahman Aljifri; (b) MAWJ or MOWJ (the name under which the successor to the League is now known); (c) the applicant's role within the League; (d) the arrest of other members of the applicant's clan or tribe and particularly that of Mr Abdulaziz Al Saqaf; and (e) when his membership of the League started. 26 By way of further particulars, the applicant stated that the Tribunal had not attempted in any way to explain to him the relevance of the matters set out immediately above and nor had it invited him to comment on those matters. 27 Mr Howard submitted that a significant part of the Tribunal's adverse findings of credibility was derived from its views about what the applicant knew about the League and the general political situation in Yemen.

my reasoning in relation to ground 3 28 Section 424A(1) of the Act relevantly provides that, subject to subsection (3), the Tribunal must give to the applicant particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision under review. 29 Section 424A(3) provides that the section does not apply to information that is not specifically about an applicant or another person and is just about a class of persons of which the applicant or other person is a member [s 424A(3)(a)] or which the applicant gave for the purpose of the application [s 424A(3)(b)]. 30 The respondent submitted that this information was not the reason or part of the reasons for the Tribunal affirming the decision under review. As to the first three of the particulars of information given in relation to ground 3, I accept the respondent's submission. It is quite clear that the Tribunal's knowledge of these three pieces of information was relevant only to the applicant's claims about belonging to the League. It can be seen that at paragraph numbered 7 of its reasons above, the Tribunal accepted that the applicant was a member of the League, but at paragraph numbered 5 it found that even if the applicant was a leader of the League he would not face persecution even in cumulation with perceptions about his name or his father's profile. 31 The next particular relating to arrest of other members of the applicant's clan or tribe, in my view falls within the exception in s 424A(3)(a). It was just information about a class of persons of which the applicant is a member. The information also falls within the exception to s424A(3)(b) being information provided by the applicant, via his migration agent, to the Tribunal for the purpose of the application. 32 Finally the Tribunal made its decision about when the applicant's membership of the League started by reference to the membership card produced by the applicant. In those circumstances this information falls within the exception expressed in s 424A(3)(b). Furthermore, the applicant was on notice that this commencement date was in issue from the time that the respondent's delegate made an adverse finding on this point - see par 3.2.33 of the delegate's reasons. The applicant's migration agent did not challenge that finding in its submissions to the Tribunal. 33 In my opinion this ground has also not been made out.

CONCLUSION 34 For the foregoing reasons the application will be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Counsel for the Applicant: Mr M Howard appeared on a pro bono publico basis

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 424, 424A, 427

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