Direse v Minister for Immigration & Multicultural Affairs

The first arrest 11 A Department of Foreign Affairs & Trade ("DFAT") report of 5 December 1994 contained the following information which appears to relate to the demonstration at which the applicant claimed to have been arrested:

"At Asrat's trial approximately 500 demonstrators were arrested and detained by the police. The demonstrators were treated quite badly by the police (their heads were forcibly shaved) although most have since been released. While the diplomatic community protested over the treatment of those in detention, the arrests were justified on the grounds that no licence was obtained for the demonstration." (Emphasis added) 12 Of this report, RRT said: "Concerning the events of 20 September 1994, DFAT advises that the arrested supporters were held for a month and were mistreated by the authorities. But there is no report that any detainee was subjected to repeated interrogation, torture or solitary confinement." 13 On that basis RRT found that a key aspect of the applicant's claim (repeated interrogation, torture and solitary confinement) was "at odds with" this independent evidence. The claims of torture were dismissed as an exaggeration, fabricated by the applicant in order to create a refugee profile. A person like the applicant with a low profile in the AAPO would not be subjected to the kind of severe torture and mistreatment he claimed. Accordingly, RRT did not accept that the applicant "was detained and tortured" in connection with this incident. 14 In fact, the DFAT advice concerning the events of 20 September 1994 does not refer to the arrested supporters being held for a month, or for any particular period. An Amnesty International Report, to which I shall presently refer, adverts to people being released "[a]fter up to nearly a month in custody". The Minister's delegate also treated the DFAT cable as confirming that the arrested supporters were held for a month (RD 95) but it was not submitted that there was any significance in this coincidence. 15 Whether the DFAT advice is "at odds with" the applicant's claim may depend upon precisely what is meant by that phrase, and may involve matters of opinion. The advice tends to confirm elements of the applicant's claim, but not all elements. Whilst the advice does not refer to repeated interrogation, torture or solitary confinement, it does refer to mistreatment of those detained. It would surely be an exaggeration of the general thrust of the advice to treat it as conveying that whilst those detained had their heads forcibly shaven by the police, in no other respect were they exposed to mistreatment. But it may be a reasonable inference that forcible head shaving was the most notable or frequently encountered illustration of mistreatment which came to the notice of those who participated in the preparation of the advice. That may not provide a secure foundation for a conclusion that the applicant was not treated in the way he claimed. However, a "disquieting process of reasoning" is not of itself sufficient to enable a successful challenge to a decision under s 476 of the Act: Sundararaj v Minister for Immigration & Multicultural Affairs [1999] FCA 692. 16 The advice of 5 December 1994 was not the only independent evidence available to RRT as to the events of 20 September 1994, and the applicant's involvement in them. In addition it had the information referred to in paras 17 to 22 below. 17 RRT had before it a document purporting to be issued by the High Court of the Provisional Government of Ethiopia concerning the arrest of the applicant on 20 September 1994 for participating in illegal political activities. It had another document purporting to be issued by the Crime Investigation Office referring to the fact that the applicant was in detention between 20 September 1994 and 19 October 1994 because he had been "found agitating and delivering a speech on the need to release Professor Asrat Woldeyes". 18 These documents, taken at face value, confirm the arrest and detention of the applicant in connection with the incident which he claimed. There may be questions as to the authenticity of the documents, but RRT neither refers to, nor resolves any such questions. Whilst it mentions the documents in passing at page 9 of its reasons, thereafter they are ignored. There is no distinct finding by RRT as to whether the applicant was arrested and detained for 29 days as he claimed, or if he was detained for this period, as to the reason for that detention. The only finding is that RRT does not accept that the applicant was "detained and tortured" in connection with this incident. 19 The decision of the Minister's delegate referred to an Amnesty International Report "Fear of Ill treatment/Legal Concern" which reported upon the events of 20 September 1994. That report includes references to demonstrators being released after up to nearly a month in custody. It also includes the following: "After a while the police started to arrest and beat people, forcing them into trucks to take them to an unknown destination. There were some scuffles and stone throwing, the circumstances of which are unclear. … They were guarded by soldiers, who forcibly shaved their hair without soap or water and made them do army-type physical exercises, beating those who failed. They were given very little food and held incommunicado for about two weeks." The applicant claimed mistreatment of this type. It is true that his claims also included mistreatment going beyond the type of mistreatment the subject of this report, but there is no reference to the report in RRT's reasons, which at least partially supports the applicant's account. 20 RRT had before it psychologists' reports to the effect that the applicant suffers from post traumatic stress disorder ("PTSD"). Whilst RRT accepted that the applicant suffers from PTSD as a result of traumatic events which have occurred in the past, RRT: "is not satisfied that the trauma he suffered occurred for the reasons he claimed, and therefore the Tribunal finds that such trauma is not Convention related." The precise import of this finding is not entirely clear. It accepts that the applicant has been exposed to traumatic events in the past. Without enquiring as to whether the applicant was exposed to traumatic events other than those claimed, RRT is nonetheless able to conclude that the trauma is not Convention related. 21 But, more importantly, the reports of the psychologists (one of whom was present at the hearing), and a letter from Mr Doyle (who was present at the hearing), refer on no less than three occasions to scars on the applicant's body which were said to be the result of the beatings sustained whilst in detention. No questions were asked by RRT upon this matter at the hearing, and there is no reference to these matters in RRT's reasons for decision. (It is true that the applicant asked not to be questioned about his torture, but RRT whilst expressing sympathy with the applicant's position, declined to commit itself to refrain from asking questions on that topic.) 22 RRT also had before it a report by Amnesty International apparently written on 19 April 1995 in relation to the human rights situation in Ethiopia. That report included the following: "Dozens of government opponents have "disappeared", some apparently ending up in secret detention centres. Detainees suspected of belonging to opposition groups have told Amnesty International about being tortured." RRT also had before it a large body of "country information" supplied by the applicant's advisers which indicated that during the relevant period, arbitrary arrests, ill-treatment and torture in detention continued to be experienced in Ethiopia. There is no reference to this report or to that country information in RRT's reasoning in connection with its assessment of the applicant's claims. RRT does state at p 17: "The Tribunal has carefully considered the submissions of both the applicant and his adviser, as well as the documents submitted before both the department and the Tribunal." But such references give no confidence that the expectations in relation to statements of reasons referred to in par [45] below have been met.

