W252/01A v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2002-02-05|Before: Nicholson J

REASONS FOR JUDGMENT 1 This is an application brought by the applicant seeking review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 18 June 2001. The effect of the decision was to affirm a decision of the delegate of the respondent not to grant to the applicant or to his wife a protection visa. The application was made pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act"). 2 The applicant arrived in Australia on 3 November 2000. His application for a protection (class XA) visa was lodged on 22 November 2000. The delegate refused the application on 22 December 2000. Relevant provisions 3 Under s 36(2) of the Act a non- citizen in Australia is eligible for a protection visa if that person is someone: "… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967. The expression "Convention" will be used to mean the Convention as amended by the Protocol. The same criterion appears in Sch 2 of the Migration Regulations in which item 785 and 866 both include the same criterion. 4 Article 1a(2) of the Convention defines a "refugee" to be any person who: "…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it". 5 The reasons specified in art 1a(2) are known as Convention reasons. The existence of such reasons threatening the life or freedom of a refugee in a territory to which it is proposed he or she be expelled or returned gives rise to a protection obligation prohibiting such expulsion or return as a consequence of art 33 of the Convention.

Applicant's claims 6 The applicant's claims commenced from the basis that in 1996 during his military service he had purchased a red Buick. One of the number plates was correct and the other was missing but had been replaced with a plate handwritten by traffic police. The security services seized the car and held it and detained the applicant for two-three days because the plate was handwritten. In the same year he experienced harassment from the security services when he was standing in front of a shop and they came and asked him why he was standing there. His claim was they wanted to pick on him because he did not accept suppression. 7 He then claimed that his problems intensified from the end of this military service period in 1998 and events then unfolded as follows: (a) towards the end of his military service in 1998, he was involved in an accident which left him unconscious. He was told to pay for the damage to the military car, and was told that one of the registration plates had gone missing; (b) when he took the military car to be repaired, it did not have any number plates on it but when the car was returned to the authorities, he was told that it had a single numberplate on it, and the authorities accused him of stealing it; (c) as a result, he was detained for one and half months during which time he was bashed; (d) afterwards, he was periodically questioned, and if there was a disturbance or terrorist attack, they would question him about it; (e) he could not work in his country because the authorities refused to give him the military discharge certificate until the issue of the missing numberplates was resolved. Without the certificate, he was prevented from buying a car or working as a motor mechanic or going into business; and (f) in about March 2000, he was again questioned by the authorities about the missing numberplates, and was given 6 months to recover the numberplates failing which he would be reported to the Central office of the Security Forces; (g) he was questioned by the authorities about the demonstrations in a city in July 2000 and was told that one of the vehicles seen at the incident had the stolen numberplates on it; and (h) he left his country shortly thereafter on a false Iraqi passport with his wife who used her own passport. 8 Founded on these circumstances the applicant's claim was that he had a well-founded fear of persecution in his country by reason of an imputed political opinion.

Tribunal's findings and reasons 9 The Tribunal's conclusions were based on the following findings and reasons: (a) The Tribunal accepted the evidence of the applicant wife that neither she nor her family had problems in her country, and was satisfied that she had no well-founded fear of persecution there. (b) The Tribunal accepted that the applicant did his military service with elite security forces between January 1995 and January 1997. (c) Although the Tribunal accepted the applicant's claim that he had an accident in a military vehicle and was required to pay damages and recover the missing numberplates, it did not accept that the applicant was imputed with any political opinion as a result of the missing numberplate. In that regard, the Tribunal noted that the applicant was given a rather generous amount of time, namely, 6 months to find the missing plates, and was of the view that this approach did not indicate that any political opinion was imputed to the applicant. (d) Although the Tribunal accepted that the applicant may have difficulty finding certain types of employment without his military discharge certificate, it was not satisfied that that difficulty was the result of any imputed political opinion. (e) The Tribunal did not accept the applicant's claim (which was brought late) that prior to his military service, he had received a 10 year suspended sentence for various "political" offences. In that regard, the Tribunal found this to be inconsistent with country information which showed that for a person to be accepted into service, he would need to have a good record and loyalty. Further, the Tribunal noted that this claim was not raised by the applicant either at his arrival interview or the interview with the delegate. (f) The Tribunal was not satisfied that the applicant (even if he was in any way linked to the demonstration in the city through a missing numberplate) would have a well-founded fear of persecution. In that regard, the Tribunal noted that many of those originally charged during the demonstration were later released by the authorities. (g) The Tribunal was not satisfied that the applicant would encounter any Convention related difficulty by reason of having used a forged Iraqi passport to depart his country. In that regard, the Tribunal noted that the country information showed that penalties which applied to those who departed illegally resulted from a law of general application. (h) Overall, the Tribunal found the applicant not to be a credible or a reliable witness.

