W440/01A v Minister for Immigration & Multicultural Affairs

Judgment (11 paragraphs)

[1]

introduction 20 On 19 April 2001, the Refugee Review Tribunal affirmed the decision of a delegate of the respondent Minister refusing to grant a protection visa under the Migration Act 1958 (Cth) ("the Act") to the appellant. This is an appeal from a decision of a Judge of this Court, given on 3 September 2001, dismissing an application for an order of review of the Tribunal's decision.

[2]

background 21 The following summary of the background to this proceeding is taken from the reasons for judgment of the learned primary judge. "1. Ahamed Al Ruwafi arrived in Australia by boat on 11 July 2000 without a visa. He was interviewed by an officer of the Department of Immigration and Multicultural Affairs on 17 July. That interview was conducted with the help of an interpreter. At that interview he was asked to give reasons why he should not be removed from Australia. He told the departmental officer that he originally came from Tunisia and from 1989 until 1991 he studied in Syria. When he returned to Tunisia he continued to study there until 1993. Later he worked as a supervisor at Pizza Hut. 2. He was asked why he had left Tunisia. He said there was a lot of unemployment and it was hard to find work. When asked why he came to Australia he said Tunisia was all right, that there were no problems but he had always wanted to come to Australia to work and to help his family who were poor. He was asked if he had any reasons for not wanting to return to Tunisia. He said he had missed his family and was concerned for their welfare and wanted to work to help them. When he was asked if there were any other reasons why he did not want to return to Tunisia, he said there were not. He told the officer interviewing him that he had travelled to Indonesia on a genuine Tunisian passport. 3. He did not claim to be a refugee within the meaning of the Refugees Convention during this interview. However, in October 2000 he made an application for a protection visa which was prepared with the assistance of a migration agent. In that submission he said he had gone to Syria to study in 1989. He said while he was there he was forced to join the Syrian Baath Party in order to get a place at the university and so that he would not be watched by Syrian security. He said all Tunisian students in Syria were required to join the Syrian Students Union which was a part of the Baath Party. He said that when he returned from his studies in Syria in 1991 he was detained at the airport in Tunisia. He was questioned by the Department of State Security about his decision to join the Baath Party. He said that he was tortured for two days and detained for a total of two months. He was released on bail after making a personal declaration that he would leave the Baath Party. His Tunisian passport was confiscated. He said there had been eight Tunisian students studying in Syria with Tunisian government scholarships and they had been treated differently from him. He also claimed that he had been expelled from the Syrian Baath Party several months after he returned to Tunisia. 4. He also said in support of his application that after arriving back in Tunisia he obtained a job with Pizza Hut Restaurants. He became a supervisor. In December 1999 the restaurant where he worked was raided by police and he was taken to the Department of Security. He was charged with working in a banned political organisation and with planning to overthrow the Tunisian government. 5. When he was interviewed by an officer of the Department of Immigration and Multicultural Affairs in connection with his protection visa application, he said he had been detained in 1999 because the 1991 charges had never been sorted out. The officer remarked that nine years seemed like a long time for investigations into his case to continue. Mr Al Ruwafi said to the officer, however, that he was under security surveillance or watch, and there was a crackdown on opposition parties like the Baath Party. He also claimed that he was tortured while in detention. He was released after a month on condition that he report to the authorities every day. He said his father was also threatened. He told the departmental officer that after this he decided to leave Tunisia. He bought a false passport. He left through the airport and travelled to Australia by way of Jordan and Indonesia. While in Jakarta he telephoned his family and found out that his father, his uncle and his brother had been detained and interrogated because he had escaped. 