Majeed v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2000-04-12|Before: Ryan J

REASONS FOR JUDGMENT 1 This was an application to set aside a decision of the Refugee Review Tribunal ("the Tribunal"), made on 3 December 1998 affirming the decision of the respondent's delegate not to grant the applicant a protection visa, on the grounds that it, like the Minister's delegate, was not satisfied that he is a refugee. 2 A decision of the Tribunal may be reviewed under Part 8 of the Migration Act 1958 ("the Act"), and that review is restricted to consideration of the grounds in s 476, which is in these terms: "(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; (b) that the person who purported to make the decision did not have jurisdiction to make the decision; (c) that the decision was not authorised by this Act or the regulations; (d) that the decision was an improper exercise of the power conferred by this Act or the regulations; (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; (f) that the decision was induced or affected by fraud or by actual bias; (g) that there was no evidence or other material to justify the making of the decision. (2) The following are not grounds upon which an application may be made under subsection (1): (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

Grounds for Review 6 The applicant, who was represented by Counsel on a pro bono basis, contended that the decision of the Tribunal was affected by reviewable error in two ways. First, it was said that the Tribunal had failed to set out its findings in accordance with s 430, and that this amounted to a failure to observe a procedure required to be observed in connection with the making of a decision, rendering the decision reviewable by virtue of s 476(1)(a). Secondly, the applicant argued, the decision had been affected by one or more errors of law, and was reviewable by virtue of s 476(1)(e). These errors of law were said to be constituted by the Tribunal's failure to make further inquiries when it was under a duty to do so, its failure to ask "what if I am wrong?" after making findings adverse to the applicant and its failure to take the correct approach to the issue of "internal flight".