Grounds of review 10 The applicant appeared unrepresented. His grounds of review were those in standard form relied upon by persons in his place of detention. These were that there was no evidence or other material, s 476(1)(g) and (4) of the Act; failure to observe procedures required by s 430 of the Act; and an error of law involving both incorrect interpretation and incorrect application, s 476(1)(e) of the Act; and actual bias by the Tribunal member, s 476(1)(f). 11 In written submissions to the Court the applicant relied on different grounds. These were that the Tribunal had erred in law in that it applied the wrong test of proof to its satisfaction in determining whether the applicant's claim of past persecution had in fact occurred; it failed to take into account certain facts and the risk to the applicant if it were wrong; and rejected material without making any further inquires as to the truth of the material provided.

Reasoning Alleged error of applying wrong test of proof of past persecution 12 The applicant's oral submissions focussed particularly on the way in which the Tribunal had reached the conclusion set out above in par (e) of its findings and reasons summarised above. The applicant submitted that during the hearing he had responded to a question from the Tribunal indicating that no such background check applied to persons enrolling in national service whether in the elite security forces or in any other form of force organisation; rather such security checks only applied for new recruits seeking employment. Furthermore, it was submitted the Tribunal did not invite the applicant to submit evidence on this matter which he claims he could have done. Further, it was said that the Tribunal failed itself to find the relevant information. 13 The obligations of the Tribunal are to give an applicant information of those set out in s 424A of the Act which at the relevant time read: "(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The invitation must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information." It is apparent that, having regard to s 424(3), there was no obligation on the Tribunal to put country information to the applicant. However, it is apparent from two places in the Tribunal's reasons that it in fact did so. One of these indicates that it was put to the applicant that his involvement with the elite security forces indicated he was considered a trusted person. His response as recorded by the Tribunal was that he said this was a wrong understanding because he was just a soldier and everyone did military service and if you did not do it in the security forces you did it in other forces. In short, it was not said by the Tribunal that he disputed the element of trust necessary to be accepted even as a national serviceman in the elite security forces. 14 Additionally, the reasons of the Tribunal extended to the position of a conscript because the Tribunal expressly addressed the difference between permanent recruitment in the elite security forces and conscription and made a finding adverse to the applicant. It did so in the following terms: "I accept the DFAT information that indicates that the [security forces] are something of an 'elite' military organisation and that a devotion to corps and country would be a necessary prerequisite for recruitment and retention in [its] service. It is true that conscripts do their service in either [the elite security forces] or another section of the forces. However, I do not accept the applicant's claim that as a conscript his political background was of no interest to [it] as this is inconsistent with the DFAT advice in relation to [it]." This was a conclusion which was open to the Tribunal on the evidence before it, including the response of the applicant when the matter was expressly put to him by the Tribunal and as recorded in its reasons. Court records 15 It is also contended in the applicant's written submissions that the Tribunal failed to make inquiries to test the genuineness of the documents before it being those that were in the applicant's file and the National High Court and Ministry of Justice. The applicant's submission is that this information would be available now or would have been available to the Tribunal. However, in the first place this was not a submission which he made to the Tribunal. 16 In the second place, the Tribunal's obligations arising under ss 424A and 424(7) do not place onto it any obligation to undertake inquiries which go so far as to make out the applicant's case or to test it: cf Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919; W41/01A v Minister for Immigration & Multicultural Affairs [2001] FCA 742 at [21] - [23]. 