6. The departmental officer, the delegate of the minister, refused his application for a protection visa. Mr Al Ruwafi applied for a review of that decision on 13 December 2000. The Tribunal wrote to him in January 2001 advising that his failure to mention any of the problems when he was interviewed for the first time after arriving in Australia raised a doubt about whether his claims were genuine or not. He was provided with a copy of the tape‑recording of the initial interview. He was invited to comment on it when he came before the Tribunal. 7. On 25 February he provided a written submission to the Tribunal. In that written submission he said the Baath Party was the second most powerful party in Tunisia. He said it was banned and all of its activities were carried out in secret. He said it received a lot of support from the Syrian government and it was controlled from an office in Syria. He said the Tunisian government watched the activities of Tunisian students in Syria. It arrested those who were politically active when they returned to Tunisia. This, he said, is what happened to him. 8. In addition to Mr Al Ruwafi's own written submission, his migration agent provided a submission. In further support of Mr Al Ruwafi's application a number of documents were provided to the Tribunal. One was a copy of a Tunisian passport which had been issued on 18 December 1986 and expired on 17 December 1991. The passport was stamped with the word "Annule". Another was a fax dated 7 February signed by two people who said they knew Mr Al Ruwafi. The fax said they confirmed that he was accused of belonging to the Baath Socialist Arabic Party. It also said that party opposes the government of Tunisia. The two people who signed that fax from Tunisia said they were still under strong surveillance and inhumane treatment. 9. Another document produced was a fax signed by a Mr Al Sultani who said he was the head of Pizza Hut Restaurants. According to that fax, Mr Al Ruwafi was detained on 25 December 1999 because he was a member of the Baath Party. The fax was handwritten and did not have any letterhead. Three other documents were provided. One from the World Organisation Against Torture listed human rights abuses in Tunisia. Another was from the Arab Commission for Human Rights. Neither made any mention of the Baath Party. A third document was a copy of the index to Amnesty International's documents on Tunisia. 10. Mr Al Ruwafi attended a hearing of the Tribunal on 2 March. He was questioned at that hearing about his claims. The Tribunal told him during the hearing that it had difficulty accepting his claims. The matters put to him by the Tribunal are set out in its reasons, and I do not need to repeat them here. In its findings the Tribunal did not accept Mr Al Ruwafi's claims. It referred to the fact that he had made no mention of political problems in Tunisia when he was first interviewed on arriving in Australia. In fact he told the Tribunal that he had not had any problems in Tunisia and had come to Australia to find work and to help his family. The Tribunal did not believe that someone would travel all the way from North Africa to Australia to seek protection from political persecution and fail to mention that fact. 11. Mr Al Ruwafi had told the Tribunal that he did not mention his problems in Tunisia when he was first interviewed because he was afraid that information would be passed to the government of Tunisia and his family might face problems. The Tribunal did not accept this explanation which he gave. The Tribunal listened to the tape‑recording of the interview. Contrary to Mr Al Ruwafi's evidence he was not told that information might be sought from the authorities in Tunisia. The Tribunal believed that when first interviewed he gave a true account of his reasons for coming to Australia. It decided that what Mr Al Ruwafi had done was to make up claims of political involvement and detention in order to try to obtain a protection visa. 12. While the Tribunal accepted that some parts of what he had to say might be true, it did not believe that the Tunisian government was ever really interested in him. In particular, the Tribunal did not believe that he left Tunisia because he was afraid of persecution for political reasons. The Tribunal in its reasons discussed the evidence that Mr Al Ruwafi had given. 13. In relation to the documents which he produced, it found that they were sent at his request to try and support his claim for a protection visa. As for the fax from his former employer, the Tribunal said that there was a strong indication that it was not a genuine document. The Tribunal also rejected the suggestion that he would be at risk of persecution in Tunisia because he had applied for a protection visa in Australia."

