I am also not convinced about the applicant's evidence that it was necessary for him to leave Libya on another person's passport because of what he had been involved in[,] if the sum of his activities were as he has explained them. His passport had been returned to him when he went to Tripoli (where he claims he was again questioned) in early October 1995, after the arrest of one of his group, and was renewed on the day after in Benghazi, only two days before he claims that his house was raided. Members of the group [in which] the applicant claims to have been involved were already being arrested (he claims that the first arrest of a member of the group happened in late September) and I therefore consider that getting his passport back and having it renewed may not have been straightforward if he was in fact being sought by the authorities. I understand what the applicant said about the chaotic state of administration but consider that his account of being able to retrieve his passport in Tripoli and renew it in Benghazi at the time when the arrests of his friends were underway does lend weight to a view that he was not of interest to the authorities. I am not satisfied that he would at that time or since have been on a wanted list because of the political activities he has described."
Having now set out all that appears to me to be necessary of the Tribunal's statement of findings and reasons for present purposes, I turn to the respects in which it was submitted on behalf of Mr A that the Tribunal had erred in law, in effect, by failing, when deciding whether Mr A's fear of being persecuted for reasons of political opinion was well-founded, to proceed as it was required to do by reason of Guo. As I have already mentioned, that submission was particularly based upon the Tribunal's treatment of Mr A's factual assertions relating to: (i) the detention of members of the group other than himself; (ii) the detention of his relatives; (iii) the seizure of his fiancée's passport; and (iv) the necessity for him to use a friend's passport to leave Libya.
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Counsel for Mr A submitted, in effect, that, in determining whether Mr A's fear of being persecuted was well-founded, the Tribunal had rejected his factual assertions on the above four matters, but had failed to take into account the chance that those factual assertions were true, nonetheless though its rejection of those factual assertions had not been with the degree of confidence which would have permitted the Tribunal to ignore them on the well-foundedness issue. The absence of the requisite degree of confidence in the Tribunal in the rejection of those factual assertions was said to be apparent by reason both of the language used by it and of the language not used by it in dealing with them.
To deal first with the language not used by the Tribunal, it was said that, in rejecting Mr A's factual assertions on the above four matters, the Tribunal did not say that the chance of their being accurate was "remote" or "insubstantial" or that they were "far-fetched". It therefore followed, as I understood the argument, that it did not appear that the Tribunal's rejection of Mr A's factual assertions on the above four matters had been sufficiently confident to permit the Tribunal to ignore them on the well-foundedness issue.
The reason for drawing particular attention to the absence of the use by the Tribunal of the words "remote", "insubstantial" and "far-fetched" was that they had been used by the High Court in Chan's Case, already mentioned. "[R]emote" had been usedby Mason CJ and by Dawson and Toohey JJ (at 389, 398 and 407 respectively), "insubstantial" had been used by Toohey J (at 407) and "far-fetched" had been used by McHugh J (at 429).
I reject the submission that the failure by the Tribunal to use the words "remote", "insubstantial" or "far-fetched" when dealing with the four factual assertions focused upon by Mr A's counsel bespeaks a failure by it to proceed as required in Guo's Case.
The particular words not used by the Tribunal in the present matter had been used in Chan, as counsel for Mr A acknowledged, not when discussing how the Tribunal should deal with a refugee claimant's factual assertions as to past events, but when discussing how the Tribunal should determine whether a chance of persecution in the future was "real". Such a chance was said not to be "real" if it was "remote" or "insubstantial" or "far-fetched".
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More significant, however, than the fact that the words had been used in Chan in a context different from the present is the fact that the failure by the Tribunal to use those (or similar) words in a context similar to the present in the later case of Guo did not lead the High Court to conclude that the Tribunal had gone astray when dealing with Guo's factual assertions as to past events. I therefore see no reason to conclude from the Tribunal's failure to use them in the present matter that it has gone astray.
I turn now to the submission that the language used by the Tribunal in the present matter made apparent the absence of the degree of confidence in the Tribunal in the rejection of Mr A's factual assertions as to the four matters requisite to permit it to ignore those factual assertions on the well-foundedness issue.
