Applicant NG 1352 v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 When the application for review came on for hearing an amended application was filed by consent. In substance the only ground raised is that the Refugee Review Tribunal ("the RRT") failed to observe procedures required by s 430(1)(c) of the Migration Act 1958 (Cth) ("the Act"). That subsection provides 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." 2 Failure to observe procedures under the Act is an available ground for appeal. Section 476(1)(a) of the Act provides: "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; …." 3 The definition of "refugee" as set out in the 1951 Convention Relating to the Status of Refugees, as amended, is that a refugee is any 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; …" 4 The particular non-compliance with s 430 alleged in the present case is that the RRT failed to consider and decide upon a serious submission raised by the applicant, namely, that if returned to Algeria there is a real chance he would suffer harm for a Convention reason, that reason being his political opinion, which would be implied from his evasion of military conscription, and the harm would be imprisonment and torture or other harm and even death. It is submitted on the applicant's behalf that the Algerian authorities would perceive his evasion of military service as a political matter, and that therefore he is entitled to status and consideration on the basis that he is a refugee. 5 The applicant is an Algerian national. He arrived with his wife and child in Australia on 24 August 1998 and thereupon applied for a Protection Visa on the ground that he and his family were refugees. On 14 October 1998, a ministerial delegate refused to grant the visa and on 16 October the applicant sought review of that decision before the RRT. The applicant filed detailed written submissions and attended a hearing before the RRT on 11 November 1998. After hearing the evidence and considering the submissions the RRT dismissed the application. The question as to refugee status is to be determined as at the date of the determination by the RRT. 6 After reviewing the law and the evidence, the RRT decision-maker concluded that the applicant was not a credible or trustworthy witness and referred to a number of reasons for reaching this conclusion. These firm conclusions are encapsulated in the following passages at pp 12 and 18 of the decision: "The Tribunal finds that the applicant is not a credible or trustworthy witness. There were many material and substantial contradictions and inconsistencies in his claims, that were not explained to the satisfaction of the Tribunal. Much of his testimony and many of his claims were simply not plausible or believable. Some of his testimony was vague, evasive, confusing or not sufficiently detailed to be believable. … Taken as a whole, in the presence of so many unsatisfactorily explained contradictions of a material and substantial nature, and in light of the many implausible, evasive or vague claims, some of which are not sufficiently detailed to be believable, the Tribunal can only come to the conclusion that the applicant's testimony is not plausible and therefore finds that he is not a credible witness. Accordingly, since the Tribunal finds that the applicant's claims are not credible or plausible, there is no evidence on which it can be satisfied that the applicant had a well-founded fear of persecution due to political opinion, membership of a particular social group or for any other Convention reason. The Tribunal therefore finds that the applicant does not have a well-founded fear of persecution for a Convention reason." 7 Findings of credibility or lack of trustworthiness in respect of evidence given by a witness is essentially one of fact which on its face is for determination by the RRT. However, in appropriate circumstances appellate courts and courts of review do examine the approach of a primary judge where other accepted evidence so requires: see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) [1999] HCA 3. 8 These findings of the RRT present a substantial difficulty for the applicant. Although the conclusion that the applicant was not a credible witness was reached in the light of specific and numerated discrepancies and inconsistencies, the consequences are not limited to conclusions concerning only those issues, but rather they are general findings which infect the reliability of the applicant's evidence generally. In the face of firm findings on credibility, the court will not generally accept an applicant's claim unless there is some other evidence or material to be weighed in the balance which provides a significant indication to the contrary. This approach is illustrated in the context of a refugee claim by the recent decision of the Full Court in Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247. In that case the RRT found that the applicant was a person of no credit and indeed a liar. Nevertheless, the Court found that his appeal should succeed because of the special circumstances in the case. The Full Court, however, emphasised that where the sole substantial basis for deciding whether a person is a refugee is the history and background furnished by the applicant, the rejection of the applicant as a non-credible witness will generally require rejection of the application. This is not always so. Where, as in that case, there is objective circumstantial evidence to support the applicant's case, the RRT is not entitled to reject his arguments out of hand and to refuse to deal with the claim simply on the basis of lack of credibility. In the circumstances of that case the strong finding of lack of credibility was not considered determinative. 9 In Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182, the Full Court set aside a decision of the RRT in circumstances where the decision-maker found that the applicant's claims in relation to his arrest and detention were "far-fetched and implausible". The decision-maker gave a list of enumerated reasons why he reached this conclusion. Their Honours said at p 9: "Mr Thevendram's credibility in relation to his account of his arrest and detention was regarded, quite properly, by the RRT as a critical issue. The task of a claimant in challenging, particularly under Pt 8 of the Act, adverse findings of the RRT in relation to credibility is formidable: …" 10 The task may be even more difficult as a consequence of the recent decision in Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 16 ALR 543 in which the Full Court held that illogicality in reasoning of the RRT will not "of itself" constitute an error of law. Notwithstanding this conclusion, their Honours proceeded, on the basis of three letters in evidence relied on by the applicant, to conclude that the RRT had erred in not making findings on their authenticity or significance. Those letters were capable, in the Court's view, of providing support for the applicant's case and were regarded as central to his claimed fear of political persecution. However no reference