REASONS FOR JUDGMENT LEE J: 1 This is an appeal from the judgment of a Judge of this Court which dismissed 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"). The background to the appeal, and the issues raised therein, are set out in the reasons of Carr J and it is unnecessary to repeat them. 2 The essence of the appellant's claims as made in his application for a visa was as follows: "I traveled to Syria for the period 1989-1991 for study. Due to the pressure I faced there, I was compelled to join the Syrian Ba'ath Party to avoid the surveillance and terrorism of the Syrian Intelligence and in the meantime secure a university place there. After graduation, I left Syria to return to Tunisia overwhelmed by joy to return to my country and my family. But at the airport two persons never seen by me before harassed and detained me. They forced me into a car with tinted windows while my family was happily waiting with joy to receive their educated son coming from the Arab Orient. The car took me he [sic] Department of the State Security. Soon, they isolated me in a narrow despicable and dirty cell of rotten smells nd [sic] subjected me to interrogation with beatings and insults. They directed questions about me joining the Ba'ath Party and the missions I was entrusted to carry out in Tunisia. I tried to let them understand the circumstances that forced me to join the Party. I further told them that I was intending to abandon the Party upon leaving Syria. They ordered me to reveal the names of the Ba'athists in Tunisia and the persons I would contact there. My interrogators hung my legs from the ceiling of the torture room with my head down. I appealed to them for mercy and swore by the Almighty Allah that I was telling the truth and that I had no mission in Tunisia. After two days of continuous torture, they returned me to the cell where I remained for another two months. I was released on bail and on a personal declaration to abandon the Ba'ath Party and not to leave Tunisia. Then they confiscated my Tunisian passport. Several months after my release, a Tunisian colleague working in Syria informed me that the Tunisian Students Union in Syria had decided to suspend me from the Union as I was considered a spy against the safety of Syria and the Ba'ath Party. He added that the Union was of the opinion that I had informed the Tunisian authorities of the Tunisian political activities targeting the Tunisian regime. This would expose other students to grave dangers when they returned to Tunisia. Anyhow, I took a job in the Pizza Hut restaurants of Tunisia. After a period of service, I became a general supervisor. The nature of my work would require me sometimes to sit and talk with the clients. I didn't know that I was under surveillance and that I remained a security suspect. In December 1999 I was surprised to be raided in the restaurant. The raiders took me to the Department of Security on the charge that I was still working within a banned clandestine political organization and that I, together with my colleagues planned to topple the regime and bring in a regime hostile to Tunisia. I found myself in the same security centre and subjected to the same torture on similar charges as before. After one month of suffering and horror I was released. I learned later that the Tunisian security had summoned my father and threatened him with severe punishment if I were to embark on any activity and that they would punish me irrespective of the health conditions I would be reduced to as a result of torture. Thus I left again with my bones smashed and with fear seizing me over my uncertain fate. I returned home to find my father lamenting his luck and mine. He was obsessed with the dangers to which we would be exposed in a country ruled by the dictator Ben Ali who refused to be checked by the law or by the pressure of the international community. Faced with such dismal situation, I decided to leave Tunisia and escape to a safe country leaving my father and hoping that my escape would bring upon him some sort of the peace of mind. I approached one of my relatives and asked him to help me exit Tunisia by whatever means. I knew that my relative maintained strong friendship with some of the officials of the Ministry of Interior. We managed to procure a bogus passport. That passport cost me considerable amounts of money apart from the amount I paid to the airport official who facilitated my entry into the airport without revealing my real identity. He enabled me to proceed into the plane under a false name without harassment and without arousing any suspicion. Thus, on 26 May 2000 I left Tunisia heading to Jordan." 