El Merhabi v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This application for the very restricted form of review available in relation to a decision of the Refugee Review Tribunal raises the question whether the Tribunal erred in law in regarding the greed and lust of individuals, by which serious attacks upon the applicants were motivated, as inconsistent with those attacks being acts of persecution. But it also raises a number of other questions concerning the basis of the decision, and whether a decision so based involved error of law. 2 The application was made in the Refugee Review Tribunal by Mr El Merhabi and his wife Nabiha El Merhabi, and the application to review the decision of the Tribunal was made on behalf of both of them, although in error Mrs El Merhabi's name was omitted. Accordingly, and by consent, I directed that the proceedings be amended to show both Mr and Mrs El Merhabi as applicants. They presented their case in person, with the assistance of an Arabic interpreter. 3 An important feature of this matter is that both applicants were accepted by the Tribunal as witnesses of truth. During the hearing, the Tribunal member said to Mrs El Merhabi: "I believe the things that Mr Merhabi [sic] and you have told me." A little later, she said: "You have been very honest." And, at the end of the hearing, the Tribunal member said to both of the applicants: "Now, I know that you've been speaking very truthfully today." She made it clear that her concern was "as to what constitutes persecution" in circumstances of the kind in evidence. When the Tribunal came to the task of decision, there was no resiling from these statements made during the hearing. The reasons include the following: "The Tribunal accepts the story as it was told, noting that there was no dissonance between the Applicant's version and that of his wife, other than that hers was more specific." (Notwithstanding this statement suggests there was only one applicant, that was clearly not so, and on the very next line of the reasons a reference is made to "both applicants". By a convention of its own, the Tribunal called them "the Applicant" and "the Applicant's wife".) 4 The account given by the applicants, and so unqualifiedly accepted, is entirely consistent with such "country information" as was obtained by the Tribunal. They came from Tripoli in northern Lebanon, although Mr El Merhabi had studied and graduated in veterinary science in Beirut. They spoke of the conflict in their homeland, and of its occupation by Syrian forces. One of the centres of occupation, as the country information shows, and a theatre of conflict for some time between the Syrians and those aligned with them, on the one side, and a group of Lebanese Sunni Muslims, on the other, was Tripoli. A country information report prepared on 15 December 1995, in response to a request by the Tribunal, states that "the Syrians … still maintain a high profile in Tripoli." An earlier report describes Tripoli as "still occupied by the Syrian army". 5 Mr El Merhabi, who was born on 5 February 1934, married his wife in 1993. She was born on 10 January 1963, and it was a second marriage for him, and also for her, of which there have been no children. There were children of his previous marriage, a daughter living in Canada, two daughters living in Australia, and three sons living in Sweden, of whom at least one, he said, had gone there "in order to escape persecution". In recounting this, the Tribunal added an inexplicable comment: "However, the Tribunal notes that the son's mother is Swedish and therefore draws no adverse conclusion about his leaving Lebanon for Sweden." This is inexplicable because there is no evidence at all, and I was assured it is not the fact, that the mother of Mr El Merhabi's son, to whom the Tribunal was referring, or of any of his children, is Swedish. The transcript does purport to record a statement by Mr El Merhabi, through an interpreter, concerning a one-time partner of his named Naim Radhil, also described as "the maternal cousin for my ex-wife": "He's Swedish." The name does not appear to be Swedish, and I was informed this also is an error. In any case, if the transcript were correct, it would not follow that Mr El Merhabi's former wife is Swedish. 6 In his evidence, Mr El Merhabi told the Tribunal that he came from a large and very respected family in Lebanon. At the time war engulfed the country in 1975, a factory owned by him was bombed and, at about the same time, his salary as a veterinarian in government employment ceased, apparently because of the general dislocation of State services caused by the fighting. He decided to establish a coffee shop and a restaurant in Tripoli. Members of the Syrian forces used to come to the coffee shop, but they would not pay. The Tribunal found: "[T]he Syrians were the dominant force and authority in Tripoli at the time. On one occasion, the local Lebanese were celebrating Independence Day. It was not a very organised celebration, and a number of people fired guns into the air. Celebrations also took place in the coffee shop and restaurant. The following day, members of the Syrian Intelligence forces asked the [male] applicant to accompany them to their headquarters. On confirming his name they bashed him 'cruelly'. They accused him of distributing leaflets and anti-Syrian information in his establishments. He was not detained long, nor was he charged with any offence." This was in 1995. 