The renewal of the passport and the first arrest 23 RRT found it to be implausible that the applicant was able to secure an extension of his Ethiopian passport on 30 November 1994 by payment of a bribe. RRT said: "Although the Tribunal accepts that corruption is prevalent in Ethiopia, as it is across the African continent, it does not accept that his passport would be renewed in the circumstances he claims since he had, just before the renewal, been held in detention for one month and the renewal came very soon after he took part in a demonstration." (Emphasis added) 24 The passport (RD 4) apparently contains a stamped notation whereby it is renewed for a period of two years on 30 November 1994. There is no finding that these notations are a forgery. What appears to have been found is that the passport was renewed, and the fact of renewal belies the claimed circumstances, namely detention for one month after participation in a demonstration followed by a renewal of the passport albeit with the assistance of bribery. 25 Yet, at least on one view, RRT has already found that the applicant was arrested and/or detained on 20 September 1994, but that the claims of torture in connection with the incident are rejected. The quoted finding compounds the confusion as to just what findings RRT has made in relation to the first arrest.

The major contradiction in the testimony 26 In the various statutory declarations lodged in connection with his application the applicant consistently claimed that after 1994 he was an active, but lower level AAPO member, and that lower level active members were targeted by the authorities: see eg RD 125, 141. 27 At the hearing, the following evidence was given with the assistance of an interpreter: "T. The Department's decision states that because of your low profile with the AAPO it is improbable that you'd have been singled out for the type of treatment you've claimed. Many of the detainees during the first detention were leaders of the AAPO and there's no independent evidence of that form of harm (inaudible). Would you comment on that? A. Also I'm not the very top one like the other ones and I was not also - I didn't have low profile in the organisation - I was working as an organiser - propaganda organiser - in the organisation - it was at the time we were doing all the activity others were commenting that I was part and parcel of - a key member - of AAPO - there are some groups, some people, in AAPO who are very important for the organisation - if such people are not there AAPO could not have operated as successfully as it did. (END SIDE ONE, TAPE ONE) SIDE TWO, TAPE ONE: A. (continued) On the other hand the responsibility I had was political activities and propaganda and that that part of the activities - propaganda - is just putting your life at risk. You are always having a meeting with the other opposition organisations, even with government organisation called APRDF - the Democratic Revolutionary Front. T. Mr Moges Direse in all of your statements you don't claim that you were ever elected to any leadership role in the AAPO. In fact, during the Department's interview you stated that you were in fact just an ordinary member. Just a moment, I haven't finished my question … and therefore what you're stating now is at odds with your previous claims. A. When I first said I'm an ordinary member I meant I'm a member, I'm not an executive member of the organisation. That was mistake on my part because I didn't have interpreter - I just said I was a member. I've tried to explain it in one of the documents, in a statutory declaration, that was my language problem. (25) T. Well I'm sorry Mr Moges Direse because there was in fact an interpreter present at the Department's interview you're referring to. A. (Inaudible) … and I was member of this group. I'd like you to look at this paper - the top one. T. Thank you. A. (Not interpreter) The other thing I'd like to mention is when we say 'member' - when in my country we say 'member' of the organisation who are elected to do some activity and the rest of the people we call them 'ordinary members'. (inaudible) … direct interpretation of our language - what 'member' is and what 'ordinary member' is. I was thinking like that when I gave this (inaudible) when I mentioned also after July 19th I was active member of the organisation after July 1994 ... When I …" (Emphasis added) 28 Neither in his statements, nor at the hearing did the applicant ever claim that he had been elected to a leadership role. The notion that his statements at the hearing are at odds with previous claims appears to be based upon, or influenced by, RRT falsely attributing to the applicant a claim made at the hearing of a leadership role in the organisation. 29 I agree that this exchange is confusing and unsatisfactory, but a possible contributing cause of the confusion is the introduction by RRT into the questioning of a claim which the applicant had never made, namely that he had been elected to a leadership role in AAPO. But, again, factual errors, or a disquieting process of reasoning, are not sufficient to enliven the Court's jurisdiction.