3 The nature of the appellant's claims were such that had they been accepted, the Tribunal would have been required to determine that the appellant was a person to whom Australia had "protection obligations" within the meaning of s 36(2) of the Act, and was a person to whom a "protection visa" had to be granted under the Act. The decision of the Tribunal, involving as it did the safety and well-being of the appellant, required the Court to give close attention to the reasons of the Tribunal to satisfy itself that the decision had been made within the terms of the Act. As Lord Bridge said in Reg v Secretary of State for the Home Department, Ex parte Bugdaycay [1987] AC 514 at 531: "The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny." 4 The Tribunal decided that it could not accept the appellant's claims because they were not made at the first opportunity offered to the appellant to explain why he had left Tunisia, namely, when he was interviewed in immigration detention in July 2000 shortly after his arrival in Australia. The Tribunal said that the explanation offered by the appellant for failing to make in July 2000, the claims he made in October 2000 when he lodged his application for a protection visa assisted by a migration agent, could not be accepted. 5 Such a conclusion was open to the Tribunal although not one to be made lightly given that there may be many reasons why a person in such a position does not present at first, or even on subsequent opportunities, all material relevant to a claim to refugee status. (See: W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 89 at [17]-[19]). 6 The Tribunal said that "while I accept that there may be some elements of truth in the claims he made, I do not believe that he was ever of serious interest to the Tunisian authorities for political reasons, nor that he left Tunisia because he feared persecution for political reasons". The Tribunal described the claimed events as "unlikely" or "not plausible". For example, the Tribunal stated that it was "not plausible that a self-funded Tunisian student" in Syria would be required to join the Ba'ath Party in that country. It may be noted, however, that the Tribunal accepted that the appellant belonged to a student organisation "that had some link to the Syrian Ba'ath Party". It may be assumed that the Tribunal accepted that for several years until December 1999 the appellant was employed by "Pizza Hut" and promoted to the rank of supervisor in that employment. 7 Although the Tribunal found the claims made by the appellant as to his reasons for fearing persecution to be an unlikely account, it was not in a position to make, and did not make, any positive finding that a claimed event had been shown to be false by some probative material. There was no finding that the appellant had been dishonest or fraudulent. The Tribunal had no party before it undertaking to prove the current state of political affairs in Tunisia or the extent of the risk that a person may be persecuted for political opinion in Tunisia. The Tribunal had to assess the appellant's claims against the information to which the Tribunal had access and by the application of commonsense. 8 Importantly, however, there was material before the Tribunal which spoke directly of circumstances of possible persecution of the appellant in Tunisia and unless the Tribunal found that material to be false, it had to be included in the material considered when determining whether the appellant had a well-founded fear of persecution. 9 The material consisted of documents that had been forwarded by facsimile transmission to the appellant's adviser, namely, a letter from a friend of the appellant confirming that the appellant had been imprisoned by authorities in Tunisia for a political reason; a letter from student contemporaries of the appellant confirming that they and the appellant had been harassed by Tunisian authorities for imputed political opinion; and a letter from the "head of 'Pizza Hut' restaurants" in Tunisia, confirming that in December 1999 the appellant had been arrested by Tunisian security forces at his place of employment. 10 The respective letters read as follows according to translations provided to the Tribunal by the appellant's representative: "To whom it may concern: We, the below signatories, would like to inform you that [the appellant] was among the students who were accused of belonging to Ba'ath Socialist Arabic Party which is against the government of Tunisia. We have learnt that he had fled Tunisia. We are still under a strong surveillance and inhuman treatment. We ask the people concerned with the human rights and protection issues to help him so that he will not face persecution. With all Regards [name deleted] [name deleted] (Signed) (Signed)"