7 Before the end of the same year, and in the hope of drawing less attention from the Syrian forces, the applicants left the coffee shop and restaurant in Tripoli, to establish a new coffee shop in a suburb of Tripoli known as Abu-Samrah. Mr El Merhabi needed some low wage help in the coffee shop, and he employed a Syrian, as he had done in the previous one. The Tribunal found: "Once again, Syrians started coming to the coffee shop - people whom [sic] the Applicant claims were from Syrian Intelligence. They would abuse him and accuse him of distributing religious leaflets. The applicant complained to the local police but they told him that they could not protect him against the Syrians." 8 Mr El Merhabi made a visit to Australia, leaving Lebanon in early October 1996. His wife, who was then well advanced in pregnancy, remained behind to supervise the coffee shop. Mr El Merhabi was away until late November 1996, when he returned after learning that his wife had suffered a miscarriage. In fact, Mrs El Merhabi's fate, during her husband's absence, had been much worse than to suffer a late miscarriage. Her evidence, which the Tribunal fully accepted, was that when her husband left, her Syrian employee foisted upon her another Syrian employee named Toufic. The coffee shop was crowded, but they gave her less and less money. Toufic also began to make advances to her, so that she decided to go and stay at her parents' home. But her father had also had problems with the Syrians. He was over sixty years of age and the proprietor of a supermarket. The Syrian forces, who had their headquarters nearby, shopped there, but refused to pay more than token amounts. Upon her father complaining to a Syrian officer, "they started bashing him up" and pulled him by his hair into a fountain. This incident had happened in February, when it is very cold in Lebanon. After Mrs El Merhabi went back to her parents, Toufic came, as she said, "wearing his uniform [in the context, it is clear a Syrian military uniform is meant] because when he's outside the coffee shop … he used to wear the uniform, and they came looking for me." They took her younger brother, and later she received a telephone call from Toufic, who said: "This is your brother now with us. If you really want your brother back you should come with me and I will take you to Syria." Mrs El Merhabi, in order to rescue her brother, said she would "do anything" Mr Toufic wanted. Her brother was returned to her parents and she went back home. 9 Then Mr Toufic came, she told the Tribunal, "with three other man [sic], soldiers with uniform and weapons, as well." She gave evidence that she protested, referring to her pregnancy, but she felt helpless because she had already complained to the police who had told her they would "never interfere with [her] and the Syrian forces." She went on to describe to the Tribunal what happened: "And he put the soldiers inside the house and he assaulted me. … And he raped me twice. … He raped me forcedly [sic] and he was very hard on me to the extent that when he left I felt some blood coming out from my body. … I called my parents to come urgently. … My parents took me to the hospital …. I had a caesarean surgery because I couldn't have my baby. … After I woke up, it was after a week, they told me that [my baby] was alive for two hours and then died. … I cannot have children anymore because of that." 10 This account does not appear in the reasons of the Tribunal, but it is beyond question that the Tribunal accepted the truth of what Mrs El Merhabi had said. The matter was glossed over in the reasons only as a concession to its sensitivity, particularly in Mrs El Merhabi's culture, and her desire to keep the details of what had happened from her husband. I have recounted the evidence because of its importance, and because, at the hearing in this court, it was made clear that Mr El Merhabi did know precisely what had happened, so that confidentiality was no longer sought by his wife. 11 After Mrs El Merhabi came out of hospital and her husband returned to Lebanon, Mr Toufic continued to come to their home, Mrs El Merhabi said, "and the soldier [sic-quaere scilicet soldiers] with him, he knocked forcedly on the door with his weapons and he said … 'Are you idiot you can't understand that I want you, you and your older man?' He insulted him [i.e. the husband] so much." It was the rape, together with Mr Toufic's continued pursuit of Mrs El Merhabi, his forcible intrusion into her home and his insults to her husband, that precipitated their flight to Australia very soon afterwards. 