Murthi v Minister for Immigration & Multicultural Affairs

CLAIMS OF A WELL - FOUNDED FEAR OF PERSECUTION 4 The essence of Mr Murthi's claim was that he held strong anti-Communist views, had been mistreated in various ways in the past, and feared that he would be treated in a similar way in the future. It was explained and set out by the Tribunal that in 1992 the previous Communist government of Albania was defeated by the Democratic Party, and Sali Berisha became President. In 1996 the Democratic Party won elections in Albania and in further elections in 1997 the Socialist Party won elections. Mr Murthi's case was that the Socialist Party is simply the Communist regime by another name. 5 He claimed that his family had suffered under the pre-1992 Communist government, and that in 1983 his uncle was sent to prison for 25 years. He also claimed that he and his family had been removed from the village in which they lived and sent to different parts of Albania. He also claimed that his cousin had escaped and settled in Australia and that another cousin who was an underground leader opposed to the Communist regime had been shot. In support of these claims Mr Murthi submitted a number of documents. I need only refer to three of them for present purposes. 6 He submitted a document dated 1 February 1998, being a certificate from the Anti-Communist Persecutees Association which stated that Mr Murthi was a member of that Association and was a determined anti-Communist who had been persecuted and obliged to live in the south of Albania as a result. It said that he had recently left Albania. Another document submitted by Mr Murthi was dated 10 March 1999, being a certificate from the National Anti-Communist Association which stated that Mr Murthi was arrested for two months in February 1991 for toppling the statue of Enver Hoxha, and that he left Albania in March 1997. The third document of significance was dated 15 March 1999, which was a certificate from the Tirana branch of the Democratic Party which stated that Mr Murthi was a founder of the Party in 1990, and that he had suffered persecution as a result of his anti-Communist activities. This certificate also attested to the fact that Mr Murthi left Albania in 1997. 7 Under the heading of "The Hearing", the Tribunal recorded the evidence given by Mr Murthi which, in essential parts, can be represented as follows. He said that at the end of 1991 he was engaged as a type of journalist for the Association of Political Persecutees. He said that as a result of his political activities his name appeared on a blacklist and that he had been imprisoned for the incident when the statue of Enver Hoxha, had been torn down. He also claimed to have received death threats. The Tribunal noted that Mr Murthi had been asked in the hearing why he had not referred to that incident in his original application. Mr Murthi replied that he had feared that the Australian government might consider such an act a criminal act. 8 The Tribunal referred to some unusual aspects of the documents referred to earlier. In particular, it observed that the documents dated 10 and 15 March 1999 suggested that Mr Murthi left Albania in 1997. The response of Mr Murthi recorded in the Tribunal's decision is that he apologised for the mistake. I should also make some short reference to the evidence of Mr Guribirdhi. He said to the Tribunal that he knew Mr Murthi from 1990; that he was present when the statue was torn down; that Mr Murthi was a demonstrator at that incident; and that Mr Murthi was detained for two months and was active in the Democratic Party. 9 The Tribunal then turned to its findings and reasons. It found that Mr Murthi was not jailed, nor did he have any problems before leaving Albania. The Tribunal reasoned that these claims were not made out because Mr Murthi only raised them late in the application process. The Tribunal said that its conclusion was supported by the doubtful status of the certificates dated 10 and 15 March 1999. It concluded that they were unreliable because the applicant's departure from Albania was in 1995, and that in Albania bribery was capable of providing documents such as these. The Tribunal then said that it was inclined to accept that Mr Murthi's uncle was jailed under the Communist regime, and that his cousin was granted refugee status in Australia. It said that it was also inclined to accept that Mr Murthi's family was resettled. It continued as follows (CB 168): "All of this however occurred under a regime that has long since fallen. The Tribunal is not satisfied that any of this information indicates that the applicant faces a real chance of persecution should he now return to Albania." 10 The Tribunal then accepted that Mr Murthi may have been involved in the Association of Political Persecutees, but found that this Association appears to operate openly. In any event, the Tribunal went on to consider whether the membership of the organisation would bring persecutory results to the applicant. It said (CB 168): "The Tribunal does not accept that there is any credible material before it to indicate that the applicant faces a real chance of persecution because of an association with this body." 11 The Tribunal then determined that because of Mr Murthi's general lack of credibility in the ways outlined earlier in these reasons, it did not accept that he was on a black list or received death threats. It went on to find that Mr Murthi does have anti-Communist beliefs but was not a member of the National Anti-Communist Association. The Tribunal, however, considered that even if he were a member, there was no evidence that membership of that association would cause any problems to Mr Murthi. The Tribunal concluded (CB 169): "Given all of the above, the Tribunal finds that the applicant's claims of having difficulties since the fall of the Communist regime are contrived. The Tribunal is not satisfied that the applicant has had any involvement of a political nature in Albania from the fall of the Communist regime until his departure for Australia in 1995." 12 The Tribunal then examined whether there was a real chance of persecution for a person who holds anti-Communist beliefs such as Mr Murthi. It rejected the contention that the return to power of the Socialist Party in June 1997 meant a return to the conditions under the Communist regime prior to 1992. It relied on the United States' Department of State Country Report for 1998 concerning Albania to conclude (CB170): "On the basis of this information the Tribunal is satisfied that there is no prospect in the future of a return to the situation in Albania under the former Communist regime. The information indicates that the Socialist Party was democratically elected. It also indicates that the Democratic Party is still functioning even if part of its way of operating is to boycott various processes. The same report goes on to indicate that peaceful assembly is allowed, and that the government respects freedom of speech and the press. (See Section 2(a)). The report also states that there are no reports of political prisoners although opposition leaders charge that the government did arbitrarily arrest and detain its supporters…Whilst the picture that is painted is not perfect the Tribunal is satisfied that there is no real chance that the applicant will face persecution as a result of his anti-Communist views should he return to Albania now or in the reasonably foreseeable future. As stated above the Tribunal is not satisfied that the applicant is or has been involved in or been a member of the Democratic Party." 13 Finally, the Tribunal found that the delay of two and a half years between the applicant's arrival in Australia and his lodging the application for a protection visa itself demonstrated that he has no fear of persecution. Similarly, the Tribunal found that Mr Murthi had, before his departure to Australia, travelled to other western countries and returned to Albania. This also showed that Mr Murthi did not have a fear of persecution. 14 Mr Flower of counsel appeared on behalf of the applicant and Mr Starr on behalf of the respondent. These reasons should acknowledge the quality and efficiency of both the written submissions and the oral argument put to the Court in this matter. The applicant's arguments were brief but well focused, which concentrated the Court and the respondent on the core issues in the case. Unfortunately such an approach is not seen often enough in cases of this nature.

