MZYIC v Minister for Immigration and Citizenship

The decision of the refugee review Tribunal 8 In its decision record, the Tribunal accepted that the appellant is a citizen of the Republic of Lebanon, and a member of the SSNP. The Tribunal indicated at [46] that it has a number of concerns about the manner in which the applicant has presented his claims and this raises some doubts on the credibility of some of the crucial elements of his claim. 9 In making its findings the Tribunal did not accept that the perpetrators of the March and April 2008 attacks were from the FM and that was because the Tribunal found that there were "inconsistencies in the evidence". Relevantly the Tribunal said at [53]: The applicant has claimed that on each incident he had described, it was members of the FM who were responsible for the harm. In the March 2008 incident where people threw down some of the boxes that the applicant was distributing, he first said that he inferred that they must be from the FM because they wanted to disrupt the distribution of aid and when asked to clarify further he stated that the people were known to be from the FM. In the incident of April 2008 in Hrar, where he has claimed he was taken to hospital, he said in his submission that the men had their faces covered and he could not recognise anyone. At the hearing when asked how he knew they were from the FM he said they had a flag on their car. The Tribunal, in light of the inconsistencies in the evidence, does not accept that the perpetrators of these attacks were from the FM. The Tribunal accepts that the applicant was injured in some manner on 15 April 2008 and that this required hospitalisation as per the certificate, but there is not convincing evidence for the Tribunal to attribute this incident to his work for the SSNP. 10 Having not accepted that the appellant was attacked by the FM in either March or April, the Tribunal rejected the appellant's claim that he was of interest to the FM and is sought by the FM. The Tribunal therefore rejected that by reason of his fear of the FM if he were forced to return to Lebanon, the appellant has a well-founded fear of persecution for a Convention reason.

Federal Magistrates Court 11 Of the grounds relied upon before the primary judge, only ground 2 is of relevance for the purposes of the appeal in this Court. That ground was as follows: The Tribunal characterised one part of the applicant's evidence as containing inconsistencies, when in truth they could not be so described, as there was no evidence to support such a finding. 12 The learned Federal Magistrate rejected this ground and ultimately dismissed the application. The Federal Magistrate held that the finding of inconsistency was open to the Tribunal on the evidence put before it and was not amenable to review. His Honour characterised the challenge which the appellant sought to agitate as no more than an impermissible attack on the factual finding of the Tribunal and thus an invitation to review the merits of the application before the Tribunal. His Honour further stated that whether or not there was an inconsistency in the evidence was a matter solely for the Tribunal to determine and that a finding that there was no inconsistency would be a finding of fact beyond the permissible function of the Federal Magistrates Court on judicial review. Finally, at [11], the Federal Magistrate found that there was evidence to support the Tribunal's conclusion. It is not clear which conclusion his Honour was referring to although I presume that his Honour was referring to the Tribunal's finding that there was no inconsistency. The Federal Magistrate did not identify at [11] the evidence which supported the conclusion, but it may be that his Honour had in mind the evidence that he set out at [6] by reference to the Tribunal's reasons at [53].