I have already set out in full above what the Tribunal had to say about each of those four factual assertions during the course of that part of its statement of findings and reasons in which it outlined its concerns about aspects of Mr A's factual assertions, but it may be best to summarise now the Tribunal's treatment of them in order the better to deal with the present submission.
First, as to the detention of members of the group other than Mr A.
The Tribunal "consider[ed] that it [was] possible that the young men [who were other members of the group] may have been arrested" in September and October of 1995, as Mr A had claimed. After all, said the Tribunal, many people were being arrested in Benghazi at the relevant time, as a result of violent conflict between armed extremist Islamic forces and the Libyan security forces. However, said the Tribunal, "While I can accept that in circumstances where many people are being arrested, the applicant's friends may have been picked up …, I am not satisfied that the character of what the applicant and his friends had done [as members of the group]…would have led to their arrests…"
Next, as to the detention of his relatives.
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The Tribunal appears at least to have accepted as a possibility that the detention occurred, "but", it said, "I am not satisfied … that the character of the applicant's political activities would have been the factor which led to the arrests and detentions of members of his family as he has claimed".
Next, as to the seizure of his fiancée's passport.
The Tribunal appears to have accepted at least as a possibility that the seizure occurred, but, it said, "I am not satisfied that" "if her passport was taken" "it was because of the authorities' concern to track down the applicant because of his activities[,] which do not seem to me to be of a kind which would have led the authorities" to seize the passport.
Finally, as to the necessity for Mr A to use a friend's passport to leave Libya.
The Tribunal said that it was "not convinced" that there was such a necessity because of his membership of the group. The Tribunal was "not satisfied that he would at that time … have been on a wanted list because of the political activities he has described". The Tribunal noted in that connection that the authorities, after having held his passport for some time, had, in October of 1995, returned it to him and then renewed it. About those two events, it said, "I … consider that his account of being able to retrieve his passport … and renew it … at the time when the arrests of his friends were underway does lend weight to a view that he was not of interest to the authorities."
In connection with the Tribunal's treatment of each of the above four matters, counsel for Mr A focused on its use of such words, when stating its conclusions, as "not satisfied" and "not convinced". It was said that the use of such language demonstrated that the Tribunal had not attained the level of satisfaction that each of Mr A's factual assertions was incorrect which would have permitted it to ignore those factual assertions when deciding the well-foundedness issue.
I reject the submission that the use by the Tribunal of such words as "not satisfied" and "not convinced" when dealing with the factual assertions as to the four matters focused upon by
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Mr A's counsel bespeaks a failure in it to proceed as required in Guo's Case.
I should begin explaining my reasons for doing so by drawing attention to the submission made on Mr A's behalf that the Tribunal had rejected his factual assertions about the four matters.
That submission requires some qualification. As to Mr A's factual assertions about three of the four matters, namely, detention of other members of the group, detention of his relatives and seizure of his fiancée's passport, the Tribunal did not reject his assertion that those events had occurred. As I read the Tribunal's reasons, it accepted the possibility that each of those events had occurred. Where it parted company with Mr A, however, was in ascribing to each of those events, assuming they had occurred, the cause which Mr A ascribed to them, namely, the attitude of the security authorities to the activities of the group. It was as to that matter of causation that it rejected Mr A's factual assertions; it was "not satisfied" that the attitude of the security authorities to those activities had caused those events, assuming they had occurred.
Leaving that matter aside, however, I conclude from the structure of the Tribunal's statement of findings and reasons that it did reject Mr A's factual assertions on the four matters with the degree of confidence requisite to permit it to ignore them on the well-foundedness issue.
I have referred earlier in these reasons to the structure of the Tribunal's statement of findings and reasons, but I now do so again for the purpose of dealing with the present submission.
Under the heading "Findings and Reasons", the Tribunal referred at the outset to a three stage process in which it proposed to engage, the first stage of which was outlining its concerns about aspects of Mr A's factual assertions. It then launched into that first stage, separating out into two classes those factual assertions of Mr A's about which it had concerns. On the one hand, there were those "which I have some doubt are accurate", while, on the other hand, there were those "which I have not accepted".
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Reading the Tribunal's statement of findings and reasons as Wu's Case requires me to do, I understand the Tribunal to be saying of Mr A's factual assertions in its second class, "These are not assertions as to the accuracy of which I have some doubt, a doubt in part only, like those in my first class; these are assertions as to the accuracy of which I have a doubt which is total. For that reason, I do not accept them."