12 During the short interval between Mr El Merhabi's return to Lebanon and their departure, there was yet another incident. He bought a new car. He said in evidence: "I realised that the brakes were not working. I immediately turned around and had this car … checked in a mechanic shop. Immediately the mechanic man said: 'How come? What did that for you? There is the pipe or the tube that could take the oil to the brakes, it is all cut'." Clearly, Mr El Merhabi was suggesting that his car had been deliberately sabotaged. There was no evidence of anyone with a disposition to harm him other than the Syrian forces who had bashed him in the past and the Syrian Mr Toufic. The Syrians, Mr El Merhabi said, had "accused [him of] establishing or having this coffee shop for the people in the resistance party to meet and to have their conferences there to resist the Syrian government". He also said "they accused me of distributing leaflets, religious leaflets, … against the Syrians". 13 The Tribunal accepted that Mr El Merhabi "complained to the local police but they told him that they could not protect him against the Syrians." The Tribunal also accepted that "by virtue of their powerful position in Tripoli [the Syrians] were able to harass the Applicant if they wished." Curiously, the Tribunal added "that the Applicant contributed to the mutual distrust by his exploitation of Syrian workers, whom he employed solely as they were cheaper than Lebanese workers." Apart from the bare fact that Mr El Merhabi chose to employ the cheaper workers, there was no evidence at all to justify the rather sinister overtones borne in modern Australian usage by the word "exploitation". On the other hand, there was evidence that the Syrians had exploited their position of power in Lebanon to compel members of Mr El Merhabi's family, who were wealthy, particularly his brother, to sell land to them for a fraction of its value, conduct to which the Tribunal applies the description "unscrupulous business dealings". 14 The core findings upon which the Tribunal dismissed the applicants' applications are the following: "The Applicant [husband] was detained on one occasion in 1995 by the Syrian authorities and questioned about activities in his coffee shop. The Applicant said that it was the day after Independence Day, a Lebanese celebration which could possibly be construed as anti-Syrian and at which guns were fired (albeit into the air). The Applicant was questioned and released; there were no charges; there have been no further such interviews. The accusations that the Applicant distributed anti-Syrian material were clearly not sustained. The Applicant claimed that he was bashed. The Tribunal finds that such mistreatment, although inexcusable, was a random, callous act by an individual rather than systematic, motivated harm of a sort that could be called persecutory. … The Tribunal accepts that [Toufic] harassed the Applicant's wife in an offensive and unwarranted way; and that he was abusive and threatening to the Applicant. However, the motivation for the harm he caused would appear to be personal and outside the scope of the Convention. The Tribunal accepts that the Applicant has been harassed in the course of running his coffee shops. The Applicant hired Syrian employees for economic reasons; Syrians then came to the coffee shop; and may well have behaved badly towards the Applicant, abusing him and making unfounded accusations. The Tribunal also accepts that the Applicant has suffered other harm such as his house being vandalised and his car being damaged. However, there is no evidence to support the assertion that the Applicant was being targeted for a Convention reason; or indeed, that the harassment he suffered could be seen to be of a type and severity that could be called persecution. In short, the Tribunal finds on the evidence presented at hearing that the harm caused to the two applicants by the Syrians (or particular Syrian individuals) was for economic or personal reasons unrelated to the Convention: reasons of envy, retribution, greed or lust. Therefore the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for a Convention reason." 