Adequacy of the Tribunal's reasons (s 476(1)(a)) 7 The applicant's contention that the Tribunal's reasons were deficient is founded upon what is said to be illogical reasoning in the treatment of certain evidence submitted to it. That evidence was a card which purported to be the applicant's photo ID membership card of the PPP. Specifically, the Tribunal's reasons stated (at p 13) that it: "[noted] that the membership card was issued on the silver jubilee of the PPP in 1992 and does not date from 1985 as claimed when the applicant's photo on the card which did not appear to be that of an 18-year old was drawn to his attention." 8 The claim of illogicality is based on the proposition that the card (whatever its issue date) was evidence of the applicant's membership of the PPP as at the date of issue, and that the applicant's original membership may well have dated from 1985 as he claimed. It was not contended that this illogicality was, by itself, an error susceptible of review under Part 8 of the Act. Rather it was said that the Tribunal's failure to explain or to justify its finding in this respect with reference to other material constituted a breach of s 430. 9 The applicant's contention that the Tribunal's treatment of the membership card was a reviewable error raises two questions: first, whether s 430 prescribes a procedure or procedures, failure to comply with which renders a decision reviewable under s 476(1)(a); and secondly, whether in any case there has been a failure to comply with s 430. That section states: "(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. 10 There are conflicting judgments of Full Courts of this Court as to the correct answer to the first question identified above. That conflict has been noted by Sackville J in this passage from Yelda v Minister for Immigration and Multicultural Affairs [1999] FCA 1841 (unreported, 23 December 1999): "The core of the applicant's complaint was that the RRT had failed to address critical aspects of his claims and had therefore failed to make findings on all material questions of fact, as required by s 430(1)(c) of the Migration Act. There is a stream of Full Court authority to the effect that a contravention of s 430(1) gives rise to a ground of review under s 476(1)(a) of the Migration Act, since there is a failure to observe procedures required "in connection with the making of the decision". That line of authority has recently been re-affirmed by a Full Court in Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 (Heerey, Merkel and Goldberg JJ). A difficulty has been placed in the applicant's path by an even more recent decision of a Full Court in which two members of the Court (Whitlam and Gyles JJ, RD Nicholson J not deciding) have held, notwithstanding uniform earlier authority, that a failure by the RRT to comply with s 430(1) of the Migration Act does not constitute a ground of review under s 476(1)(a): Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741. Mr Elliott, on behalf of the Minister, submitted that I should follow Xu in preference to Yusuf. That submission presents a number of questions. One is whether the reasoning of the majority in Xu can be regarded as part of the ratio decidendi, bearing in mind that their Honours' agreed with the reasoning and conclusion of RD Nicholson J, who decided the case on other grounds. Another question is how a single Judge should deal with conflicting Full Court decisions, the last of which is inconsistent with an otherwise unbroken line of authority and ultimately turns on a narrow construction of a particular statutory phrase. Fortunately, I do not need to resolve these and other questions in the present case. I am content to adopt the approach most favourable to the applicant, namely that Yusuf correctly states the law." 11 The conflict there identified has not yet been resolved as an issue in the interpretation of the Act, although it has been further discussed by McHugh J in Durairajasingham v Minister for Immigration and Multicultural Affairs [2000] HCA 1; (2000) 74 ALJR 405. Further cases raising the same issue are awaiting determination in both this Court and the High Court. However, like Sackville J, I am not required to determine the issue here in light of the answer to the second question identified above, and would, in any event, have adopted the approach which is more favourable to the applicant unless otherwise constrained by binding authority. 12 It is clear that s 430(1)(a) has been complied with. The contention that the Tribunal has not set out (contrary to paragraphs (b) to (d) of s 430(1)) its reasons for the decision, or has not set out its findings on material questions of fact, or has not referred to the material on which those findings were made, cannot be sustained when it is appreciated that the Tribunal's doubts with respect to the photo ID card were in no way determinative of its decision. The Tribunal clearly accepted that the applicant was a member of the PPP - that being the only fact which (absent a translation, which was not before the Tribunal) the photo ID card went to show. The Tribunal's difficulty was accepting that the applicant had the high profile role within the PPP which he attributed to himself. That difficulty is revealed by this passage from p 13 of the Tribunal's reasons: "Given the implausibility of much of the above evidence and in particular that regarding the extent and seriousness of cases allegedly lodged against him, the Tribunal is unable to find that the applicant's role as a PPP member was as high profile as claimed by him and thus had attracted the amount of adverse attention as claimed to have been associated with that alleged role. However, even if the Tribunal were to accept his claims in regard to the extent of his profile in the PPP, the Tribunal concludes, based on the following independent country information, that the applicant would not face a real chance of persecution now or in the foreseeable future if he were to return to Pakistan on the basis of his political opinion in regard to membership of the PPP." 13 The Tribunal was addressing whether the applicant's role within the PPP was of a kind to give rise to a well-founded fear of persecution. There is no warrant for regarding the authenticity of the photo ID card or the date on which the applicant first joined the PPP as matters on which the application turned. On the question which the Tribunal regarded as determinative, its decision, reasons, findings on material questions of fact, and reference to the evidence on which it relied in making such findings, were included in the written statement of its reasons so that no breach of s 430 can be identified. Accordingly, this ground of review must fail.

Whether any error of law has occurred (s 476(1)(e)) 14 Before examining the specific errors of law contended for by the applicant, it is necessary to deal with the suggestion, which was made in oral submissions, that a wrong finding of fact by the Tribunal, even if itself unaffected by reviewable error, can found, or necessarily leads to, an error of law because it makes impossible the correct application of the appropriate law. 15 Specifically, the applicant contends that I should consider whether the treatment by the Tribunal of the validity or otherwise of both the warrant and FIR led it to a position from which it was unable properly to apply the test set out in Chan v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 379, particularly in relation to whether the applicant had a subjective fear of persecution. However, I do not regard that as the correct approach. Its acceptance would impermissibly equate an error of law with one of fact, and so run counter to the legislative provisions in Part 8 of the Act which, for relevant purposes, confines the review by this Court to examination of alleged errors of law. I consider that the better approach is to examine the Tribunal's process of fact-finding as set out in its reasons, and if that reveals no reviewable error (such as an inadequacy in the reasons), to apply the Chan test to those findings of fact to determine whether the Tribunal has correctly assessed, as a matter of law, the existence of a well-founded fear of persecution. 16 It is for this reason that the Tribunal's treatment of the warrant and the FIR do not found any error of law, insofar as it led to a finding that the validity of those documents is highly questionable. However, even if I am wrong, I do not consider that the Tribunal's finding in that respect precluded it from properly considering whether the applicant had a well-founded fear of persecution. 17 It should be noted that the arguments advanced by Counsel for the applicant were, to some extent, dictated by the fact that the initial application had been drawn on the basis of the understanding of the law which prevailed before the High Court's judgment in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21;(1999) 162 ALR 577; (1999) 73 ALJR 746("Eshetu"), and by the fact that Counsel was instructed directly by the applicant and properly put matters to the Court on the basis of those instructions.