FAILURE TO APPLY THE REAL CHANCE TEST PROPERLY 15 The applicant relied on section 476(1)(e) of the Migration Act (Cth) 1958 (the Act) alleging an error of law being an error involving an incorrect application of the applicable law or an incorrect application of the law to the facts. He contended that the Tribunal failed to apply the real chance test properly. The complaints were particularised as follows: "The Tribunal erred on this ground in that: (a) having found: (1) that the Applicant was politically isolated prior to the fall of the communist regime in Albania; (2) that the Applicant's Uncle was jailed under the communist regime; (3) that the Applicant has a cousin who was granted refugee status in Australia having left Albania in 1990; (4) the Applicant's family was forcibly resettled under the communist regime; (5) the Applicant was involved in the Association of Political Persecutees; (6) the Applicant has anti-communist beliefs, the Tribunal failed to consider whether on the totality of the evidence before it relating to past occurrences the applicant's fears were well-founded. (b) In the light of the above findings there was some degree of probability supporting the applicant's evidence or a similar version of events which was required to be taken into account in assessing the future likelihood of persecution of the Applicant. The Tribunal has not asked, "What if I'm wrong". … (d) The Tribunal erred in failing to determine whether in light of the findings referred to above the Applicant would suffer persecution on the grounds of a particular social group namely membership of his family." 16 The applicant relied on the judgment of the Full Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, and particularly on the following passage in the judgment of Sackville J in which I agreed (pars 60-63, 67): "60 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. 61 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 prosecution [sic] may not present as models of consistency or transparent veracity. 62 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. 63 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'. … 67 In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had 'no real doubt' (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A 'fair reading' of the reasons incorporates the principle that the RRT's reasons should receive a 'beneficial construction' and should not be 'construed minutely and finely with an eye keenly attuned to the perception of error': Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FC), at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution." 17 Mr Flower rightly said that he needed to show that a fair reading of the decision of the Tribunal demonstrated that it had not undertaken the required speculation about the chances of future persecution. He also referred to the comments of Merkel J in Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635 in which his Honour, following the approach of the High Court in Minister for Immigration and Ethnic Affairs v Guo Mei Rang & Anor (1997) 191 CLR 559, held that the Tribunal need not undertake the "what if I'm wrong" approach if it has no real doubt that its findings are correct. Mr Flower emphasised that in assessing whether the Tribunal had a sufficient degree of doubt to cause it to embark on the "what if I'm wrong" analysis, required the Court to analyse the reasons of the Tribunal as a whole and not semantically: "28 Mr Flower, who appeared on behalf of the respondents in Cortez and Alvarez v Minister for Immigration and Multicultural Affairs, submitted that the question of whether the RRT has sufficient doubt as to its findings to require it to ask 'What if I am wrong?' is to be judged on an analysis of the reasons as a whole, not by 'semantics'. This test involved the application of 'a degree of objectivity', since to do otherwise would not reflect the substance of the matter. However, unlike Mr Appudurai, Mr Flower accepted that it was not open to the Court to examine the evidence to determine whether it would have been unreasonable for the RRT to have expressed its findings confidently. The primary Judge had reached the correct conclusion in Cortez and Alvarez because, on a fair reading of the RRT's reasons, it did have doubts about its critical findings of fact. The RRT was therefore obliged, in determining whether the applicants (the present respondents) had a well-founded fear of persecution, to take into account that its factual findings might have been wrong." (Rajalingam, par 28) 18 Mr Flower also made reference to the principle that the Tribunal could not insulate its reasons from scrutiny by simply eliminating any expression suggestive of doubt: Majeed v Minister for Immigration and Multicultural Affairs [2000] FCA 470 at par 27: "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." 19 With these principles in mind, Mr Flower turned to the findings by the Tribunal which favoured his client. He rightly accepted that the applicant was not in a position in these proceedings to challenge the findings contrary to his client's interests on the merits. He did, however, rely on the following six findings in favour of his client: (a) that the applicant was politically isolated prior to the fall of the Communist regime in Albania; (b) that the applicant's uncle was jailed under the Communist regime; (c) that the applicant had a cousin who was granted refugee status in Australia having left Albania in 1990; (d) that the applicant's family was forcibly resettled under the Communist regime; (e) that the applicant was involved in the Association of Political Persecutees; (f) that the applicant had anti-Communist beliefs. Mr Flower contended that if one looked at the cumulative effect of these findings, the Tribunal was bound to ask "what if I'm wrong?", and in failing to do so it had failed to speculate on the chances of persecution in the future. 20 On behalf of the respondent, Mr Starr contended that the Tribunal had taken the proper approach. He submitted that the findings to which Mr Flower had referred had to be looked at in the full context. In relation to each of the findings the full context revealed a consideration of the entirety of the relevant circumstances such that it was unnecessary for the Tribunal to ask "what if I'm wrong?" beyond the two occasions on which it did so. I will take each of the findings in turn.