15 The first comment which should be made on this reasoning relates to the statement: "[T]here is no evidence … that the harassment [Mr El Merhabi] suffered could be seen to be of a type and severity that could be called persecution." Bearing in mind the Tribunal's emphatic and unqualified acceptance of both Mr El Merhabi's version and that of his wife, this statement is difficult to understand. He had been "bashed". He had been repeatedly and grossly insulted by a Syrian backed up by armed soldiers, so that he was in no position, quite apart from the difference between them in age, to do anything about it except complain to the authorities, a course which was notoriously useless. His motor vehicle had been sabotaged in a manner that could obviously have threatened his life if he had not detected it (the Tribunal said "damaged" and "the brakes felt soft", but the evidence which it accepted as truthful was more telling than that). The Tribunal itself recorded that his house had been "vandalised". Above all these, his wife had been raped by a Syrian supported by armed soldiers in uniform, and she had been further pursued in his own presence in terms that were insulting and humiliating to both of them, and again with the support of a soldier or soldiers. The very fact his wife was so reluctant that he should learn the full truth is eloquent testimony to the depth of the injury her violation had done to a man of his culture. 16 Yet counsel for the Minister suggested the Tribunal was not treating the rape of his wife, with the consequential death of his prematurely born child, as relevant to whether the husband was persecuted. To that submission, no other response is possible than that such a view of his claim would be as unreasonable as it would be inhumane. When, in a callous political act, Shakespeare's Macbeth strikes at Macduff's wife and babes, is not Macduff also afflicted? In one of the most anguished speeches in English drama, he says (Macbeth, Act 4, Scene 3, lines 223 et seq), adjured by his friend to "[d]ispute it like a man": "But I must also feel it as a man. I cannot but remember such things were That were most precious to me. Did heaven look on And would not take their part? … …Front to front Bring thou this fiend of Scotland and myself. Within my sword's length set him. If he 'scape, Heaven forgive him too." 17 Plainly, it was an error of law to state that "there [was] no evidence … that the harassment [Mr El Merhabi] suffered could be seen to be of a type and severity that could be called persecution." The portions of this statement which I have italicised make clear the reality that the Tribunal was asserting a proposition of law, as to which it was in serious error; but even if it had been stating a conclusion of fact, on the evidence it accepted, such a conclusion would not have been open to it. 18 The next matter to which attention must be drawn is the earlier half of the very same conclusionary sentence in the reasons: "[T]here is no evidence to support the assertion that the Applicant was being targeted for a Convention reason." In some contexts, the court might strive, despite the words "there is no evidence to support…", to construe this as an unfortunately phrased finding of fact, on the basis that mere slips of expression do not invalidate administrative decisions. But in the actual context, that does not seem possible. Not only do the words of themselves convey a proposition of law; they are linked organically to the second half of the sentence, where that sense is emphasised by the expressions "could be seen" and "could be called". The Tribunal is not stating a conclusion upon material which might justify a finding either way, but is stating that only a finding one way is open to it. That the statement in the first half of the sentence, so understood, is plainly wrong, is no reason to distort the words into some other meaning, since it is clear that the statement in the second half of the sentence is also wrong. There can be no presumption of correctness about this sentence. The truth is that there was ample evidence upon which it was open to the Tribunal to find a Convention reason for the treatment of the applicants. It had accepted that Mr El Merhabi was accused of having "distributed anti-Syrian material" on the occasion when he was "bashed". The fact that the accusations could not be proved against him did not, of course, mean that they were not still believed. The evidence, to which, as I have pointed out, the Tribunal felt compelled to give credit, shows the accusation was repeated. Mr El Merhabi said: "And they started harassing me all the time while I was there having this coffee shop, all the time the intelligence officers used to come to the shop and used to abuse me and also accuse me of distributing leaflets, religious leaflets, and then they started threatening me." Quite apart from this direct evidence, it was certainly open to the Tribunal to infer from the evidence of ill treatment of others (such as Mr El Merhabi's brother and Mrs El Merhabi's father) by the Syrian forces, in the absence of any evidence at all that Syrians were treated similarly in Lebanon, that the occupying forces were persecuting numbers of Lebanese for reasons of nationality, race, religion or political opinion. The repeated evidence of the refusal of the Lebanese police to intervene on the ground that they were helpless to protect a Lebanese against the Syrians might well have been thought to reveal the known targets of the Syrian forces, while showing no refuge could be found. 