Duty to inquire 18 Counsel for the applicant contended that some elements of the factual background to the submissions before the Tribunal which were unclear should have been resolved by the Tribunal discharging what was said to be its duty to make inquiries before making its decision. In general, that lack of clarity was said to have been attributable to out-of-date country information, the Tribunal's discounting of the warrant, FIR and letters of support from a variety of writers despite their form and content, and its failure to have a newspaper cutting (said to be relevant) translated. The cumulative effect of these matters, it was argued, precluded the Tribunal from properly applying the Chan test. As explained in paras 14-16 above, that is not a failure which is reviewable under s 476 of the Act. 19 It was not put to the Court that a failure by the Tribunal to conduct inquiries always constitutes reviewable error. In any event, I do not consider that any deficiency of that kind in the present case amounted to an error in the requisite sense. As to the contention that a failure to inquire constitutes a failure to accord substantial justice, I respectfully regard the effect of the High Court's judgment in Eshetu in this respect as correctly characterised by a Full Court of this Court in Yilan v Minister for Immigration and Ethnic Affairs [1999] FCA 854; (1999) 55 ALD 600, at para 51: In Minister for Immigration and Multicultural Affairs v Singh (1997) 74 FCR 553 at 561, the Full Court by majority held that there may be circumstances in which the Tribunal's obligations under s 420, to act according to substantial justice, requires it to make inquiries. But, so much being accepted, any failure to comply with s 420 does not for that reason give rise to a ground of review under s 476. In Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (supra), Wilcox J (with whom Burchett J generally agreed subject to some additional comments of his own) said that affidavits which had been tendered before the primary judge (Lindgren J) would have been admissible for the limited purpose of showing that the effect of the want of inquiry by the Tribunal was to visit a substantial injustice upon the appellant (at 528). However that observation was made in the context of an acceptance of the proposition that failure to accord substantial justice under s 420 gives rise to a ground for review under s 476. That is not the law since the decision of the High Court in Eshetu. 20 In contrast with the review of administrative decisions generally, the terms of the Act specifically forbid a review based on a failure to make inquiries which results in a decision so unreasonable that no reasonable person could have made it (s 476(2)(b)), or a decision made without considering relevant considerations (s 476(3)(e)). In substance, none of the characterisations to which I have just referred of the consequence of failure to undertake inquiries will render a decision of the Tribunal reviewable on the limited grounds available to this Court. 21 One further approach which is also closed to an applicant under the Act is to ask whether the power which was reserved to the Tribunal (under the Act as it stood at the relevant time) to undertake inquiries under s 427(1)(d) alone or in combination with s 425(1)(b), by implication imposed a duty to consider initiating appropriate inquiries which is, substantively, a procedure required to be observed. In Kulwant Singh v Minister for Immigration and Ethnic Affairs (unreported, 21 November 1996, North J) it was said: "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 a power may be unwise in certain circumstances, it is not a failure to observe a procedure required to be observed by the Act." 22 That observation was cited with approval by Finn J in Yusuf v Minister for Immigration and Multicultural Affairs [1999] FCA 1053 (unreported, 21 July 1999) and that reasoning was not revisited by the Full Court on the later appeal in that case. However Finn J went on to observe, and I respectfully agree with his Honour, that: This is not to say that the Minister or Minister's delegate or for that matter the Tribunal as the donee of the power is not, as a public official and as an holder of an office of public trust and confidence, obliged to consider whether or not a power so held ought be exercised. 23 Even if, contrary to the conclusion reached above, a failure by the Tribunal to consider whether to undertake inquiries could constitute reviewable error, I do not consider that any such failure has been made out in this case.