appeal to federal court 13 On the appeal, the appellant argued that the learned Federal Magistrate erred in failing to identify jurisdictional error on the part of the Tribunal. The appellant submitted that the appellable error lay in the Federal Magistrate not appreciating that there was no evidence to support the Tribunal's finding of inconsistency in relation to the appellant's evidence relating to the April 2008 incident. 14 The issues raised by the appeal are relevantly straightforward. The first issue is whether there was any evidence before the Tribunal capable of supporting the finding that the evidence provided by the appellant as to the April 2008 incident was inconsistent. 15 The finding actually made at [53] of the Tribunal's decision is a rolled up finding of inconsistencies in the evidence in relation to both the March and the April 2008 incidents. Nevertheless, the finding made includes a finding of inconsistency in the evidence between the appellant's submission (by his statutory declaration made prior to the Tribunal hearing) "that the men had their faces covered and he could not recognise anyone" ("the first statement") and the evidence at the hearing that "when asked how he knew they were from the FM he said they had a flag on their car" ("the second statement"). 16 The finding appears to be a finding of an inconsistency between two statements. For there to be an inconsistency between two statements, each of the statements must deal with the same subject matter and on that subject matter the evidence in the first statement must be inconsistent with the evidence in the second. 17 It is clear that there is no inconsistency of that kind in relation to the appellant's evidence about the April 2008 incident. The subject matter of the second statement is the basis upon which the appellant was able to say that the men who had attacked him were from the FM. Relevantly, the appellant's evidence was that he was able to say that the men were from the FM because of the flag on their car. That subject matter was not dealt with in the first statement. In the first statement, the appellant did not give the basis for his identification of the affiliation of the men that attacked him. There was therefore no inconsistency between his first statement and his second statement on the subject of how the appellant was able to identify the men. There was no evidence which was inconsistent with the second statement and thus no evidence upon which a finding of inconsistency in the evidence could have been made. 18 The first respondent argued that the two statements were different and that the difference between them was capable of providing the basis for a finding of inconsistency. The difference pointed to was the absence in the first statement of evidence identifying the basis for the appellant's identification of the men as being from the FM and the presence of that evidence in the second statement. The difficulty for the respondent is that different evidence is not inconsistent evidence. Different evidence is only capable of being inconsistent evidence if the same subject matter was being dealt with in the two accounts given. For reasons that I have explained, that was not the case here. 19 The first respondent further contended that the Tribunal's use of the word inconsistency should not be understood in its strict sense, but as intended to communicate one of the concerns about the manner in which the appellant had presented his claims which by way of introduction was first raised at [46] of the Tribunal's decision (set out at [8] above). The first respondent argued that the finding of inconsistency should be understood as encapsulating a criticism that evidence which could have been presented in the first statement was not so presented and was only presented in the second statement. Although the first respondent didn't put it quite that way, the essence of the argument seems to be that there was an inconsistency in presentation between the first statement and the second and that because of the difference in presentation, the Tribunal disbelieved the appellant's identification of his assailants as being from the FM. 20 There are a number of difficulties with that argument. It is true, as the first respondent contended, that the reasons of an administrative Tribunal should not be construed in an overzealous fashion: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The Court ought not be concerned merely with looseness in language or with unhappy phrasing: Oak Valley v ATSIC (1999) 98 FCR 1 at [22] and see Alexander v Australian Community Pharmacy Authority (2010) 265 ALR 424 at [68]. The respondent contended that the kind of precision that might be expected from a judicial decision ought not be demanded of an administrative tribunal. However, the least that the reasons of an administrative tribunal must do is enable the identification of the tribunal's reasons and the findings that it made in reaching the conclusion that it did: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69] and see Mees v Kemp (2005) 141 FCR 385 at [55]. 21 There is no ambiguity apparent in the findings made by the Tribunal at paragraph [53] of its decision. The finding made is plain. It is a finding of "inconsistencies in the evidence". It is not a finding of inconsistency in the presentation of evidence. 22 Not only is that apparent from the language utilised but it is also apparent from the rolled up nature of the finding. As I have earlier identified, the finding relates to inconsistencies in the evidence in relation to both the March and the April 2008 incidents. In relation to the March 2008 incident, in the first statement the appellant had said that he had inferred the involvement of the FM. In the second statement his evidence was that the people involved were known to be from the FM. This was an inconsistency in the evidence. Having dealt with that inconsistent evidence, the Tribunal immediately dealt with the evidence relating to the April incident. The Tribunal recounted the evidence that it found was inconsistent. It said nothing about a difference in or inconsistency in presentation. The Tribunal ascribed the same kind of difficulty to the evidence of each incident, dealt with them together and labelled both as "inconsistencies in the evidence". It is unlikely that the Tribunal intended to give the same words two different meanings. It is likely that the Tribunal intended the words to have their plain meaning. In the absence of strong indications to the contrary, it is appropriate to assume that the Tribunal meant what it said when, in relation to the April incident, it found inconsistency in the evidence given by the appellant. 23 Both parties accept that the Tribunal's reasons for decision may reveal of jurisdictional error if the Tribunal has made a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support the finding: SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19]. 24 For reasons which I have explained, I am satisfied that there was no evidence to support the finding made by the Tribunal that the evidence given by the appellant in relation to the April 2008 incident was inconsistent with other evidence. I am satisfied that the finding was a critical step in the Tribunal's ultimate conclusion. 25 The appellant's case was that he had a well founded fear of persecution by the FM if he went back to Lebanon. The appellant sought to establish that this fear was well founded by demonstrating that he had been the subject of persecution from the FM prior to his departure from Lebanon. It was critical to the appellant's case in that respect for him to establish both the prior persecution and also the extent of that persecution. For that purpose, the appellant sought to establish that he had been assaulted, injured and hospitalised by the FM by reason of the incident in April 2008. 26 The Tribunal concluded that the appellant did not have a well founded fear of persecution for a Convention reason. It reached that conclusion because it found that there is not a real chance that the appellant would be persecuted should he return to Lebanon. One of the critical steps taken in reaching that ultimate conclusion was that the Tribunal found that the appellant was not of such interest to the FM that the FM would seek him out for persecution should he return to Lebanon. A critical step in that finding was the Tribunal's finding that the appellant was not attacked by the FM in April of 2008. That finding was based on the finding that the appellant's evidence in relation to the April 2008 incident was inconsistent. In those circumstances, the impugned finding was a critical step to the ultimate conclusion which the Tribunal made. Accordingly, the Tribunal exceeded its jurisdiction. 27 The Federal Magistrate erred in not finding that the Tribunal had exceeded its jurisdiction in the manner in which I have found that it did. 28 The appropriate orders are that the appeal be allowed, the judgment of the Federal Magistrate be set aside and the matter be remitted to the Tribunal for further consideration according to law. There should also be an order that the costs of the appellant below and of the appeal be paid by the first respondent. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.