"I, the below signatory, and the head of 'Pizza Hut' restaurants, thereby certify that [the appellant] was arrested by the security forces when he was to start his job on 25/12/1999. Then we learnt that he was under surveillance because he belonged and acted in Ba'ath (Resurrection) Party which is a party acting against the government of Tunisia. Name [name deleted] (Signed)" 11 The Tribunal dealt with that material by repeating the statement of belief made earlier in its reasons, namely, that the appellant was not of interest to the Tunisian authorities for political reasons and had not left Tunisia because he feared persecution because of political opinion. The Tribunal then said: "In reaching this conclusion I have noted the faxes from his friends in Tunisia and Germany and allegedly from his employer at Pizza Hut. However, I believe that these documents were all sent at [the appellant's] request to bolster his claim for a protection visa. As discussed above, I do not find [the appellant's] claims believable and the fact that his friends have sent faxes echoing some of these claims does not alter this conclusion. With regard to the fax allegedly sent by his former employer, I consider the fact that it is a handwritten note with nothing to indicate that it comes from a relatively senior person in the Pizza Hut chain of restaurants [is] a strong indication that it is not a genuine document." 12 What is notable about the foregoing passage is that the Tribunal stopped short of making a finding that the documents were fraudulent. The statement by the Tribunal that it believed "these documents were all sent at [the appellant's] request to bolster his claim for a protection visa" was not a finding that the content of the documents was false. In stating that "[w]ith regard to the fax allegedly sent by his former employer…the fact that it is a handwritten note with nothing to indicate that it comes from a relatively senior person in the Pizza Hut chain of restaurants [is] a strong indication that it is not a genuine document", the Tribunal hinted, but shrank from making a finding, that the letter was forged. (See: Bastanipour v Immigration and Naturalization Service 980 F.2d 1129 (7th Cir. 1992) at 1132.) 13 That letter did state that it was written by the "head of 'Pizza Hut' restaurants" in Tunisia and, importantly, described how the appellant had been seized at his place of employment. Perhaps by saying that there was "nothing to indicate that it comes from a relatively senior person in the Pizza Hut chain of restaurants" the Tribunal was attempting to suggest that any presumption of regularity that may attach to a document on a "Pizza Hut" letterhead did not arise in this case. Obviously the letter could not be found to be a forgery merely because it was handwritten or because it was not written on a "Pizza Hut" letterhead. 14 It may also be noted that the Tribunal did not put to the appellant, or the appellant's adviser, any doubts the Tribunal held about authenticity of the corroborative material presented to the Tribunal on behalf of the appellant. Before the Tribunal could make a finding on the probity of that material, it had to have before it material relevant to that issue. If the Tribunal thought that before it made a decision on the application it would be appropriate to make further enquiries to test the veracity of the documents, there would seem to have been little impediment to the Tribunal so acting. For example, the appellant's adviser could have been asked to obtain a further letter from the "head of 'Pizza Hut' restaurants" on a "Pizza Hut" letterhead, or to identify the source from which the facsimile transmissions had been generated and explain how that source had possession of the documents transmitted. 15 Unless the Tribunal had some probative material on which it could determine that the documents were fabricated, then before the Tribunal could resolve whether, on the whole of the material before it, it was satisfied that the appellant had a well-founded fear of persecution if returned to Tunisia, the Tribunal had to take into account the possibility that the foregoing documents represented a true account of the appellant's circumstances. That is to say, in the absence of a positive and reasoned finding that the documents were forgeries, the Tribunal, in determining whether the appellant had a well-founded fear of persecution, had to consider the possibility that the documents were genuine and the contents true. (See: Abebe v Commonwealth of Australia (1999) 197 CLR 510 per Gleeson CJ, McHugh J at [83] - [85]; Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ at 576; W396/01 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 103 at [33].) The content of the documents had direct connection with the grounds relied upon by the appellant for his claimed fear and the prospect of the future occurrence of events of a persecutory nature. Obviously, if there was a possibility that the accounts provided in those documents were true, that material had to be considered to determine whether the appellant may face a real risk of persecution if returned to Tunisia and, therefore, whether his fear of persecution was well-founded. The Tribunal erred in law in refusing to have regard to the content of the documents when it determined that the appellant did not have a well-founded fear of persecution. 16 As the Court of Appeal stated in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 per Brooke LJ at 469-470 (Robert Walker LJ concurring): "For the reasons much more fully explained in the Australian cases, when considering whether there is [a real risk] of persecution for a convention reason if an asylum-seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur." 17 The reasons provided by the Tribunal for its decision that it was not satisfied that the appellant had a well-founded fear of persecution for political opinion, revealed that in making that decision the Tribunal removed from the balancing process a critical part of the material relied upon by the appellant. The Tribunal purported to exclude that material from its consideration because it had not been persuaded by other material before it that the appellant had such a well-founded fear. As noted above, this was not a case where the Tribunal, on probative material, made positive findings of fact necessarily destructive of the appellant's case, thereby permitting the Tribunal to rely on those findings to find further that the documents presented by the appellant were forgeries. It followed that that decision-making process carried out by the Tribunal was flawed in a fundamental respect, the Tribunal not having considered relevant material it was required to consider. 18 In failing to carry out the decision-making function in the manner required by the Act, the Tribunal acted without jurisdiction (s 476(1)(b)), or authority (s 476(1)(c)), or made an error of law by misinterpreting the meaning of "well-founded fear of persecution" or by failing to apply the relevant law correctly to the facts (s 476(1)(e)). (See: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 per Gleeson CJ at [10], McHugh, Gummow, Hayne JJ at [76]‑[85].)

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Judgment (11 paragraphs)

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