Application of "What if I am wrong" test 24 In Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 56 ald 43, Sackville J (with whom North J agreed, Kenny J in separate reasons taking a similar approach) discussed the principles to be applied when it is claimed that a Tribunal should have considered the possibility that its findings of primary facts were wrong, before reaching an affirmative conclusion that an applicant did not have a well-founded fear of persecution. His Honour made these observations in paras 60-64: It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a "real substantial basis" for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring. The RRT performs its fact-finding task as an administrative decision-maker. Although the civil standard of proof is not irrelevant to the process, the RRT cannot simply apply that standard to all fact-finding. Moreover, the RRT must frequently make its assessment on the basis of fragmented, incomplete and confused information. It has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision-maker/investigator. As Gummow and Hayne JJ remarked in Ex parte Abebe (at par 191): "[i]t is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself." Even applicants with a genuine fear of persecution may not present as models of consistency or transparent veracity. In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur. Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found". In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so. 25 I respectfully adopt his Honour's approach, as correctly analysing the so-called "what if I am wrong?" test as part of the reasoning process upon which the Tribunal must engage if it is correctly to apply the law. A failure to do so becomes an error of law which is susceptible to review under s 476(1)(e). 26 The question in this case is then, do the Tribunal's reasons reveal that it had any doubt of the correctness of its findings of primary fact so that it failed properly to consider the likelihood that the applicant might, in the future, suffer persecution for a Convention reason? On behalf of the applicant, the submission was made that the Tribunal's reasons were affected by an objective level of uncertainty because it rejected much of the applicant's evidence as not credible, and because it failed to take the opportunity to remove that uncertainty by undertaking further inquiries. However, the applicant was unable to point to any part of the Tribunal's reasons which indicated the requisite degree of doubt about findings it actually made. In essence, the applicant alleges a reviewable error based on the Tribunal's failure to ask what he says it should have asked. To entertain this ground of review would be to trespass impermissibly into review on the merits of the Tribunal's decision. 27 This is not to say, however, that a Tribunal may insulate its decision from review, simply by eliminating from its findings of fact all expressions suggestive of doubt. Resort to that technique might well found a review based on a defect in the reasons themselves.

Application of "internal flight" test 28 This further ground of review is based on the Tribunal's reasons (at page 18) on whether, if the applicant, in fact, had a fear of persecution, that fear could be alleviated by internal relocation. The Tribunal there said: The Tribunal is required, in any event, to assess the risk to the applicant in his country of nationality as a whole, rather than just in relation to Gujrat. The applicant in this case has a tertiary education and work experience. He is able to communicate in Urdu, Punjabi and English, and is relatively young. He does not have a high profile as a PPP activist such that would attract the attention of the authorities, especially outside his Gujrat region. If he fears for his safety in Gujrat it would not be unreasonable to expect him to relocate to another part of Pakistan. Although the applicant has indicated that he fears he may be tracked down to other parts of Pakistan the Tribunal has recorded its finding above that the applicant is not sought by the authorities for any political reason. The Tribunal has also found his claim to fear that fundamentalists are looking for him is not credible. 29 As developed in oral submissions, the applicant's contention on this point was that, contrary to the requirement said to be laid down in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) FCR 437; (1994) 124 ALR 265, the Tribunal proceeded to examine the option of internal flight without first making a specific finding as to the existence or otherwise of a subjective fear of persecution in relation to Gujrat. The only significance in this, it appears to me, is that despite its clear acceptance that there was no well-founded fear of persecution in Gujrat, the Tribunal nevertheless went on to examine whether any subjective fear the applicant had could be ameliorated by internal re-location. The fact that the Tribunal has not specifically discounted the applicant's subjective fear of persecution is not material to its decision, the concluding parts of which evince a clear determination that the applicant's subjective fear of persecution, if it existed, was not "well-founded".

Conclusion 30 For these reasons, the application must be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RYAN.

Solicitor for the Applicant: The applicant instructed Counsel directly

Solicitor for the Respondent: Australian Government Solicitor (Vic)

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