19 Yet a further error is demonstrated by the statement of an absence of evidence that "the Applicant was being targeted for a Convention reason". An error of this kind was pointed out in the joint judgment of Burchett and Lee JJ in Perampalam v Minister for Immigration and Multicultural Affairs (1999) 55 ALD 431 at 437, by reference to the judgment of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258: "It is not necessary, or even usual, on his Honour's view, that the conduct be aimed individually at an applicant, although this may be the case." Rather, the ordinary case of persecution involves the targeting of a group selected for reasons of nationality, political opinion, religion, etc, of whom the applicant happens to be a member. Consequently, the Tribunal erred in law by concentrating on the question whether Mr and Mrs El Merhabi, as individuals, were targeted for mistreatment, instead of examining the question whether the occupying Syrian forces were accustomed to mistreat Lebanese, or Lebanese having particular political or religious views. Had the right question been kept in view, the Tribunal could not have avoided considering Mrs El Merhabi's evidence about the treatment of her father and brother, and the plain implications of the fact that the Lebanese police had learned not to interfere to protect their own citizens. 20 The next matter which calls for remark in the reasons of the Tribunal is the manner in which it discounted, while accepting, the applicants' claim that Mr El Merhabi was bashed after being "detained on one occasion in 1995 by the Syrian authorities and questioned about activities in his coffee shop". It is clear that those "activities" were the distribution of anti-Syrian material of which he was accused. Mr El Merhabi's evidence was that "they accused [him] of distributing leaflets…against the Syrian government and they said that [he was] distributing things or information that would harm the President [of Syria] El-Assad." What the Tribunal said concerning this was: "The Tribunal finds that such mistreatment, although inexcusable, was a random, callous act by an individual rather than systematic, motivated harm of a sort that could be called persecutory." There is, it may be noted at once, a difficulty about the statement that the bashing was the act of an individual. Mr El Merhabi said that he was taken from his coffee shop to their office by "members of the Intelligence, the Syrian Intelligence", and he said "they started bashing me up in a very cruel way and a ruthless way", and that "they accused" him in the terms I have already set out. There is nothing in the evidence to suggest that this was merely the action of an individual, but even if the blows were administered by only a few persons, the incident occurred at the office of the Syrian forces (the Tribunal called it their headquarters), as part of what was plainly an official detention for the purposes of interrogation, if not intimidation. 21 More fundamentally, the manner in which the Tribunal disposed of this point involves the same error which was exposed, inter alia, in the decisions in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 and Perampalam v Minister for Immigration and Multicultural Affairs. In the former case, Wilcox J said (at 34): "For the above reasons, it was legally incorrect for the tribunal to reject the claims of Mr Paramananthan and Mr Sivarasa on the ground that the mistreatment they had suffered amounted to 'indiscriminate cruelty' falling short of 'persecution'. In each case, the tribunal should have entered upon the questions whether there was a causal connection between the cruelty the applicants had suffered and their Tamil ethnicity and/or perceived sympathy for the LTTE and, if so, whether the cruelty was something the Sri Lankan Government tolerated or was unable to control. The tribunal's failure to take this course constituted an error of law involving an incorrect application of the law to the facts as found by the tribunal, within the meaning of s 476(1)(e) of the Migration Act." In Perampalam, in the joint judgment of Burchett and Lee JJ, it was stated (at 437): "Paramananthan shows that the attempt to quarantine 'indiscriminate abuse of authority and … inhuman cruelty' occurring during interrogation from the whole activity of interrogation of Tamils and persons suspected of supporting the LTTE, of which the impugned conduct forms part, involves legal error." 