The Tribunal then began to deal individually with those factual assertions of Mr A's about which it had concerns.
It dealt first with Mr A's assertions about the giving of the lecture by Dr Al Obeidi in March of 1995, concluding its discussion as follows,
"[W]hile I consider that there is some doubt about whether the lecture occurred as the applicant has described it, I am prepared to accept that it did for the purpose of considering his claims under the Refugee Convention."
Next, the Tribunal dealt with Mr A's assertions about what had happened to him as a result of his attendance at the lecture. As I have already mentioned, Mr A asserted before the Tribunal that he had been questioned about that attendance and expelled from the university in consequence. Earlier, however, he had asserted that he had not been expelled. Dealing with that change of front by Mr A, the Tribunal said,
"[I]n my view the change in his evidence casts doubt over whether his later claim in relation to his suspension or dismissal is accurate. Nevertheless, for present purposes I am prepared to accept that he was required to report for questioning and that he was told in March 1995 that he could not continue his studies."
It is apparent to me from the Tribunal's treatment of the two matters just referred to that they fell into the first of the Tribunal's two classes; they were assertions as to the accuracy of which the Tribunal had some doubt.
On the other hand, it is apparent to me that the four factual assertions on which Mr A's counsel focused in making his submissions before me (the Tribunal's treatment of which I
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have quoted earlier in these reasons) fell into the Tribunal's second class; they were assertions which (in the relevant respect) the Tribunal did not accept, because its doubt as to their accuracy was total.
In those circumstances and regardless of what one might have inferred if the language complained of on Mr A's behalf had been the sole material on which to form a view, I conclude from the Tribunal's statement of findings and reasons as a whole that it did proceed as required by Guo's Case. Given its apparent confidence in its conclusions, it was entitled to ignore, on the well-foundedness issue, both the chance that the security authorities had, because of the group's activities, detained persons who were members of it, detained Mr A's relatives and seized Mr A's fiancée's passport and the chance that, because of the group's activities, it had been necessary for Mr A to leave Libya on a friend's passport in order to avoid detection.
I turn now to the second of the two grounds upon which Mr A sought review of the Tribunal's decision.
That ground was that the Tribunal had failed to observe a procedure required by the Act to be observed in connection with the making of its decision. (That ground of review is set out in par 476(1)(a) of the Act.) The procedure alleged to be required by the Act to be observed in connection with the making by the Tribunal of its decision, but not observed by the Tribunal, is that in subs 430(1) of the Act. That procedure is the preparation by the Tribunal of a written statement, where it makes its decision on a review, which sets out its decision on the review, the reasons for the decision and the findings on any material questions of fact and which also refers to the material on which the findings of fact were based.
As particularised, what was complained of under this ground was as follows:
"The Tribunal's decision turned, in part, on its finding as to the level and type of political activity that might lead to persecution in Libya. It erred by failing to set out that finding and by failing to refer to the evidence on which it was based and by not revealing the reasoning process that led to the finding."
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In effect, what is being complained of under this ground is the Tribunal's failure to give an advisory opinion. Having concluded that those activities of Mr A as part of the group which it found to have occurred did not give rise to a fear in him of being persecuted which was a well-founded fear, the Tribunal is being criticised for not having said what activities would have given rise to a fear which was well-founded.
In my view, it was no more part of the obligation of the Tribunal under subs 430(1) of the Act to do such a thing (assuming it had an opinion on the matter, which seems doubtful, but which was implicit in the argument on behalf of Mr A) than it would be at common law for a court, when it finds that a set of facts does not fall within a statutory provision, to say what other set(s) of facts would fall within that provision (assuming it has an opinion on the matter).
I therefore reject the second ground of review as well.
In the circumstances, I dismiss the application for review with costs.
I certify that this and the preceding 26 pages
are a true copy of the reasons for judgment
of the Honourable Justice Katz.
Associate:
Date: 31 December 1998
Counsel for the applicant: Mr Craig Colborne
Counsel for the respondent: Mr Stephen Lloyd
Solicitor for the respondent: Australian Government Solicitor
Date of hearing: 23 November 1998
Date of judgment: 31 December 1998