was made to the three letters in the course of the hearing. Nor were they expressly adverted to in the reasons for decision of the RRT. The Court therefore concluded that in the failure to address the content and effect of the letters there had been a failure to follow procedures required by the Act. 11 By way of contrast, in Navaratne v Minister for Immigration and Multicultural Affairs [1997] FCA 713, there was an adverse finding by the RRT on the credibility of the witness. Reliance was placed on letters furnished on behalf of the applicant. However, in that case the RRT had dealt in detail with the correspondence and fully addressed its significance in the light of the applicant's assertions. The Court concluded that it was open to the RRT to form the view that the letters were not authentic or objective and had been fabricated to bolster the applicant's case. 12 In the light of these decisions, the RRT in the present case was required to decide whether the force of the strong adverse finding on credibility was neutralised or diminished by objective or other accepted evidence which was capable of supporting the applicant's case. 13 One circumstance relied on by the applicant to offset or negate the force of the adverse credit findings is that the applicant produced two documents by way of corroboration. In this respect the present case differs from Sellamuthu and Thevandram in that there was no such supporting evidence in those cases. The documents are said to support the conclusion that the applicant had evaded military conscription in the Algerian forces and that he had resided in Saudi Arabia for a period in the order of five years. The first document produced is dated 22 February 1992 and refers to exemption from military service. The applicant contends that this document was obtained as the consequence of a forged student card. The document on its face indicates that the applicant had been granted a deferment of conscription until 31 December 1992, and purports to be a certificate issued by the Head of Conscription and Guidance Centre in Algeria. This exemption document enabled him to leave the country for Saudi Arabia in 1992. The second document is a Resident's Permit for Muslims issued by the Kingdom of Saudi Arabia, dated 28 December 1997, which on its face renews his residency for two years. This is said to support his claim that he previously had obtained permission to reside in Saudi Arabia. 14 The two documents taken together are said to support the conclusion that there is a real chance that he will be subjected to persecution if returned to Algeria. It is claimed that they are consistent with and therefore substantiate his assertions about leaving Algeria and taking up residence in Saudi Arabia. However, the documents only support the fact that the applicant left Algeria on a Certificate of Exemption from military service and resided in Saudi Arabia for approximately five years. They say nothing as to whether he might face persecution for a Convention reason if returned to Algeria. In my view, these two documents are not of sufficient cogency to require a decision-maker, notwithstanding the rejection of the applicant's evidence for want of credibility, to find that the applicant would be persecuted for a Convention reason if returned to Algeria. They do not advance his case in any significant way. 15 A further factor which is said to support the applicant's case as to persecution is a reference in the applicant's written submissions, of 10 November 1998, to another decision of the RRT on 21 July 1997 in relation to another applicant that draft evaders faced a real chance of being persecuted in Algeria. However, the facts of that case appear to have been quite different to those in the present case in that the draft evasion was taken to have confirmed that the applicant was a supporter of the Islamic cause. The country information relied on in that case was different to that in the present instance and made it clear that suspected Islamists had been singled out for discriminatory treatment. In the present case the applicant was allowed freely to leave the country and no attempt was apparently made to detain him on the basis of being a suspected Islamist. 16 As Dr Hathaway points out in his work on The Law of Refugee Status, 1991 at 179 ff, persons are not entitled to refugee status on the basis of refusal or failure to perform military service alone. Nor are they excluded from protection because they are draft evaders. Essentially, taken by itself, the failure to avoid military service is neutral with respect to a claim for refugee status. The fact that evasion of conscription is a general crime which will be punished, in the absence of some danger of discrimination or selective harassment on a Convention ground, will not suffice. Such a further link is essential. In this case the applicant has shown the Court no such link or any real or significant evidence which would raise a doubt as to whether the RRT decision was open and available. 17 The applicant says that the importance of his draft evasion was ignored by the RRT. However, on a reading of the RRT decision, whilst bearing in mind the observations of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, it is apparent that the RRT did pay regard to and consider the claim of persecution arising from his evasion of military conscription. For instance, the claim is clearly set out in clause 2.7 of the written submissions before the RRT, which is headed "Military Service". That submission is to the effect that the applicant's military service would still be outstanding. Later in the submission there is a heading " Punishment Faced by Military Draft Evaders" and a further consideration of "Punishment in Prison". The arguments, in the detailed written submissions presented to the RRT on the hearing, clearly raised the issue for consideration. In the RRT decision, the written submissions of the applicant are referred to specifically. Later in the decision, the RRT points out that the applicant believes that if he returns to Algeria he will be arrested, imprisoned, tortured and even killed, because he has been a member of FIS [Front du Salut Islamique] and also because he has not done his military service. The RRT decision refers to independent country evidence concerning military service, and there is a reference to a November 1997 UNHCR report which states that passive members or sympathisers of the FIS are not likely to be targeted. There was other intelligence to a similar effect cited from the UK Home Office dated March 1998. 18 Taking into account the import of the material before the RRT as to passive sympathies and the references referred to above, in my view, it is reasonably clear that the decision-maker was aware of and considered the claim based on draft evasion, and it cannot be said that in any practical or reasonable sense it failed to make a finding or give reasons for its conclusion within the meaning of s 430 of the Act. Accordingly, for the above reasons the application is dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.