22 It should be added that the characterisation of the cruel bashing of Mr El Merhabi as "random … by an individual rather than systematic, motivated harm of a sort that could be called persecutory" was entirely unsupported by evidence. Not only did the evidence indicate that it was not the act of an individual but of a group; there simply was nothing to show that it was random rather than a calculated expression of the policy of a brutal occupying force. This was not a case, like Paramananthan, where there was evidence that the government had made some serious attempts, although unfortunately without success, to control the excesses of its security forces. Here, not only was there no such evidence, but there was the positive evidence the other way of Mrs El Merhabi concerning the treatment of her father and brother by members of the same or associated armed units. Although the country information obtained by the tribunal in this case was remarkably sparse, it certainly confirmed the military occupation of Tripoli by the Syrian army, and Mrs El Merhabi herself, bearing in mind that her truthfulness was accepted by the Tribunal, gave evidence that the Syrians take "anything they want and nobody can say anything [to them] because they have the higher position and the higher power. Even the government, I'm sure my President, also, he has no right to speak unless he take permission from Syria." She said too: "Even in East Beirut … where it is supposed to be [for] the Christians, the Syrian forces are there and also insulting and humiliating their biggest personality in Lebanon … . Even Members of Parliament in Lebanon were chosen from the Syrian government and … they actually held them there in Wiley Park Hotel in Stoura and they locked them, each one in room, and they were not allowed to get out throughout the election, of their rooms, unless they were taken … in a Syrian tank to vote and then return, otherwise they couldn't." In other words, there was evidence which the Tribunal did not disbelieve, but ignored, that the Syrian forces behaved in the manner of an occupying army suppressing those Lebanese believed to hold independent political or religious views, and that it was in the course of the enforcement of the Syrian control that Mr El Merhabi was arrested and ill treated. 23 The Tribunal's error in discounting the bashing of Mr El Merhabi as the random callous act of an individual strikes the decision with legal invalidity, quite apart from any other matters to which exception may be taken. For it cannot be said that, if the Tribunal had directed itself properly upon this matter, it might not have come to the opposite conclusion. The fact that it was only one incident, although a serious one, would not necessarily deny it conclusive weight. Hill J pointed out in Mohamed v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 666 at 673 that there "need not be any particular act in fact perpetrated against the individual". In the joint judgment of Burchett and Lee JJ in Perampalam, it was stated (at 438): "A member of a victimised group (whether identified by race, political opinion or otherwise within the Convention) could have such a fear [i.e. a well-founded fear of persecution], though he or she had been able in the past to escape harm entirely." So one occasion of serious harm is actually more than is necessary. It is all a matter of the proper conclusion to be drawn, on the whole of the evidence, as to whether the applicants' fear of being persecuted for reasons of religion or nationality or membership of a particular social group or political opinion is well-founded. 24 That leaves for consideration the question with which these reasons opened, whether the Tribunal erred in law when it held the personal lust of Toufic removed the rape of Mrs El Merhabi and the killing of her child (which survived only for two hours after birth) from the category of acts of persecution. Had she been raped during interrogation, the full court decisions in Paramananthan and Perampalam make it clear that would have been an act of persecution. In my opinion, those decisions rest on a ground of principle, and cannot be narrowly confined to the situation of interrogation. If, for reasons of nationality, political opinion or religion, or (as in this case) all three, an official policy of suppression is pursued, whether by means of arrest and interrogation of individuals, or by the stationing of troops to control a civilian population, or by some similar means, and those who execute the policy commit persecutory acts in the course of doing so, persecution may generally be shown. The policy colours what is done by its agents, although they may behave wantonly. For a causal connection will be likely to exist, to adopt the reasoning of Wilcox J in Paramananthan (ubi cit. supra), between the cruelty suffered and the nationality, political opinion or religion; and official toleration of that cruelty, or inability to control it, may be found. To adapt what Burchett and Lee JJ said in Perampalam (ubi cit. supra), abuse by an occupying soldier of his position, or his personal cruelty or lust, cannot quarantine his particular act from the whole activity of suppression of which it forms part. In the present case, the uniformed and armed Syrian soldiers whose presence made resistance impossible were not divorced, by their actions or Toufic's, from the role in which they had been sent to Lebanon. Accordingly, in this respect also, the Tribunal erred in law. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.