Political Isolation 21 Mr Starr first went to the question of political isolation and indicated that the full approach of the Tribunal was as follows: "Whilst he may have been politically isolated prior to the fall of the Communist regime, the Tribunal does not accept that he has tried to have any significant involvement in politics since the fall of Communism." 22 Mr Starr contended, rightly in my view, that the finding under consideration was limited by a rider which explained how the finding did not substantiate the case for a protection visa.

Persecution of Family Members 23 In relation to the findings that the applicant's uncle was jailed, that the applicant's cousin was granted refugee status, and that the family forcibly resettled under the Communist regime, Mr Starr pointed to the full context of the finding which was as follows: "The applicant does claim initially that his uncle was jailed under the Communist regime. The Tribunal is inclined to accept that this was the case and that he has a cousin who was granted refugee status in Australia having left Albania in 1990. The Tribunal is also inclined to accept that under the Communist regime his family was forcibly resettled. All of this, however, occurred under a regime that has long since fallen. The Tribunal is not satisfied that any of this information indicates that the applicant faces a real chance of persecution should he now return to Albania." 24 Again, I agree with Mr Starr, that there is no error in the way in which the Tribunal dealt with these matters. The Tribunal expressed its finding that the conduct which caused harm to the applicant and his family was conduct undertaken by a past regime, and that current information did not indicate that there was a real chance that such conduct would be visited against him or his family in the future. In the light of those findings it would have been irrational, to use the language of Rajalingam, for the Tribunal to have proceeded to ask, "what if I'm wrong?"

Involvement in the Association of Political Persecutees 25 In relation to the next finding, namely, involvement in the Association of Political Persecutees, Mr Starr again made reference to the context of the full finding of the Tribunal: "The Tribunal also accepts that the applicant may have been involved in the Association of Political Persecutees. Mr Lloga confirms its existence and states that even today there is an imposing building in Tirana from which this group operates. As a result, the Tribunal does not accept there is any real chance that the applicant will face persecution as a result of any association with this group. The applicant made no claim initially of working for this organisation as a journalist type. As a result, the Tribunal does not accept that this is the case. However, even if it is wrong about this, the Tribunal does not accept that there is any credible material before it to indicate that the applicant faces a real chance of persecution because of an association with this body." 26 In this instance the Tribunal did consider the position if it were wrong about the finding of Mr Murthi's involvement with the Association. It was required to do no more.

