Minister for Immigration & Multicultural Affairs v N989/01

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from the judgment of a Judge of this Court allowing an application made under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed the decision of a delegate of the appellant Minister refusing to grant a protection visa to the respondent. His Honour set aside that decision and remitted the matter to the Tribunal for re-determination. 2 The factual and procedural background of the matter, the respondent's claims at the various stages of his application for a protection visa, and the Tribunal's findings and reasons are set out in some detail in the learned primary judge's reasons for judgment. There is no need to repeat those details here. A brief summary will suffice. 3 In summary, the respondent, a Syrian national now aged 29, who arrived by boat from Indonesia, claimed to be a refugee within the meaning of the Convention on the basis of likely persecution by the Syrian authorities by reason of imputed political opinion. The respondent claimed that assistance which he had rendered in Syria to the Palestine Liberation Organisation ("the PLO") in his capacity, first as an assistant bus driver, and later (when the bus driver was arrested by Syrian Intelligence), as a bus driver, had brought him to the attention of Syrian Intelligence who had interrogated him on many occasions and eventually had seriously maltreated him to the extent that he fled from Syria to Lebanon (where he spent 17 months) and then, after spending two years in Indonesia, obtained a passage to Australia. 4 The learned primary judge carried out a meticulous examination of what he described as "the particular elements of the Tribunal's findings". His Honour analysed with varying degrees of criticism the Tribunal's observations about the respondent's credibility. 5 His Honour then referred to the following paragraph in which the Tribunal concluded its reasoning: "The Tribunal is satisfied that the applicant has not been truthful. The Tribunal finds that the applicant is a Syrian national. It is not satisfied that he has or has had any association with the PLO or that he ever acted as a courier for the organisation. The Tribunal is not satisfied that he has ever been detained by the authorities in Syria in the circumstances that he has claimed and is not satisfied that he was ever bashed and tortured as he claimed." [We shall refer to this paragraph as "the Findings Paragraph"]. 6 In relation to this conclusion his Honour reasoned as follows: "First, the statement by the Tribunal that it was satisfied that the applicant had not been truthful, was a bare statement that did not define in what respect the applicant had been found to be untruthful. The Tribunal had been unable to be satisfied as to the truth of some matters, as discussed above, but no foundation was established by the Tribunal for an affirmative finding that the applicant was untruthful in all respects. Significantly, in the preceding paragraph of the reasons, the Tribunal had acknowledged that, notwithstanding any doubts the Tribunal may have held, it was possible that the applicant was wanted by authorities in Syria, as he claimed. The balance of the conclusion recorded by the Tribunal reflected statements made earlier in its reasons to the effect that the material had not persuaded it that events had occurred as claimed. The Tribunal did not purport to find positively that such events had not occurred." 7 His Honour expressed the opinion that this was not a case where the Tribunal could state, and therefore did not state, that it had no real doubt that events had not occurred as claimed by the respondent. Accordingly, his Honour held that in making its ultimate conclusion the Tribunal had to take into account the possibility that events of persecution had occurred in the past, as claimed by the respondent, and, after having regard to the degree of that possibility, in the light of subsequent events and circumstances then existing, the Tribunal had to assess the degree of chance, which might be a chance falling well below the balance of probabilities, that acts of persecution may occur in future if the respondent were returned to Syria. 8 His Honour referred to Abebe v The Commonwealth (1999) 197 CLR 510 at [85] and Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 576 and said this: "Of course, if by reason of patent inconsistencies, or dishonest statements, in an applicant's account, the Tribunal forms a positive view that the applicant is not a credible witness in respect of claimed events, the Tribunal is not bound, as it otherwise would be, to take into account the possibility that those events had occurred as claimed, when considering whether there was a real chance that the persecutory events feared by the applicant may occur in the future. … As noted above, this was not such a case. The Tribunal did not find that the applicant was dishonest or untrustworthy and, indeed, accepted a substantial part of the applicant's account." 9 Accordingly, on the basis that the Tribunal was obliged to take into account the possibility that events of persecution had occurred in the past as claimed by the respondent, his Honour found that the Tribunal had not carried out the exercise required of it under s 414 of the Act in conducting a review and making a determination. See e.g. Guo at 575-576; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [60]. 