The second and third arrests 30 On p 15 of its reasons for decision RRT said: "… the applicant repeatedly asserted that the authorities suspected him of involvement with guerilla fighters. However, he was released by the authorities on three occasions after being detained. The Tribunal finds that this aspect of his claims is implausible. The applicant, according to his first statutory declaration, was only detained for one day on the second occasion and four days on the third occasion, which would seem to indicate a decreasing rather than an increasing interest on the part of the authorities in him, since during his first detention he was allegedly held for a month. If the authorities really believed that he was involved with the guerilla fighters, then either they would have held him for much longer on the second and third detentions, or they would not have released him so often." (Emphasis added) During the hearing I thought that the aspect of the claims which was rejected as implausible was the claim that the authorities suspected the applicant of involvement with guerilla fighters. 31 A little later on that page RRT said: "The Tribunal finds that it is implausible that the applicant would be targeted for the type of treatment he claimed, in particular that he was arrested and briefly detained on two other occasions after the 20 September 1994 incident, since he had a low profile in the organisation." Counsel for the Minister originally submitted that RRT had accepted that there were three arrests, but later withdrew that submission. Her ultimate position, as I understood it, was that she was no longer certain what the position is, and that there is no clear finding about the second and third arrests. That was an uncertainty which I shared, as an apparent acceptance of three arrests at the top of the page appeared to be contradicted by a finding at the bottom of the page that the applicant was not arrested and detained on two other occasions after the 20 September 1994 incident. 32 After reserving my decision I began to wonder whether the claim which was rejected as implausible was the claim that the applicant was released by the authorities on three occasions after being detained. But that would be a very odd way of expressing the applicant's claim, which is that he was thrice arrested, rather than thrice released. And where does a finding that he was not thrice released leave the first incident? It is implicit in the finding at the bottom of p 15 that RRT accepts that the applicant was arrested and detained in connection with the 20 September 1994 incident, yet on p 14 it does not accept that the applicant was detained and tortured in connection with this incident. Perhaps that is an implicit acceptance of the arrest and/or detention, but a rejection of torture, in connection with the first incident. 33 RRT does find elsewhere on p 15, it to be implausible that after the applicant's release from detention in October 1994 he continued to participate in some AAPO activities secretly, through friends. But there remains at least some confusion, if not an inconsistency, between RRT's findings in respect of the various arrests which were the basis of the applicant's claims. The confusion is compounded by the finding referred to in [23] above.

The family connection 34 It was part of the applicant's case that his brother and sister were active members of AAPO and that each had been arrested on more than one occasion as a result of their AAPO activities. The applicant claimed that his third arrest was associated with a desire on the part of the police to obtain information about his brother. In the section of its report headed "Findings and Reasons" RRT does not deal with the claimed AAPO involvement of the applicant's brother or sister. 35 On one view, RRT rejects the third arrest because the applicant had a low profile in the organisation. But it does not deal with the claim that the political involvement of other family members may have been a contributing factor.