17 In the third place the power of a tribunal to seek additional information is provided for in s 424 of the Act which reads: "(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. (2) Without limiting subsection (1), the Tribunal may invite a person to give additional information. (3) An invitation to an applicant must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention." The applicant was a person in immigration detention and consequently there was no obligation arising pursuant s 424(3) of the Act. "What if I am wrong" test 18 The applicant's submissions included the ground that the Tribunal failed to take into account the fact that it could be wrong in its conclusion and what the risk might be to the applicant if it were wrong. That, however, is a test which is apposite if there is any doubt as to the position: Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241; Mchinangome v Minister for Immigration & Multicultural Affairs [2001] FCA 1089 at [5]. 19 Here, however, the Tribunal in its reasons said it had "no doubt that the applicant was not charged with any offences that impugned his political opinion prior to joining" the elite security organisation. Further, it said that it had "no doubt that the applicant's claims he would be imprisoned for a long time or executed by [his] government because authorities believe he is a political activist are not true". Actual bias 20 The applicant's claim of actual bias by the Tribunal are entirely unsupported by any argument. Furthermore, there is nothing on the face of the reasons which would support the application of that ground. Applicant's handwritten submission 21 The applicant's written submissions to the Court also complain that the Tribunal failed to summarise in its reasons for decision a handwritten submission made by him on a certain date. The Tribunal was under no obligation to summarise his submission. It is not complained that the Tribunal failed to address the issues before it. Duration of sentence 22 In the course of reply the applicant made the assertion that the sentence imposed on him by the Supreme Court of his country did not occur until 1998 whereas he had served his conscription (as found by the Tribunal) from January 1995 until January 1997. Consequently, the implication of his submission was that the sentence would not have been available for examination by the elite security forces at the time he undertook the conscription. Hence the foundation of the adverse findings against him in that respect was arguably in error, in his view. 23 The issue raised by the applicant is one of fact. The making of findings of fact lies within the province of the Tribunal. It is not open to this Court on an application for review to engage in re-finding the facts found by a tribunal. A wrong finding of fact is not an error of law. There was evidence before the Tribunal of an order of the High Court sentencing the applicant to 10 years suspended jail sentence in respect of charges of "insulting the high position of his Excellency the Leadership, demeaning the sacred blood of the martyrs of the Revolution, disruption of public order, and creation of fear and panic". The same document recorded his acquittal on other charges with no relevant date. However, the evidence before the Tribunal showed that the charges the subject of the suspended sentence formed part of the Bill of Indictment No 7931, dated 7 October 1994. At the point of entry of the applicant into conscription with the elite security forces, he was then the subject of an indictment in respect of the matters to which the 10 years suspended jail sentence related. There was evidence before the Tribunal from which it would have been entitled to conclude to that effect. Consequently, the point has no relevant vitiating effect on the reasoning process of the Tribunal.

Conclusion 24 I have, to give respect to the submissions for the applicant, addressed them one by one. However, I accept the submission for the respondent that none of the applicant's submissions properly invoke a basis on which the Court is entitled to review the decision of the Tribunal within the jurisdiction allowed by s 476(1) of the Act. In substance, each of the matters raised is an attack on the merits of the decision of the Tribunal. This Court cannot re-engage in deciding those merits: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [56]. Only in the event of established error of law within the permitted jurisdiction of the Court may the Court review the decision and commit the matter to a tribunal for further consideration of the merits. 25 For the reasons given, the applicant's case does not raise a proper basis for the intervention of this Court. 26 Accordingly, the application should be dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson .

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 430, 476(1)(e), 476(1)(f), 476(1)(g)

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