W140/01A v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant seeks an order of review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 20 April 2001. The decision of the Tribunal affirmed a decision of a delegate of the respondent not to grant a protection visa (Class XA) to the applicant. The application for review is brought in reliance upon s 476 of the Migration Act 1958 (Cth) ("the Act"). 2 These reasons have been prepared in a way designed to anonymise the applicant's identity. 3 The applicant is a citizen of country Z who arrived in Australia on 20 June 2000. His application for a protection visa was lodged on 24 July 2000. 4 The applicant's "core claims" were that he had a well-founded fear of persecution for reasons of political opposition to the ruling fundamentalist leadership, arising out of his refusal to obey orders as a member of the X paramilitary unit. More specifically, the basis for his fear was: "(a) he failed to carry out orders in opposing and breaking up a student demonstration for which he was disciplined and awaits a military court hearing; (b) he assisted several other [X] prisoners from [X] unit to escape with whom he shared detention; (c) he fled the country illegally on a false passport and applied for asylum in Australia which itself would be regarded as an act of political criticism against the regime."

Tribunal's findings and reasons 5 In its reasons for decision, which extends to 63 pages, the Tribunal made various adverse findings against the applicant. Essentially these findings are: (a) the Tribunal accepted the applicant had been a member of the X from the age of 11. The applicant's brother had been killed in 1986 and the applicant joined the X youth movement as a member shortly thereafter; (b) the applicant was promoted to the intelligence unit of X after his military training in 1995, that he was "fully trusted" by his X superiors, that he said that he had mistreated people but that he tried to get away from doing so whenever possible. The Tribunal said that it could not accept his evidence that he was able, with the knowledge of his colleagues, to refrain from participation in the abusive practices of that organisation; (c) so far as the applicant's account of the X attack on university students in 1999, the Tribunal found it "implausible" that the applicant would have attended this demonstration if he had genuinely experienced disenchantment with the X, that he would suffer mental anguish once the X assault was in progress, and that the Tribunal was "not satisfied" that he attended this student demonstration, or if he did, that he abandoned his duties as claimed; (d) the applicant's description of how he came to attempt suicide was "most unconvincing" and that the Tribunal was not satisfied with the explanation and his claim to have injured his wrist and chest in the manner that he described; (e) the applicant may have injured himself but that "the Tribunal was not satisfied that his injuries have any bearing on his claim for protection"; (f) the Tribunal rejected the applicant's claim that he had a genuine change of heart and mind about pursuing the aims of the X; (g) the applicant's claim that he suddenly deserted his X colleagues in the middle of a X attack on student demonstrators and thereafter absenting himself for a week was "not plausible". Further, that there is no reliable evidence that the Revolutionary Court has summoned the applicant and in these circumstances the Tribunal is "not satisfied" that the applicant will face revolutionary court charges upon return to country Z; (h) the Tribunal was not satisfied the applicant would have placed himself in further peril by conspiring with a prisoner to help him and three others escape from detention. The Tribunal found this claim to be "far fetched" and it was not satisfied that this occurred nor that he obtained a false passport; (i) the Tribunal was not satisfied with the "genuineness of the contents of the letter from the applicant's sister" which referred to X people coming to the house and searching for the applicant following his departure from country Z; (j) the evidence of two witnesses did not provide assistance to the Tribunal and in the case of one was not "credible"; (k) the Tribunal found that the applicant did not leave country Z on a false passport and that he left country Z on a valid passport in his own name; (l) the Tribunal was satisfied that the applicant was not candid about a number of key aspects of his claims; (m) the country information indicates that asylum seekers from country Z who have exhausted all legal avenues can return and that the Tribunal was accordingly not satisfied that the applicant would face harm in consequence of having made an application for asylum; (n) the Tribunal is not satisfied it has been told the real reason for the applicant's departure from country Z. 6 The Tribunal's reasons for rejecting the applicant's claims were as follows. As to the applicant's involvement with X: 7 The Tribunal said that it could not accept that he was able, with the knowledge of his colleagues, to refrain for many years from participation in the X's abusive practices. 8 The Tribunal said that he would not have got promotion with the organisation had he not been fully co-operative. 9 The applicant said that he was not keen from the age of 15 or 16 to work for the X but also said it was when certain elections occurred that he began to question all that he had been taught. However, the incident that brought about the applicant deciding to leave country Z did not occur until two years later in July 1999. 10 Apart from the inherent improbability that the Tribunal saw in the account given by the applicant, the Tribunal also had reservations about the manner in which the applicant gave his evidence. Concerning the applicant's alleged nervous breakdown: 11 The Tribunal said that it found his failure to mention a nervous breakdown before the review hearing, and the several explanations offered for the failure of his suicide attempt, as unsatisfactory and "completely lacking credibility". 12 Although the applicant said in evidence to the Tribunal that he mentioned the circumstances of his attempted suicide to an interpreter privately, and that he claimed also to have mentioned it to an Australian security officer who promised, but failed, to mention it to the Immigration Case Officer, there was no support from the interpreter nor the former advisor that these events had occurred. 13 It was accepted by the Tribunal that the truth of an attempted suicide was not central to the applicant's claims but it could not be satisfied that this had occurred. Concerning the circumstances of the applicant's alleged departure from country Z: 14 The Tribunal said that the applicant had left country Z using a valid passport in his own name. 15 The Tribunal pointed to the anomaly that he took his X identity card out of country Z at the same time as he claimed that he left under a false passport. The Tribunal also pointed to the DFAT country information report of 19 March 1999 which said that with so many different checks it would be impossible for anyone to bribe their way through an airport to effect departure.