10 The appellant accepted that his Honour correctly stated the relevant law. His contention was to the effect that the primary judge had not correctly characterised the findings and conclusions of the Tribunal. In substance, it was contended, the Tribunal had formed a firm view that the respondent was not a credible witness and that the events which he had claimed had not in fact occurred. 11 We think that it is important to set out the following passages from the Tribunal's reasonings: "The applicant's claims involve a series of claims which are in themselves each unlikely and in total implausible. The Tribunal's views about his credibility are strengthened due to his uncertainty about when and how often he was detained and the other dates of critical events in his claims. The first claim that raised doubt concerned the circumstances in which he became involved with the Abu Ammar Fatah (Arafat's Fatah) organisation. It is most unlikely that a Syrian Druze would commence working for the PLO … The Tribunal found it very extraordinary that he told the Department that he was taken every 25 days to be detained by the Syrian authorities before he had any significant involvement in the PLO organisation. … It is the more astonishing that he started to work for the PLO after he came under the notice of the Syrians. It is most unlikely that he would increase his risks by getting involved in the PLO when he knew that the Syrian authorities were monitoring him. … The number of times the applicant was detained was startling and implausible given the basis of his claims. The Tribunal is not satisfied that the applicant has had any involvement with the PLO in Syria. . . . The Tribunal is not satisfied that the applicant has been truthful on this issue of the PLO assisting him to leave either Lebanon or Syria. . . ." 12 In our view, what we have termed the Findings Paragraph is not merely a summing up of what the Tribunal had previously stated. We disagree respectfully with the primary judge's assessment to the effect that this paragraph merely reflected statements made earlier in the Tribunal's reasons. We also disagree, again respectfully, with his Honour's assessment that the Tribunal did not purport to find positively that the events had not occurred. 13 In our view the Tribunal can be seen to have rejected the respondent's claims and to have done so on the basis that his evidence was not to be trusted. 14 In that regard we disagree with his Honour's conclusion that the Tribunal did not find that the applicant was dishonest or untrustworthy. In our view, the Tribunal formed and expressed a sufficiently firm and positive view that the claimed events did not occur and that the respondent had not been truthful in his account of them. 15 Other minds might differ about the bases upon which the Tribunal reached its conclusions about credibility. These conclusions were not the subject of direct attack on this appeal. The Tribunal might also have expressed its conclusions in the Findings Paragraph more happily. But its reasons are entitled to a beneficial construction. 16 Mr Castledine, who appeared for the respondent under the Court's pro bono scheme (and whose assistance we gratefully acknowledge), submitted that his Honour was correct in holding that the Tribunal had erred. Counsel argued that the Tribunal only said that the events alleged by the respondent were "unlikely"; it did not make a positive finding that such events did not happen. Therefore, so the argument went, the Tribunal had to assess the degree of possibility that such events might have occurred. This degree of possibility was relevant in determining whether the respondent had a well-founded fear of persecution: Abebe at [83]. 17 But the Tribunal's reasons have to be read fairly and as a whole. What is important is the meaning conveyed by these reasons as to the findings the Tribunal has made and the state of satisfaction it has reached. 18 The Tribunal in its summary of the law relating to the Convention definition of "refugee" correctly stated: "A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent." 19 On a fair reading of the Tribunal's reasons, there is no basis for concluding that the Tribunal in fact applied a different standard. In the Findings Paragraph the natural meaning conveyed by the expression "not satisfied", in the context of the reasons read as a whole, is that the Tribunal's finding as to lack of satisfaction excluded the possibility of a chance that the alleged events had occurred. 20 The language used by the Tribunal does not justify imputing to it any lack of conviction or confidence in its findings: Rajalingam at [64]-[65]. The Tribunal considered the respondent's claims "in themselves each unlikely and in total implausible". Various claims were characterised as "startling and implausible", attended by "considerable confusion", "surprising", "most problematic and implausible" and "confusing and contradictory". 21 We consider that his Honour erred in his conclusion that the Tribunal's reasons showed that it did not carry out the exercise required of it under s 414 of the Act in conducting the review. 22 The respondent did not, on this appeal, seek to establish by notice of contention or in oral argument that the decision of the primary judge should be upheld on grounds which did not need to be addressed by his Honour in the light of his determination. It is not necessary or appropriate in that circumstance to address the possibility to which his Honour adverted of any other error of law on the part of the Tribunal. 23 We will allow the appeal, set aside the orders made at first instance and substitute therefor an order that the application be dismissed with costs. The respondent should pay the appellant's costs of the appeal. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.