An active member or a low profile? 36 A DFAT cable of 30 August 1995 records that the Ethiopian Human Rights Council ("EHRC") maintains that active members of AAPO living in the Amhara region do face harassment and mistreatment from the government. The president of EHRC is said to be sympathetic to AAPO. EHRC does concede that non active members or active members living in Addis Ababa do not face any problems. 37 A DFAT cable of 18 August 1998 reported information in NA 6184 of 12 November 1996 to the effect that mere membership of AAPO would not be sufficient to imprison a person but if the person had been prominent or politically active there is possibility of detention and/or imprisonment by the authorities. 38 A draft report issued by DFAT on 8 March 1999 responded to a request for information on whether people of Amhara ethnicity in general, or members of AAPO in particular, are at risk of arrest or other forms of serious harm or discrimination in Ethiopia. The response included: "They (ie the Amhara) are certainly not subject to discrimination or ill treatment on the basis of ethnicity. Membership of the AAPO alone is not likely to be a cause for discrimination, although active members of the AAPO may face low level harassment from the authorities, for example being subject to surveillance and questioning by the security authorities." 39 RRT found that the applicant's claim that he has a well-founded fear of persecution for a Convention reason in Ethiopia is at odds with the independent evidence referred to in pars 36 and 38 above. But the applicant claimed to be an active member of AAPO and the independent evidence might be thought to provide some support for the proposition that active members of AAPO are at risk of adverse treatment at the hands of the authorities. 40 However, RRT describes the applicant as having "a low profile in the AAPO". RRT does not make an express finding on the claim which he actually made, namely that he was an active, lower level member and that such persons are targeted by the authorities. RRT treats absence of prominence as determinative of the question without dealing with the alternative case, supported to some extent by the independent evidence (and apparently by RRT decisions, V97/05787 and V97/05779: see RD p 116) that active membership of AAPO may be sufficient to be the cause of problems. Whilst there are some passing references (eg p 15) to active membership, RRT does not squarely address the applicant's claim in this respect.

Other matters 41 RRT rejects as implausible the applicant's claim that he had a receipt for his AAPO contributions at the time of his first arrest and rejects his explanation offered at the hearing that he forgot about the receipt. 42 RRT made the following finding at RD 167: "… according to the 8 March 1999 DFAT report the Ethiopian government may make it difficult for an active opponent to obtain an exit permit. Such a decision would depend on the government's assessment of the person. Since the applicant claimed that the authorities thought he was involved with guerilla fighters, and was an active AAPO member, the Tribunal finds that it implausible that the authorities would issue to him such an exit visa, especially since he had already been detained several times and therefore there was an interest in keeping him in the country." (Emphasis added) 43 It is unlikely that RRT intended to convey by this finding that it did not accept that an exit visa was issued to the applicant. It is more likely that RRT intended to convey that it is unlikely that such a visa would have been issued to him if the other claims were true.

S 430(1); s 476(1)(a) 44 Section 430 provides: "(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." It is clear that failure to comply with s 430 will enliven the jurisdiction of the Court under s 476(1)(a) of the Act. 45 The rationale for, and the expectations that are generally entertained of reasons statements were outlined by Finkelstein J in Comcare Australia v Lees (1997) 151 ALR 647, 656 in a passage which was endorsed by Finn J in Yilmaz v Minister for Immigration & Multicultural Affairs [1999] FCA 1025. They include: · The person whose interests may be adversely affected by the decision is told why the decision has been made. · It enables the public to have confidence that the Tribunal has gone about its task properly and fairly. · It enables a party who is dissatisfied by the decision to determine whether there has been some reviewable error made by the Tribunal. · It imposes an intellectual discipline on the Tribunal making it more likely that its decision will not be arbitrary or capricious. · It furthers judicial or quasi judicial accountability. 46 The reasons of an administrative decision maker are meant to inform. They are not to be scrutinised upon over-zealous judicial review to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. The reasons must be read as a whole and considered fairly: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272, 291. 47 But, the cases referred to by Finkelstein J in the passage referred to above, establish that: · The reasons should be expressed in clear language so that they are capable of being understood. · The reasons must set out those parts of the evidence which are important for the conclusions arrived at. · The reasons must disclose the reasoning process of the Tribunal. 48 The content of the obligation imposed by s 430 has been considered in a number of recent decisions of the Full Court, not all of which are consistent. The cases were reviewed by Moore J in Li Yue v Minister for Immigration & Multicultural Affairs [1999] FCA 1404 and by Drummond J in Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1126. That review demonstrates that the preponderance of authority supports these propositions: - RRT must explain why it has rejected apparently probative evidence relevant to a material issue, even though there may be other sufficient material justifying the conclusion which the Tribunal has reached. - Once an issue favouring an applicant for refugee status is identified as a material one, the Tribunal must explain why it finds against the applicant on that issue. - All the substantial claims, and information in support of them, put forward by an applicant must be considered. 49 In matters under Part 8 of the Migration Act, the Court can engage only in judicial not merits review. The Tribunal does not commit a reviewable error merely because it finds the facts wrongly, or upon a doubtful basis, or because it adopts unsound or questionable reasoning: Yilmaz (supra) at [14]; T v Minister for Immigration & Multicultural Affairs [1999] FCA 878 [41].