Anti-Communist Beliefs 27 Finally, in relation to the finding that the applicant had anti-Communist beliefs, I again agree with Mr Starr's argument. When one takes into account the full context of the findings of the Tribunal, it is clear that it had no sufficient doubt to require that it consider what the consequences would have been if it had been wrong about the finding that the applicant's anti-Communist belief would not attract persecution. 28 The Tribunal said: "Finally whilst the Tribunal accepts that the applicant is an anti‑Communist the Tribunal is not satisfied that there is any real chance he will face persecution because of these beliefs if he now returns. … The Tribunal is satisfied that there is no prospect in the future of a return to the situation in Albania under the former Communist regime." 29 Finally: "Whilst the picture that is painted is not perfect, the Tribunal is satisfied that there is no real chance that the applicant will face persecution as a result of his anti-Communist views should he return to Albania now or in the reasonably foreseeable future. As stated above the Tribunal is not satisfied that the applicant is or has been involved in or been a member of the Democratic Party. " 30 The Tribunal said in relation to the applicant's membership to the National Anti-Communist Association: "The Tribunal is also satisfied that the applicant has anti-Communist beliefs. However, it is not satisfied that he is a member of the National anti-communist Association… Further there is no credible evidence that membership of the anti-Communist Association would cause the applicant any problems." I interpose here to note that on the issue of membership of this Association, the Tribunal does address the "what if I'm wrong" test directly. 31 Mr Starr also drew attention to the Tribunal's conclusion as follows: "Taking all of the applicant's claims into account the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason." 32 Then under the heading "Conclusion": "Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 33 Mr Starr submitted that these conclusionary statements were expressive of a degree of satisfaction which indicated that the Tribunal did not have such doubt as to require it to consider the "what if I'm wrong" approach beyond the limited extent to which it did. I accept the respondent's submissions in relation to the application of the "what if I'm wrong" test. In my view, the Tribunal committed no error in this regard.

PARTICULAR SOCIAL GROUP 34 Mr Flower then turned to the other ground of attack. He contended that the Tribunal erred in failing to speculate on the future chance of persecution for the reason that Mr Murthi was a member of a particular social group, namely, his family. This ground was put as a further basis for the challenge under section 476(1)(e). It seems clear enough that this ground was not directly raised by the applicant before the Tribunal. The applicant was represented by solicitors prior to the Tribunal hearing and apparently by a migration agent at the hearing itself. 35 The essence of this submission was that the findings in favour of the applicant that his family was forcibly resettled under the Communist regime and that his uncle was jailed under that regime, were factors which gave rise to a reasonable basis for a fear of persecution in the future. Mr Flower rightly drew attention to this passage, although in part it may be seen to go against his client's interest, in the judgment of Wilcox J in Parra v Minister for Immigration and Multicultural Affairs [2000] FCA 85, par 13: "… In a number of cases (the most significant of which were noted by Merkel J in Paramananthan at 56) I have held that there exists circumstances in which an administrative tribunal like the Refugee Review Tribunal has an obligation to make inquiries in relation to a particular fact. However, in common with other members of the Court, I have also said it is not part of a tribunal's function to make good a case claimed by an applicant. Still less would it be part of a tribunal's function to make good a case which the applicant has not articulated only because there is some evidence of elements of a claim." 36 The way it was put was that the positive findings in favour of the applicant made it obvious that the particular social group basis should have been considered by the Tribunal. In response to this argument Mr Starr contended that the Tribunal was not obliged at all to consider the case based upon membership of a particular social group, or alternatively, that the Tribunal did not in fact restrict itself to the political opinion reason in its decisions. These two arguments overlapped to some degree. 37 The finding upon which Mr Starr relied for this argument was the finding by the Tribunal at the very end of its decision where it determined that the applicant held no subjective fear of persecution. The Tribunal arrived at this decision after considering that the delay in lodging the original application led to such a conclusion, and also the finding that the applicant had travelled prior to his arriving in Australia from Albania to other western countries and then returned to Albania. Mr Starr contended that the finding that there was no subjective fear of persecution was an element necessary for the establishment of any Convention ground and, consequently, the fact that the Tribunal had made a finding contrary to the existence of such a belief disposed of not only the grounds specifically argued but also any other available Convention ground. 38 In my view this argument should be accepted. Further, in my view there were a number of steps in the Tribunal's reasoning which made it implicit that any claim based on membership of a particular social group was rejected. I also accept the argument of Mr Starr that the reasons of the Tribunal demonstrate that it did not in fact restrict itself to the political opinion ground. There are a number of findings of the Tribunal which relate to Convention-based persecution of whatever sort. For those reasons it is in my view inevitable that the application must fail. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice NORTH.

Associate: Dated: June 2000 Counsel for the Applicant: Mr A Flower

Solicitor for the Respondent: Australian Government Solicitor