Conclusion on s 430 50 In my opinion, RRT has failed to observe the requirements of s 430 in a number of respects which I itemise in paras 51 to 56 below. 51 Where specific instances of maltreatment and detention are relied upon by an applicant, a Tribunal ought generally address each instance in its reasons. Whilst RRT does address the three instances on which the applicant relies, it has made findings which, in my view, are confusing and apparently inconsistent. RRT's reasons are to be construed benevolently, but, on an issue as important as this, its findings and process of reasoning ought to be capable of being clearly understood. RRT's reasons fail to comply with this expectation. (See pars 23-25 and 30-33 above.) 52 RRT has not clearly found whether or why the applicant was arrested and detained for 28 days on 20 September 1994. If, on the proper construction of its reasons, it has found against the applicant on that issue, RRT has not explained whether or why it rejects the documents which, taken at face value, support his claim in this respect. (See pars 17-18 above.) 53 RRT has not adverted to the independent evidence which is material to the question of what may have happened to the applicant in detention in consequence of his first arrest. (See pars 16-22 above.) Whilst RRT does not have to refer to all of the material before it, if a claim to refugee status is to be rejected upon the ground that the applicant's evidence is a fabrication, independent evidence which, if accepted by RRT, would support the applicant's claim, must be dealt with. 54 RRT has failed to deal with the applicant's claim that he faces persecution not only for his own activities but also for those of his family (see par 7 and pars 34-35 above.) The findings made in relation to the third arrest do not discharge RRT from responsibility for dealing with that claim, because the finding was tied to the applicant's allegedly low profile, rather than to the family involvement. There was independent evidence of family members of persons wanted by the police being subjected to detention and harassment (RD 97). 55 RRT has not dealt with the applicant's claim that he was an active albeit low profile member of AAPO, and for that reason was at risk of harm. There was independent evidence that active membership of AAPO may be sufficient to attract adverse attention from the authorities (see pars 36-40 above). 56 The applicant put forward apparently probative independent evidence as to the human rights conditions in Ethiopia during the relevant period which painted a bleaker picture than some of the sentences extracted from some of the DFAT cables. RRT does not deal with this evidence in its assessment of the applicant's claims. It does not say whether it accepts or rejects it, or why, and if the evidence is accepted how it fits with RRT's ultimate conclusion (see 22 above). 57 There are other aspects of the evidence to which RRT did not advert which are referred to in the applicant's submissions. However, the matters referred to above are the most significant omissions on the part of RRT and lead to the conclusion that there has been a failure to comply with s 430 of the Act in the respects indicated, thus enlivening the jurisdiction of the Court under s 476(1)(a) and s 481. The applicant put its case in a number of alternative ways, which are referred to in counsel's written submissions which are with the papers. However, in view of the conclusion which I have reached, it is not necessary to deal with those alternatives.

Discretion 58 The power to set aside a decision is discretionary even if a ground on which the decision might be set aside is established. Counsel for the Minister did not put forward any submission that if a failure to comply with s 430 were established, the Court should nonetheless decline in its discretion to grant relief. 59 RRT did make what it puts forward as apparently alternative findings which are said to be available even if it arrived at a wrong conclusion as to the credibility of the applicant. But, in my view, it is unsafe and unsatisfactory to treat those conclusions as operating independently of the finding as to the applicant's credit. If the applicant's account was accepted as credible, the probabilities are that he would have been accorded the status of a refugee. 60 Accordingly, the existence of alternative findings does not persuade me that I should, in the exercise of my discretion, decline to grant the relief sought, particularly as no submission was put by the Minister that I should follow that course. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate: Dated: 25 November 1999 Counsel for the Applicant: T M Thawley

Solicitor for the Respondent: Australian Government Solicitor